Appeal from the Circuit Court of Winnebago County; the Hon.
John E. Sype, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, James Saunders, was charged by information in Winnebago County on January 27, 1982, with one count each of three Class X felonies: home invasion, rape, and deviate sexual assault. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11, 11-1, 11-3.) He was convicted by a jury of all three offenses, and he was sentenced to three concurrent terms of 40 years in the Department of Corrections.
The defendant raises three issues on appeal: (1) whether he was denied his constitutional right to reasonable bail which infringed on his ability to prepare a defense; (2) whether he was deprived of a fair trial due to improper cross-examination by the court and prosecutor, and improper closing argument; and (3) whether the court abused its discretion in permitting impeachment of the defendant with a seven-year-old conviction for attempted rape.
At the time of the offense on January 12, 1982, the victim, a 22-year-old single woman, resided alone in her apartment at 1901 Auburn Street, Rockford, Illinois. That morning, she was preparing to go to work at a beauty shop where she was employed as a hair dresser and her first appointment was scheduled for 10 a.m.
Testimony at the trial by the victim established that at approximately 9:45 a.m., she went outside her apartment and started the engine of her car to permit it to warm up. She then re-entered her apartment and shortly thereafter heard a knock at the front window. She thought she recognized the profile of her landlady, and she opened the door and found herself confronted by a man, later identified as the defendant, who was unknown to her. He was wearing a parka, and had a scarf around his face. He held up a yellow post card which was addressed to another resident in the building. As the victim opened the door, the defendant asked the victim if the card was hers, and as she began to answer him, the defendant took a step forward through the door and struck her in the face with his fist. The impact caused the victim to fall on her back in the living room.
Trial testimony further established that the defendant then held a pillow over the victim's face, and began rummaging through her purse. He then made her pull her ski jacket up over her face so that she was unable to see, and pushed her into the bedroom where he threw her onto the bed. He then cut the clothing from her body with a knife, tied her wrists with an electrical cord and bound her to the bed.
Over the next two hours, the defendant held her captive in her apartment where he repeatedly beat her, raped her, forced her to masturbate herself, and to perform fellatio on him. He also forced her to lie on her back in the bathtub where he stood over her, urinated on her face and into her mouth, and spit on her.
About 11 a.m., a neighbor in the same building heard screaming, and knocked at the victim's and several other doors, but received no response. When she left the building shortly thereafter, she noticed the victim's car was running in the parking lot. She subsequently reported the incident to a police officer. About noon, Rockford police officers went to the front door of the apartment, and knocked and rang for more than 10 minutes, until a supervisor arrived and authorized a forced entry into the apartment. As one of the officers was climbing through a window, the defendant opened the front door of the apartment, while repeating several times the word "emergency." He was arrested, and the police officers entered the bedroom where they found the victim nude on the bed crying hysterically, her face covered with blood from cuts on her head. She was hospitalized with a broken nose, a swollen face, head lacerations which required stitches, and badly bruised wrists.
The defense at trial was consent and that the defendant was under the influence of drugs: alcohol, marijuana, and psilocybin, an hallucinogen. He testified at trial that he had known the victim for about five months, that he had had sex with her about four or five times, and had borrowed her car on two or three occasions. He testified he received money from her for participating in her sexual bondage fantasies, and that when she could not pay him on the date in question, he became angry and hit her, causing her to fall into the bathtub where she struck her head on the bathroom fixtures, aggravating the injury.
The defendant's bail initially was set at $500,000, was reduced to $200,000 after a hearing on his motion for bond reduction, and was subsequently reset ex parte at $500,000 following the preliminary hearing. He asserts he thereafter attempted to obtain a bond reduction hearing in order to present evidence "on the question of what was reasonable, as well as show the effects of the defendant's incarceration on the preparation of the defense," but the court denied the motion. He alleges the State presented no evidence at any stage of the proceedings below that the defendant would fail to appear in court if released on bail, but merely suggested that the probability of a long penitentiary sentence created the likelihood of the defendant's flight prior to trial. He contends the court's bail order was entered solely on the basis of the nature of the offense and the potential penalties and, as such, the order was improper. From the statement in ABA Standards relating to pretrial release, section 2.5(D) (1974) that "money bail should be set no higher than that amount reasonably required to assure the defendant's appearance in court," the defendant infers, and so argues, that it was improper for the court "to set bail at a sum clearly without [beyond] the reach of the defendant." The only purpose of the excessive $500,000 bail, he argues, was to keep him confined prior to trial, thus preventing him from locating certain witnesses who would tend to corroborate his defense in that they would testify he had known the victim prior to the date of the alleged offense. He urges his conviction be reversed, and that reasonable bail be imposed to enable him to assist in the preparation of his defense.
The State asserts this issue is not cognizable in this court on direct appeal following conviction, since Supreme Court Rule 604(c) provides for interlocutory review of bail orders before conviction. (Supreme Court Rule 604(c), as amended August 9, 1983, effective October 1, 1983.) It points out the record shows the defendant availed himself of this remedy following the court's May 26 order denying bond reduction. In this court's order filed in the circuit court on June 12, 1982, the defendant's "Motion for Review of Order Refusing to Modify Bail" was denied.
The record in this court of cause No. 82-434 shows the defendant filed copies of the bond reduction motions filed by him in the circuit court on March 4, May 3, and an addendum thereto filed on May 26, 1982. The defendant additionally filed copies of petitions signed by friends and relatives which were filed in the circuit court supporting the reduction in the defendant's bond, expressing their willingness to supervise his release, guarantee compliance with any of the conditions imposed on release, and assure his appearance in court. Lastly, the defendant filed an affidavit of his trial counsel in support of his motion for review. The motion prayed for release on his own recognizance, or reduction of the bond.
The State filed an answer to the defendant's motion, appending thereto the affidavit of the State's Attorney of Winnebago County in opposition to reduction of the bond, setting out in full the factual background of the case, including a copy of the victim's seven-page statement.
In reply to the State's argument here, the defendant states there is nothing in the language or history of the rule in question which indicates that it was intended to be exclusive. He attempts to argue that after this court denied his motion to review bail, another motion for reduction of bail was presented to the circuit court which was not included in this court's earlier review, and that this court could not adequately assess the full impact of the pretrial incarceration of the defendant without reviewing the entire record.
The defendant's assertion in this regard is not supported by the record. No motions to reduce bail appear in the record which were filed after this court denied the motion to review bail. Further, Supreme Court Rule 604(c) provides that any party may move to have the transcript of the record filed with the appellate court. This was not done by the defendant below.
• 1 We believe the State's position on this issue is correct. Contrary to the defendant's assertions, the history of Supreme Court Rule 604(c) supports the State's argument that this issue is not cognizable on direct appeal in this court in view of the defendant's prior interlocutory appeal. After a bail order is entered, a defendant may first seek review in the circuit court for grant, reduction, or modification of bail or its conditions under section 110-6 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 110-6.) Review of that order may then be obtained in the appellate court under Supreme Court Rule 604(c). Prior to the adoption of Supreme Court Rule 604(c) in 1971, a defendant's only avenue of relief was an original petition to the supreme court for a writ of habeas corpus. (People v. Kelly (1975), 24 Ill. App.3d 1018, 1032.) The Kelly court observed that the adoption of the rule followed the decision in People v. Harris (1967), 38 Ill.2d 552. There, the supreme court determined that the defendant could not raise the issue that his application for bail had been improperly denied for, "[b]oth as a practical matter and a procedural matter, review of an order denying bail must be raised prior to trial and conviction." (38 Ill.2d 552, 555.) There the defendant had argued that he was denied a constitutional right, and the appeal was his first opportunity to raise the issue on review. The court wrote:
"An order denying bail is, of course, interlocutory and not appealable (Lynch v. People, 38 Ill. 494); but the issue could have been raised by habeas corpus. (People ex rel. Sammons v. Snow, 340 Ill. 464; People ex rel. Smith v. Blaylock, 357 Ill. 23.)" 38 Ill.2d 552, 555.
The defendant's argument that a defendant "may" seek review under Supreme Court Rule 604(c), but is not barred from further review if he fails to do so, is incorrect. In People v. Henderson (1976), 36 Ill. App.3d 355, 379, it was stated:
"The trial court's refusal to reduce bail before conviction was an appealable order at the time reduction was refused. (Ill. Rev. Stat. 1971, ch. 110, par. 604(c).) Defendant's failure timely to appeal that order now precludes any consideration of its propriety."
The defendant in Henderson also appealed the trial court's refusal to set any bail after conviction pending appeal. After noting that the defendant's sole remedy for that refusal was the procedure in Supreme Court Rule 609(b), the court stated:
"More importantly, neither order presents any ground for reversal of the instant convictions, and thus, is not properly before this court. People v. Van Riper [(1970), 127 Ill. App.2d 394.]" 36 Ill. App.3d 355, 379.
The remedy provided by Supreme Court Rule 604(c) is the defendant's sole avenue of relief in this court. Having once considered the issue on interlocutory appeal, this court has no authority to reconsider its own order. We note the defendant presents no argument on this issue that was not already included in his interlocutory appeal.
We conclude the issue is not cognizable in the context of this direct appeal.
Notwithstanding the above, a review of the issue on its merits reveals no error in this court's prior order. At the hearing on the defendant's January 14 motion for bond reduction, the court heard testimony from three character witnesses for the defendant, as well as testimony from the defendant and his wife. The State presented only one witness, a Rockford police officer whose testimony extended only to his objective observations of the physical condition of the victim and her apartment when he arrived on the scene. The court learned nothing of the events which preceded the rescue of the victim until the preliminary hearing which was held about eight days later. After hearing the victim's testimony, the court found probable cause, and the State filed its three-count information against the defendant. Originally, a six-count complaint was filed against the defendant, and an arrest warrant specifying bail at $500,000 issued. Bond was reduced to $200,000 on defendant's motion prior to the preliminary hearing.
Two days after the preliminary hearing, the court, on its own motion, under section 110-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110-6), increased the defendant's bond back to $500,000. On the same day, the State filed its motion to reconsider and increase the defendant's bail. The court held a hearing to explain its reinstatement of the original $500,000 bond, and to allow the parties to present argument. In essence, the court indicated that until the preliminary hearing, it had no idea of the nature of the offenses nor had it considered that extended terms might be applicable at sentencing.
This court has not been provided with any kind of record — even a bystander's report — of what proceedings, if any, took place when the $500,000 bail was originally set on January 12, 1982. Based on the court's comments at the January 29 hearing, it is apparent its earlier reduction of the bond to $200,000 on defendant's motion did not fully take into account the nature of the offenses charged, nor the fact that extended terms might be available as a result of the nature of those offenses, since the court was not fully advised in the premises until the preliminary hearing. Defendant concedes both of those considerations are relevant in determining bail. Ill. Rev. Stat. 1981, ch. 38, par. 110-5; People ex rel. Sammons v. Snow (1930), 340 Ill. 464.
• 2 As pointed out by the State, the defendant's allegations concerning the difficulty in securing witnesses are conclusionally set forth. No facts are given from which it may be concluded that defense counsel had attempted to contact witnesses and been unable to do so. Defendant specifically named several witnesses at trial who he claimed saw him with the victim prior to the incident. Defense counsel never followed up on his own suggestion regarding funds for hiring a detective, even though the court indicated it would entertain a specific motion. Consequently, the increase in the amount of bail was within the discretion of the court. Although the bond set was a high amount, and the likelihood that the defendant could post even a 10% cash deposit was not great, the financial ability of the defendant is only one of the considerations the court must balance when setting bail. The record shows the court heard evidence at the bond reduction hearing and the preliminary hearing and allowed ample argument from the State and the defendant. All aspects which affect the determination of the amount of bail were presented to the court. The court's decision to reinstate the original $500,000 bond was a considered one; no hint of the arbitrariness or caprice which signals judicial abuse of discretion is evident. Assuming arguendo that this court would have jurisdiction to consider the matter, no reversal is warranted.
• 3, 4 The defendant claims the cumulative effect of several errors by the court and the prosecution was that he was deprived of a fair trial.
A. IMPROPER CROSS-EXAMINATION AND CLOSING ARGUMENT BY PROSECUTOR REGARDING DEFENSE WITNESSES
The defense of consent here included the defendant's testimony that he had known the victim for about five months, had been introduced to her by someone named Brandon Garnett, that they went out for drinks, and to a motel. On cross-examination, the defendant was asked names and addresses of the people who could verify that he knew the victim before January 12, 1982, and, after each of the defendant's four responses, was asked if the person was a defense witness. Defense counsel objected to the questions on the basis that it sounded as though the person was definitely, rather than potentially, a defense witness. Later, in closing ...