Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was found guilty and sentenced to concurrent eight-year terms for home invasion and rape. On appeal, he contends that: (1) in imposing sentencing the trial court improperly considered a prior arrest for a similar offense; (2) his conviction for rape must be vacated because it is a lesser-included offense of and therefore merged with his conviction for home invasion; and (3) the complaining witness' prior identification of him as well as certain physical evidence were the fruits of an illegal arrest and should have been suppressed.
At trial, the complainant testified that she was living in a second-floor apartment of a furnished rooming house at 4422 South Emerald on May 31, 1980. At approximately 8:30 p.m. on that date she was standing at the door of her apartment when defendant suddenly appeared at her side, pushed her through the doorway, and entered the room. Once inside, he turned on the light, forced her to disrobe, and after removing his own clothing, he pushed her onto the bed, and raped her. During that time, he struck her on the left side of the forehead, causing it to swell, and threatened to kill her if she screamed for help. After the attack, she asked defendant if she could fix a drink and, when he agreed, she prepared two drinks, handed one to defendant, then sat on the edge of the bed for approximately 15 minutes while he drank. When defendant allowed her to put on her clothes, she asked if she could take her dog out, and he agreed after she promised to return. Complainant further stated that, as soon as she left the room, she ran to the home of a friend in an apartment across the street and related the incident to her friend's daughter and the building manager who called the police and also paramedics because she (complainant) was experiencing severe vaginal bleeding. She was transported to a hospital where she remained through the weekend. The same night, while she was being treated in the emergency room, officers brought two men into the room, and she identified defendant as her assailant. On cross-examination, the complainant acknowledged that she had resided in her apartment for only a few days, and that during the incident she did not cry out or observe any weapons.
Officer Tyler testified that he was in the vicinity of 44th and Halsted at approximately 10:30 p.m. on the date in question when he received a call of a "woman down." Upon arriving at the scene, he spoke to several people, then briefly interviewed the complainant, who stated that she had been raped and described her assailant as a male Mexican, approximately 5 feet 6 inches tall, and weighing 145 to 150 pounds. Tyler also testified that he went immediately to the building where the incident occurred and found two male Latins who matched the description. Both men were held for questioning and taken to the hospital, where the complainant viewed each of them separately. When the first man entered the room, the complainant stated that he was not her assailant; however, when defendant entered, she became very upset and said that he was the man who had raped her.
It was stipulated that, if called, laboratory technicians employed by the Chicago police department would testify that a fingerprint lifted from a drinking glass in the complainant's apartment on the night of the incident matched prints taken of defendant at the time of his arrest; and that a small amount of human blood was found in the crotch area of the pants defendant was wearing when arrested, but the amount thereof was insufficient to determine blood grouping. It was further stipulated that, if called, Dr. Paguaga would testify that when he examined the complainant after the incident, he observed an abrasion and laceration in the external genital area of the vagina, as well as vaginal bleeding.
Defendant testified that when he first moved to the rooming house at 4422 South Emerald one month before the incident, he resided in the room later occupied by the complainant. However, approximately one week before the incident, he moved to the room next door. He did not know that complainant had moved into his former room, and had never seen her in the apartment building. Defendant also stated that all of the rooms were furnished by the landlord, but the tenants supplied their own pans, glasses, utensils and bedding, and that when he moved to the second room, he took all of his clothing and utensils with him. Defendant further testified that on the date in question he left work at 4 p.m., had a few beers with co-workers, then visited a friend at 83rd and Burleigh until a little after 9 p.m., when he took a bus back to his apartment. Shortly after arriving there, he heard a commotion in the hall, and when he opened the door a police officer grabbed him and placed him under arrest. Defendant stated that he did not go to the complainant's room that day, and denied ever having sexual intercourse with her.
• 1 Defendant first contends that his sentences should be reduced or vacated because the trial court improperly considered a prior arrest for a similar offense where there was no accurate, reliable evidence thereof, and under circumstances which deprived him of the opportunity to challenge its reliability.
The law with regard to what may properly be considered in imposing sentence is well settled, and places within the trial court's sound discretion the delicate task of balancing the need to protect society's interests against the mandate that sentences allow for the possibility of rehabilitation (People v. Perruquet (1977), 68 Ill.2d 149, 368 N.E.2d 882), and as an aid to the court in the exercise thereof, the legislature has set forth specific factors which may be considered in aggravation and mitigation (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-5-3.1, 1005-5-3.2). In addition, case law provides that the trial court may consider the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age (People v. Perruquet) as well as prior convictions (People v. Franklin (1978), 64 Ill. App.3d 400, 380 N.E.2d 1082), but it is established that mere charges or arrests may not be considered (People v. Perry (1976), 38 Ill. App.3d 81, 347 N.E.2d 340), unless relevant, accurate evidence thereof has been presented under circumstances which allow the defendant to confront and cross-examine witnesses (People v. La Pointe (1981), 88 Ill.2d 482, 431 N.E.2d 344). However, even where improper evidence is presented, such as a showing of the bare fact that an arrest occurred or a charge was made, we will presume that the trial court, knowing the law, considered only proper evidence in imposing sentence, and disregarded that which was improper (People v. Mosley (1980), 87 Ill. App.3d 903, 409 N.E.2d 381). Thus, it is not enough to show that the trial court had knowledge of prior arrests (People v. Shumate (1981), 94 Ill. App.3d 478, 419 N.E.2d 36), or that the State argued that factor in urging the imposition of a harsher sentence (People v. Mosley (1980), 87 Ill. App.3d 903), or even that the trial court itself mentioned the arrest during the sentencing hearing (People v. Shumate (1981), 94 Ill. App.3d 478; People v. Jones (1980), 81 Ill. App.3d 798, 401 N.E.2d 1054); rather, the record must affirmatively disclose that the arrest or charge was considered by the trial court in imposing sentence (People v. Poll (1980), 81 Ill.2d 286, 408 N.E.2d 212; People v. Shumate (1981), 94 Ill. App.3d 478).
In the instant case, the record reveals that the presentence investigation report contained a sheet of paper from the Chicago police department identification section which listed defendant's numerous encounters with law enforcement officials, both convictions and arrests for which no convictions were shown. The vast majority of those incidents were for driving while intoxicated, but the list included a single arrest, without showing any disposition thereof, for "aggravated assault on a female." No objection was made to the inclusion of this information in the presentence report, and the State made no mention of any convictions or arrests in arguing factors in aggravation during the sentencing hearing. However, during defense counsel's argument of factors in mitigation, the following colloquy took place:
"COUNSEL: Your Honor, I know that you read the Pre-Sentence Investigation. It indicates that Mr. Garza has no significant prior criminal history. It indicates that he has had some problem with drinking.
COURT: Well, he had one case in Texas, where he was found guilty — it doesn't say whether he was found guilty or not. But he was charged, in June of '75, with aggravated assault on a female.
COUNSEL: Your Honor, I believe the charge is not really relevant for ...