Appeal from the Circuit Court of Cook County; the Hon. Christy
Berkos, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Albert Olesch, was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3), aggravated kidnaping (Ill. Rev. Stat. 1981, ch. 38, par. 10-2(a)(3)), and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3(a)). Olesch was sentenced to the Illinois Department of Corrections to serve concurrent terms of 50 years each for rape and deviate sexual assault under the extended term sentencing statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2); 30 years for aggravated kidnaping; and 3 years for unlawful restraint.
On appeal, Olesch contends that the trial court committed reversible error in that: (1) the State failed to prove him guilty beyond a reasonable doubt of the crimes charged against him; (2) prosecutorial misconduct during cross-examination of defense witnesses and during closing argument prejudiced his case; (3) the aggravated kidnaping conviction and sentence cannot be sustained because they are inconsistent with the jury's verdict; and (4) the trial judge improperly sentenced him to extended term sentences for rape and deviate sexual assault in violation of section 5-5-3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)) where the offenses charged were not accompanied by exceptionally brutal or heinous behavior.
We affirm defendant's convictions and modify the sentences imposed by the trial court.
At trial, the victim, a 16-year-old girl, testified that on January 8, 1983, shortly after 7 p.m., she left her home at 62nd Street and Troy Avenue in Chicago to meet her friends at the Twist Candy Counter, a game room located at 55th Street and Spaulding Avenue. At that time, she carried in her coat pocket two single dollar bills, a pencil, a blue barrette, a bus pass and some facial tissue.
After walking for about 10 minutes, the victim reached the area of 55th Street and Spaulding Avenue. At that time, a man, whom she later identified as defendant Olesch, approached her from behind, grabbed her around the neck and threatened to kill her if she screamed. When the victim struggled to escape, Olesch tightened his grip around the victim's neck and told her that he had a knife. Olesch forced the victim to walk down a gangway, through a yard and down an alley, all the time ordering her not to scream and reminding her that he was carrying a knife. When they reached the back of the house later determined to be located at 5635 South Spaulding, Olesch ordered the victim to walk toward the rear of the house and down a back stairwell. The victim stated that she was crying throughout the incident.
Further testimony at trial disclosed that the alley behind 5635 South Spaulding was lighted by artificial city lights on the date and times in question. The light partially illuminated the backyard and stairwell where Olesch had led the victim. The lighting was sufficient for the victim to determine that the stairs in the stairwell were red.
Once Olesch and the victim reached the bottom of the stairwell, Olesch instructed the victim to get undressed. The victim removed her winter jacket and all of the other clothing she was wearing. Olesch put all of the victim's clothing, except for her blouse, on the ground at the bottom of the stairs. Olesch then loosely tied the victim's blouse around her head covering her eyes. Olesch next ordered the victim to lie down on the concrete floor at the bottom of the stairs. At that time, Olesch climbed on top of the victim and inserted his penis into her vagina. He engaged in sexual intercourse with the victim for a few minutes. During that time, the blouse which Olesch had tied over the victim's eyes remained in place for only about a minute before it slipped off. The victim was then face to face with Olesch whose head was only about a foot away from the victim's own.
When Olesch finally removed his penis from the victim's vagina, he then instructed the victim to get onto her knees. After she did so, Olesch pushed the blouse back over the victim's eyes and forced his penis into her mouth for two or three minutes. During this period, the victim could see Olesch's brown boots as she looked down under the blouse.
When Olesch removed his penis from the victim's mouth, he instructed the victim to lie down on the stairs of the stairwell. Olesch again inserted his penis into the victim's vagina. During this second act of sexual intercourse, the blouse covering the victim's eyes kept falling off of her face and Olesch would push it back up over her eyes. The victim testified that the lighting conditions on the stairs were better than on the concrete floor, and that while positioned on the stairs she saw Olesch's face from the distance of about one foot for a minute or two.
The victim also testified that Olesch had sexual intercourse with her two more times: once as she sat on the ledge at the top of the stairwell; and once on the sidewalk at the top of the stairs. The victim stated that the lighting conditions dramatically improved as Olesch positioned her further and further out of the stairwell towards the sidewalk. Because the blouse covering the victim's eyes continued to slip from her face, the victim had an unobstructed view of Olesch's face from a distance of inches for about another minute and one-half altogether.
Olesch next told the victim to go over to the ledge and kneel down. He then placed his penis in the victim's mouth for a second time, remaining in this position for a number of minutes. The victim testified that she could again see Olesch's brown boots.
Finally, Olesch instructed the victim to get dressed and threatened to kill her if she turned around to look at him. At that time, the victim observed Olesch going through the pockets of her winter jacket and pants. After the victim was dressed, Olesch brought her back into the alley. Olesch took the victim to the next block and instructed her to run for the next two blocks and not to turn around. The victim testified that she ran for about one-half block and turned around. Olesch was gone. The victim then ran to the Twist Candy Counter where she met a friend who assisted her in calling the police.
Chicago police officer James Munizzi testified that at approximately 8 p.m. on the night in question he monitored a call on his police radio concerning a rape victim at 55th Street and Spaulding Avenue. He drove to 5500 South Spaulding and found the victim and her friend standing on the corner. Officer Munizzi observed that the victim was emotionally upset and crying. The officer interviewed the victim who described the rapist as having blond hair, long sideburns, a moustache, wearing blue jeans, a jean jacket, another blue jacket, and brown boots. Officer Munizzi broadcast the description over the police radio and proceeded to drive to the scene of the rape with the victim.
As Officer Munizzi drove, the victim directed him to 5635 South Spaulding Avenue. On the concrete floor of the stairwell behind the house, Officer Munizzi spotted the victim's pencil and blue barrette which she carried from home in her jacket pocket. The officer called for a police car to protect the scene of the crime and then drove the victim to Holy Cross Hospital in his squad car.
Chicago police officer James Lindeman testified that at approximately 8:20 p.m. he was in his squad car in Marquette Park when he monitored a broadcast over his police radio that a rape had occurred in the area and giving a description of the rapist. In response, Officer Lindeman drove north on Kedzie Avenue to 62nd Street. There, in front of Pat's Tap, located at 6428 South Kedzie Avenue, Officer Lindeman spotted Olesch, who fit the description he had just heard broadcast over his radio. Officer Lindeman noted that Olesch was reasonably tall, had light colored to blond hair, long sideburns and a moustache. Olesch was dressed in blue jeans, a jean jacket, a dark shirt and brown boots. Officer Lindeman followed Olesch into the bar. The officer informed Olesch that Olesch fit the description of a wanted offender and conducted a pat down search of Olesch which revealed that Olesch possessed a pocket knife. Officer Lindeman arrested Olesch and transported him to Holy Cross Hospital where Lindeman informed Officer Munizzi that he had arrested a suspect. Munizzi saw Olesch and, along with Officer Lindeman, noticed the odor of alcohol on Olesch's breath. Munizzi then transported Olesch to the eighth district police station where, after her examination and treatment at Holy Cross Hospital, the victim identified Olesch in a lineup as the rapist. Prior to the lineup the police found two single dollar bills in Olesch's pocket. After the lineup Olesch consented to giving the police his pants and underwear, as well as blood, pubic and head hair samples.
Dr. Betty Van Leuven examined the victim at Holy Cross Hospital. Dr. Van Leuven tested the victim for venereal disease and compiled a Vitullo Evidence Collection Kit which contained vaginal and oral smears and slides, and samples of the victim's head and pubic hair along with her underpants. Dr. Van Leuven testified that the victim had abrasions over her right upper back and the middle to lower portion of her spine. The victim's hymen was in shreds, and she had a tear along the posterior wall of her vagina. She stated that the victim was bleeding from the vaginal area. Dr. Van Leuven said that the victim was visibly upset, shaking and crying. The victim told Dr. Van Leuven that the rapist looked somewhat familiar to her, but she could not provide his name. Dr. Van Leuven stated she therefore listed Olesch as an unidentified white male in her report of the examination.
Karen Smith Johnson, a microanalyst at the Chicago police department crime laboratory, testified that she analyzed Olesch's clothing, blood sample and hair standards along with the victim's Vitullo Evidence Collection Kit compiled by Dr. Van Leuven. Johnson noted that the vaginal swab and microscopic slides tested positive for the presence of intact spermatozoa, conclusive evidence that semen was present in the victim's vagina. Johnson also discovered that the victim's blouse was stained with human blood which matched the victim's blood type. In addition, Johnson collected eight pubic hairs from defendant's underwear. Of these, one of the hairs was morphologically similar to the victim's pubic hair and morphologically dissimilar to Olesch's pubic hair. However, Johnson could not say with scientific certainty that this pubic hair came from the victim.
In his own defense, Olesch testified that he did not attack and sexually assault the victim on the night in question. Olesch testified that he is unclear in his memory of that evening because he had been drinking for a number of hours that day. Olesch did, however, remember being at Clay's Tap, located at 3019 West 59th Street, and Gallagher's Tavern, located at 61st Street and Kedzie Avenue, and that he was arrested at Pat's Tap, located at 62nd Street and Kedzie Avenue. He does not remember which officer arrested him. Olesch did not ...