Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 5, 1983.
Following a jury trial, defendant was convicted of attempted rape, armed robbery, and armed violence based upon attempted rape (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 18-2, 33A-2) and sentenced to extended concurrent terms of 40 years on the armed robbery and armed-violence convictions. Because the attempted-rape charge was the predicate offense of the armed-violence charge, no sentence was entered on the attempted-rape conviction. On appeal, defendant contends that: (1) he was denied his constitutional right to counsel at the lineup; (2) the trial court abused its discretion in denying defendant's motion in limine to exclude the use of his prior rape conviction for impeachment purposes; (3) he was denied his right to a fair trial by the State's improper cross-examination of defense witnesses regarding their prior convictions and also by the State's improper closing argument; (4) his conviction for armed violence must be reversed because (a) the indictment failed to allege the length of the knife blade, an essential element of the offense, (b) the jury was not instructed as to the definition of "dangerous weapon" and also made no findings as to the length of the blade, and (c) the State failed to produce any evidence that the knife blade allegedly used during the underlying offense was in fact a dangerous weapon as defined by the statute; and (5) the trial court erred in not vacating the attempted-rape conviction. For the reasons that follow, we affirm the convictions for armed robbery and armed violence predicated upon attempted rape and vacate the judgment for attempted rape.
Prior to trial, the trial court denied defense counsel's motions in limine: to suppress confession, to suppress in-court identification and to prohibit reference to defendant's prior conviction for rape. For purposes of this appeal, only the motions to suppress lineup identification and to prohibit reference to the prior conviction are pertinent. With respect to the lineup, defendant testified that on December 16, 1980, while incarcerated at Cook County jail on an unrelated charge, he was asked to participate in a lineup. Prior to the lineup, defendant was neither advised of his rights nor given permission to contact his attorney.
State's Attorney Irving Miller testified that on December 16, 1980, he was assigned to the felony review unit at Cook County jail. Prior to the lineup in which defendant participated, Miller called the public defender's office and requested that a public defender be present at the lineup. Although Miller had been informed that a particular public defender had previously been assigned to defendant on an unrelated pending charge, Miller made no attempt to find out the name of that public defender. Miller further stated that the indictments charging defendant for the offenses committed against complainant in the case at bar were not filed until after the December 16 lineup.
Thereafter, defense counsel argued his motion in limine to prohibit reference to defendant's prior rape conviction on the ground that the resulting prejudice to defendant would far outweigh any probative value. In response, the State argued that the conviction satisfies the prerequisites for admissibility of prior convictions for impeachment purposes set forth in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. When the court denied defendant's motion, defendant presented a supplemental motion requesting the court to confine reference to defendant's prior conviction to "felony," with no mention of rape. The court denied defendant's supplemental motion, stating, "If it is permitted for impeachment purposes, the fact of a conviction of a particular offense is the thing that is permitted."
At trial, complainant testified that on November 24, 1980, approximately 2 or 2:30 p.m., she was walking in the vicinity of Princeton and 62nd Street in Chicago when defendant approached her from behind and asked, "Don't I know you?" Just before entering the viaduct walkway immediately ahead, complainant turned to see if she recognized defendant. When she did not, she shook her head "no" and kept walking. Defendant then ran up beside her and put his arm around her shoulder. When she pushed his hand away, he grabbed her tighter and told her to be cool. At this point, complainant saw a knife in his pants, which she described as follows: "The handle of the knife was in the pants — part of the handle was in the pants and he had his hand over it." The blade "was up about on his stomach." Complainant then stood up and showed the jury the position of the knife, adding that the blade was "big."
Defendant then asked complainant how much money she had. She started to take her wallet out of her purse when a car approached them. Defendant turned her around so that they were headed back toward the vacant lot and told her to put the wallet back in her purse. With his arm firmly around her, defendant led complainant toward a two-story building located on the other side of the vacant lot. When they walked up the stairs of the building, defendant asked complainant if she had any keys to the building. When she indicated that she did not, defendant pulled some keys out of his own pocket, but never actually attempted to enter the building. While he was reaching for the keys, complainant pulled back, but defendant grabbed her and held her tighter, leading her back down the building stairs and toward the viaduct. Before reaching the viaduct, defendant led complainant into a vacant lot and over to the back stairway of the apartment building. The stairway was concealed from the street by a shed. Complainant gave defendant her money, hoping he would leave. However, defendant forced her to sit on the stairs and told her to pull down her pants. She then noticed that he had an erection. In an effort to stall for time, complainant asked if she could unfasten her jacket first. After doing so, she sat down on the stairs, hoping he would just leave with her money. However, he again told her to take down her pants. By this time, defendant had removed the knife from his pants and was holding it in his hand. After she unfastened her pants, defendant laid the knife on one of the stairs above her. She then told him that she had to stand up in order to pull down her pants. As she stood up, she turned slightly and grabbed for the knife. Defendant grabbed her and they tumbled down the stairs. He then pulled her hand behind her and gained possession of the knife. As a result of the struggle, complainant received knife wounds on her hand and thumb.
Defendant then pushed complainant into a sitting position on the stairs, angrily pushed her face with his hand, and pulled her knit cap down over her eyes. When she pulled the hat back up, he pulled it down again even further. At this point, complainant realized the the farther down the hat was pulled, the better she could see through the stretched knit. As a result, she left it pulled down and was able to get a clear look at defendant. Defendant then told her to pull down her pants. When she did, he ripped open her blouse and started fondling her breasts. Then, while standing in front of her, with the knife in one hand and his penis in the other, defendant attempted to penetrate complainant. However, he lost his erection and failed to complete the attempt.
Defendant then noticed the gold chain around complainant's neck. After she pleaded with him not to take it because of its sentimental value, defendant put on a pair of black leather gloves, trimmed with gold zippers and rings, and started to go through her purse. He took some money, told her to stay where she was, and walked away. Less than a minute later, he came back, took her gold chain and left.
After dressing and picking up her purse contents, complainant called the police from a nearby mini market. When they arrived, she described her assailant as male with black curly hair, dark brown complexion, 5 feet 11 inches to 6 feet tall, 160 to 170 pounds, wearing brown polyester pants, tan leather jacket and black leather gloves, trimmed with gold zippers and rings. Complainant did not see her assailant in person again until December 16, 1980, *fn1 when she identified defendant from a six-person lineup. At trial, complainant identified defendant from a photo taken of the December 16 lineup, identified him in the courtroom, and also identified a pair of black leather gloves found next to defendant at the time of his arrest as the gloves that her assailant wore.
Next, Officer Allen McDonald of the Chicago police department testified that on November 25, 1980, while conducting a foot search of a building gangway in the vicinity of 1220 W. 57th Street, Chicago, he discovered defendant concealed under a rear stairwell. Upon searching the stairwell area, McDonald found two black leather gloves, trimmed with gold zippers and rings, and a folding knife with a silver blade and brown handle. McDonald placed defendant under arrest for a charge unrelated to the case at bar and advised him of his rights. At trial, McDonald identified the knife, which he described as having a 4 1/2-inch blade, and the gloves as those items which were found next to defendant at the time of his arrest. On cross-examination, McDonald characterized the knife as a pocketknife. He did not know if any fingerprints were taken from the knife.
Detective Charles Slattery of the Chicago police department then testified that on November 24, 1980, he was assigned to investigate the crime committed against complainant. As a result, he conducted a search of the back stairway area of the two-story apartment building on South Princeton and found three white buttons with thread remnants in the holes.
The State then rested its case and the court denied defendant's motion for a directed verdict.
Next, Clarietha Banks, defendant's fiancee, testified that defendant arrived at her house on the evening of November 23, 1980, and stayed through the next day. On November 24, approximately 1:30 or 2 p.m., Banks and defendant walked to the house of Debra Ashley, a friend, and from there all three walked to 59th and Ashland to do some shopping. Approximately 2:45 p.m., they entered "Utopia," a store which sells clothing and toys. One of the salesmen at Utopia, Jim Clark, waited on defendant and it appeared to Banks that defendant and Clark knew each other. They remained in the store for approximately 30 minutes, after which they continued shopping elsewhere, returning to Banks' apartment approximately 6 p.m. She never saw defendant wearing a tan leather jacket.
When shown the black leather gloves on cross-examination, Banks admitted to buying similar gloves for defendant and that defendant wore the gloves on November 24, 1980. On redirect, Banks stated that she has seen other people wearing similar gloves.
Next, Debra Ashley, acquaintance of defendant for approximately one year, testified that on November 24, 1980, defendant and Banks arrived at her apartment approximately 2:15 p.m., at which time they left to go shopping. They arrived at Utopia approximately 2:45 p.m.
On cross-examination, Ashley admitted that she had been convicted of theft twice, once in 1977 or 1978 and again in 1979. When the State asked if she had not also been convicted of theft in 1980, Ashley said, "No." The court then queried, "What is your answer to that question?" Ashley responded, "I can't recall." The State again asked Ashley if she had not been convicted of theft three times. At this point, defense counsel requested a sidebar during which he informed the court that although there are three arrests for theft on Ashley's record, she received one-year supervision for the first one. Thus, it is not considered a conviction. After continued discussion, the court asked both counsels to stipulate as to two theft convictions. The State agreed to so stipulate. However, defense counsel did not and moved for a mistrial which the court denied. The court then instructed the jury to disregard any implication from the last question asked of the witness by the State. When cross-examination resumed, Ashley stated that she, Banks and defendant stopped looking in the stores around 5:30 or 6 p.m. On redirect, Banks testified that when she was convicted of theft, she had pled guilty.
Jim Clark, salesman at Utopia, next testified that he had previously been convicted of armed robbery on a plea of guilty. On November 24, 1980, defendant arrived at Utopia approximately 2:45 p.m. and stayed for about 25 minutes. Clark has known defendant for approximately 12 years. However, prior to seeing him at Utopia, he had not seen defendant for approximately three years.
On cross-examination, Clark stated that there had been between 20 and 30 customers in Utopia on November 24, 1980. He could not recall on whom he waited immediately before or after waiting on defendant, nor could he recall at what specific time he waited on other customers. The following colloquy then ensued between Clark and the State regarding Clark's prior convictions:
"STATE: By the way, you say that you have never been convicted for anything other than armed robbery?
CLARK: None other than that; serious crimes, no.
STATE: Well, what unserious crimes have you committed?
CLARK: Traffic violation.
STATE: Theft reduced to [sic] burglary; ever been convicted of that?
CLARK: I believe I was sixteen, seventeen.
STATE: How about — when were you convicted of the ...