Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Melvin Guyon, was found guilty of aggravated kidnaping, rape and armed robbery of Josephina. His co-defendant, Michael Guyon, was found guilty of aggravated kidnaping, rape, deviate sexual assault, and armed robbery of Josephina's sister, Alicia. Motions to sever their trials and to suppress information, filed by both defendants, had been heard and denied prior to trial.
On appeal Melvin argues that (1) the trial court erred in refusing to allow him to introduce evidence of other crimes committed by Michael, as well as in denying the motion to sever the trials of the two brothers; (2) the trial court improperly restricted Melvin's closing argument as well as his cross-examination of one of the State's witnesses; (3) references to other crimes of Melvin were improper; (4) the prosecutor's improper arguments during closing argument denied Melvin a fair trial; and (5) the court abused its discretion in sentencing Melvin to extended terms of 45 years on each count, consecutive to his prior Federal sentence of life imprisonment.
Michael Guyon argues on appeal that (1) the State failed to prove his guilt beyond a reasonable doubt; (2) a new trial is necessary since the trial court erred in denying his motion in limine to prevent the introduction of his prior conviction for impeachment purposes; and (3) the prosecutor's improper comments and argument denied defendant a fair trial.
In the early morning hours of September 17, 1978, Josephina and Alicia were returning home from a discotheque where Josephina worked as a waitress. Alicia had been dancing at the discotheque since 8 or 9 p.m., and had had six or seven mixed drinks in the course of the evening. As they walked toward home at 6 a.m., a man approached them, pulled out a small gun and forced them into a car parked in an alley. Although Alicia testified that she was afraid to look at the man, both women identified this man from a photo array, a lineup and at trial, as Michael Guyon.
Michael traded places with Melvin, the driver of the car, who got into the back seat with Alicia and Josephina. Both women identified the second man from a photo array, a lineup and at trial as Melvin Guyon. He had a small knife which he kept pointed at Alicia. Alicia was crying with her head in Josephina's lap. Michael told her to "shut up."
They drove to a parking lot near 43d and Halsted streets. Michael took the knife from Melvin and told Alicia to climb over the seat and to take off her underclothes. After she did so, he ripped her skirt up the front. Alicia offered him $7 and her jewelry not to harm her. He took the money and then had forcible sexual intercourse with her. Alicia was crying and bleeding and Michael asked Melvin for some tissues for the blood.
Melvin ordered Josephina to undress and forced her to engage in sexual intercourse. He then took $5 or $6 from Josephina's wallet. The men allowed the women to dress and gave them each 30 cents for bus fare. The men threatened to hurt them if they told anyone about the incident. The ordeal had lasted about 30 to 40 minutes, and Josephina testified it was still dark when they were released. Alicia testified that it was getting light.
The women took a bus to 35th and Halsted streets. Alicia was in a state of shock when the two went into a restaurant. Alicia entered the restroom and Josephina told two policemen who were in the restaurant that they had been raped.
Officer Lenore Flaherty of the Chicago police department came to the restaurant. She testified that Alicia was hysterical and told her only, "I was a virgin." Josephina told Officer Flaherty that they had been raped, and described the offenders and their car. The man in the front seat was described as black, 24 to 28 years old, black hair, brown eyes, approximately 190 pounds, black pants, brown sweat shirt with the sleeves cut off, black hairnet, and missing a bottom tooth. He said his name was "Jack." He had a small gun. Officer Flaherty did not remember being told that he had a mustache or a goatee, although Josephina remembered saying he had a mustache.
The man in the back seat was described as black, 20 to 24 years old, six feet tall, black hair, brown eyes, 180 pounds, black pants, black mesh shirt, black hairnet and crooked teeth. Josephina did not remember if she said he had hair on his chin.
The car was described as a late model, blue, with power windows, cloth seats and a box of yellow Puffs tissues in the back window. The back window had black lines on it. Officer Flaherty testified that Alicia told her there was blood on the front seat. At trial, Alicia did not remember that and denied it. Neither sister described a C.B., C.B. equipment, eight-track tapes, initials on the dashboard or a dent on the side of the car.
Officer Flaherty drove the women to Mercy Hospital where they were examined by a gynecologist, Dr. Jose Balboa. He testified that his examination of Alicia revealed a tear in the hymen with active bleeding. His examination of Josephina revealed no injury. His examination of slides from both women's vaginal areas did not show sperm. Other slides were delivered to the microanalysis unit of the Chicago Crime Laboratory along with Alicia's skirt and panties. Michael Ziefeldt, an employee of the laboratory, testified that he examined the slides and found sperm. Alicia's clothing revealed blood but not sperm. The clothing and slides were admitted into evidence.
On September 18, 1978, two investigators for the Chicago police department, Raymond Luth and Gerald Slattery, visited Alicia and Josephina and obtained a description of the offenders and their vehicle. The women did not mention a mustache or a goatee or that the car had a C.B., eight-track tapes or initials on the dashboard. On September 20, 1978, the sisters viewed photographs in two to 10 books and identified no one. At trial Luth testified on cross-examination that Michael's picture could have been in one of those books.
On September 23, 1978, Alicia and Josephina viewed a lineup and a blue car but made no identification. Both identified a photograph of a blue car with license number TA 7142 and a box of yellow Kleenex in the back window as the car of their attackers.
On October 3, 1978, Michael Guyon was arrested for abducting a 4 1/2-year-old girl. Over objection of counsel for Michael, the arresting officer was allowed to testify regarding the circumstances of the arrest as long as he did not use the word "abducted." The officer testified that when he arrested Michael Guyon with the 4 1/2-year-old girl he was driving a blue car and wearing a black hairnet. A gun and shells were recovered from the floor of the front seat of the car. At trial, Josephina testified that the gun from the car looked like the one her assailant had used. A pocketknife taken from the car was also identified by Josephina.
The officer testified that when the car was impounded it had another knife, wires, a tape deck and tapes on the transmission hump. The parties agreed that evidence of the second knife could not be introduced at trial. A swab of unknown substance from the front passenger seat was submitted to a microanalyst for analysis. He found neither blood nor sperm.
Michael's wife, Donna Guyon, testified that their car was a 1977 Chevrolet with defroster lines on the back window. It had eight-track tapes, a tape player, a C.B. radio and red wires on the front window relating to the C.B. There were initials, M.D.Z., on the dashboard. On cross-examination, one of the prosecuting attorneys asked whether she had a four-year-old daughter in 1978. Counsel for Michael objected and the objection was sustained.
The arresting officer testified that Michael was wearing a black hairnet when arrested and placed in the police lockup.
On October 4, 1978, Alicia and Josephina viewed a lineup of five black men including Michael. They also viewed his car and the black hairnet taken from him when arrested. The sisters viewed the lineup separately and each identified Michael as the man who had initially accosted them and raped Alicia. Front and side views of the lineup were admitted into evidence.
Josephina testified she identified the car and the hairnet after the lineup. She identified People's exhibits Nos. 9 to 14, for identification, as pictures of the car. She mistakenly identified pictures of the car she saw on September 23, 1978, as the same car she saw on October 4, 1978, and mistakenly testified that both cars were the same. She had made the same error at the pretrial hearing. She testified that the yellow tissue boxes in the rear windows of the two cars were the same.
Alicia identified People's exhibits Nos. 9 to 11 and 14, for identification, as pictures of the car. She testified that the car was not the same car she had viewed on September 23, 1978; that both cars had yellow tissue boxes but that the boxes were different.
Alicia testified that she identified the hairnet and the car before viewing the lineup in which she identified Michael. Investigator Luth testified that he showed the sisters the hairnet and the car and that they identified both. However, none of the police reports mentioned the hairnet. Luth testified, in explanation, that there had been a multitude of reports concerning many things on October 4, 1978. Michael moved for a mistrial based on this remark. The motion was denied. The court also denied repeated requests by counsel for Melvin to question Luth regarding whether, following Michael's arrest, his wife, Donna, gave Luth information leading to Melvin's arrest.
On October 7, 1978, Luth contacted the Cleveland police department regarding Melvin. On October 14, 1978, Alicia and Josephina were shown separately eight black-and-white photos including one of Melvin taken on March 1, 1978. Prior to showing the photos, Luth covered all the writing on them with white paper. Both sisters identified Melvin in separate showings.
On October 16, 1978, Luth obtained warrants for Melvin's arrest. On October 18, 1978, Luth procured a warrant for Melvin for unlawful flight to avoid prosecution. On March 18, 1980, Luth and another investigator brought Melvin from Marion, Illinois. Both Alicia and Josephina identified him separately from a lineup with four other men.
Michael's and Melvin's indictments were consolidated on the motion of the State and over the objections of both defendants. Prior to trial, both defendants moved for a severance on the ground that Melvin intended to show that Michael and an unidentified party had committed rapes and kidnapings in the same area of the city and around the same period of time as the offenses against Alicia and Josephina. Melvin alleged that these other acts constituted a modus operandi, as well as tending to prove that he had been misidentified, and thus would be admissible as tending to prove Melvin's innocence, and, therefore, the defenses of Melvin and Michael were in conflict. Both defendants also moved to sever on the ground that they would be prejudiced by their filial relationship. In response, the State made a motion in limine to preclude the use of evidence of other rapes involving Michael Guyon. Following a hearing, the court granted the State's motion in limine and denied defendants' motions.
During trial, the court allowed testimony, objected to by Michael, concerning the circumstances of his arrest including the discovery of a 4 1/2-year-old girl in his car.
During trial Michael made a motion in limine to exclude admission of a long black kitchen knife, which had no relation to the case, that had been found in his car. Although the State agreed to the motion, at trial the prosecutor asked Michael's wife if she could identify the knife. She testified she had never seen it before, and it was not admitted into evidence. Nevertheless, during closing argument the prosecutor held the knife up to the jury and claimed that defendant had had it with him during the rapes for reinforcement. Defendant's objection was sustained.
During the State's closing argument the prosecutor referred to Melvin's presence in Marion, Illinois (the location of a Federal penitentiary), when arrested. The prosecutor also referred to the defendants as "jackals * * * waiting for their prey," "barbarians," and "guards at the gates of hell." In addition, he stated: "It's not a responsibility to defend him, he carries with him the presumption of innocence, but that presumption is stripped from them [sic] when the case has been proven, and it has been proven. When you go back to the jury room that presumption of innocence is ripped off of them like any shroud that cowards hide behind." These remarks were objected to by defense counsel and, in most instances, the objections were sustained. Defendants' motions for mistrial on the basis of the improper remarks of the prosecutor were denied.
The jury entered verdicts of guilty on all counts and the court entered sentences on the verdicts. Melvin was sentenced to 45 years on each count, the sentences to be concurrent but consecutive to a prior sentence of life imprisonment. Michael was sentenced to 60 years on each count ...