Appeal from the Circuit Court of Jackson County; the Hon.
William H. South, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant, Kevin L. Simmons, was convicted of rape, deviate sexual assault, home invasion, armed violence, residential burglary and armed robbery after a jury trial in Jackson County circuit court. He was sentenced to four concurrent 25-year terms of imprisonment on the rape, deviate sexual assault, home invasion and armed violence convictions. He was also sentenced to a 10-year term for residential burglary, to run concurrently with the 25-year sentences, and a 20-year term for armed robbery, to run consecutively to the other sentences.
Defendant on appeal contends (1) the court erred by denying his motion for mistrial based upon the State's failure to disclose prior to trial that the victim had retracted a prior statement, (2) the court erred in refusing to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.10 (2d ed. 1981), (3) the State failed to prove him guilty beyond a reasonable doubt, (4) the sentences were excessive and there was no basis for the consecutive sentence for armed robbery, and (5) his conviction for armed violence must be vacated because that offense was included in the offense of rape. We affirm in part and vacate in part.
The victim, living in Carbondale, returned to her apartment around 10:30 p.m. on June 18, 1983. She visited briefly with her boyfriend, and they placed $40 into a glass jar in the living room, the money having come from a singing engagement performed that night by the woman. Her boyfriend left before midnight to go to work at a local bakery.
The victim went to bed around 1:30 a.m., leaving a light on in the living room, but closing her bedroom door. Later, in the darkness of the morning of June 19, she awoke to see a man in her room taking off his pants. He told her to spread her legs, but the victim did not move. Then he told her, "Spread your legs or I will kill you." He held a gun to her head, then sodomized and raped her. The victim testified her attacker did not ejaculate. While still on top of her, he asked if there was any money in the apartment. After the victim initially hesitated, the attacker lifted the gun and again held it to her head. The victim then told him to look in the living room. Before leaving the bedroom, the man looked around the floor as if he had lost something, but never recovered anything. Then he went to the living room, and as he did so, the victim pushed through a window screen in the bedroom and ran for help. As she escaped, she heard her screen door slam and heard four shots fired. Neighbors testified they heard this disturbance around 3:30 a.m.
The victim later reported the glass jar with the $40 was missing along with $23 from her purse and two gold rings.
The victim positively identified defendant at trial as the perpetrator. A police expert testified that a thumbprint found on a fan in the living room was that of defendant. A palm print on a bench in the living room was also found to belong to defendant. A police expert testified entry had been gained through the living room window, with the intruder placing his hand on the bench as he came into the apartment. The victim testified the fan had been on top of the bench in front of her living room window. After the attack, the fan was moved from its normal position, as was the bench. The living room window screen had been removed from the outside. A police expert testified there was a very high degree of probability that hairs from a cap found in the victim's bedroom came from defendant.
Defendant testified at trial that he was at a party near the victim's apartment the night of the attack, but that he did not commit the crimes alleged. He stated he was home in bed at 3:30 a.m., the time of the attack. His girlfriend also testified she was with him most of the night, and that they went home around 3 a.m. and were in bed together at 3:30 a.m. Several other defense witnesses testified as to defendant's presence at the party and the fact that he was driven home at approximately 3 a.m.
Defendant also presented expert testimony showing that seminal material found in the victim, on her sheets, and on her clothing, could not have come from defendant. The State showed this seminal material could have come from the victim's boyfriend.
• 1 Defendant first claims error in the denial of his motion for mistrial based upon the State's failure to disclose to the defense prior to trial the fact the victim had retracted a prior statement. The victim testified at trial that she and her boyfriend had had sexual intercourse on her bed on the two nights preceding the rape. She indicated they had sex after the last cleaning of the sheets. On cross-examination, the victim admitted that her original statement to police was that she had not had sex with anyone between the last time the sheets were cleaned and the time of the attack. The victim acknowledged having told the prosecutor of her changed recollection a couple of months before trial.
Defendant contends the State had a duty to disclose the victim's new version of the condition of the sheets. Supreme Court Rule 412(a)(i) provides for disclosure to defendant's counsel, upon written motion, the following:
"the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the court in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel * * *." 87 Ill.2d R. 412(a)(i).
Where a defendant alleges that the State failed to produce such a statement, the actual existence of the memorandum must be shown. (People v. Kurena (1980), 87 Ill. App.3d 771, 776, 410 N.E.2d 277, 283.) Here, there was no showing such a memorandum existed, and "Rule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing." People v. Davis (1982), 105 Ill. App.3d 129, 132, 434 N.E.2d 13, 15.
While disclosure was thus not required here under Supreme Court Rule 412(a)(i), we also analyze defendant's contention under the broader scope of Supreme Court Rule 412(c), which provides:
"Except as is otherwise provided in these rules as to protective orders, the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor." (87 Ill.2d R. 412(c).)
This rule codifies constitutional standards set out by the United States Supreme Court. People v. Bouska (1983), 118 Ill. App.3d 595, ...