Appeal from the Circuit Court of Lake County; the Hon. Fred A.
Geiger, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant, George W. Davis, was convicted of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3), home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12-11(a)(1)), and aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(a)(1)), and was sentenced to consecutive terms aggregating 120 years' imprisonment. He appeals, contending the trial court erred in (1) ordering him to repeat the attacker's words for an in-court identification; (2) refusing to submit an instruction relating to the exclusion of all reasonable theories of innocence; (3) failing to appoint new counsel for defendant for a post-trial hearing; (4) imposing consecutive sentences; and (5) finding that defendant's verbal warnings to the victim constituted conduct threatening harm to others.
On October 21, 1984, Janet Gave, who resided with her five children in a house in Waukegan, Illinois, was awakened by a man putting a gloved hand over her mouth and placing one of her kitchen knives to her throat. The man ordered her to remain quiet and to pull her nightgown over her head. He told her not to look at his face or he would kill her and her children. After raping her, the man tied Gave's hands behind her back, threw the blankets over her, and repeated his threat to kill her children if she looked at his face. She noted at this time that his penis was uncircumcised. He left the room after again threatening to return to kill her and her children, and she then observed he was black, wore black pants and black shoes or boots and had an afro hairstyle. The man walked around the house and then returned and asked Gave where she kept her money. She replied she didn't have any and he again raped her and threatened to kill her children if she looked at his face. After further threats to return to kill Gave and her children, the man left the room, and she heard him exit through the kitchen door. A few moments later, at approximately 1:17 a.m., she called the police.
Gave subsequently determined that her purse, which had contained $4, a video cassette recorder (VCR) with a video tape in it, and her car were missing. The contents of Gave's purse were later found in a dumpster outside defendant's building, but fingerprints removed from the items did not match defendant's fingerprints. Tennis shoes found with the purse matched a footprint lifted from her kitchen floor. She also identified a pair of gloves found in a storage area adjoining defendant's apartment as identical to the gloves worn by the attacker.
At a videotaped pretrial lineup, which included defendant, held on November 9, 1984, the members of the lineup repeated the attacker's words, "Don't look at my face or I will kill you." Gave failed to identify defendant as her attacker. At trial, over defense counsel's objection, the court ordered defendant to repeat the phrase and Gave then stated defendant's voice was the same as the voice of the attacker. Gave testified she had recognized his voice during the lineup, but did not identify him because he limped and had shaved his head.
At trial Jolene Mayfield, who lived with defendant, testified that defendant had told her he was going out "hustling" for money on October 21, 1984, and had returned at approximately 2:30 a.m. the next morning with a video cassette recorder.
Virginia Blow, defendant's neighbor, testified that defendant told her on October 30, 1984, that the police were coming to his apartment and gave her a VCR to keep for him; it was subsequently identified as Janet Gave's video cassette recorder.
Defendant testified that at approximately 1:30 a.m. on October 22, 1984, he went to a nearby store to buy cigarettes and was approached by Jeffrey Garrett, who wished to sell stolen property to defendant's brother-in-law. Defendant purchased a VCR from Garrett and Garrett abandoned a bag containing checks, a purse, and clothes in the storage area adjoining defendant's apartment. Defendant stated he subsequently learned the police were looking for him and therefore stored the VCR with a neighbor, placed the bag left by Garrett in a dumpster, and fled his apartment because he did not want to be arrested in connection with the stolen goods. Defendant testified he shaved his head and his pubic area several days before his arrest because he suffered from crabs. Defendant did not shave his beard and his penis is uncircumcised.
At the instructions conference, the trial court refused defense counsel's tender of a circumstantial evidence instruction requiring the jury to acquit defendant unless the evidence excluded every reasonable theory of innocence. After deliberations, the jury acquitted defendant of the offense of residential burglary with intent to commit sexual assault and convicted him of the offenses of home invasion, residential burglary, and aggravated criminal sexual assault.
At a hearing on defendant's post-trial motions, defense counsel presented defendant's argument that counsel's representation at trial had been ineffective, which the trial court rejected. At a sentencing hearing held on April 8, 1985, the State presented evidence of other crimes committed by defendant and the court found that the State had proved defendant's guilt of the offenses of home invasion and assault against Laronda Larson. On September 27, 1984, Larson awoke to find a man in her bedroom who wielded a knife and ordered her to remain silent or he would kill her. She screamed and struggled, and the attacker fled. She subsequently discovered that money from her pants pocket and purse, as well as her VCR, were missing. Larson later identified defendant's voice as identical to that of her attacker. After making specific findings as to the existence of aggravating factors, the court sentenced defendant to consecutive, extended-term sentences of 60 years' imprisonment for home invasion and aggravated criminal sexual assault and a concurrent sentence of 15 years' imprisonment for residential burglary. This appeal followed.
• 1 Defendant contends the trial court erred in ordering him to repeat the words uttered by Gave's attacker for purposes of an in-court voice identification, arguing the probative value of the procedure was substantially outweighed by its prejudicial effect to him. (People v. Jones (1982), 94 Ill.2d 275, 286, 447 N.E.2d 161, cert. denied (1983), 464 U.S. 920, 78 L.Ed.2d 264, 104 S.Ct. 287; People v. Kimbrough (1985), 138 Ill. App.3d 481, 484, 485 N.E.2d 1292, appeal denied (1986), 109 Ill.2d 29.) In such cases, the trial court is granted wide discretion to weigh the relevance of the evidence against its possible prejudice. (People v. Stewart (1984), 122 Ill. App.3d 546, 549, 461 N.E.2d 591; People v. Outlaw (1979), 75 Ill. App.3d 626, 650, 394 N.E.2d 541, appeal denied (1979), 74 Ill.2d 588.) However, evidence which is otherwise relevant will not be excluded simply because it tends to prejudice the accused. People v. Wright (1986), 140 Ill. App.3d 576, 579, 488 N.E.2d 1344, appeal denied (1986), 112 Ill.2d 28; People v. Rachel (1984), 123 Ill. App.3d 600, 605, 462 N.E.2d 959, appeal denied (1984), 101 Ill.2d 574.
• 2 Here, defendant argues the in-court identification had little probative value inasmuch as Janet Gave had already testified she recognized defendant's voice at the pretrial lineup as the voice of her attacker. Moreover, he argues that the jury could not help but react negatively to defendant's recitation of the threatening words. However, Gave failed to identify defendant as her attacker at the lineup and this failure would undoubtedly have been a source of impeachment under cross-examination by defense counsel. The in-court voice identification was thus not merely cumulative, but was relevant evidence of the identity of her attacker. Any prejudicial effect upon the jury by defendant's mere recitation of the threatening language by order of the court is speculative and does not outweigh the probative value of the identification.
• 3 Defendant further argues the in-court voice identification violated his fifth amendment privilege against self-incrimination. This issue is waived by defendant's failure to raise it during trial and in his post-trial motion (People v. Berry (1984), 99 Ill.2d 499, 503, 460 N.E.2d 742; People v. Smith (1985), 139 Ill. App.3d 21, 27, 486 N.E.2d 1347, appeal denied (1986), 111 Ill.2d 36), but we choose to consider it nonetheless.
Defendant urges this court to adopt the view of dissenting justices of the Supreme Court. In United States v. Wade (1967), 388 U.S. 218, 221-23, 18 L.Ed.2d 1149, 1153-55, 87 S.Ct. 1926, 1929-30, the majority of the court ruled that the compelled display of an identifiable physical characteristic, such as a defendant's voice, for pretrial identification purposes, does not violate the privilege against ...