Appeal from the Circuit Court of Winnebago County; the Hon.
John C. Layng, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Dothan Rogers, was found guilty of attempted rape following a jury trial in the circuit court of Winnebago County. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4 and 11-1(a).) He was sentenced to a six-year term of imprisonment. The defendant appeals.
On appeal, the defendant raises three issues. They are whether, (1) the State proved the defendant guilty of attempted rape beyond a reasonable doubt; (2) the court erred in barring the defendant's inquiry into the complainant's background regarding her attitude toward blacks; and (3) the defendant was denied a fair and impartial jury due to the jury's exposure to a newspaper article about the defendant during the course of the trial.
The defendant's pretrial motion to suppress identification evidence was denied following a hearing. The matter was set for a jury trial and on the date of trial, the defendant filed a motion in limine to prohibit the State from introducing any evidence of the defendant's prior convictions. The defendant had been convicted of kidnaping on January 16, 1980, and released from prison on October 6, 1983. The court denied the motion in limine.
The defendant made an oral motion in limine after the jury was selected and sworn. He asked that the State be prohibited from mentioning that the defendant was released from the penitentiary shortly before the defendant was arrested for the instant offense. The court granted the motion in limine "conditionally." The State would be allowed to bring out the information only if the defendant took the stand and the issue become relevant.
The 21-year-old complainant testified on direct examination that she was recently hired as a dancer at the Surf Lounge in Rockford. On October 6, 1983, she was at the lounge between 7 and 9 p.m. in order to meet the women with whom she would be working. The complainant was dressed in a swim suit (her job costume), underpants, panty hose, Levi jeans, a sweat shirt, and shoes with two-inch heels when she left the lounge at about 9 p.m. to walk home.
The complainant was on her way to her apartment at 215 Seventh Street when she passed the defendant. She then heard him walking behind her. The complainant walked through a parking lot and the defendant went around another building. As the complainant crossed First Street, the defendant was walking behind her again.
The complainant was ascending the back stairway to her apartment when the defendant called to her for help. He was standing on the ground and the complainant was halfway up the first flight of stairs. She could not understand him because she said he was speaking in "somewhat of a foreign language." The complainant walked back downstairs to assist him. The defendant was apparently lost. He had a bus schedule with a map on the back of it. He asked the complainant to walk across the street with him to another parking lot but she refused. She said she would go upstairs and get her friend to go with her. The complainant shared the apartment with Barbara and Preston Dammann and their child.
The complainant started up the stairs again. The defendant hit her in the back of the neck causing her to fall face down on the stairs. As a result, the complainant suffered a nosebleed. The complainant screamed, but the defendant stuck a sharp object in her neck and told her it was a knife. However, she never saw the object. The defendant pushed her around and said he would kill her. The complainant did not attempt to run away because she was afraid he would catch her and kill her.
They stood by the wall for awhile. The defendant said that they had to wait for some friends who were coming to pick him up and the friends were going to take the complainant somewhere. He also said that "his country and our country were at war, that they had sent him to come get me for some unknown reason." The defendant then forced the complainant to go under a stairway where he kept her for approximately three hours.
While in this location, the defendant demanded oral sex. The complainant told him he was "nuts," at which point he pushed her against the wall. The defendant told her to cooperate or he would kill her. He continued to "make demands," but the complainant refused.
The defendant became angrier as the complainant refused his demands. He struck her a couple of times on the left side of her face and choked her. She said her jaw was swollen the next day and her nose was scratched as a result.
The complainant told the defendant that she was pregnant in an attempt to make him stop. It failed. She actually became sick to her stomach and was not feigning to be ill. Earlier, she pretended to be unconscious when the defendant knocked her down on the stairs, but that did not succeed.
The defendant wanted to have intercourse with the complainant. He insisted she remove her jeans. When she refused, he pulled down her pants. He also removed her swim suit, panty hose and underpants, although her sweat shirt was not removed. The defendant pushed the complainant's legs apart. He also fondled her by touching her genitals with his fingers.
Two white males were walking down the alley. The complainant fled from the defendant toward the men. There was a gate separating her from them. She ran through the gate, although she could not remember who opened it. The complainant yelled at the men to help her. She then ran to the front door of the building and upstairs to her apartment. The complainant saw Preston and Barbara Dammann when she entered and told Barbara that "some black s.o.b. tried to rape me down out back."
Later, the complainant was escorted by the police out the back door of the apartment into a squad car. She was told that someone was apprehended and that she was to look at the man to see if she could identify him as her assailant. As the complainant went by the defendant, she identified him as the man.
On cross-examination, the complainant was asked about her background regarding where and with whom she lived prior to living at 215 Seventh Street. She answered that she lived in Rockton with her parents about 1 1/2 to 2 months before living with the Dammanns. When defense counsel asked her about her brothers and sisters, the State's objection to the question was sustained. The defense counsel then asked to be heard outside the presence of the jury.
After the jury was removed, the defense counsel explained to the court the need to inquire into the complainant's attitude toward blacks and her prior exposure to them. Counsel's theory was that the complainant was concerned about her reputation when she realized she would be seen by two white men while she was in a compromising situation with a black man. She then screamed rape in order to protect her reputation. While the court conceded the viability of the theory, it sustained the State's objection on relevancy grounds. It indicated that the line of questioning was not relevant at that time.
When cross-examination continued, the complainant said she had removed her shoes after the defendant knocked her down on the stairs and before they moved under the stairway. She also described how the defendant undressed her. The complainant said he held her with one hand while he opened the belt, button and zipper on her jeans and then pulled the jeans down her legs. She pulled her legs out of the pants. The complainant pulled her arms inside her sweat shirt and removed the shoulder straps of her swim suit. The defendant pulled off the swim suit, panty hose and underpants. The complainant did not at any time remove her sweat shirt, nor did the defendant remove it. The defendant did not open his pants and the complainant never saw his penis.
The complainant further testified on cross-examination that when she heard the two men in the alley, she ran to the gate and opened it. She screamed when she ran from the defendant and only stayed by the two men for a few seconds. The defendant came to the gate but she ran away. The complainant said she did not show the police her nosebleed, bruised cheek or scratched nose. No photos of her were taken at the police department, and she did not seek medical treatment.
Todd Gorzynski was one of the two men who came down the alley the night of the incident. He testified that Jeffrey Bolton and he were visiting a friend at a third-floor apartment at Seventh and Second Avenues, arriving at about 8:30 p.m. on October 6, 1983. They left the apartment by way of the back stairs at about 1 a.m.
When Gorzynski and Bolton reached an alley, they began walking north toward a closed gate. The lighting in the area was dim. Many apartments faced the alley. Bolton opened the gate and Gorzynski saw the defendant and the complainant under the stairway. The complainant screamed that she needed help and that someone was going to kill her. She ran by Gorzynski and Bolton and then stopped for about a minute. The complainant was hysterical and wearing only a shirt.
Bolton had let the gate shut but the defendant opened it again. The defendant told Gorzynski and Bolton that the complainant was his girlfriend and that she did things like this all the time. Then the complainant ran in one direction and the defendant ran in the opposite direction. He "bobbed around the corner, bobbed back," asked Gorzynski and Bolton if they saw her, and then ran in the other direction (north).
Gorzynski could not see any marks or blood on the complainant's face. He could not tell if the defendant's pants were undone or if the defendant's penis was exposed. Gorzynski did not see any weapons.
After the defendant ran north, Gorzynski and Bolton continued on into the parking lot. People came out onto the second-floor porch, and Preston Dammann came downstairs. Bolton and Preston chased the defendant, and Gorzynski flagged down an accident investigation van.
Jeffrey Bolton testified substantially the same as Gorzynski. When he opened the gate, he saw the defendant step back and the complainant ran toward Gorzynski and Bolton. She went slightly past them before she stopped for a few seconds. Her face was shiny, her make-up running, and she was crying and hysterical. The defendant said to the complainant, "Don't come on, [complainant]. Don't do that to me again tonight." Then the defendant spoke to Bolton and Gorzynski and said he and the complainant lived upstairs. Bolton did not notice any injuries to the complainant.
The complainant ran and the defendant went in the other direction. Bolton and Preston were pursuing the defendant, who was walking, when a police car stopped the defendant. Bolton told the officer that the defendant just raped a girl. While walking behind the defendant, Bolton accused him of rape but the defendant said nothing.
The Dammanns were called to testify by the State. Preston Dammann said that he was asleep with his wife, Barbara, in the apartment they shared with the complainant when the complainant came home and woke them. She was hysterical and crying, her left cheek was swollen, and she was dressed only in a sweater. After a brief conversation between the complainant and Barbara, Preston went down the back stairs and met Bolton and Gorzynski. They gave chase, and Bolton identified the defendant as the man for whom they were looking. They caught up to the defendant, who had been walking, when the policeman stopped him. Preston told Officer Bruce Olson that the defendant had tried to rape the complainant and the defendant said nothing.
On cross-examination, Preston said he accused the defendant of rape when pursuing him, and the defendant denied it several times. Preston did not hear any screaming while in his apartment before the complainant came in. Preston said the complainant's injury was readily apparent the next day. It was on the left side of her face, a 2- to 3-inch inflamed red bruised discoloration.
Barbara Dammann testified substantially as had Preston. She noticed the complainant's left cheek was "puffed out" when the complainant woke her. The next day she noticed a scratch on the right side of the complainant's nose and the complainant's cheek was bruised. Barbara saw the complainant had a bloody nose when she was taken to the squad car. Barbara called the police.
Rockford Police Officer Bruce Olson was on patrol at about 1 a.m. on October 7, 1983, when he heard a broadcast describing a black male wanted by the police. He testified that he proceeded down State Street where he saw a black male, the defendant, walking, followed by three white males who were gesturing toward the defendant. The defendant matched the description, and Olson stopped him. When Olson exited the car, at least two of the white males stated he had just raped a white woman. The defendant did not respond to the accusation.
Then Olson contacted Officer Ben Clay by radio to inform him of the defendant's detention. Clay inquired whether the defendant was wearing a gold chain or black, pointy-toed shoes. Olson confirmed that he was. ...