APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
513 N.E.2d 977, 160 Ill. App. 3d 942, 112 Ill. Dec. 368 1987.IL.1294
Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial defendant was found guilty of murder, attempted murder, and deviate sexual assault. The trial Judge sentenced defendant to concurrent terms of imprisonment of 75 years for murder, 40 years for deviate sexual assault, and 15 years for attempted murder. Defendant appeals, alleging that: (1) the prosecutor's comments in closing argument were improper because they were not based on evidence presented at trial; (2) evidence was introduced which suggested defendant had committed other criminal acts; (3) it was improper for the prosecution to insinuate that defendant was a person with criminal tendencies and that other evidence of his guilt existed which the jury did not hear; (4) it was impermissible to allow the admission of hearsay evidence used to persuade the jury to credit the identification of defendant as the offender; (5) it was improper for the prosecution to accuse defense counsel of attempting to confuse the State's witness; (6) the imposition of an extended term of imprisonment for the offense of sexual assault was unauthorized because defendant was also convicted and sentenced for the more serious offense of murder; (7) the jury returned a single verdict of guilty of murder and a single verdict of guilty of deviate sexual assault; therefore, two of defendant's three murder convictions and one of defendant's two deviate sexual assault convictions must be vacated; and (8) convictions entered on two of three counts of murder must be vacated because defendant was charged and convicted of murdering one person.
We affirm in part, vacate in part, and remand for resentencing.
The following facts are pertinent to our Disposition of this cause. On December 25, 1983, two women were shot in the head at Obadiah Food Store after being forced at gunpoint to perform deviate sexual acts on their assailant. One of the women, A.S., survived and identified defendant as the offender. Defendant admitted being in the store that morning but denied having committed the offenses.
George Kyros, the owner of Daley's Restaurant, located one block from Obadiah's, testified at trial that on December 25, 1983, he opened the restaurant at 5 a.m. The defendant was waiting for the restaurant to open when Kyros let him in, defendant hung around the register, seated himself, and then ate breakfast. Kyros said that defendant was wearing a greyish-brown long jacket and, after initially testifying he did not remember if he was wearing anything on his head, identified his hat. Defendant left the restaurant at about 7 a.m.
A.S., day manager of Obadiah Food Store, testified that when she drove to the store at 7 a.m. her co-worker, C.C., was waiting outside. The weather was extremely cold. Once inside the store A.S. placed change in the register and started the heater in the back of the store. The two women were in front of the store at 8 a.m. when a customer, identified at trial as defendant, entered the store. He placed a box of cornflakes, a bar of soap, tissue paper, and Alpo dog food on the counter and presented a $20 bill, for which the women did not have change. The defendant said he would return after exchanging the bill at a newspaper stand.
The defendant returned in about 10 minutes, locked the door from the inside, and pulled out a small silver gun. C.C. opened the register and told him, "[Don't] kill us, we'll give you all the money." Defendant placed a newspaper on the counter and told them to go into the storeroom in back of the store, where he directed them to undress. All this time, defendant was pointing a gun at them. Both women took off their clothes. At that moment, the phone rang and defendant made C.C. answer the phone, telling her to say she was busy and hang up. He then forced each of them to perform an act of oral copulation upon him. He ejaculated in A.S.'s mouth. She spit out his semen. Defendant then said he had to kill them because they had seen his face. They prayed and screamed. C.C. held on to A.S.'s leg and defendant grabbed C.C. and threw her in a bathroom behind the storeroom, where he shot her three times in the head. A.S. was also thrown in the bathroom, tried to hide under the sink but was also shot three times. The first shot struck the left side of her head. The second shot went through her hand when she tried to protect herself and the third shot went into her shoulder. A.S. acted as if she were dead and he ran out the door. After she heard the defendant exit the store, she got up and put on some clothes. She called Kim Johnson, a manager of Obadiah's at another location, and told her that C.C. was dead and that Johnson should call the owners, Mr. and Mrs. Brown. Next, A.S. called Mrs. Brown and told her to come to the store because something bad had happened. A.S. called the police, dropped the phone, walked to the front door, and collapsed.
A.S. was taken to Billings Hospital, where she gave a description of her assailant to the police. She described her assailant to Officer Garrity as a black male, between 35 to 40 years old, 5 feet 8 inches to 6 feet tall, potbellied, with a light complexion, light freckles, reddish mustache, light brown hair, and wearing a dark hat and a brown coat. Officer Garrity did not mention the freckles or potbelly in his report and was not sure that he had written it anywhere.
Dr. George Dohrman testified that he was the attending physician at Billings Hospital on the day that A.S. was assaulted and shot. A.S. was awake, alert, and able to answer all of his questions. Dr. Dohrman removed a bullet fragment from A.S. which had lodged against the skull and caused bone fragments to pierce her brain.
After two weeks at Billings, A.S. was transferred to Mercy Hospital, where for two months she was in therapy and rehabilitation. There the police would occasionally show her photo albums of possible assailants, but she did not recognize any of them. On February 16, 1984, two detectives showed her six photographs and she identified the photo of the defendant as the assailant.
John Conner, a newspaper vendor, testified at trial that on December 25, 1983, he was working at the newsstand near Obadiah's Food Store. At 8 a.m. the defendant asked Conner if he could change a $20 bill for him. Conner told defendant to get change at Daley's and asked that defendant bring him a cup of coffee. Defendant did not bring him coffee and Conner did not know if he came back for a paper. Conner testified that defendant's hat and coat looked like the clothing the man wore but admitted that he could not be sure that was the hat.
Officer Jimmy O. Marbury, investigating officer on the case, testified that he had a conversation with an unidentified citizen and as a result began searching for a man named Red, who was described as a black male, with a light complexion, reddish brown hair, freckles, and a large stomach. Also, he was looking for this person's girlfriend, Crystal. Marbury said that on February 15, 1984, a bar owner informed him that an individual matching the above description was present in the bar. Marbury saw a man matching the description, approached him and said, "Hello, Red, how you do," to which the defendant replied, "Fine." Marbury told him he was under arrest, but did not specify the charges, advised him of his rights, and transported him to the police station.
Officer Willie Johnson testified that he spoke with defendant following the arrest. Defendant told him he knew nothing about a murder at the food store. On three occasions the defendant said he had never been in the store. With defendant's permission, his photograph was taken. It was this ...