Appeal from the Circuit Court of Cook County; the Hon. Sophia
H. Hall, Judge, presiding.
PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendant, Mack Harris, was found guilty of three counts of rape and one count of unlawful restraint. The trial judge merged the unlawful restraint into the three counts of rape and sentenced the defendant to seven years for each count of rape, with each sentence to run concurrently. On appeal, the defendant contends that the trial court erred in admitting evidence of a spontaneous declaration and of a prompt complaint of rape. He also contends that he was not proved guilty beyond a reasonable doubt and that two of the rape charges should be vacated and the case remanded for resentencing.
The complainant, a 16-year-old, testified that on August 14, 1983, at about 8:30 p.m., she received a phone call from the defendant asking her to baby-sit for him and the complainant's aunt, the defendant's girlfriend, while they went to a party. She agreed. The complainant and her seven-year-old brother, Willie, then left their house, planning to spend the night at her aunt's apartment and return the next morning.
When she and Willie arrived at her aunt's apartment, the defendant was the only one home. The defendant informed her that her aunt and her cousin were at the store. At that point, the complainant and Willie sat in the front room listening to the radio while the defendant sat watching television and drinking gin. The complainant also periodically looked out the kitchen window for her aunt. All three sat in the front room until 10 p.m., at which point the complainant again looked out the kitchen window for her aunt. Willie then came into the kitchen and said that they had to go to bed. The complainant refused. The defendant then came into the kitchen and told them that they had to go to bed. She again refused. The defendant then repeated his order, at which point the complainant began to cry. The defendant then began to choke the complainant and she started screaming.
The defendant then ordered the complainant and her brother to leave. As they attempted to leave, the defendant grabbed the complainant and threw her into a chair. He then choked her again. The defendant then pushed her into the bedroom and in an angry voice told her to take off her clothes. Next, the defendant took off his clothes and began to touch her breasts. The defendant then had sexual intercourse with the complainant. Afterwards, the defendant left the bedroom for 10 minutes. When he returned they had sexual intercourse again. She and the defendant then fell asleep for about three hours. The defendant then awakened the complainant and had sexual intercourse with her for a third time. They fell asleep again until morning. The defendant tried to have sexual intercourse with her in the morning but failed. The complainant then put on her clothes and prepared to leave. The defendant then asked her if she was coming back and if she was going to tell anyone what had happened. She responded that she would be back and that she would not tell anyone what happened. She and Willie then left.
When she returned home, the complainant told her mother that the defendant did not want her to baby-sit. Her mother then asked her what he wanted her to do. She asked the complainant further whether the defendant had raped her, to which the complainant replied, "What else would he want." Her mother then called the police.
The complainant's mother corroborated her daughter's testimony. The mother stated that on Sunday, August 14, 1983, the defendant had called her house to ask if the complainant could baby-sit while he and the complainant's aunt went to a party. She verified that her daughter and her son Willie left for the defendant's apartment and planned to spend the night there, as they had done on previous nights on which the complainant had babysat for them. The mother further testified that when the complainant returned home the next morning, she was mad and said that she wished she had not gone to the defendant's apartment and that the defendant did not want a babysitter. The mother then asked why she said that and also if the defendant did something to her "like rape her or something." The complainant asked what her mother had just said, wherein the mother repeated her question whether the defendant had raped her to which the complainant replied, yes.
The State also called the defendant's girlfriend, who was also the complainant's aunt. She testified that on Sunday, August 14, 1983, at about 3 p.m., she and the defendant had a fight. She stated that she left the apartment with her daughter and that she had no intention of returning to the apartment. The following day she received a phone call from the complainant's mother regarding the alleged rape. At 1:30 p.m., on August 15, 1983, she met with police officers and accompanied them to the defendant's apartment. It was at this point that the police arrested the defendant.
Dean Morask, assistant State's Attorney to the felony review unit, testified that he arrived at Area 4 Headquarters, where the defendant was being detained, and upon his arrival spoke to Detective Nuccio and the complainant. He then went into the interview room with Nuccio to speak with the defendant. Morask identified himself to the defendant and advised the defendant of his Miranda rights. They proceeded to have a conversation regarding the alleged rape. Morask then reduced the conversation to writing.
According to Morask the defendant stated that on the date in question the defendant telephoned the complainant and asked her to baby-sit. She and Willie arrive at 9 p.m. The defendant watched television as the youngsters listened to the radio. The defendant at that time was drunk on gin. While Willie lay on the bed in the kitchen, the defendant told the complainant to go into the bedroom. She refused. The defendant then choked her and told her to shut up. They then went into the bedroom and the defendant ordered the complainant to take off her clothes. The defendant then took off his clothes and made her lay on the bed. The defendant and the complainant then had sexual intercourse three times during the night. She was scared of the defendant and did not want to have sex with him. They awoke at 10 a.m., but before she left the defendant asked her if she was going to tell anyone what happened and she responded no. The defendant was drunk and sorry for what happened.
The defendant signed this statement, acknowledging that he had read, was informed of, and understood his Miranda rights. Morask stated that the defendant read aloud the two lines containing Miranda and then affixed his initials beneath them. Morask also testified that he told the defendant to read the statement to himself and that afterward, he read the statement aloud to the defendant. Morask stated that the defendant affixed his initials over a word he crossed out and that he, Nuccio and the defendant all placed their signatures beneath the statement. This statement was admitted into evidence at trial.
It was then stipulated to at trial that the complainant underwent several vaginal tests at Mount Sinai Hospital and that those lab tests proved positive for semen.
The defendant then testified in his own behalf. He stated that he and his girlfriend got into a fight and that she and her daughter left that afternoon, although he thought they would return. He admitted calling the complainant and asking her to come over and baby-sit. He further stated that about 10 p.m. the complainant was sitting on the couch looking out the window and Willie was sitting on the bed in the kitchen playing with toys. Later, while the defendant and the complainant were sitting around watching television, they began discussing the kind of guys she likes. The conversation then progressed to the point that they discussed each other, when the defendant then said, "Why not me and you?" to which the complainant replied, "Why not."
At this point, the complainant went into the bedroom. The defendant came in five minutes later. He asked her to take off her clothes and lay down and then he took off his clothes and laid in bed with her. They then had sexual intercourse three times during the night. The defendant testified that he never forced her to have sexual intercourse with him and that he never choked her. He did admit ...