APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
508 N.E.2d 267, 155 Ill. App. 3d 650, 108 Ill. Dec. 106 1987.IL.485
Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a bench trial, defendant, Michael Jameson, was convicted of the offenses of rape, deviate sexual assault, home invasion, and residential burglary (Ill. Rev. Stat. 1983, ch. 38, pars. 11-1(a), 11-3(a), 12-11, 19-3, respectively) and sentenced to concurrent prison terms of 20 years for each of the first three offenses and 15 years for residential burglary. On appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying his pretrial motion to have the alleged victim examined by a psychiatrist; (3) the trial court erred in allowing testimony as to defendant's appearance at the time of his arrest; and (4) the trial court erred in denying defendant's post-trial motion and in not appointing new counsel to investigate the post-trial allegation predicated on ineffective assistance of counsel. For the following reasons, we find that the trial court erred in denying defendant's post-trial motion without first appointing substitute counsel to argue his allegation predicated on ineffective assistance of counsel and, therefore, remand the cause for a new post-trial hearing where defendant will be represented by counsel other than the public defender's office. In reaching this determination, we decline to address the substantive aspects of defendant's post-trial motion. However, we do address defendant's remaining allegations of error and find them insufficient to grant him a new trial.
The record sets forth the following facts pertinent to this appeal. Prior to trial, defendant moved for an order directing the victim, L.R., to submit to a psychiatric examination to determine her competency to testify. Defendant predicated his motion on information in the police reports which allegedly indicated that L.R. had been under psychiatric care for five years and was currently under medication for schizophrenia. The trial court denied the motion and the cause was set for a bench trial.
Thereafter, on the day set for commencement of trial, defendant personally moved instanter for the court to appoint a bar association attorney to represent him rather than the public defender's office. Defendant alleged that his current counsel refused his calls, never came to see him, and had neglected to contact key witnesses. Immediately following defendant's motion, the defense counsel moved to withdraw as defendant's attorney, stating that due to the numerous complaints defendant had filed against her, she believed that it would be a "conflict of interest" for her to continue as his counsel. The State responded that defendant's motion was untimely and that defense counsel had been doing a competent job. The trial court denied defendant's motion on the ground that it was: (1) untimely; (2) the motion gave no valid reason for an appointment of a bar association attorney; and (3) in the court's view, the motion was merely a delaying tactic. The court then also denied defense counsel's motion to withdraw.
At trial, L.R. and defendant presented conflicting testimony as to the events of February 2, 1984. L.R. testified that approximately 3 p.m. on that day, she was standing in the lobby of her apartment building on Winthrop in Chicago, talking on the telephone, when she saw defendant enter the building with a young woman. L.R. had never seen defendant before, but recognized the woman as the daughter of one of the building's tenants. When L.R. finished her telephone call, she walked up the stairs to her third-floor apartment, where she lived alone.
Immediately upon entering the apartment, L.R. latched the front door chain latch and went into the bathroom to use the toilet. While she was sitting on the toilet, she heard a loud kick at her front door, then heard the chain latch fall to the floor. From where she was sitting in the bathroom she could see the front door. Defendant walked into the apartment, approached L.R. in the bathroom, and ordered her to keep her pants down and to lie down on the floor. L.R. described her assailant as a 30-year-old black male, 6 feet tall, real husky, missing some front teeth, beard, mustache, track marks on his arms, bald spot, medium afro hairstyle, and wearing a black leather jacket, gray sweatshirt, gray pants, and black shoes.
When L.R. began to cry, defendant started to choke her. She then lay down on the floor and defendant removed his pants and had vaginal intercourse with her. Defendant then ordered L.R. to go into the bedroom and to lie down on the bed. When he lay down next to her, she began to cry again and asked him not to hurt her baby. L.R. was five months pregnant at the time. Defendant then forced L.R. to engage in acts of oral sex, vaginal intercourse, and anal intercourse. Finally, L.R. told defendant that she had a doctor's appointment that she had to keep. The two then got dressed and defendant told L.R. where he could get some food.
Defendant and L.R. left the apartment building together and walked several blocks to the Jewel grocery store. The only people they saw on their way to the store were a group of men in front of the apartment building who knew defendant and had asked him if he was going to work. L.R. stated that she accompanied defendant to the store because she had been scared. Defendant was unarmed.
At the Jewel, while L.R. waited for him at the front of the store, defendant walked toward the back of the store and picked up some food and put it inside his shirt. After a few minutes, two security guards approached her and told her to leave because defendant had been caught stealing. L.R. started to cry, wondering how she was going to explain all of this to her doctor. The security guards did not press charges and defendant and L.R. left the Jewel. L.R. claims that she and defendant exited the store separately and that she did not see where he went.
As soon as L.R. left the Jewel, she walked to a nearby public telephone and called her psychiatrist, Dr. Spivy. She told Dr. Spivy that she had just been raped and needed to talk to him. He told her to come over immediately, which she did. After speaking with the doctor for approximately 15 minutes, L.R. went to a nearby hospital for a physical examination, and, while there, she spoke to police officers for the first time. Following her examination, L.R. went to a girl friend's house, where, upon looking in a mirror, she noticed six 2-inch-long marks on the front of her throat.
On February 4, 1984, L.R. spotted defendant talking with some other males near her apartment building. She immediately dialed 911 and told the dispatcher that she had just seen the man who had raped her. Two police cars arrived and defendant was arrested upon being identified by L.R.
On cross-examination, when L.R. testified that she had no pets, the State reminded her of her previous deposition in which she had stated that she first became aware of defendant's presence in her apartment when her cat started to meow. In addition, L.R. admitted that when she spoke to the police officers at the hospital, she had failed to mention that she and defendant had gone to the Jewel together after the alleged rape. She claimed that she had been too afraid to tell them. It was not until several days after defendant's arrest, when the police asked L.R. about going to the Jewel with defendant, that she admitted that she had. L.R. never reported the broken chain latch to the building manager. Instead, she asked a friend, Terrance McClay, to fix it.
In contradiction to L.R.'s version of the events of February 2, 1984, defendant testified that he had known L.R. for "quite some years" from the Uptown area. On the afternoon of the alleged offense, defendant entered L.R.'s apartment building with a friend and noticed L.R. talking on the telephone in the lobby of the building. He told his friend to go upstairs and he walked over to L.R. When he saw her "condition," he gave her $20. She then hung up the telephone and the two of them took the elevator to her apartment. Inside the apartment, L.R. immediately walked to the bedroom, took off her clothes, and sat down on the bed. When defendant saw that she was pregnant, he told her to put on her clothes. He commented to her that she was in terrible shape and told her to walk to the Jewel with him and they ...