Appeal from the Circuit Court of Cook County; the Hon. Jack
Arnold Welfeld, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Defendants Keith Eddington and Gary Hart were found guilty in a jury trial of kidnaping and unlawful restraint. They were both sentenced to an extended term of 12 years for kidnaping. On appeal, defendants raise the following issues: (1) whether the jury received extraneous prejudicial information when several jurors saw a list of additional charges pending against defendants posted outside the courtroom; (2) whether testimony of unrelated criminal activity was improperly admitted at trial; (3) whether the trial court erred in refusing to allow the defense to impeach a State witness with prior inconsistent statements; (4) whether the trial court erred in giving to the jury a non-IPI instruction on the secret confinement element of the kidnaping charge; (5) whether prosecutorial misconduct during closing argument denied defendants a fair trial; and (6) whether defendant Eddington was eligible for an extended sentence.
No issues are raised concerning the sufficiency of the evidence.
Barbara Montley testified that on June 6, 1981, at approximately 5 p.m., she and her former boyfriend, Warren Hardwick, were at Miller's Meadow, a forest preserve in Maywood, Illinois. Montley's current boyfriend, Alvin Daniels, arrived and an argument began between Hardwick and Daniels. A crowd of people gathered to listen to the argument. Montley testified that two young men stepped out of the crowd and one said to Daniels, "Well, if he took your girlfriend, why don't you just let him have her." Montley identified the man that spoke as defendant Hart and the other man as defendant Eddington. She testified that she did not know the men nor did she think that Hardwick and Daniels knew them.
After the argument broke up, Montley and Hardwick left Miller's Meadow in Hardwick's car. While they were waiting at a stop light about a block from the forest preserve, a man that Montley identified as Eddington approached the passenger side of the car. He told Montley that he was a cousin of her boyfriend and was going to take her to him. Montley testified that Eddington then grabbed her by the arm and pulled her out of the car. She was dragged across the roadway and pushed into a "big black car." There were three males already in the car, Hart who was driving and two others.
After driving around Maywood for 15 minutes, the two other males were dropped off. One of the males, who was sitting in the back seat, had to climb over the front seat to get out of the car because the rear door of the passenger side was not operative. Montley and Eddington were left sitting alone in the backseat. Hart then drove past a park where defendants waved to several friends playing basketball. They then continued on to the Eisenhower Expressway. Montley testified that at this point she began to scream. Eddington told her that they would take her home but she had to be quiet. She began fighting with Eddington and, then, she jumped out of the rear window of the car on the passenger side. She landed on the expressway and rolled across a lane of traffic to the shoulder of the road.
Frank Kolar testified that on June 6, 1981, at about 6 or 6:30 p.m. he and his wife were driving east on the Eisenhower Expressway when he saw a woman leap from the window of a moving car. At the time the car, a black Cadillac, was traveling about 50 miles per hour in the right hand lane in heavy traffic. Kolar saw Montley fall on her hands and then roll and skid across the center lane and the left lane of traffic and onto the left shoulder. Several cars swerved to avoid her and accidents ensued. Kolar pulled over to the side of the road and went to assist Montley. Her clothes were ripped and shreaded by the pavement. Kolar testified that the skin was completely off the palms of her hands and her back was badly scratched. Kolar flagged down another car and the driver of that car called the police. A Maywood police officer arrived and took Montley to a hospital where she was treated.
Warren Hardwick testified that on the day in question he was with Montley at Miller's Meadow when Daniels arrived. Hardwick testified that Montley argued with Daniels and that he did not notice anyone approach or say anything to them. Hardwick also stated that he did not pay much attention to the man who took Montley out of his car and that although the man grabbed Montley's hand, she did not struggle. Hardwick also testified, however, that the man had gotten out of a four-door black Cadillac.
Officer Fernando Reyes of the Cook County Forest Preserve Police testified that he interviewed Montley at the hospital. Four days later, on June 10, at approximately 11 p.m., Reyes was on patrol in a squad car at Miller's Meadow and was assigned to close the park. Reyes noticed a black Cadillac parked in the forest preserve parking lot. As he approached the car he saw someone jump from the back seat into the front seat and exit the car on the passenger side. Reyes observed that the man was pulling up his pants. Reyes then got out of the squad car and shone his flashlight into the backseat. He observed a female and a male. The male was pulling up his pants and the female was crying. At trial, Reyes identified Hart as the first man who exited the car and Eddington as the man in the backseat of the car. Hart was unable to produce a driver's license at Officer Reyes' request and there was no record of a license being issued to Hart under the several names and birthdates he gave Reyes. Reyes placed defendants under arrest. The following day, in a lineup conducted at Maywood courthouse, Montley identified defendants as her abductors.
On cross-examination, Reyes testified that he arrested defendants that night and charged them with an offense other than the offense against Montley. In response to a specific defense question, Reyes stated that he had testified against defendants with respect to the other offenses and that the matter was dismissed. The State objected and in sidebar informed the court that although the charges were dismissed at a preliminary hearing, the grand jury did return indictments charging defendants with rape. The court ruled that defendants had opened the door to bring out the fact that defendants had been charged with rape but the State did not clarify the matter. Additionally, the defense handed Reyes his police report of defendants' arrest and asked Reyes to identify it. Reyes replied, "It is a rape report." Reyes' answer was striken, and the jury was instructed to disregard it.
Stephanie Eddington, defendant Eddington's sister, testified that defendant was at home until about 4 p.m. on June 6. Stephanie testified that when she went to a park near their home at about 6 p.m. she saw Eddington playing basketball with some friends. Reginald Williams testified that on the day in question he played basketball with Eddington from approximately 4:30 to 8 p.m.
Alma Sanders testified that on June 6 Hart came to her home at about 1 p.m. to pick up her daughter Nanette. Nanette and Hart spent the day together at Hart's home. Mrs. Sanders testified that she called them and spoke to Hart at about 6 and 7:45 p.m. Both times Mrs. Sanders told Hart that it was time to bring Nanette home. Hart brought her home at about 8 p.m. Nanette Sanders testified that she spent the day with Hart at his home.
• 1 Defendants first contend that the jury verdict must be vacated because during trial jury members saw a sheet of paper posted outside the courtroom listing additional charges pending against defendants. At a hearing on defendants' motion for a new trial, a former jury member, John Stepney, testified that he had seen these papers while on a lunch recess from trial. Stepney testified that during deliberations he and several other jury members briefly discussed the charges pending against defendants that they had seen on the list. When asked if he could recall what the charges were, the juror answered, "I believe it was deviate sex, and rape and I don't know exactly all of them but I know there were about eight on one and six or seven on the other." The juror also testified that his decision was not affected by the fact that other charges were pending against defendants. On cross-examination, Stepney stated that two weeks after trial he was at a party at defendant's home and told defendant's father that he was a juror in his son's trial. Several days later, Stepney received a call from the defense attorney. In response to defense counsel's question about the jury deliberations, Stepney mentioned that the jurors had seen the posted list. The trial court refused to consider the testimony of Stepney to impeach the jury verdict and denied defendants' motion for a new trial.
Defendants argue that the trial court misapplied the standard for attacking a jury verdict enunciated in People v. Holmes (1978), 69 Ill.2d 507, 372 N.E.2d 656. Defendants argue that Stepney's testimony shows that the jury was exposed to highly prejudicial information which defendants had no opportunity to refute. Defendants assert that the repulsion felt by many toward the offenses of rape and deviate sexual assault suggest the likelihood that information of these charges was highly prejudicial to defendants. The State contends that if the jurors saw the list, it was not so prejudicial as to require ...