Appeal from the Circuit Court of Cook County; the Hon. Kenneth
L. Gillis, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants, John Tate and Addie Mosby, were convicted of aggravated battery and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, pars. 12-4, 10-3), and sentenced to imprisonment of four years and 10 years, respectively.
The following issues are raised for review: (1) whether prior consistent statements made by the complaining witness were properly admitted; (2) whether the prosecution unfairly insinuated that defendants had made prior statements inconsistent with their trial testimony; (3) whether the trial judge had a duty to shield himself from the prejudice of unreliable and incompetent evidence at the hearing in aggravation and mitigation; (4) whether a factor necessarily implicit in an offense may be considered by the judge in aggravation at sentencing; (5) whether the trial judge abused his discretion in imposing the maximum term of imprisonment where due consideration was not given to defendant Mosby's proven rehabilitative potential; (6) whether defendants' sentences were grossly disparate; (7) whether defendant Mosby was denied her sixth amendment right under Bruton to confront her co-defendant Tate concerning his out-of-court statement and antagonistic testimony; (8) whether defendant Mosby was denied effective assistance of counsel due to conflict of interest where the defense attorney could not effectively cross-examine Tate; and (9) whether defendant Mosby has waived her sixth amendment right to be represented by effective counsel, untainted by conflict of interest.
At trial, the complaining witness testified that on June 20, 1981, at abut 4 p.m., she left her house to purchase marijuana. On her way, she met defendant Mosby, whom she had known for about three years. Mosby told complainant that she knew where some marijuana could be purchased. Mosby bought marijuana and then drove to a building she said she owned. The building was boarded up and padlocked. The complainant and Mosby smoked the marijuana. Mosby told complainant to take off her clothes and then ripped the latter's shirt. Complainant hit Mosby with a bottle. Mosby threatened complainant with a whip, ordering her to undress and to scrub the kitchen floor. At that point, John Tate, the co-defendant, came out of the bathroom. Mosby tied complainant's hands and feet. Both defendants undressed and Mosby ordered complainant to perform deviate sex acts on her and Tate. Mosby beat complainant with the whip, hit her about the face with masking tape, and beat her with the whip again. Defendants forced complainant to perform other deviate acts and Mosby beat her repeatedly with the whip and an electrical cord. Defendants and complainant fell asleep. When they awoke, defendants again beat complainant. They shaved her head. On that second day, complainant was beaten three or four times, with Tate beating her once. Tate performed sex acts with the victim. After defendants left, complainant was able to untie her bindings and fled from the building.
Two blocks from the house, complainant met a young man and woman who drove her to a security booth where she was questioned by police. She did not know how much time had elapsed between the time she left the house and the time she saw the police. Paramedics took her to a hospital where she remained for three or four weeks. At the hospital, complainant identified Tate in a photographic lineup. Complainant was 19 years old at the time the incidents occurred. She stated that she never consented to sex acts with either defendant.
On cross-examination, complainant admitted the following: she had dropped rape charges in another case a few years before the present case; she had been hit by automobiles on two occasions; she had attended a special school for emotionally disturbed children and children with learning disorders; she had been under medical care from ages 11 to 16; she had behavior problems and had received psychotherapy; she had, at age 14, a drinking problem; she had smoked marijuana since she was 15; and she had used "speed."
Scott Pierce, a physician, testified that he examined the complainant in an emergency room at Mount Sinai Hospital on June 22, 1981, at around 8:30 a.m. Complainant's head had been shaved bald. She was badly bruised, shaken, obviously in distress, and crying. Her eyes were blackened and her body was covered with bruises, welts, and scratches. Dr. Pierce testified that her welts could have been inflicted by a whip or an electrical cord.
Robert Collins, a Chicago police detective, testified that on the morning of June 22, 1981, he interviewed complainant at Mount Sinai Hospital, then went to a two-flat building located at 1817 Drake, in Chicago, but it was locked. Collins then went to the 3400 block on West Walnut where he observed a vehicle, a beige Buick, that the victim had described. Collins checked the registration and, after receiving information, went to the address listed. Defendant Mosby answered the doorbell. She told the officer she wanted to change her clothes. After waiting outside for 20 minutes, Collins rang the bell again. Mosby's grandfather opened the door and allowed the police to enter the apartment, but Mosby's grandmother denied the police access to the basement.
Officer Collins then obtained an arrest warrant for Mosby and a search warrant for the Drake address. Mosby went to the police station with family members; Collins arrested her there. Collins did not notice any bruises on Mosby. When Collins returned to the Drake address, defendant Tate opened the door. In his search of the apartment, Collins retrieved a bullwhip, electrical wire, a razor, and hair clippings. Collins also returned to the hospital where complainant identified Tate in a photographic lineup.
Kathleen Leahy, a Chicago police officer, was on duty on June 22, 1981, at 7:40 a.m., when she received a radio assignment and within moments arrived at a guard shack at 2600 South California. Inside were two guards and the victim, who wore a short bathrobe with a belt tied around her waist and a scarf around her head. Her head appeared to have been shaved, welts were on her forehead, her eyes and face were discolored and swollen, and her legs were discolored, bruised and swollen. Leahy asked the complainant what had happened. She replied that she had been beaten and raped by a man. The defense objected but the trial court allowed Leahy's testimony as to the victim's statement as an excited utterance exception to the hearsay rule. The court stated that circumstantial evidence proved that only a few minutes had elapsed from the time the victim escaped to the time Leahy asked the question. The victim was still in an agitated condition.
The parties stipulated that no evidence of semen was present in swabs taken from the victim, but spermatozoa was recovered from the robe she wore. The prosecution then rested.
Bernard Liftridge, who was a friend of Mosby and who had known the victim for two or three years, testified that the victim had used speed, LSD and marijuana, that he had seen her on two occasions with bruises on her body, and that she had a reputation for telling lies.
Michael Collins, Mosby's cousin, also had known the victim for about two years. He testified that the victim had used marijuana, acid and speed.
John Tate testified in his own defense. He stated that he first saw the complainant with Mosby at 7 or 8 p.m. on June 20, 1981. They were walking down the street near a two-flat building at 1817 South Drake, which he owned. Mosby had a key to the premises. Sometime later, Tate, who was in the upstairs apartment, heard noises coming from the first floor apartment. When he went to investigate, Mosby and complainant were "tussling." Tate left the building and returned around 10 p.m. Then he and Mosby left to buy sandwiches. All three drank and smoked marijuana. Mosby and complainant took pills and had sex with each other. Before Tate left, Mosby and ...