Appeal from the Circuit Court of Cook County; the Hon. Thomas
Hett, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, David Alexander, was convicted by a jury of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)(1)) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3(a)). He was sentenced concurrently to 30 years for rape, 15 years for indecent liberties and 3 years for unlawful restraint.
On January 8, 1981, defendant was charged with the aforesaid crimes, as well as aggravated battery, all arising from an incident occurring on December 25, 1980. In February 1981 defendant's attorney orally moved the court to order a "Psychiatric Institute Examination" of defendant "for both fitness to stand trial and sanity at the time of the offense." Defense counsel alleged no factual basis for his request. The State advised that it had no objection thereto, and the court granted defendant's motion.
On March 31, 1981, defense counsel and the assistant State's Attorney stipulated to the findings and conclusions of defendant's examining psychiatrist, Dr. Stikes, which were to the effect that the defendant was not fit to stand trial "because of a mental condition associated with alcohol." The court thereupon found that the defendant was unfit to stand trial and that there was a substantial probability that the defendant, if provided with a course of treatment, would attain fitness within one year. The court then ordered defendant placed in the custody of the Illinois Department of Mental Health for treatment, and pursuant to sections 104-16 and 104-17 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 104-16, 104-17), ordered the Department to report to the court within 30 days its opinion as to the probability of defendant's attaining fitness within one year.
On May 21, 1981, a hearing was held on defendant's restoration to fitness. The State and defense counsel stipulated to the qualifications and reports of two psychiatrists who had examined defendant. Both found him fit to stand trial. The court accepted the stipulations and then questioned defendant as to whether he felt he was fit to stand trial. Defendant answered affirmatively, and thereupon the court found defendant fit to stand trial. Prior to trial the court granted the State's motion to nolle prosequi the charge of aggravated battery.
At trial, the alleged victim of the assaults, R.A.S., testified to the following: On December 25, 1980, she was 13 years old, the oldest of six brothers and sisters. Defendant was not her biological father but was the father of four of her brothers and sisters. At about noon on that Christmas Day she was watching television when defendant came in the front door and asked if her mother was at home. She was not. Defendant then left, and later returned. He asked R.A.S. if she wanted to go to the store with him. She said she would, and they left. After walking a few blocks, defendant walked back toward the rear of the family home from whence they had come.
The rear door of the home was usually held shut by a wood board, but the board was not there on that day. She and defendant went up the back stairs, through the kitchen and up to the attic. In the attic, defendant hit R.A.S. when she initially refused his request that she remove her boots. Defendant then removed his coat and laid it on the floor. When R.A.S. refused to approach him, he again hit her. Defendant then grabbed her and told her to remove her coat. She was struck again and, at defendant's command, she removed her pants. Defendant removed a string from her blouse and tied it around her neck. He placed her on her back and removed his clothing. He struck her again and then had intercourse with her.
When defendant fell asleep, she gathered her clothing and ran downstairs. In the kitchen, she knocked over a door which was leaning against a kitchen wall. Two of her sisters, A.S. and S.S., then came into the room. R.A.S. was at that time dressed only in a shirt and bra; she told her sisters she had accidentally urinated in her pants. She then put on the rest of her clothing and went to the house of her friend, Cynthia W. She told Cynthia W. and Cynthia W.'s mother that she had been raped. The mother called the police. The police took R.A.S. back to her home where she retrieved her coat from the attic. The police then took her to a hospital. On the way to the hospital, she saw and identified defendant, who was then arrested.
On cross-examination, R.A.S. admitted she did not get along with defendant. She disliked the fact that defendant and her mother fought. On December 25, 1980, the two had fought, and the mother had left; R.A.S. was angry at defendant for forcing her mother out of the house that day. R.A.S. admitted that she had told the police that she had sex with defendant on about 10 occasions since she was nine years old. She had not reported those previous intimacies to anyone other than her grandmother, who lived in Alabama. She did not tell her brothers or sisters, although she admitted she was fearful that defendant might take advantage of her sisters.
The State's next witness was S.S., who testified: She was R.A.S.'s sister and defendant's daughter. On December 25, 1980, defendant came to the house, left, and then returned again. He then left with R.A.S. A short time later, S.S. heard a door in the kitchen fall. S.S. and her sister, A.S., went into the kitchen. R.A.S. was standing there wearing a shirt but no pants or underwear. R.A.S. said that she had wet herself. R.A.S. then put on her pants and left the house.
Cynthia W.'s mother testified that on December 25, 1980, R.A.S. came to her house and told her she had been raped.
Chicago police officer Lynn Laskey testified that on December 25, 1980, she went to Cynthia W.'s house and spoke with R.A.S. They then drove to R.A.S.'s house and looked for evidence, particularly a blouse string, which they did not find. On the way to the hospital, they saw defendant, who was placed under arrest.
The parties stipulated: R.A.S. was examined at the hospital; the resultant smears and slides, and her clothing, were taken to the Chicago crime lab and there examined by Sedgewick Higgenbottom, a lab employee.
Bernadette Kwak, a microanalyst with the crime lab, testified for the State: Mr. Higgenbottom, now deceased, had examined the smears, slides, pants, panties and a vaginal specimen involved. He found spermatozoa on the vaginal smear, but neither sperm nor semen on the other articles of clothing. Ms. Kwak also found sperm on one of the smears as well as on a second smear on which Higgenbottom had not found sperm. The State then rested.
Defendant testified on his own behalf: On December 25, 1980, he returned to his house in the morning and asked the children if their mother was at home. When informed she was not, he left. He returned about an hour later, and he and R.A.S. went to the store to buy bread. On the way to the store he gave to a man on the street a $5 bill for which he received five singles in change. He gave R.A.S. $1 and they then went in different directions. He did not give R.A.S. the entire $5 because she had a habit of overspending.
Defendant stated that he then met a friend of his, Willie, and agreed to sell Willie a ladies' watch for $7. Defendant returned home to get the watch. He entered the back door of the home and observed his daughters, S.S. and A.S., making peanut butter sandwiches. Defendant remained ...