Appeal from the Circuit Court of Cook County; the Hon. Arthur
J. Cieslik, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 28, 1984.
After a jury trial, defendant was convicted of two counts of armed robbery and one count of aggravated kidnaping and sentenced to 19 years. On appeal, he contends that (1) the admission of hearsay evidence deprived him of his sixth amendment right to confront witnesses; and (2) the trial court (a) abused its discretion in admitting rebuttal evidence on collateral matters, and (b) erred in giving a deadlock instruction.
At trial, Lavergne Harris testified that she and her boyfriend, Sebastian Robinson, were sitting in his car in Douglas Park at approximately 10:30 p.m. on March 5, 1981, when two men approached the car. One of them, whom she identified as defendant, pointed a gun at them through the window, ordered Robinson to get out of the car, and pushed him into the back seat. Defendant got into the front seat with her, and the second man (identified through subsequent testimony as Anthony Evans) *fn1 who also had a gun, got into the back seat with Robinson. Evans then reached over the seat, ripped her blouse open, and said he was going to rape her; she was raped and forced to perform a deviate sexual act three times, once by defendant and twice by Evans. She had a clear view of defendant's face for 15 minutes while he raped her. Thereafter, defendant placed Robinson in the front seat, ordered her to sit in the back with Evans, and drove out of the park. Harris further testified that as they drove, Evans took her watch and, while they were stopped at a red light, defendant opened the door and yelled to someone that they would meet "over there." Defendant then drove into a nearby alley, ordered Robinson out of the car, and forced him into the trunk. A third man joined the group (identified in subsequent testimony as Alfred Martin) *fn2 and they continued driving. Later, while stopped at a light, Robinson managed to escape from the trunk, after which defendant stopped in an alley, took the two guns out of the car, and hid them somewhere. They then drove for approximately 20 more minutes before defendant stopped and forced her to get out of the car with him. As they were standing near the car, defendant was distracted by an argument between Evans and Martin over her watch, and she was able to escape. She found two officers in the vicinity, and they took her home after she told them what had happened. She and members of her family then went out to search for Robinson and met the same officers, who drove her to another location where she saw Evans and Martin near Robinson's car, but defendant was not with them. She told the officers "that's two of them, but, there is another one." Later, as she walked down a nearby passageway between two houses, she saw officers approaching with defendant and identified him as the third man involved. Harris acknowledged that she and Robinson had been parked in Douglas Park for one hour before the incident occurred, but denied that they had engaged in sexual intercourse at that time. She also stated that although she was in defendant's presence for approximately two hours, she did not try to escape during that time.
Officer Zuelke testified that he and his partner were searching for and saw Robinson's car in an alley. When they drove to the other end of the alley to intercept it, the two vehicles collided. Evans and Martin got out of the car and were apprehended; Martin was wounded in the arm at that time. Zuelke testified that when Harris arrived, she said "that's them," and he acknowledged that he did not see defendant at the scene.
Officer Guisinger testified that he arrived at the scene shortly after Evans and Martin were apprehended and heard Harris say "that's the two; there's one more, and the one that's got the shotgun." He then approached Martin and, after speaking to him, went to a house a short distance from the scene and arrested defendant. As they removed him from the house, Harris arrived and identified him as the third man involved. Guisinger admitted that police reports did not reflect Harris' statement that a third man was involved.
The testimony of Sebastian Robinson corroborated that of Harris, but he added that during the attack in the park, defendant opened the car door several times and, each time he did so, the dome light came on and he had a clear view of defendant's face. Robinson further stated that when they stopped in the alley, defendant forced him out of the car and took his shoes and a jacket which had a ring and some change in the pocket. Defendant ordered him to get into the trunk and, when he refused, struck him in the temple with the gun. When he (Robinson) then entered the trunk, the light was on and he had another clear view of defendant's face as he closed the trunk. After escaping, he called the police and was taken to a hospital for treatment of a cut on his head. The next morning he identified defendant in a lineup. Robinson denied having sexual intercourse with Harris while in the park.
It was stipulated that, when apprehended, Martin had Harris' watch in his possession and Evans had Robinson's ring; that tests performed on Harris were positive for the presence of sperm in the vagina; and that tests performed on the underwear worn by the three offenders at the time of their arrest did not reveal the presence of sperm.
Stephanie Buckner, defendant's wife, testified that defendant came home from work at 4 p.m. on the date of the offense and did not leave the house thereafter. They had a dinner of pork chops and rice which she prepared, and he spent the rest of the evening in their bedroom watching television. She joined him there at approximately 9 p.m. and fell asleep while watching the news. She did not awaken until the police came to their bedroom door in the early morning hours. On cross-examination, Mrs. Buckner admitted that she could not remember what she cooked for dinner the night before or the week before the incident in question, explaining that because she rarely cooked she remembered what she prepared that night; that her parents and two nieces were also in the house that evening; that defendant did not leave the house between 6 and 8 p.m. to attend night classes; and that Martin was her nephew.
Defendant testified that he was employed at Cook & Riley on the date in question, and returned from work at approximately 4 p.m. He had dinner at 7 p.m. and spent the rest of the evening watching television. He denied telling police investigators and an assistant State's Attorney that he went to night school from 6 to 8 p.m. that night, and further denied committing the offenses charged.
Mary Jean O'Malley testified in rebuttal that she provides accounting services for Cook & Riley, and that a search of its business records revealed that defendant was not employed by that company in 1981.
Assistant State's Attorney Rathe, also testifying in rebuttal, stated that he interviewed defendant at 9:30 a.m. on March 6, 1981. After being informed of his rights, defendant stated that he attended night school classes from 6 to 8 p.m. on March 5. Rathe acknowledged that the statement was not recorded, and that he had no notes pertaining thereto.
Defendant first contends that his right to confront witnesses against him was denied by the State's introduction of hearsay testimony which raised the implication that he was identified by an accomplice. The testimony referred to occurred during the State's examination of Officer Guisinger:
"Q. Officer, after you talked to [Harris], did you then go over and ...