Appeal from the Circuit Court of Cook County; the Hon. Thomas
A. Hett, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a conviction of rape and the imposition of a sentence of life imprisonment under the habitual criminal statute. He cites four objections on appeal: (1) the trial court erred in denying a motion in limine in which defendant sought to exclude evidence of his two prior rape convictions; (2) he was unfairly prejudiced by the State's closing argument; (3) the trial court erred in giving an instruction on the purpose of opening statements; (4) the habitual criminal act violates the eighth and fourteenth amendments of the United States Constitution.
John Hartfield was tried before a jury on charges of rape and aggravated battery. These charges arose from an attack upon complainant, which occurred on the afternoon of February 14, 1983. At trial, complainant testified that she initially encountered the defendant shortly before the attack outside of her apartment building. She was previously unacquainted with defendant when he approached her and a friend to ask for directions. A few minutes later, complainant left her friend and went up to her second-floor apartment.
It was complainant's testimony that while she fumbled with the lock on her apartment door, she noticed the defendant standing nearby. She said that the defendant grabbed her arm, pushed her into her apartment, and beat and raped her. According to complainant, after the defendant had raped her, he threatened to kill her if she reported the incident.
Complainant testified further that after the defendant left her apartment, she opened her door and looked out into the hallway. She saw her neighbor, Janette Turner, who asked complainant what was wrong. Complainant testified that she told Ms. Turner that nothing was wrong and that she would prefer to be left alone.
Janette Turner's testimony differed somewhat from the complainant's. Ms. Turner said that she heard screams coming from complainant's apartment and that when she went to investigate, she saw the defendant running from out of complainant's doorway. Upon entering the complainant's apartment, Ms. Turner found complainant bleeding and disheveled. Ms. Turner recalled that complainant said that she had been raped.
Richard Bannister testified for the State that he heard screams coming from the complainant's apartment as he sat in his own apartment, one floor above complainant's. According to Mr. Bannister, as he was attempting to investigate, he encountered the defendant running down the stairs of the apartment building toward the basement. Mr. Bannister apprehended the defendant and brought him back upstairs to complainant for identification.
When complainant was presented with the captive defendant, she said initially that he had not hurt her. However, Janette Turner testified that after she had calmed and consoled complainant, the complainant admitted that the defendant had raped her. Shortly after he was apprehended by Mr. Bannister, the police took the defendant into custody.
The defendant was charged with rape and aggravated battery. At trial, the testimony of witnesses complainant, Turner, and Bannister was supplemented by testimony from the physician who treated complainant at Mercy Hospital following the attack. Dr. Seacutt testified that complainant suffered head and vaginal injuries, although he found no semen on her body. A microanalyst testified for the State that she found traces of both complainant's and defendant's blood types on swatches of material taken from complainant's bedsheets and defendant's coat. Defendant did not testify at trial, and he presented no witnesses.
Defendant was convicted of rape and aggravated battery, the battery charge merging into the rape conviction. The trial court held a sentencing hearing at which the State urged the court to sentence defendant to natural life in prison. The State adduced testimony of two Chicago police officers and an assistant State's Attorney that they were present in court when defendant was convicted of rape in 1974 and again in 1979. In addition, the State produced certified copies of these convictions and of defendant's prison record. Defendant objected to the introduction of these documents since the party named in the prior judgments was Richard, not John, Hartfield. In fact, defendant acknowledged in his late notice of appeal that he is also known as Richard Hartfield.
The trial court held that since the defendant had been convicted three times of a Class X felony within the previous 20 years, he should be sentenced to natural life in prison under the habitual criminal statute. (Ill. Rev. Stat. 1983, ch. 38, 33B-1(e).) Defendant now appeals from his conviction and sentence.
• 1 The first objection raised by defendant is that the trial court erred in denying a motion in limine in which he sought to exclude evidence of his two prior rape convictions. Defendant claims that the court failed to balance the probative value of this evidence against its potential for unfair prejudice.
In order to preserve this objection for appeal, defendant should have included it in his post-trial motion. (People v. Senor (1983), 118 Ill. App.3d 694, 696, 455 N.E.2d 262, 263.) Defendant filed a post-trial motion, but it is not known whether he included an objection to the denial of his motion in limine, because he failed to supply a copy of his post-trial motion for the record on appeal. The responsibility for properly preserving the proceedings below rests with the appellant, and any doubts raised by an incomplete record are resolved against him. (People v. Turner (1984), 127 Ill. App.3d 784, 789, 469 N.E.2d 368, 372.) It may be assumed, therefore, that the defendant failed to raise his objection in his post-trial motion.
• 2 Additionally, the defendant has waived his objection because he failed to testify at trial. The United States Supreme Court held recently that the denial of a motion in limine that seeks to exclude defendant's prior convictions is not reviewable if the defendant does not testify at trial. (Luce v. United States (1984), 469 U.S. 38, 42-43, 83 L.Ed.2d 443, 448, 105 S.Ct. 460, 464.) Such a ruling is non-appealable because prejudice to a defendant caused by the trial court's action is wholly speculative. If the prior convictions were never used to impeach ...