Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On September 9, 1983, following a jury trial in the circuit court of Vermilion County, defendant, Ivory Townes, was convicted of two counts of attempted murder, two counts of home invasion, and one count each of rape, robbery, and deviate sexual assault. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 12-11, 11-1, 18-1, and 11-3.) Defendant was sentenced to extended terms of 60 years' imprisonment on the attempted murder, home invasion, rape, and deviate sexual assault convictions, and to seven years on the robbery conviction. The sentences on the attempted murder convictions were ordered to run consecutively to the remaining sentences, which were to run concurrently with each other.
On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred by denying defendant's motion for change of place of trial; (3) the court erred during voir dire by refusing defendant's challenge for cause of one juror and by insufficiently examining another juror regarding exposure to pretrial publicity; (4) defendant's right to an impartial jury was denied by the prosecutor's peremptory challenge of the only three prospective black jurors; (5) the court erred by admitting evidence seized from defendant's apartment following his arrest; and (6) the court erred by admitting evidence of defendant's refusal to comply with a search warrant to compel the taking of body specimens. We affirm.
As defendant has challenged the sufficiency of the evidence supporting his convictions, it is necessary to recite the facts of this case in some detail.
The complaining witnesses in this case, John and Jacqueline Hazel, husband and wife, lived in a second-floor apartment in Danville. Mr. Hazel testified that he was awakened about 12:30 or 12:45 a.m. the morning of June 8, 1983, by noises in the kitchen of the Hazels' apartment. Upon investigation, Mr. Hazel discovered a black man standing inside the kitchen door whom he described as being about 5 feet 9 inches tall, weighing about 160 to 165 pounds, and whom he identified in court as being the defendant. The intruder was wearing blue jeans and a light blue shirt and had a plastic "perm cap" (or shower cap) on his head and a slight amount of facial hair; he was not wearing eyeglasses.
The intruder first stated he was looking for a party and then demanded to use a telephone, but was told that there was no phone in the apartment. When the intruder advanced into the apartment, Mr. Hazel and Jacqueline Hazel, who had been awakened by voices and had joined her husband, attempted to push the intruder out of the kitchen door, and a scuffle ensued during which the intruder struck Mr. Hazel in the right eye and Mr. Hazel sustained serious lacerations on his wrist from broken glass on the kitchen door. The intruder sprayed the Hazels' faces with a substance which temporarily blinded them. Mr. Hazel was not wearing his glasses during the incident.
The kitchen was illuminated by the light emanating from the television in the living room and by a small fluorescent light over the kitchen sink. Initially, the only other light in the apartment was provided by a neon beer sign which was located about eight or 10 feet away from the dining room window.
After subduing the couple, the intruder forced Mr. Hazel into an unlocked bedroom closet where he remained for 30 to 40 minutes. During this period Mr. Hazel heard the intruder striking Mrs. Hazel and demanding money. At one point Mr. Hazel handed out his wallet, which contained no money, to the intruder.
Mr. Hazel thereafter heard water running in the bathroom and was forced to get into the filled bathtub, where Mrs. Hazel was already standing. The intruder then handed Mr. Hazel an electric massager, which was attached to an extension cord plugged into an outlet over the sink, and told Mr. Hazel to drop it into the bathwater. Mr. Hazel did so and received a slight shock.
During this period the bedroom lights shined into the bathroom. The intruder stood inches away from the Hazels. Mr. Hazel's right eye was swollen shut, but he had vision in his left eye; the blinding effect of the substance which was sprayed in his face had largely worn off.
During the bathroom episode, Mr. Hazel was still bleeding profusely from his wrist wounds. He asked the intruder to give him something to wrap around his wrist to stop the bleeding, and the intruder provided a pair of Mr. Hazel's blue jeans. The intruder also advised Mr. Hazel to seek medical attention for the wounds, which he told Mr. Hazel to say were the result of an accident. After threatening to kill the Hazels if they contacted the police, the intruder left the apartment. The Hazels later discovered that in addition to the wallet, two sets of keys were missing, including a set which fit locks at Danville Beverage, where Mr. Hazel was employed. Mr. Hazel estimated that the incident lasted 1 1/2 to 1 3/4 hours.
Jacqueline Hazel also testified for the State, and much of her testimony coincided with that of her husband. In court, she identified defendant as the intruder. After her husband was forced into the bedroom closet, she dumped out the contents of her purse on the living room table in an attempt to satisfy the intruder's demands for money. Although she was struck repeatedly in the face and had been sprayed twice by this time, she was able to observe the intruder in the lighted living room while he was examining the contents of her purse. She particularly noticed the intruder's "drooping eyelids." Mrs. Hazel normally wore eyeglasses to read but was not wearing them during the incident.
Mrs. Hazel attempted to escape the apartment by running down the outside stairs, but the intruder caught up with her at the bottom and threw her to the ground. At this point her vision was not impaired, and the area was lighted by an outside beer sign. The intruder dragged Mrs. Hazel back into the apartment and turned on the bath water. The light in the bedroom was off, but the bathroom light provided some illumination. The intruder forced Mrs. Hazel to engage in fellatio and then in intercourse on the bedroom floor, while her husband remained in the bedroom closet.
Mrs. Hazel recalled that after the intruder had obtained an extension cord and forced the Hazels to stand in the bath water, the electric massager was dropped in the bathtub twice; she was unsure of who dropped it in the second time. While in the unlighted bathroom, Mrs. Hazel could see the intruder "real good" because the lights were on in the adjoining bedroom.
After the Hazels notified police of the incident, they were taken to the hospital, where they were treated for their injuries. A vaginal swab was taken from Mrs. Hazel which revealed the presence of sperm. Further testing by a State forensic serologist indicated that the sperm could have been donated by defendant.
Each of the victims subsequently identified defendant as the intruder, first in photographic identification sessions conducted on June 8, 1983, and later in corporeal lineups. An investigator with the Danville police department testified that he conducted a photographic identification session with the Hazel couple in their apartment on June 8, 1983. Mr. Hazel examined 790 photographs of black males over a period of about 1 1/2 hours while his wife was being interviewed in another room. Mr. Hazel selected the photograph of defendant, which was the last one in the group, and stated that he was positive that it was the intruder. Mr. Hazel also testified at trial that he was positive at the time that his identification was correct. After Mr. Hazel left the room, Mrs. Hazel examined approximately 200 photographs before selecting a picture of defendant as the intruder.
Another Danville police investigator testified that he was present at a lineup conducted on June 9, 1983, for Mr. Hazel. After several minutes, during which Mr. Hazel eliminated three of the five subjects, Hazel identified defendant as the intruder. Hazel testified at trial that he was looking in the lineup for the person whose picture he had previously selected, but stated he was positive of his identification. On June 14, 1983, a lineup of the same five subjects was conducted for Mrs. Hazel. Mrs. Hazel viewed the lineup for about five minutes before selecting defendant, stating "I believe that's him." Mrs. Hazel also testified that she was positive of this identification.
Two keys which were taken from the Hazels' apartment were recovered by the Danville police. A workman testified that he found two keys on June 8, 1983, while repairing the roof of a Georgetown building and turned them over to a Danville police officer who was searching the area. The Danville chief of police testified that he was searching the area around defendant's apartment on June 8, 1983, for items taken from the Hazels' apartment when some workmen inquired if he was looking for keys. He was given two keys, which one of the men stated had been found on the roof of a building approximately 75 feet away from defendant's residence. Mr. Hazel identified the keys at trial as the ones which were taken from his apartment. Police determined that the keys fit locks at Danville Beverage, where Mr. Hazel was employed.
Ivory Townes' defense consisted almost entirely of the testimony of Debra Nelson, defendant's girlfriend, with whom he lived; defendant did not testify in his own defense. Nelson testified that defendant picked her up from work at midnight on June 7, 1983, after which they drove around Danville and returned to the apartment which they shared in Georgetown at about 1:45 a.m. She stated that no one left the apartment after they returned. Nelson stated that defendant was wearing a brown shirt and green pants on the night in question.
• 1 Defendant contends that the evidence was insufficient to prove his guilt of any offense beyond a reasonable doubt because of weakness in the proof that he was the intruder. He also maintains that the evidence that the intruder intended to kill either of ...