Appeal from the Circuit Court of Cook County; the Hon. Maurice
D. Pompey, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of rape, deviate sexual assault and armed robbery and sentenced to concurrent terms of 40 years for rape, 40 years for deviate sexual assault and 20 years for armed robbery. On appeal, he contends that (1) he was denied due process by the trial court's failure to order a fitness hearing; (2) the psychiatric reports finding him fit to stand trial did not comply with the statutory requirements therefor; (3) his incriminating statements should have been suppressed because they were obtained before Miranda warnings were given; and (4) his sentences were excessive. As there is no contention that guilt was not established, we will set forth only the evidence relevant to the issues presented.
In December 1980, defense counsel requested a pretrial psychiatric examination, informing the trial court that defendant had been found incompetent in a 1978 criminal proceeding. An examination by the Psychiatric Institute of Cook County was ordered and the report thereof concluded that defendant was fit to stand trial and had been legally sane at the time of the offense. In March 1981, the trial court denied a motion of defendant that he be transported to Great Lakes Naval Training Center for a psychiatric evaluation on the basis of documents indicating that he had received a disability discharge from the Air Force in 1976 after a diagnosis of acute manic-depressive illness. In September 1981, the trial court denied another motion of defendant that he be examined by a private psychiatrist but the court did order an updated examination by the Psychiatric Institute, the findings of which were the same as those in the examination performed in December 1980.
Thereafter, at the pretrial hearing on defendant's motion to suppress statements, Deputy Sheriff Allen Hudson (Hudson) testified that he was at a lounge with complainant, her husband and Robert Rockymore (Rockymore) when complainant pointed out defendant as one of the men who had raped her a week before. Hudson approached the defendant, displayed his badge, informed him that he was a deputy sheriff and asked him to step outside whereupon he and Rockymore led defendant to a vacant lot next to the lounge to move him away from the patrons exiting the front door and searched him. After the police were called, complainant's husband came out to the lot and questioned defendant while he (Hudson) stood between the two men. By then, a number of people, including some of defendant's friends, had gathered and were "screaming various things." Hudson acknowledged that defendant was not free to leave and that he had not advised him of his constitutional rights, but stated that the only question he asked of defendant was his name. The complainant's husband corroborated Hudson's testimony and stated also that Hudson neither told him to ask defendant any questions nor directed defendant to answer any. Rockymore further added that the complainant's husband was very excited and that Hudson was "just trying to keep [him] cool."
Defendant testified that he was at the lounge with his girlfriend, Shirley Williams (Williams), when two men, one of whom had a badge, grabbed him and took him to a vacant lot next to the lounge where they and several other men hit him and questioned him about a rape. It was only after the men knocked him to the ground and threatened him that he gave them a name. Williams, whose testimony was essentially the same as defendant's, added that at defendant's request she called his sister and upon returning to the lot, heard the men, including the one with the badge, asking defendant for the name of his partner. Defendant's sister testified that when she arrived, she observed her brother lying on the ground in the midst of a group of men who were all asking him questions.
Defendant's motion to suppress was denied, and at trial, complainant's mother testified that at about 5:30 a.m. on September 20, 1980, when her daughter came to her apartment, her face was bruised, her clothing was in disarray and she said that she had been raped.
Complainant, an elementary school teacher, testified that at about 3:30 a.m. she was walking toward her mother's house after returning from a party when she noticed some people leaving a bar. As she entered the outer hallway of her mother's building, two men came up behind her and pushed her up against the mailboxes inside. One of them grabbed her earrings and wedding rings and tore three gold chains from her neck. The other man, whom she identified as defendant, hit her in the face and threatened her by placing a knife to her neck. She was told to unlock the inner door which she did and they then led her to the landing in the hallway where they ordered her to undress. During the next two hours, defendant hit her 15 to 20 times and both men forced her to perform deviate sexual acts and raped her. She was then tied and gagged with her dress and hose and as he was leaving, defendant kicked her and said that he and his accomplice would never go to jail for what they had done. Complainant further testified that about one week later she and her husband were at a lounge with Hudson and Rockymore when she saw defendant and identified him as one of the men who attacked her.
Officer Dubois testified that when he arrived at the lounge he observed two men struggling with defendant and a security guard for the lounge told him that defendant was a rape suspect. Defendant attempted to escape but Dubois and his partner apprehended him, placed him under arrest, advised him of his constitutional rights and transported him to the police station where after being advised of his rights again, he was told that he had been implicated in a rape and when questioned concerning the identity of his accomplice, he named Tony Dixon as the other offender.
Defendant testified that the two men who took him out of the lounge told him they were looking for someone named "Greg." He denied knowing a "Greg" but when they punched him and said, "then you better start naming your friends," he gave them several names. He denied raping the complainant or attempting to escape when the police arrived at the lounge. On cross-examination, he stated that while he was being held in the lot several people had gathered and were all talking at the same time. He denied telling the men who were holding him or the police that Tony Dixon was either his accomplice or "the other guy" and stated that he was with his girlfriend on the night of the rape.
It was stipulated that Assistant State's Attorney Gainer would testify that defendant admitted telling the men who held him for the police at the lounge that the "other guy" was Tony Dixon and that he referred to Dixon as his partner.
Defendant first contends that he was denied due process of law by the trial court's failure to order a fitness hearing, arguing that there were sufficient facts presented to raise a bona fide doubt of his fitness to stand trial.
• 1 Initially, we note that defendant made no formal motion for a fitness hearing before or during trial nor did he raise this issue in his post-trial motion; nevertheless, because it would be a violation of due process to convict a defendant who was mentally unfit to stand trial (People v. Jones (1982), 109 Ill. App.3d 120, 440 N.E.2d 261), we will consider the issue.
Under the Code of Criminal Procedure of 1963 (the Code), a defendant is unfit to stand trial if, because of his mental or physical condition, he is unable either (1) to understand the nature and purpose of the proceedings against him, or (2) to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104-10.) The Code further provides that "[w]hen a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." (Ill. Rev. Stat. 1981, ch. 38, par. 104-11(a).) The determination of a defendant's fitness rests largely within the discretion of the trial court and a reviewing court will not overturn its ...