Appeal from the Circuit Court of Cook County; the Hon. Earl E.
Stray-horn, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
In simultaneous trials conducted before the same judge, but with different juries, defendants, Ricky Knight and Patrick Hampton, were convicted of deviate sexual assault, attempted rape, robbery, and aggravated battery. (A third defendant, Ronald Mallory, was acquitted by a third jury.) Defendant Knight was sentenced to 60 years for deviate sexual assault, to be served consecutive to the following concurrent terms: 30 years for two counts of attempted rape, seven years for three counts of robbery, and five years for three counts of aggravated battery. Defendant Hampton received concurrent sentences of 60 years for deviate sexual assault, 15 years for attempted rape, seven years for three counts of robbery, and five years for three counts of aggravated battery.
In separate appeals, which we have consolidated for purposes of this opinion, defendants have raised the following arguments. Defendant Hampton contends that (1) his warrantless arrest should have been quashed and the resulting identification testimony suppressed, and (2) his 60-year sentence for deviate sexual assault was excessive. Defendant Knight contends that (1) he was prejudiced when the trial court failed to compel the complaining witnesses' civil attorney to produce records of statements made to the attorney concerning the incident in question; (2) it was error to require him to participate in a simultaneous triple-jury trial with his severed co-defendants; (3) his convictions for attempted rape must be reversed because the indictments failed to allege any act constituting a substantial step toward commission of a rape; (4) the attempted rape convictions must be reversed because the State failed to prove that he intended to rape anyone or that he took any substantial step toward such an act; (5) it was error to impose an extended-term sentence for the less serious offense of attempted rape; (6) the consecutive sentence imposed was improper because the evidence failed to support a finding that he inflicted severe bodily injury; and (7) the consecutive sentence imposed constituted an abuse of discretion.
The evidence presented by the State established the following pertinent facts. On the evening of December 29, 1981, Hugo Novales, D.M., and M.N. were attending a rock concert at the Amphitheater in Chicago. The three were sitting near the stage late in the concert when a group of 40 to 50 men began moving up the aisle toward the stage, chanting, "Third World Disciple Nation" and making hand signals. Both defendants were in this group. Defendant Knight was directing the other men to various positions as they moved down the aisle.
When Hugo, D.M., and M.N. entered the aisle, attempting to leave, the men began to kick and punch them. As Hugo held onto D.M. in an effort to protect her, his clothes were stripped from him, along with his wallet and jewelry. D.M.'s clothes were also ripped from her body, along with some gold jewelry. Defendant Knight struck Hugo and D.M. with a wooden chair, striking with such force that the chair was splintered. He then struck Hugo on the head with a metal chair, knocking him to the ground with D.M.
D.M. was held down on the ground. As she screamed, some of the men fondled her breasts, and others, including defendant Hampton, put their fingers in her vagina. A number of the men around D.M., including defendant Knight, had their penises exposed. Knight forced his penis into D.M.'s mouth. Then Knight tried to spread her legs as defendant Hampton attempted to insert an unidentified cold, hard object into her vagina. Hugo and D.M. were rescued from these men and taken to a first-aid area behind the stage. D.M. was then taken to the hospital. She had sustained a vaginal wound requiring stitches, scars on her breast, and a bladder infection.
M.N. was also attacked in the aisle. Defendant Knight tried to strike her with a chair. She was pulled by her hair toward the stage and was kicked and hit as people attempted to disrobe her. A necklace was snatched from her neck.
During the attack, defendant Hampton ripped off M.N.'s pants and attempted to put his hand in her vagina. M.N. was then knocked to the floor, losing consciousness. When she regained consciousness, she ran to safety as defendant Knight shouted, "Get her. Get her."
We first consider defendant Hampton's contention that his warrantless arrest, which he contended took place in his home, should have been quashed.
At the hearing on Hampton's motion to quash, Detective Thomas Ptak testified that on December 31, between 4:20 p.m. and 5 p.m., he first learned of the identities and addresses of the defendants from Keith Powell, an eyewitness. Powell informed him that defendants were gang members; Powell, at approximately 5:15 p.m. in a photo array, identified defendant Knight as the leader of the gang. The police went to defendant Hampton's building, where they arrested three other men suspected of involvement in the attack. At about 7 p.m., Ptak and other officers knocked on defendant's door. A man who identified himself as defendant's father came to the door. When the police asked to speak to Hampton, the man summoned him and told him to go outside (into the hall of the building) to speak to the officers. He was arrested in the hall without a warrant.
Defendant Hampton testified that his father could not have responded to the knock on the door because he had died earlier that year. Defendant's brother was the one who answered the door; the police came into the apartment; and defendant was arrested inside the apartment.
The court declined to resolve the credibility question resulting from this conflicting testimony, finding that in any event exigent circumstances justified a warrantless arrest in Hampton's home.
• 1 Absent exigent circumstances, the police may not effectuate a warrantless, nonconsensual entry of a private residence to make an arrest. (Payton v. New York (1980), 445 U.S. 573, 63 L.Ed. 639, 100 S.Ct. 1371; People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543.) Among the factors which may be considered by the court in determining the exigency of an arrest are (1) whether a grave offense, particularly a violent crime, is involved; (2) whether there is a clear showing of probable cause; (3) the existence of a strong reason to believe the suspect is present; (4) the likelihood of escape absent a prompt arrest; and (5) whether the police entry was peaceable. (People v. Yates (1983), 98 Ill.2d 502, 456 N.E.2d 1369.) These and other factors cited by the courts, however, are only guidelines, with the overall consideration being the reasonableness of the police action in light ...