APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
541 N.E.2d 1298, 186 Ill. App. 3d 54, 133 Ill. Dec. 860 1989.IL.1061
Appeal from the Circuit Court of Cook County; the Hon. John Mannion, Judge, presiding.
Rehearing Denied August 14, 1989.
JUSTICE EGAN* delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN
The defendant was indicted with Marvin Stutts and Bryant Stutts for a number of offenses, including aggravated kidnapping, kidnapping, aggravated battery, attempted murder, unlawful use of weapons and aggravated criminal sexual assault. Bryant Stutts pleaded guilty and was sentenced to 13 years' imprisonment. The defendant and Marvin Stutts were tried by a jury. The charges against Marvin Stutts at the time of trial were aggravated criminal sexual assault, aggravated kidnapping and kidnapping; and the charges against the defendant were aggravated criminal sexual assault, attempted murder, aggravated kidnapping, kidnapping, aggravated battery and unlawful use of weapons. Marvin Stutts was found not guilty of aggravated criminal sexual assault and guilty of aggravated kidnapping and kidnapping. The defendant was found not guilty of aggravated criminal sexual assault and attempted murder and was found guilty of aggravated kidnapping, kidnapping, aggravated battery and unlawful use of weapons. He was sentenced to concurrent terms of seven years' imprisonment for aggravated kidnapping and four years for each of the other offenses. He contends that various errors by the trial court as well as improper argument by the State warrant a new trial. Additionally, he claims that his sentence of seven years for aggravated kidnapping constituted an abuse of discretion. No issue is made of the sufficiency of the evidence to support the verdict against the defendant, who was found guilty under the accountability statute; but, since his principal claim of error is the refusal to give a compulsion instruction, a detailed recitation of the evidence is required.
On Saturday, November 3, 1984, Bryant Stutts (Stutts), a longtime friend of the defendant, went to Partina Purdie's (Purdie's) home with a letter and a rose for her. Purdie, who had been Stutts' girlfriend for about three years, had recently broken off the relationship; and he was seeking a reconciliation.
She testified as follows.
She read the letter, tore it up and threw it in the garbage in front of Stutts. Stutts did not leave when Purdie asked him, and her brother "put him out." Around 9 to 9:30 p.m. her date, Michael Haygood, arrived. After Haygood had parked his 1984 Toyota Celica and entered the house, Stutts returned. Purdie spoke to Stutts at the front door and would not allow him to enter the house. The conversation ended with Purdie slamming the door. Stutts observed Haygood's car parked in front of the house.
Purdie and Haygood left for a movie at River Oaks Theater in Calumet City. After they had seen the movie, they walked to Haygood's car. She saw Stutts walking toward them with his arm "kind of like along his leg." When Stutts got about 10 feet away, he pointed a shotgun at them and ordered them into a car. Haygood ran and ducked behind another car. Stutts grabbed Purdie and "dragged" her to a car from which the defendant got out and opened the back door. Stutts pulled her into the back seat, and the defendant got in the driver's seat. Purdie was surprised to see the defendant and said, "So you're in on this, too?"; and he said, "Yeah." The defendant pulled the car out of the parking lot "fast."
While the defendant was driving, Stutts began to punch Purdie in the face. The beating was "steady," and Stutts threatened that he was going to kill her. She was crying and pleaded with Stutts to stop beating her. Stutts struck her in the head with the butt of the shotgun, causing it to discharge. The shot went between Purdie's arm and body and blew a large hole in the upright portion of the back seat. Stutts shouted, "Bitch, you done shot me." The defendant asked Stutts if he had been hit, and Stutts answered that he thought so but did not know how bad it was. The defendant continued driving to "some dark place" under a viaduct.
When the car stopped and Stutts opened the door, Purdie grabbed the gun from him and threw it up on a hill. He dragged her up the hill and got the gun. At that time she was not wearing shoes. The defendant had picked up her shoes and purse and put them in the trunk of the car. Stutts told her, "Oh, girl, what me and Bill are going to do to you tonight."
Stutts told the defendant to take the car, which belonged to Stutts' mother, and come back in the car owned by the defendant's mother. At the time the defendant drove off, Purdie was bleeding and kept asking Stutts not to hit her anymore.
After the defendant left, Stutts began asking her questions about Haygood. He told her to take down her pants. When she refused, he pointed the gun at her and indicated with the gun that she was to pull down her pants. He pulled down his pants. At that time the car containing the defendant and Marvin Stutts (Marvin) was coming, and Stutts pulled up his pants. It was the same car that the defendant had driven away in, but this time Marvin was driving and the defendant was on the passenger side. Marvin and the defendant got out of the car, and Stutts put Purdie in the back seat on the floor. Marvin drove off with the defendant on the passenger side and Stutts and Purdie in the back seat. Stutts still had the gun. He made her lie on the floor. Marvin asked what was going on, and Stutts told him, "This bitch was out with another man." At that time there was still blood on her face. Marvin drove to a liquor store, where he bought some beer. From the time they left the forest preserve to the time they arrived at the liquor store, Stutts was still hitting her in the face. She was crying. All three of the men drank beer, but she refused to drink any. She was wiping the blood from her face on the back seat.
Marvin drove to a motel after Stutts told him to. Stutts gave Marvin his identification and money and told him to get a room and to use a false license plate number. Marvin came back and said there were no rooms. Purdie was crying and bleeding. She could see blood dripping from her head. Marvin drove to a motel on Stony Island Avenue. The men were all laughing because Haygood ran and left her. Marvin went into the second motel with Stutts' identification and money and returned with the key and gave it to Stutts. Stutts gave the gun to Marvin and the defendant and told them to get rid of it. Marvin got Purdie's shoes and purse from the trunk and gave them to her. Stutts told Marvin to take the back seat out of the car and to tell their mother that someone had stolen it. It had a big hole in it from the shotgun blast, and blood was everywhere. Marvin and the defendant left in the car.
Stutts made her go into a room, and she sat down on the bed. He told her to take off her clothes. When she refused he pulled her in front of the mirror and told her to look at herself. She could barely see her face because it was covered with blood and her lip was big. He made her shower and told her to get on the bed. She testified that he got on top of her and "raped" her. After he was finished, he called his home and then told her that they had to get out of the motel. He then called his father and asked him to meet them at 79th Street and Stony Island Avenue, because he was in trouble. He made her walk down Stony Island after she dressed. They took a cab to 79th Street and Stony Island, where they met Stutts' father. Stutts' father asked her if she wanted him to take her to a hospital. She asked that he just take her home.
Purdie's mother did not recognize her at the door when she walked past. She subsequently passed out in her brother's arms and was taken to St. Francis Hospital. Vaginal swabs were taken, and it was stipulated that the swabs revealed the presence of sperm. She never saw Stutts point the shotgun at either the defendant or Marvin and neither one offered her any assistance.
Michael Haygood's testimony as to what occurred at the parking lot was the same as that of Purdie. He also testified that one of his tires had been cut, causing it to go flat, and broken bottles had been placed behind the three other wheels.
Detective Robert Dywer was assigned to investigate and went to the home of Marvin Stutts. Marvin took him to the basement and Dwyer observed a hacksaw and hacksaw blade, part of a shotgun barrel, the chamber housing for shells and part of a rifle stock barrel which he thought had been sawed off. Marvin was arrested and taken to Area 2 Headquarters. Dwyer also examined the car used and discovered a shotgun hole in the back upright portion of the backseat. He also recovered Purdie's watch and earring from the back seat.
Stutts was arrested around 4 a.m., and the defendant at 7 a.m. at his home. He was questioned by Assistant State's Attorney Earl Grinbarg, who testified that he advised the defendant of his rights, and the defendant told him what had occurred. Grinbarg transcribed the defendant's statement verbatim. The defendant reviewed the two-page statement, corrected and signed it.
In that statement the defendant said the following: Stutts picked him up at his girlfriend's at 9:30 p.m. He said that they were going to River Oaks "to fuck with Tina [Purdie] because he had seen Tina going to the movies there with some other guy." Stutts showed him the sawed-off shotgun he had. They waited in the parking lot for Purdie to come out; and when she did, Stutts put the sawed-off gun up his sleeve and got out of the car. He walked up to her and her boyfriend. The boyfriend saw the gun and ran. Purdie tried to get away, but Stutts aimed the gun at her and dragged her into the car. Stutts told the defendant to drive. Stutts got in the back seat with Purdie and started hitting her with his fists and with the handle part of the gun. Stutts told him to drive to 127th and Halsted under the viaduct. He dropped them off there when Stutts told him to go back and get his mother's car. Stutts said "he was going to kill the bitch." When he left, he really thought Stutts would kill her. He went to Marvin's and told him what had happened and that he thought Stutts was going to kill Purdie. They drove back together in the same car. Stutts got back in the car with the shotgun he had kept while waiting with Purdie. Stutts then told Marvin to go to Sibley and Torrence to a motel. Marvin went in to get a room for Stutts, but there were no vacancies. Stutts said to go to the Ranch Motel at 93rd and Stony Island Avenue. They did and dropped Stutts and Purdie off after Marvin got a room. Stutts told them to get rid of the gun. They drove to the home of a man named Lorenzo at 124th and Wentworth, and Marvin left the shotgun with him. He never hit Purdie, but he watched Stutts hit her and heard Stutts tell her to keep her head down.
The defendant's testimony was at variance with his statement. He testified that around 9 p.m., he was at his girlfriend's house when Stutts, whom he had known for several years, came to see him. Stutts asked if he would drive out to River Oaks Theater with him to pick up his girlfriend, "Tina." He could see that Stutts had been drinking but agreed to go with him.
During the ride to the theater Stutts drove in a "zigzag" fashion and the car almost went off the ramp exiting the Calumet Express-way. He also stopped off at a liquor store and purchased a half pint of whiskey. After they arrived at the theater, Stutts parked the car in the parking lot. He began drinking and complaining about Purdie. Stutts passed the bottle to the defendant, and he took a "hit" off it. The entire conversation lasted about an hour. On one occasion Stutts got out of the car and went to the rear and opened the trunk. He assumed that Stutts was urinating during this time. When Stutts came back he placed a screwdriver on the seat and resumed talking about Purdie. When the show let out, Purdie and Haygood started approaching the vicinity of the Stutts car. Stutts got out and walked over to Purdie. From a distance of roughly 10 feet, the defendant saw Stutts point "something that look[ed] like a pipe that was up his sleeve" and then grab Purdie's ...