APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Brad Lieberman, was found guilty by a jury of the offense of rape and was sentenced to an extended term of 50 years imprisonment. Defendant raises as issues on appeal whether: he was denied due process by the State's inquiry into and comment upon his post-arrest failure to disclose his alibi; he was denied a fair trial by certain evidentiary rulings of the trial court; the trial court's response to an emotional outburst by a prosecution witness was prejudicial; the substitution of an alternate juror for a juror on the final day of trial was error; the State's closing argument denied him a fair trial; he was proved guilty of rape beyond a reasonable doubt; and the 50-year extended term imposed upon him was proper.
The victim testified to the following facts. On December 17, 1979, at about 11:30 a.m., as she was checking her lobby mailbox, a man, 6' 2'' tall, 210 pounds, light brown hair and wearing a maroon windbreaker with the name "Wilson" written across the chest, blue jeans and a blue T-shirt, approached her. She identified him as defendant. He flashed a badge inside a wallet, said he was a policeman and a part-time plumber employed by her building, and told her that there was a leak in her apartment he needed to get to. They both went upstairs to her apartment where the victim told him about some of the plumbing problems she had been experiencing. While defendant toured the apartment looking for leaks she observed his face. Defendant went into her bedroom, looked in the closet and told her that the closet would have to be emptied so he could get to the leak. She answered the telephone and told the caller, her roommate, Maria Hemzo, that there was a plumber in the apartment and she would call back. Defendant told her that he had to find his crew and left. He returned 3 minutes later and said that they would have to empty out the closet.
As she started emptying the closet, defendant grabbed her from behind, put a knife up against her throat and told her not to struggle or he would kill her. He told her what was going to happen and not to do anything or she would be hurt. He said that he had to cut up another girl before so that she should just relax and it will be all over. He had her pull down the window shades, take off her clothes, lie on the bed, and close her eyes, occasionally threatening to kill her if she did not obey. She started crying, and said "please go, please leave." He put his mouth to her vagina and then had intercourse with her. She opened her eyes and had a "very good" look at his face. He told her he would come back and cut her up with a knife if she were to call the police.
She was with defendant for a total of about one-half hour. Defendant did not try shielding his face from her until he got into bed. People's exhibit No. 8 was identified as the black leather case and silver star defendant flashed to her in the lobby. She did not recall whether there was also a picture in the wallet. Right after the incident, when she spoke with the police, she could not remember whether it was a badge or shield. People's exhibit No. 9 looked like the knife defendant wielded. She told the police after the incident that the weapon was a "long metallic pointed object" but did not use the word "knife".
After a few minutes, she telephoned her roommate and said that she had been raped by the plumber. Later, she was examined at the St. Francis Hospital in Evanston. It was stipulated between the State and the defense that an extracted vaginal smear indicated the presence of sperm.
On January 4, 1980, she identified defendant as her assailant in a lineup. At trial there was no question in her mind that defendant was the man who raped her.
The testimony of Maria Hemzo, the victim's roommate, concerning the substance of her interaction with the victim on the day of the incident was substantially consistent with the victim's testimony.
Three other witnesses testified without objection about incidents involving defendant occurring on various days, September 12, 1979, November 16, 1979, and December 10, 1979. In each incident defendant: approached the witness near her residence; asked each if she lived in or owned the building; and held himself out to be a plumber. In two of the incidents, the witnesses believed defendant's representation and allowed him to come into their apartments. Once inside, defendant told them that the bedroom closet would have to be emptied to fix the leak. As the witnesses began to remove clothes from the closet, defendant grabbed their throats from behind, told them to take off their clothes, to close their eyes, and to relax. One witness stated that defendant had a knife like People's exhibit No. 9 in his hand. Defendant had non-consenting intercourse with each of them. Both witnesses identified defendant as their assailant at a pretrial lineup. In the third instance, the witness told defendant that she was the owner of the building and that no plumbing work needed to be done. Defendant left. She described defendant to police as white, in his early twenties or 25, sandy brown hair, 200 pounds, about 6'2", and clean shaven.
Ernest Halvorsen, the investigating police officer, stated that the third witness described the suspect as being between 25 to 27 years, 6'1" or 6'2", 190-200 pounds, and having light brown, neatly trimmed hair. After speaking with the third witness, he and his partner stopped defendant in his car. Defendant told him that: he was living with his father in Skokie; he was in the area to visit a friend named Mike who was the manager of the Jewel on Morse; and at one time he worked as a security guard at a nearby Community Store. The officers let defendant proceed. The next day, Halvorsen received a composite photograph that resembled defendant. Thereafter, he and his partner went to the Morse Avenue Jewel, but discovered that no employee there was named "Mike." Two weeks later, defendant was apprehended and placed into custody.
Evidence was adduced showing that a steak knife, identified as People's exhibit No. 9, was found underneath the driver's seat of a car registered to defendant's father but driven on occasion by defendant. In the center console of the car, three badges and a badge holder were found: one was issued by Lutheran General Hospital, another was a patrolman's star, and the third was a silver star in a black leather wallet.
Defendant's mother testified that on December 17, 1979, her son was at her home in Des Plaines from about 10:10 a.m. to 1:40 p.m. at which time her son went to work. On September 12, 1979, defendant arrived at her home for dinner at about 2:30 p.m. and stayed until about 6:30 p.m. People's exhibit No. 21, a badge and identification card inside a folded wallet, looked like it belonged to her son. Neither one of the other two resembled his badges.
Defendant's fiancee stated that on December 16, 1979, defendant spent the night at her apartment. The next morning at about 10 a.m. they left in separate cars. Defendant went to his mother's house.
Defendant, age 20, stated that he had never been inside the victim's apartment and that he did not rape her. Defendant did not rape or converse with the other two women who claimed he raped them. On November 16, 1979, the day of one of the alleged rapes, he was at his fiancee's apartment and later in the afternoon he went to work at Lutheran General Hospital. When shown a time card from this hospital, he stated that he "apparently" did not work that day. He did not see or speak with the third witness on December 10, 1979. The knife found in his car was used to repair speaker wires. He used the "Crosstown Security" badge found in his car when he worked at Marshall Field's.
Defendant contends that the State's cross-examination of his failure to disclose his alibi to the police after his arrest and comment on that silence during final argument constituted reversible error, relying upon Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L.Ed.2d 91, 98, 96 S.Ct. 2240, 2245, and People v. Green (1979), 74 Ill.2d 444, 386 N.E.2d 272. In each it was held that the constitution forbids the prosecution from using evidence of a defendant's post-arrest silence for purposes of impeaching an exculpatory alibi offered at trial. Defendant assigns error to the following cross-examination:
"Q. [State's Attorney]: Did you tell them that you were with your mother on the 17th, yes or no?
Q. Did you tell them you were with anybody on November the 16th when * * * [another named person] was raped?
Q. Did you tell them that you were with anybody on September the 12th when * * * [still another ...