Appeal from the Circuit Court of Cook County; the Hon. Vincent
J. Bentivenga, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 13, 1986.
Defendant, Walter Jones, was convicted, following trial by jury, of the offenses of rape and indecent liberties with a child. He was sentenced to six years' imprisonment at the Department of Corrections. Defendant now appeals his conviction and raises five issues. First, defendant argues that the jury should have been permitted to hear impeachment testimony regarding prior inconsistent statements of one of the defense witnesses. Second, defendant claims that the chain of custody of vaginal specimens admitted into evidence is incomplete. Third, defendant claims that the prosecutors made improper and prejudicial remarks in closing argument. Fourth, defendant argues that he was prejudiced by the omission of certain instructions to the jury. Fifth, defendant claims that he was denied effective assistance of counsel.
The prosecutrix testified that on June 25, 1982, defendant Walter Jones helped her family move to a new apartment on Aberdeen Street. She testified that defendant asked her mother, Willie Mae, if defendant could take her, then age 11, and her younger sister, then age 8, along to return the U-Haul trailer. The mother agreed. After returning the trailer, defendant drove the two girls to the apartment building owned by his aunt, Ella Sears, and led them to a room in the basement. Defendant asked the girls if they wanted anything from the store, and sent the younger sister out for some potato chips.
The prosecutrix testified that the basement room in which she and defendant remained had a bar with stools and two built-in, upholstered benches with a bed between them. Defendant asked her if she wanted him to "do it" to her. She said she did not. He ordered her to remove her pants, and when she protested, warned her that she knew what would happen to her if she refused. Defendant had intercourse with her. After 10 minutes, the doorbell began to ring. After several rings, defendant told her to dress and warned her not to say anything. Defendant opened the door and the younger sister, who had returned from the store, asked her what was wrong. The prosecutrix told her sister that nothing was wrong, and testified that she did so because she was afraid that defendant might hurt them.
The prosecutrix testified that defendant took the girls up to his aunt's apartment where they sat in the living room while defendant tried to repair some broken locks. Defendant then took the girls to the home of George and Elizabeth Jones, the girls' cousins. The prosecutrix told them nothing about what had happened. Leaving the Jones' home, defendant drove the girls back to the new apartment and told the mother that his aunt wanted the girls to spend the night at her home. The mother consented. The prosecutrix said nothing about the earlier events to her mother.
The prosecutrix testified that defendant took the girls back to his aunt's building and led them into the basement. He pushed the bed against one of the upholstered benches, and, after the girls changed their clothes in the bedroom, he told them to lie down in the bed and go to sleep. Defendant lay down on the bench to the right of the bed on which the prosecutrix was lying. She was awakened by defendant, who asked her if she was ready for him "to do it again." When she said, "no," he told her that if she refused, she knew what was going to happen to her. He had intercourse with her, then went to a bench across the room and fell asleep. The next morning, defendant bought breakfast for the girls and again warned the prosecutrix not to say anything. He then drove the girls to their new home.
The prosecutrix' sister testified that when Walter Jones answered the door upon her return from the grocery store, his pants zipper was undone, and the prosecutrix appeared to the sister to have been crying. The prosecutrix told her that nothing was wrong. The sister told her mother about this when the girls returned to their new apartment. The mother called the police.
At trial, Walter Jones admitted that he was present at all times in question, but he denied ever having sexual intercourse with the prosecutrix. He testified that the children requested permission to spend the night at his aunt's home, and, on the evening of June 25, 1982, he put them to sleep on a cot in the basement room of the aunt's building. Walter testified that after the children went to bed, he sat at the bar for 15 minutes and then he went to the corner tavern for a quart of beer. He brought back the beer and sat in the basement and drank it. He fell asleep with his head on the bar and later moved to the rug on the floor where he slept until the following morning. Upon awakening, he awakened the girls, told them to get dressed, and took them to the store where they bought cold cuts. Walter testified that after going to the store, he was tired and took the children home. The arresting officer testified that defendant had been sleeping at about 7:45 p.m. on Saturday, June 26, 1982, when he was arrested in the bedroom of his home. The officer read defendant his rights and, in the presence of defendant's wife, asked defendant if he knew the prosecutrix, her mother and her sister. Defendant said he did not, but later admitted that he did, apparently by their nicknames. Defendant was eventually taken to the Area One police station where he was interviewed by a detective and an assistant State's Attorney. These men testified that defendant admitted to them that he had sex with the child, but that she had approached him, asked him to go to bed with her, and fondled him until he finally agreed.
At trial, defendant denied making any such admissions. Walter Jones testified that the police told him he could not make bond until he made a statement. He testified that he was tired, exhausted and upset and, as the police continued to question him, he eventually told them to write down whatever they wanted to. He testified that his request to see what the assistant State's Attorney had written was refused.
During the trial, the defense called as a witness, Willie Mae Stephenson, the mother's landlady, who lived on the first floor of the family's building. Mrs. Stephenson testified that she was not at home on the day the girls told their mother what had happened, and that she did not hear any argument or shouting coming from their basement apartment on that day. Mrs. Stephenson further testified that the prosecutrix told her that she had been raped by defendant. This testimony was contrary to that which the defense had expected Mrs. Stephenson to give, and the court allowed the defense to question her as an adverse witness. Mrs. Stephenson denied that she had ever had a telephone conversation in which she told defense attorney Cohan that she saw the mother repeatedly hit the prosecutrix, who was telling her mother, "He didn't do nothing," until the prosecutrix finally said, "He did it." The trial judge refused to permit the jury to hear testimony from Mr. Cohan or two other witnesses who claim to have heard Mrs. Stephenson say that the prosecutrix was beaten until she implicated defendant.
Mary Kay Boyd, an emergency-room nurse at Mercy Hospital, testified that she prepared prosecutrix' Vitullo Kit. This kit contained the vaginal-smear specimens that were to be analyzed for sperm content by the crime lab.
William Ogletree, an evidence technician for the crime lab, testified he picked up the Vitullo Kit from the security police department of Mercy Hospital and transported the kit to the microanalysis department of the police crime lab.
Crime lab microanalyst Karen Smith testified that on September 28, 1983, she received the Vitullo Kit from the crime lab file. She further testified that she observed spermatozoa on the slides it contained and that the report from the physician who examined the prosecutrix at Mercy Hospital indicated that he had found no ...