Appeal from the Circuit Court of Cook County; the Hon. Stephen
A. Schiller, Judge, presiding.
JUSTICE WILSON*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS PREPARED BY THE LATE MR. JUSTICE WILSON AND WAS ADOPTED AND FILED AS THE OPINION OF THE COURT.
Following a jury trial, defendant was found guilty of deviate sexual assault, aggravated kidnaping and two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 11-3, 10-2 and 18-2, respectively), and sentenced to concurrent prison terms of 25 years for each offense. On appeal, defendant argues that: (1) the trial court erred in instructing the jury on aggravated kidnaping predicated upon secret confinement when the charging document alleged aggravated kidnaping predicated upon intent to secretly confine; (2) the 25-year sentence for the offense of aggravated kidnaping without a ransom, a Class 1 felony (Ill. Rev. Stat. 1983, ch. 38, par. 10-2(b)(2)) exceeds the statutory limitation set forth in section 5-8-1(a)(4) of the Unified Corrections Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(4)); (3) the trial court improperly based defendant's sentence on his refusal to admit his guilt; and (4) the concurrent sentences of 25 years were excessive in light of defendant's excellent prior record. For the reasons that follow, we affirm all convictions, affirm the sentences for deviate sexual assault and armed robbery, and reduce the sentence for aggravated kidnaping.
Testimony at trial disclosed three versions of the events leading up to defendant's arrest in the early morning of April 25, 1982: (1) the State's version presented by the two complainants and the arresting officers; (2) the defendant's version; and (3) the impeachment version presented by a rebuttal witness for the State.
The female complainant, D.H., testified that approximately 2:45 a.m. on April 25, 1982, she left her home near 21st and Pulaski in Chicago to pick up her live-in boyfriend, R.K., who had just finished work as a bartender at a nearby lounge. On the way home, D.H. and R.K. stopped at a carryout restaurant to pick up some ribs and beverages to take home. Upon arriving home and parking the car in the vacant lot next to her house, D.H. noticed a male walking toward the car. When she and R.K. exited from the car, the male shouted, "Halt!" and they turned around and saw a gun "staring us in the face." At trial, D.H. identified defendant as the man with the gun and further identified the gun previously introduced into evidence by the State as the weapon defendant had been holding that night.
Defendant told D.H. and R.K. to walk back to the car and then demanded their money. He took R.K.'s money first and when D.H. handed him only paper currency, defendant said, "B____, I said give me all the money," and clicked his gun. When R.K. heard the gun click, he turned around to see what was happening and defendant struck him in the head with the gun, causing a laceration on the right side. Defendant then told D.H. to unlock the trunk of the car and ordered R.K. to climb inside. When R.K. took his time moving items in the trunk, defendant threatened to blow his brains out if he did not hurry.
Once R.K. was locked into the trunk, defendant led D.H. to the driver's side of the car at gunpoint, ordered her to get inside, then ran around to the passenger's side. D.H. stated that she was going to lock the automatic door locks and leave, but defendant ran around to the passenger side too fast and had the gun pointed at her from the other side of the car window. He then got into the car, and with the gun pointed at her, told her to drive to the lakefront.
When D.H. backed the car into the alley, defendant told her to stop the car and unzip her pants, take her right leg out of her pants, and pull down her undergarments. Then, while keeping the gun pointed at her chin, he performed cunnilingus on her. When D.H. asked defendant what he was going to do with her and R.K., he said he was going to kill R.K., rape her, and then knock her out.
As they were driving to the lakefront, defendant scooted down in the front seat and, while holding the gun in his right hand, aimed at D.H.'s side, he started fondling her breasts. As he was doing this, he lost concentration on the gun and, although it was still in his hand, it was practically lying on the seat. When D.H. stopped at the stop sign at Cullerton and Pulaski, she noticed a police squad car coming down the street. She drove away from the stop sign slowly, waiting for the squad car to get closer, and then ran a stoplight to get their attention. D.H. then grabbed for the gun and began struggling over it with defendant. Finally, D.H. let go of the steering wheel, lunged for the gun, opened the door and fell out of the car while it was still moving. By this time the squad car had its spotlight on the car and D.H. began yelling to the police, "This guy is trying to rape me and I got the gun, and my boyfriend was [sic] in the trunk." The car eventually ran up over the curb, hit a fire hydrant and light pole and came to a stop. By then, the police had exited their squad car, and were standing behind the car doors with weapons drawn. One of the officers took the gun from D.H. and told her to put her clothes on in the squad car. While in the squad car, D.H. saw the police officers approach her car and also saw defendant fall out of the passenger door to the ground. The police released R.K. from the trunk, took D.H. home so that she could change her clothes, then drove both D.H. and R.K. to the police station.
On cross-examination, D.H. stated that she has been dating R.K. exclusively for four years and that he would be very upset if she dated others. R.K. works part-time Friday, Saturday and Sunday evenings as a bartender until 3 a.m. on Friday, 2 a.m. on Saturday, and midnight or 1 a.m. on Sunday. While R.K. is bartending, D.H. stays home with her four children. D.H. also testified that she does not drink alcoholic beverages, had never seen defendant prior to the night of the incident, and had never seen R.K. with a gun. Further, D.H. denied: (1) having ever been in the Texas Lady Lounge at 21st and Pulaski; (2) knowing Rosie Hill, defendant's girlfriend; (3) having seen either Tommy Strong, defendant or Rosie Hill the week prior to the incident; (4) telling defendant that she wanted to get rid of R.K.; (5) having any insurance on R.K.; (6) voluntarily pulling down her pants; and (7) having previously had sex with defendant.
Next, R.K. testified to substantially the same events leading up to his confinement in the trunk. In addition, he stated that while in the trunk, he felt the car initially move backward, stop for a minute or two, start up again, move forward and then begin to weave back and forth. He then heard D.H. scream just before the car came to a crashing halt. When he heard more voices, he started banging on the trunk and a police officer opened it. At trial, R.K. identified the gun used by defendant and stated that he had never seen either the gun or defendant prior to the incident. On cross-examination, R.K. further stated that he saw money change hands between defendant and D.H.
Next, Daniel Rosas, Chicago police officer, testified that on the morning of April 25, 1982, while driving northbound on Pulaski near 19th Street with his partner, William Marose, he observed a silver-colored Oldsmobile go through a red light, and then begin to move erratically from side to side. When he directed the emergency lights and spotlight on the Oldsmobile, he could see two people in the front seat apparently struggling. Suddenly, while the Oldsmobile was still moving, the female driver jumped out of the car, holding a revolver in her hand. One of her legs was completely out of her slacks and she was screaming hysterically that the passenger had a gun and had tried to rape her. The Oldsmobile then ran up over the curb, hit a fire hydrant or light pole and came to a stop. Rosas observed a black male exit from the passenger side, take a couple of steps, then intentionally fall to the ground when he saw the police. At trial, Rosas identified defendant as the man who had exited from D.H.'s car.
As Rosas approached defendant with his gun drawn, defendant said, "Okay, I'm cool. I got the money in my back pocket." Marose then handcuffed defendant, and took the money out of defendant's back pocket. Meanwhile, Rosas heard pounding coming from the trunk and D.H. told him that her boyfriend was in there. While the back-up unit took defendant into custody, Rosas and Marose drove D.H. home so that she could change her clothes and they could inventory what she had been wearing. They then took D.H. and R.K. to the police station.
Next, William Marose, Chicago police officer and Rosas' partner on the night of the incident, corroborated Rosas' testimony, identified defendant as the passenger and further testified that while D.H. was changing her clothes, he walked through the vacant lot next to her house and observed some food that looked like chicken or ribs lying on the ground. He inventoried the money taken from defendant and the six-inch .37 magnum taken at the scene. At trial, Marose identified the gun, the five live rounds recovered from the gun, photographs of the scene of the accident, and a photograph of defendant taken on the night of the arrest.
At the conclusion of the State's case, defendant's motion for a directed finding was denied.
Defendant testified that he originally met D.H. on March 1, 1982, at a neighborhood grocery store. At that time, she told him that she frequently visited the Texas Lady Lounge and the Sheba Lounge. The following weekend, defendant saw D.H. at the Texas Lady, bought her a beer and they talked until approximately 1:30 a.m. when they left in D.H.'s car to go to a motel. This was the general pattern for four subsequent "dates" within the period from early March to the night of the incident. Because defendant was unemployed, D.H. would frequently give him money and she always registered and paid for the motel rooms herself. On one occasion, when D.H. did not have enough money to pay for the room, she and defendant had sexual intercourse in D.H.'s car, a silver Oldsmobile. Defendant stated that although he and D.H. were sexually attracted to each other and both were unmarried, they continued to meet secretly because each had a personal commitment to another person who would be very upset if their relationship were discovered. Despite their attempt at secrecy, however, defendant's girlfriend, Rosie Hill, walked into the Texas Lady Lounge one weekend night and saw defendant and D.H. embracing. Hill became furious, but defendant cooled her down and took her home before an actual physical altercation took place.
Defendant further testified that the week prior to the incident, D.H. and defendant made plans to meet at the Texas Lady Lounge on April 24. That night he arrived at the lounge approximately 11 p.m. and waited for D.H. until the lounge closed approximately 3:30 a.m. When defendant left the lounge and started walking toward D.H.'s house, he saw her standing by herself on 21st Street. She told him that she had been detained, but that she would get in touch with him the next day and arrange a time when they could get together. When defendant turned to leave, R.K. came running from the vacant lot next to D.H.'s house, carrying a gun similar to the one admitted into evidence. Pointing the gun at them, R.K. accused D.H. of having an affair with defendant. While D.H. was explaining that they were just friends, defendant kicked the gun out of R.K.'s hand and grabbed him. D.H. picked up the gun. As soon as D.H. had the gun in her control, defendant released R.K. and started to walk away, assuming D.H. could handle the situation herself. When he turned back to look at them, defendant saw R.K. jump at D.H., at which point she swung the gun and hit R.K. in the right side of the head. D.H. then directed R.K. into the vacant lot at gunpoint and opened the trunk of the Oldsmobile. Defendant continued to walk away and did not see D.H. force R.K. into the trunk. When he saw her open the trunk, he thought she was just going to put the gun inside. As defendant approached the corner of 21st and Pulaski, D.H. pulled up to the curb in the Oldsmobile, honked the horn, and motioned defendant into the car. She was by herself. After he got in, she pulled the car into a nearby alley, turned it off and asked him if he wanted to have sex. When he agreed, she handed him some money and started to remove her pants. At this time, defendant did not know that R.K. was in the trunk.
While defendant was removing his clothes, D.H. told him that the money was an advance payment for defendant to shoot R.K. who was in the trunk. When defendant refused to do it, D.H. said that she would make it worth his while because she would be receiving insurance money and would have access to other money as well which was currently unavailable to her. When defendant told her that she was crazy and started to put on his clothes, D.H. started the car and sped off. She had not even pulled up her pants. Defendant told D.H. that he was going to jump out of the car the first time that she stopped, but she never did. Instead, she ran through both a stop sign and stop light. Defendant tried to grab the steering wheel and did manage to get the car to the right side of the road when suddenly D.H. grabbed the gun from under the seat and jumped out of the moving car. The car ran up over the curb and came to a stop next to a light pole. Defendant squeezed out of the passenger door and took a few steps toward a police officer who pulled out his gun and ordered defendant to lie down on the ground. When he tried to talk, the police officer told him to shut up or he would "blow his brains out." A second police officer handcuffed him, searched him and took the money D.H. had given him. When R.K. was released from the trunk, he ran over to defendant and kicked him in the face. One of the officers then hit defendant on the forehead with a hard object, causing a wound that required six stitches. Defendant denied owning a gun and further denied ever having had oral sex with D.H.
During cross-examination, defendant stated that he did not recall an officer named Detective Rave and did not recall telling Rave that on the night of April 24, he had met D.H. at the Texas Lady Lounge early in the evening and arranged to meet her later at her house. Further, he did not recall telling Rave that he had put R.K. in the trunk and that D.H. voluntarily unzipped her pants and told him to perform oral sex. Defendant also claimed that while he was in jail the morning of his arrest, he was dizzy and kept passing out from his head wound that continued to bleed although it had been stitched and bandaged. The ...