Appeal from the Circuit Court of Cook County; the Hon. Edward
M. Fiala, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty and was sentenced to concurrent, extended terms of imprisonment of 60 years for rape, 60 years for deviate sexual assault and 30 years for aggravated kidnaping. Defendant was also sentenced to a consecutive, extended term of 25 years for armed robbery. The trial court ordered that these sentences were to be served consecutive to any sentence the defendant would receive as a result of any parole violation. *fn1
On appeal, defendant urges for reversal that: (1) he was denied his constitutional right to a jury drawn from a fair cross-section of the community; (2) his confession should have been suppressed; (3) the element of force in the armed robbery was not proved; (4) the consecutive sentences were improper; and (5) defendant was denied effective assistance of counsel.
The complainant's testimony at trial revealed that on May 4, 1980, at approximately midnight, the complainant and her boyfriend left a party, riding in her boyfriend's car. The complainant drove. The car suddenly had a flat tire and the complainant pulled the car over to the shoulder of the road. They discovered that the spare tire was also flat. After waiting an hour for assistance, the couple decided to sleep in the car. They awakened at dawn and began to walk on the shoulder of the road. Shortly afterward, defendant pulled up in his car, asked what was wrong, and offered to give the complainant and her boyfriend a ride home. Accepting the invitation, the couple got in defendant's car. The complainant sat in the front seat and her boyfriend sat in the back seat.
After driving for a while, defendant pulled off the road and stopped the car, he grabbed the complainant, brandished a knife against her throat, ordered the boyfriend to get out of the car, and threatened to kill them if the boyfriend did not do so. The complainant's boyfriend got out of the car. The complainant pleaded with the defendant to release her. The defendant said he would let her go when he was through with her. He pulled her nearer to him and continued driving while holding the knife under the complainant's arm. Defendant then pulled his car into a parking lot. The complainant was ordered to take off her clothes or get "cut up." As the complainant disrobed, the defendant cut her brassiere and forced her to perform an act of oral copulation.
During this ordeal, defendant complained that the complainant was not sexually performing the way he wanted and he cut the complainant's upper thigh with his knife. The complainant testified that the defendant threatened to kill her if she did not do what he wanted. They got back in the car.
The defendant continued driving. The defendant then pulled into an alley where he and the complainant again got out of the car. The defendant forced the complainant to have intercourse with him twice and to perform oral copulation on him. The complainant testified that she did not attempt to leave nor did she cry out for help because she was only partially clothed. The defendant took the complainant's money (approximately $60), driver's license and school identification card and threatened to kill her if she reported the incident to the police. The defendant then allowed the complainant to get dressed outside the car and leave. The complainant testified that as she walked away she turned and noticed that the defendant's car did not have a rear license plate. The complainant ran to a grocery store where she used the washroom and called home. Her brother came to pick her up and immediately drove her to a police station. After reporting the incident to the police, the complainant was taken to a hospital. From the hospital, the complainant was driven to the places she had been taken by the defendant and then went back to the police station where she identified the defendant's picture from a group of photographs.
During the time the complainant was with the defendant, the complainant's boyfriend called the police. The police radioed a description of the defendant and the type of car he was driving. Defendant was arrested at about 8:15 a.m. when he was stopped by the police for driving without a rear license plate. The defendant did not have a valid driver's license. He was taken to the Schiller Park police station where a hunting knife, the complainant's high school identification card and $58.80 were taken from him.
The defendant was taken from the Schiller Park police station to the Des Plaines police station where he was interviewed by two assistant State's Attorneys and a police officer. At approximately 2:30 p.m. at the Des Plaines station, the defendant confessed to sexually assaulting the complainant.
Prior to trial, the trial court sustained defendant's motion to suppress the defendant's initial confession made at the Schiller Park police station. The court found that "there was physical confrontation between the Schiller Park police officers and the defendant. Under the circumstances, when it was that this occurred, it is not really necessary for me to make a determination * * *. I feel that that degree of physical confrontation contaminates any statements defendant would have made at the Des Plaines police station were denied."
Defendant contends that his constitutional right to a jury drawn from a fair cross-section of the community was denied because a disproportionately small number of blacks were available for voir dire jury selection. Over 40 jury veniremen, of whom two were black, were assembled, from which the jury was selected. The State used two peremptory challenges to excuse the two blacks and 10 peremptory challenges to exclude white jurors. There were no black members of the jury. Defendant is Caucasian.
The State contends that defendant failed to preserve this issue for review by failing to raise an objection prior to the voir dire examination. The State points out that section 114-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 114-3(a), (b)) provides:
"(a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. * * *
(b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn."
The State contends that (1) contrary to the requirements of this statute, defense counsel made an objection to the jury array after the voir dire examination had begun and a panel of jurors sworn in; (2) although the court granted defense counsel leave to file a written motion, defense counsel failed to do so; (3) there is no written motion in the record, supported by an affidavit, challenging the selection of prospective jurors; and (4) defendant's motion for a new trial failed to raise the issue of the alleged improper jury array.
The question of whether it is a constitutional violation for the State to use its peremptory challenges to systematically exclude blacks from the jury solely because of their race was recently decided, on April 30, 1986, by the United States Supreme Court in Batson v. Kentucky (1986), 476 U.S. ___, 90 L.Ed.2d 69, 106 S.Ct. 1712. In that case, the Supreme Court held that the equal protection clause of the fourteenth amendment forbids the State through its use of peremptory challenges from excluding jurors solely on account of race. We do not rule on this issue for the reasons that (1) we reverse the case at bar on other grounds and remand for a new trial; (2) the parties and trial judge in the instant case did not have the benefit of the Batson decision when the alleged peremptory challenge improprieties occurred; and (3) with Batson now controlling, it is highly unlikely that this issue will recur on retrial.
Defendant next contends that it was error for the trial court to admit his confession because the police failed to inform him while he was in custody at the Des Plaines police station that his attorney, Anthony Rocco, had called the station in an effort to contact him. At the pretrial hearing on defendant's motion to suppress his confession, Assistant State's Attorney Ira Raphaelson testified for the State that he arrived at the Des Plaines police station between 1 p.m. and 1:30 p.m. and that he interviewed the defendant at about 2 p.m. Assistant State's Attorney Howard Freedman and Officer John Meese were also present at this interview. Raphaelson testified that he told the defendant that he and Freedman were not public defenders and that he informed the defendant of his Miranda rights. According to Raphaelson, defendant responded that he understood his rights and was willing to talk. Raphaelson further testified that at about 2:30, he, Officer Meese and Assistant State's Attorney Freedman had a second conversation with the defendant, during which time the defendant gave a confession of his involvement in the offenses.
Raphaelson testified that he did not talk to defendant's attorney, Anthony Rocco, until after the defendant confessed and that it was about 3 p.m. when he talked to Rocco on the telephone. Raphaelson testified that Rocco told him "that he had something to do with the family of Daniel Holland," and wanted to know what charges were being filed against his client. Raphaelson told Rocco that he "was not free to divulge that information," and that no decision had been made on what charges would be filed against defendant.
Cross-examination of Raphaelson disclosed that he had a telephone conversation with Officer Bauer of the Schiller Park police station before Raphaelson interviewed the defendant at the Des Plaines station. Raphaelson explained on cross-examination that when the defendant was stopped for a traffic violation, the defendant had a weapon and that Bauer "was seeking charges [against the defendant] for a felony unlawful use of weapons." Later that morning, Raphaelson further testified, he again spoke to Bauer who "indicated * * * that they believed that Mr. Holland [defendant] was a suspect * * * in a rape matter in Des Plaines." Defendant's attorney, Anthony Rocco, then asked Raphaelson the following questions on cross-examination:
"Q. Now, you say you first saw the defendant, Daniel Holland at approximately 2:05 p.m. that day is that right?
A. I may have taken a look at him before I spoke to him. It would have been approximately that time.
Q. And that is the first time you had a conversation with him, right?
Q. And he didn't ask for any attorney, is that correct?
Q. All right, and were you aware of the fact that I was attempting to communicate with Mr. Holland during that point in time?
A. At that point in time, no.
Q. Officer Meese never said that to you?
A. No, I don't believe so.
Q. Officer Meese ever tell you that I talked to him regarding Daniel Holland?
A. He probably did mention it." (Emphasis added.)
Raphaelson also testified on cross-examination that he interrupted his interview of the defendant and had a conversation in another room. Freedman, the other assistant State's Attorney, came back into the interview room, and when Raphaelson returned he resumed his interview of the defendant in the presence of Freedman and Officer Meese. Defendant's attorney, Rocco, again queried Raphaelson on cross-examination as follows:
"Q. Did Investigator * * * Meese ever tell you I had phoned at that time?
Q. Did he ever tell you that I asked that I'd be given an opportunity to speak to my client and see him before any interrogation took place? That I had been retained?
A. There was some discussion at some point that an attorney or someone claiming to be an attorney had called.
Q. Did he ever tell you I left my phone number with him to call me back?
Q. Did he ever tell you the name of the person who claimed to be the attorney for Daniel Holland?
Testifying further on cross-examination, Raphaelson stated that he concluded the interview of the defendant at about 2:55 and that at approximately 3:00 he talked on the telephone to Rocco, who had called the Des Plaines police station. Raphaelson testified that Rocco may have told him in this telephone conversation that defendant's family wanted him to represent the defendant but that the only inquiry Rocco made to Raphaelson was to ask what charges would be brought against the defendant. Raphaelson testified that he again talked to Rocco, this time in person, at about 3:45 p.m. in the lobby of the Des Plaines police station. Raphaelson told Rocco what charges Raphaelson had approved to be brought against the defendant, which charges he approved between 3:30 and 3:45 p.m.
Detective Meese of the Des Plaines police station next testified for the State at the pretrial hearing on defendant's suppression motions. Meese stated that he talked to defendant's attorney, Anthony Rocco, between noon and 12:15 and that Rocco requested that he be notified if the defendant was transported to the Des Plaines police station for a lineup. Meese said that Rocco asked whether defendant had been charged with an offense in Des Plaines and that Meese answered no. Meese testified he called Rocco's home between 2:30 and 2:45 p.m. to notify Rocco that a lineup would be held, but Rocco was not home.
On cross-examination, Rocco asked Meese whether he recalled that Rocco had asked, "Please call me as soon as Mr. Holland arrives at the station." Meese answered, "You requested to be called if he was transported to our station and was going to be put into a lineup." The following cross-examination occurred:
"Q. And you said you tried to call me about 2:35 to 2:45 that afternoon, is that correct?
MR. ROCCO: Were you aware of the fact I called the police department also at 2:00 o'clock p.m. that day?
Q. Were you informed of the fact I formally requested to speak to my client at that time again?
Q. And were you aware of the fact that your department told me that my client was being processed and could not come to the telephone?
A. I'm not aware of that.
Q. Were you aware of the fact that I again formally requested that the law authorities present in the station not interrogate my client until I was present and had an opportunity to confer with ...