Appeal from the Circuit Court of Cook County; the Hon. Earl E.
Strayhorn, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Alonzo Lewis, was convicted of two counts of rape, two counts of deviate sexual assault and burglary. Defendant was sentenced to concurrent prison terms of two 25-year terms for rape, two 25-year terms for deviate sexual assault and one seven-year term for burglary. Defendant contends on appeal that: (1) the trial court erred in finding him restored to mental fitness to stand trial solely on the basis of stipulations; (2) defense counsel's acquiescence in this regard constituted ineffective assistance of counsel; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred in admitting evidence of another offense allegedly committed by defendant; (5) the trial court erred in admitting into evidence a mug shot of the defendant; (6) the trial court erred in refusing to take judicial notice of the times of the setting of the moon and the rising of the sun on a given day; (7) the trial court erred in restricting the cross-examination of the arresting officer.
This appeal arises from defendant's second trial for the charged offenses. He was originally brought to trial before Judge Gino Di Vito on November 5, 1979. As that trial progressed the court noted that defendant's behavior was extremely passive and that defendant was frequently sleeping through the proceedings, creating a bona fide doubt as to his fitness to stand trial. A fitness hearing was held pursuant to section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-1). Dr. Eugene Stern testified that in his opinion defendant suffered from paranoid schizophrenia and was in need of medical treatment as defined by the statute. In Dr. Stern's opinion the defendant was not fit to stand trial. Thus, the court declared a mistrial on November 9, 1979.
On June 19, 1980, proceedings were held before Judge Earl E. Strayhorn regarding defendant's restoration to fitness for trial. Counsel for each party stipulated that Dr. Gilbert Bogen had examined defendant on March 25, 1980, and if called to testify Dr. Bogen would state that the defendant was on that date mentally fit for trial. It was also stipulated that Dr. McGiven had examined defendant on February 28, 1980, and had found him sufficiently recovered to stand trial. No other evidence was presented. The court found defendant restored to fitness stating:
"Based upon these stipulations, there will be a finding that Alonzo Lewis understands the nature of the charges pending against him, is able to cooperate with counsel in his own defense; is therefore, legally fit to be tried on this criminal case and the Court so finds."
Subsequently, the matter proceeded to trial. On July 12, 1978, the complaining witnesses, Rosie and Shirley and their husbands, Johnny and Willie (who were brothers), were living together, along with Rosie's two-year-old child, in a second-story apartment on West Washington Street, in Chicago. During the early morning hours, the women and the child were alone in the apartment while their husbands were at work. About 1:30 a.m., Rosie got up and walked to the bathroom. Suddenly, a man with a silk stocking over his head grabbed her face from behind the bathroom door. Rosie testified that she could see his features through the mask, and that he was clean-shaven, young and black. She ran through the apartment to the dining room where Shirley was asleep on a sofa-sleeper. The intruder chased her, cutting her beneath her right eye with a knife, and pushed her onto the sofa-sleeper with Shirley. As Shirley began to turn over, the man commanded her to remain face-down. With his knife at her throat, he ordered Rosie to lie face-down and put a pillow over her head. He told her not to move or he would kill Shirley.
The man then ordered Shirley and Rosie to put their hands behind their backs and tied Rosie's hands together with one leg tied to her hands. Then he gagged Rosie and asked her if there was any money in the apartment. When Rosie indicated that there was none, he told her would put her baby in the oven if she were lying.
Rosie testified that the man went to Shirley's side of the bed and she could hear Shirley crying and the man calling her obscene names while the bed moved. He returned to Rosie's side of the bed, pulled her to the foot of the bed, cut the rope from her leg and ripped off her panties. He tried unsuccessfully to have anal intercourse with Rosie.
Thereafter he went into the kitchen and turned on the light. Rosie testified that this also created more light in the dining room. She heard the man remove the burglar bars from the backdoor and open the refrigerator. He brought some chicken from the refrigerator into the dining room and sat down at the dining room table to eat it. Rosie was able to see the intruder's face for about two minutes as he ate. He was no longer wearing a mask. She identified defendant at trial as the same man.
When defendant finished the chicken, he returned to Rosie and turned her onto her back. He had nothing covering his face. He tore off Rosie's nightgown and placed his penis in her vagina. At that time his face was a "couple of inches" from her and she observed him for three or four minutes. She testified that the defendant looked different at trial because he had grown a beard and mustache and had gained some weight.
Eventually defendant untied Rosie but told her not to move or he would kill Shirley. He went to Shirley's side of the bed. The bed began moving again and Rosie could hear Shirley crying. At that point, Johnny and Willie turned the lock in the front door and the intruder fled out the back. Rosie got up to let the men in and noticed that the chain had been put on the front door and that someone had placed a chair in front of the door. The apartment had been thoroughly ransacked; things had been thrown all over and some toiletries were missing from the bathroom. Rosie testified that the bathroom window was the only window or door that had not been locked that night. Rosie testified that toothpaste, draincleaner and Comet were missing from the bathroom window sill.
Shirley's testimony corroborated Rosie's testimony. She stated that after the defendant had tied her hands together and one foot to her hands, he pulled her to the foot of the bed by the rope, cut her on the leg and said that she was acting stubborn. He tore her panties off and had anal intercourse with her for about five minutes. Later she heard him make an obscene remark to Rosie and then go into the kitchen. Following more obscenities to Rosie, the intruder returned and placed his penis in Shirley's vagina for about five minutes. He stopped and fled when he heard the front door being unlocked.
The police were called immediately and three or four officers came to the apartment. Rosie testified that she could not say anything to them at that time because she was crying. The two women were taken to Loretto Hospital where they were examined and treated. Michael Zefeldt, a microanalyst for the Chicago police department, testified regarding slides (smears) taken from the vaginas of both women. The slide taken from Rosie showed the presence of spermatozoa; the one from Shirley did not. This was consistent with the women's testimony that the defendant had told Rosie that he had ejaculated. Shirley testified that he had not ejaculated while raping her.
On September 30, 1978, the women went to the police station to view a lineup. Rosie testified that she saw five men in the lineup and that she immediately identified the defendant as the man who had raped her.
Shirley testified that she was not able to see the intruder's face for a prolonged period of time, but that she had heard his voice throughout the episode. When she viewed the lineup, the police had requested each man to repeat words used by the rapist, and Shirley identified the voice of defendant. She also identified defendant in court as the same man she had pointed out in the lineup. Shirley testified that she and Rosie had viewed the lineup separately.
Officer Mary Lewsader of the Chicago police department testified that on July 12, 1978, she went to the apartment to investigate a rape complaint. She went into the bedroom with Rosie and Shirley and their husbands. She testified that one woman was sitting on the bed staring into space and that the other was standing by the closet crying. Both were extremely upset and unable to speak coherently. Eventually, she was able to get a composite description of the rapist from the two, but she was unable to recall which woman gave her which information. According to the composite, their assailant was six feet two inches tall and weighed 165 pounds.
Over objection by defense counsel, Diane testified that on September 14, 1978, she was living in a second-floor apartment on North Central Avenue in Chicago, on the same block as the complainants' apartment. At 5 a.m. her husband left for work and she got up and locked the door. There were only two windows in the apartment and one was locked and the other was blocked by a window fan. The witness testified that she returned to bed but was awakened when she suddenly saw a man standing over her. He was holding a knife and his face was partially covered by a white handkerchief. She testified that there was daylight in the apartment. The man asked her for money and told her not to turn around or he would kill her. He put a pillowcase over her face and tied her hands and feet. He had vaginal intercourse with her as she lay on her back. He then pulled her out of bed to her knees and had anal intercourse with her. She heard him rummaging around the apartment, pulling out drawers. He opened the refrigerator and she heard him open and drink a can of beer. She asked him to take her to the washroom which he did. When she no longer heard him in the apartment, she freed herself and called the police. She testified that her apartment was "tore up, clothes and drawers and stuff was allover." In addition, two chickens, sausage, hot dogs, and lunchmeat had been taken from her refrigerator. She went to Loretto Hospital for treatment.
About two weeks later, a police investigator showed Diane some photographs, including a 1977 mug shot of the defendant. He covered the bottom half of the faces with white paper. She identified the photo of the defendant as her attacker. At trial she again identified the photograph and identified the defendant. On cross-examination, Diane testified that the investigator had covered only the photograph of the defendant when she originally viewed them. However, on redirect she testified that the bottom halves of all the photographs had been covered. The investigating officer testified that he had covered all the photos from the nose down when showing them to Diane. Diane testified ...