Appeal from the Circuit Court of Cook County; the Hon. Dwight
McKay, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1987.
Following a jury trial defendants, Reginald Sales and Roger Sales, were convicted of rape, armed violence, aggravated kidnaping, and armed robbery. Sentences were imposed solely on their rape convictions, with Roger receiving a 30-year term and Reginald receiving a 25-year term.
On appeal defendants contend: (1) they were denied a fair trial by improper prosecutorial trial tactics and arguments, and (2) the prosecutors improperly exercised their peremptory challenges to exclude potential black jurors solely because of their race. We reverse and remand because of prosecutorial misconduct.
The pertinent evidence adduced at trial was as follows. The complainant, Michelle W., testified that at about 10:45 or 11 p.m. on February 7, 1983, while driving home she stopped at a red light at 147th and Broadway in Harvey. Two men jumped in the front seat of the car. The one next to her held a box-cutter razor knife to her face and forced her to drive around the corner to a location 100 feet from the intersection. Streetlights provided good lighting, and Michelle was able to see the facial features of the men and what they were wearing.
The man with the knife began to cut her face. The other man emptied the contents of her purse and took $20 or $30. The man with the knife cut her shirt and bra open down the front, also cutting her skin. He then began to cut the upper part of her chest. The other man pulled her head back by the hair. The man with the knife cut her jeans from the waist to the knees. Both men then pulled her legs onto the car seat. During this time both men were laughing and saying, "Pretty white girl."
The man with the knife pulled Michelle's jeans off as well as his own and had forcible sexual intercourse with her. During this act, lasting five minutes, she could clearly see his face, which was a few inches away. After the act was completed, Michelle's attacker pulled his pants back on. Michelle kicked the man next to the door in the stomach. The car door opened, causing the interior light to go on. Michelle testified that she could clearly see both men as they looked at her. They then fled.
Michelle drove to an ambulance service where she reported that she had been attacked. The police were summoned, and she told them what had happened. She was then taken to the hospital for treatment, including treatment of the knife cuts, which she described as being like scratches.
The State's evidence established that Michelle was then taken to the Harvey police station. She was shown two "mug books," not containing defendants' photographs, and made no identification. The following day, February 8, Harvey detective William Newton came to Michelle's home, where she helped him prepare composite pictures of her assailants. On February 9 Newton showed these composites to Harvey detective James Walker at the police station. Defendant Reginald Sales, also known as Reginald Bey, was at the station to provide Walker with information on some unrelated crimes. Reginald was shown the composites and stated that they resembled the Sykes brothers. Michelle was called to the station and shown an array of 12 photographs, including 3 Sykes brothers, but neither of the defendants. She made no identification.
Newton then showed the composites to Dixmoor detective Anton Graff, formerly of the Harvey police department. Graff told Newman that one picture looked like defendant Roger Sales and the other looked like a Sales brother. (Detective Newton testified that he only knew Reginald as Reginald Bey.) Later that day Michelle was shown a seven-photo array including defendant Roger Sales and Terry Sales. She identified Roger as the man who had raped her. The photograph of Terry was overexposed, and Michelle indicated she could not tell if he was the man accompanying Roger. Michelle subsequently identified both defendants in separate lineups. Reginald was identified in a lineup which included Terry. Michelle also identified both defendants in court as the men who attacked her.
Semen and vaginal fluid taken from Michelle at the hospital was analyzed by Mohammad Tahir, a forensic scientist with the Illinois Department of Law Enforcement. He testified that this material came from a person with type A blood or from a nonsecretor (one whose ABO blood group cannot be detected from body secretions such as semen or vaginal fluids). Michelle was a secretor with type A blood. Reginald and Roger had type B blood, but only Reginald was a secretor. Thus Reginald could not have been the source of the semen. However, as a nonsecretor, Roger could not be excluded as a possible source because the type A blood source could have been exclusively from Michelle's fluids. Tahir also testified that if Michelle had had sex in the week before the attack, seminal material from that prior act of intercourse could have been mixed in with the material he examined.
Both defendants presented alibi defenses. Roger testified that until 11 p.m. that evening he worked at an auto body shop at 8017 South Exchange in Chicago. He then drove to his apartment at 4866 North Magnolia in Chicago, a 25 to 30 minute drive, arriving at 11:30 p.m. Also present at the apartment were Kevin Bailey (with whom he shared the apartment), Andre Robinson, and Webster Phillips. The four of them had dinner and played cards until about 4 in the morning at which time Robinson and Phillips left. Roger testified that he then watched television and went to bed. He also testified that he spent the rest of the night at the apartment with Kevin Bailey. Roger, who was 23 years old at the time of trial, testified that he had no prior convictions.
This alibi testimony was corroborated by Bailey, Robinson, and Phillips, who all testified that they were present with Roger at the apartment at about 11:30 p.m. Kevin Bailey testified that he remained there with Roger all night. On cross-examination he also testified that he had been living with Roger in a homosexual relationship for about six months at the time of the incident. On cross-examination Andre Robinson, who was 30 years old at the time of trial (July 1984), testified that in 1972 and 1973 he and Roger had a homosexual relationship. Since that time they had remained close friends.
Defendant Reginald Sales, 20 years old at trial, testified that he had no prior arrests or convictions. On the night in question, he was at home at 14704 Winchester in Chicago with Tonio Wright and their son. His sister, Valerie Sales, and her husband, Steve Fletcher, came to his home between 9 p.m. and 9:30 p.m. At that time he took a 10-minute trip to the store, but then remained home all night. Steve Fletcher and Valerie Sales both corroborated this alibi, testifying that they arrived at about 9 or 9:10 p.m. and remained until about 1:30 a.m. except for a brief period at about 9:45 when Steve ...