Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Kiley, Jr., and the Hon. Thomas A. Maloney, Judges, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
In the early morning hours of June 15, 1982, Ann T. was raped while sleeping alone in her car in a parking lot of a local club. Following her detailed description of her assailant to the police, the defendant was apprehended approximately a block away from the scene of the assault. Defendant was taken to the hospital where the complainant was being treated and she positively identified him as her assailant.
After he was charged with rape and deviate sexual assault, the public defender was appointed to represent him. However, prior to trial he was represented by private counsel.
Following a jury trial, defendant was found guilty of rape, but innocent of deviate sexual assault. He was sentenced to 30 years' imprisonment. He appeals from that conviction urging that (1) the cumulative impact of the prosecutor's improper remarks during closing argument constituted reversible error; (2) the ineffective assistance of his trial counsel denied him due process to a fair trial; (3) the post-arrest identification by the victim at the hospital was improper; (4) under Miranda, he was denied his right to be free from self-incrimination; (5) there was insufficient physical or circumstantial evidence to prove him guilty beyond a reasonable doubt, and (6) the jury's verdicts finding him guilty of rape, but not guilty of deviate sexual assault were inconsistent, casting a doubt on the degree of certainty with which the jurors decided defendant's fate with respect to the rape charge. Defendant also petitioned the trial court for post-conviction relief which the trial court denied following a full hearing. Defendant appeals from the order denying the requested relief. In the interest of judicial economy and convenience, we consolidate both appeals.
Defendant initially raises the issue of prosecutorial misconduct. Specifically, defendant argues that the cumulative impact of the prosecutor's disparaging remarks during closing argument deprived him of a fair trial by an impartial jury. Four categories of prosecutorial remarks have been isolated by defendant in claiming error.
• 1 The first set of remarks falling subject to defendant's objections are those that allegedly disparaged defense counsel and his representation of defendant. Defendant cites the instance during closing arguments when the prosecutor stated that any argument expressing the view that the sperm on defendant's pants was not probative was nothing but "ludicrous."
The record reveals that at defendant's trial, expert testimony from a microanalyst firmly established that sperm was present on defendant's pants. On cross-examination, defense counsel clearly sought to elicit from the witness testimony to the effect that there was no test to determine when the semen first appeared on defendant's pants. The State claims that defense counsel was at that point trying to establish a basis which would lend support to his ultimate premise in closing argument. The gist of that premise was that semen on defendant's pants was not probative of his guilt because the expert failed to say how long the semen stain was there.
Defense counsel's cross-examination of the expert witness clearly left the impression that defendant would later draw on the testimony concerning the impossibility of testing how long the semen had been on his pants to argue in closing that the question of guilt could not be decided on the presence of semen on his clothing. As such, the State sought to comment on the same in anticipation of defense counsel's remarks. We fail to see how this could have disparaged defense counsel and his representation of defendant. The prosecutor's remarks merely reflected the matter brought forth on cross-examination by defense counsel. That the State decided to comment on the same prior to allowing defendant to bring it up first in his closing argument was no more than a display of courtroom strategy of the sort normally engaged in by opposing parties at trial.
• 2 The next comments in the prosecutor's closing argument that defendant claims disparaged his defense dealt with consent as a possible defense. The extent of the prosecutor's remarks on consent, however, must be viewed in light of defense counsel's questions on cross-examination and the other evidence produced at trial.
The record shows that defense counsel himself injected consent as a possible defense when he asked the rape victim on cross-examination: "Isn't it a fact that you voluntarily spread your legs for him?" Defense counsel's cross-examination also probed deeply into the ability of the victim to observe her assailant, questions which are logically apt to lead a jury to infer that a misidentification as to defendant had occurred. The suggestions drawn from defense counsel's line of questioning, as the State has pointed out, gave rise to inconsistent defense postures: one based on misidentification, "I didn't do it" and the other based on consent, "I did it, but she agreed to it."
Furthermore, the evidence adduced at trial was in and of itself contrary to the notion of consent as a defense. Among other things, the evidence revealed that defendant bashed in the front passenger window with a metal bar to gain access to the inside of the car. After entering the vehicle, defendant choked the victim and pinned her on the front seat. As a result of being forced to lie on the front seat in broken glass with defendant on top during the rape, the victim sustained multiple cuts and scratches in an extensive area of her back. The testimony heard at trial also revealed that defendant ripped the victim's pants off of her, breaking their zipper in the process. The victim's pants, sweater, and T-shirt were all stained with blood. This evidence was corroborated by defendant when he admitted in his confession to raping the victim under these exact circumstances.
When read in context, the subject comments were no more an affront to the defense than any other remark constituting invited reply or fair comment on the evidence adduced at trial. The characterization of the aforementioned inherently conflicting theories of defense as "garbage" merely alluded to the worthlessness of such legal posture. The comment made by the prosecutor that "the ultimate theory of the rape appears to be that it was too dark to see whether she voluntarily spread her legs" clearly reflects both the tenor and insinuations made about the victim in open court. Likewise, the prosecutor's conclusory remarks characterizing consent as ugly, vulgar or ridiculous was not improper comment and fair in light of the evidence introduced at trial.
• 3 The next remark that defendant claims disparaged his defense concerned another issue raised on defense counsel's cross-examination of a witness. The record reveals that several questions posed by defense counsel indirectly suggested that the area surrounding the scene of the rape was akin to a low-grade red-light district. In response, the prosecutor warned the jury not to be fooled by questions attempting to make the victim look ugly. The obvious implication of defense counsel's questions was to attack the chastity of the victim. Since prostitution was irrelevant and clearly not in issue, the prosecutor attempted to persuade the jury not to consider it. We agree with the State that, under the circumstances, the prosecutor's comments were reasonable and well within the bounds of proper closing argument.
• 4 The final remark claimed to have disparaged defense attorney concerned a prosecutorial statement made at the onset of rebuttal noting that defendant's closing argument raised nothing of value or substance. Given the nature of rebuttal arguments (an opportunity given plaintiff to respond to and question the value of the propositions set forth in defendant's closing argument), we see nothing in the subject remark that is contrary to this purpose. The prosecutor's comment clearly served as an introduction to the people's rebuttal which questioned in detail defendant's posture in the case. Accordingly, we must reject defendant's argument that said comment constituted a disparaging remark against him or his attorney.
• 5 The second area of prosecutorial remarks objected to by defendant concerns comments made on the reasonable doubt standard. Defendant claims that the prosecutor's remarks to the jury that the burden was "not insurmountable" and "met every day in courtrooms * * * throughout the nation" were made in an attempt to minimize the State's burden of proof. We disagree. The law of this State is clear that comments such as these do not reduce or minimize the State's burden of proof. (People v. Bryant (1983), 94 Ill.2d 514, 447 N.E.2d 301.) Furthermore, any misunderstanding by the jury on the matter would have been cured by the prosecutor's restatement of the burden immediately thereafter. At that time he noted that, regardless of the lack of insurmountability in meeting such burden, the doubt merely had to be a reasonable one.
• 6 The third area of closing argument objected to by defendant concerns the remark regarding defendant's failure to call the doctor who examined the victim as a witness. A review of the record reveals that the prosecutor stated to the jury during rebuttal argument that if any doctor at the treating hospital could have told them anything to indicate that defendant did not rape the victim, they would have heard his testimony. This remark, according to defendant, left the jury with the lasting impression that the defense was hiding from them favorable evidence.
We find this argument especially devoid of merit since it was defendant himself who repeatedly commented in his closing argument that the State's Attorneys office was hiding evidence by not bringing in the examining doctors to testify. The insinuation that the prosecutor was involved in a "cover-up" significantly distinguishes the instant case from the results reached by this court in People v. Clark (1983), 114 Ill. App.3d 252, 448 N.E.2d 926 and People v. Witted (1979), 79 Ill. App.3d 156, 398 N.E.2d 68. Contrary to defendant's assertions, those cases do not control here. In Clark, the prosecutors repeatedly accused the defense attorney of "trickery," "sleight of hand," and hiding evidence. On the other hand, Witted involved a situation where prosecutors implied that defense witnesses had perjured themselves. The prosecutor in the instant case was not only straightforward in his response, but simply implied that the defense could have called the doctors to testify as well.
The law is clear that where defendant has the same access to witnesses, he cannot complain of comments by the prosecutor concerning defendant's ability to call these witnesses when he invited or provoked such comment. (People v. Smith (1982), 111 Ill. App.3d 895, 444 N.E.2d 801; People v. Nash (1980), 90 Ill. App.3d 612, 413 N.E.2d 16.) In light of the fact that defendant himself insinuated during closing argument that the State was hiding evidence by not calling the doctors to testify and that defendant could have called these expert witnesses ...