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March 29, 1994


Appeal from the Circuit Court of Winnebago County. No. 91-CF-1831. Honorable David F. Smith, Judge, Presiding.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendant, Thomas Lawrence, was found guilty by a jury of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(2) (now 720 ILCS 5/12-14(a)(2) (West 1992))) and sentenced to six years' imprisonment. Defendant appeals, contending: (1) that the prosecutor's closing argument, wherein he referred to defendant's failure to call potential alibi witnesses, substantially prejudiced defendant and denied him a fair trial; (2) that the prosecutor's post-trial reference to a polygraph test prejudiced the trial court's consideration of defendant's post-trial motions; and (3) that the complainant's identification testimony was insufficient to convince a rational jury that defendant was guilty beyond a reasonable doubt.

At trial, the complainant, Michele Luhman, testified that she had been raped by defendant on September 11, 1991, at the Inn Town Motel in Rockford where she was temporarily residing with her children, Michael, five years old, and Melissa, three years old. Prior to the rape, Luhman had seen defendant on two prior occasions. On the previous Friday, the day she moved into the motel, defendant had attempted to assist her in unlocking her motel room door, which would not open. Defendant was unsuccessful, and Luhman asked the maintenance man to assist her. Luhman did not recall the exact date of her second encounter with defendant. On that occasion, she and a male friend were standing outside the motel when defendant approached with a pizza and some pop. Defendant dropped some of the pop cans, and Luhman picked them up and handed them to defendant. Defendant would later testify that this second encounter occurred early in the evening preceding the date of the alleged attack.

On the date of the rape, Luhman went to sleep at about 9 or 9:30 p.m. She had turned off the lights and was sleeping in the same bed as her son; her daughter was sleeping in the other bed in the room. At about 11:30 p.m. she was awakened by a knock at the door. Luhman turned on the lamp by the door and looked out the peephole in the door. She saw a lady whom Luhman was planning on driving to work the next day. Luhman opened the door and spoke with the woman, confirming that she intended to give the woman a ride in the morning. Luhman locked the door and went back to bed.

Approximately one-half hour or 45 minutes later, Luhman was awakened by another knock at her door. Luhman stated that she was still slightly awake. She grabbed something to throw around herself, as she had been sleeping in nylons and a top. Luhman recalled that she turned on the lamp on the table by the door and looked through the peephole. The florescent lights in the hallway, one of which was about a foot from her door, made the hallway "quite bright." Through the peephole, Luhman saw the man who had assisted her with her lock and whom she had helped with the pop cans. He was wearing a black top and dark, but not black, pants.

Luhman said that she was "kind of sleepy" and "groggy" so she opened the door with the chain on and looked out to see if the person was the individual she thought he was. According to Luhman, the man was mumbling but said something about hotel business. Luhman could not comprehend what he was saying and feared that something was wrong in the hotel so she opened her door. Luhman stated that she was standing behind the door when she smelled the odor of alcohol on the man's breath and became worried. Luhman testified that the man walked into her room, shut the door, and proceeded to lock it. Luhman, who said that she was still not wide awake, woke up "real quick" when he locked the door. Luhman recalled that she moved away from the door, looked toward the window, and started screaming. According to Luhman, the man grabbed her and put his hand over her mouth. She could not recall if he was behind her or in front of her when he covered her mouth. She did recall that she tried to bite him while his hand was covering her mouth. She did not know whether she was successful but was 90% certain that she had bitten him.

Luhman stated that the man threw her down between the two beds, that she hit her head on the frame of one of the beds, and that she felt pain. Luhman testified that she did not know whether she fainted or passed out momentarily because she did not remember how she ended up on top of the bed.

Luhman said that the man had his pants off. She described the pants as "dress type jeans--dress type pants." They were not sweat pants, and they were not made of a bright, shiny, nylon-type material. She did not notice if the pants had an elastic band or a zipper but they were the kind of pants "you really have to pull * * * to get them up."

Luhman recounted that the man pulled down her nylons and tried to stick his penis in her vagina. Luhman stated that she wanted to scream, but he told her to shut up or he would slit her throat. Because of that threat and the fact that she feared for her children's safety, she did not scream. The man could not get an erection so he tried to get Luhman to masturbate him or to put his penis in her mouth. She refused to do either. The man tried again to insert his penis in Luhman's vagina. When he failed, he shoved his fingers up her vagina so far that she experienced excruciating pain. At the time of the attack Luhman was menstruating and was wearing a tampon. Luhman testified that during the attack she was on her back for 10 to 15 minutes, looking at the man's face nearly the whole time.

During the attack, Luhman's daughter awoke. Luhman pleaded with her attacker to stop and leave. The man agreed to leave and began getting dressed. He told Luhman that if she told anyone what had happened, he would return.

After the man left, Luhman hid in the corner of her room for awhile because she was afraid he would return. Then, she grabbed the phone and called an elder from her church. She told him that a man had tried to rape her. The elder advised her to call the police. Luhman stated that she was afraid to call the police because she thought the man would return and hurt her. Instead, she telephoned her father at work. Her father tried calming her over the phone while also notifying the police.

Two police officers arrived at Luhman's room while she was still talking to her father. Luhman recalled that she related to the officers what had happened to her. She described her attacker, stating that he was a black man wearing dress pants and a black shirt. Luhman acknowledged that she described the shirt as long-sleeved although she really was not certain whether it was long-sleeved or short-sleeved because she was concentrating on defendant's face during the attack. Luhman explained that if a black man is wearing a black shirt and if one is fearing for her life at the time, "how can you tell if it's long or short [sleeved]?" Luhman was shown a photograph of defendant taken on the date of the attack and asked, "You couldn't tell the difference between his skin color and t-shirt [sic] [he was wearing]?" The photograph showed that defendant was light skinned and wearing a short-sleeved black T-shirt and gray pants. Luhman responded that she was not paying attention to what defendant was wearing. She was concentrating on his face as well as on getting away from him and getting him out of her room. Luhman acknowledged that she did not notice a mustache on her attacker. The photograph of defendant revealed that he had a mustache.

Luhman testified that she told the police that she had encountered her attacker on two prior occasions and that she thought he lived in the motel. The police asked her where she thought the attacker might be and then proceeded to look for him. The officers returned within 10 to 15 minutes with defendant. One officer told her that they had found someone who fit the description of her attacker and asked her to look at him through the peephole in her door. She looked through the peephole and identified defendant as her attacker. Because the officers were not certain that Luhman could see clearly through the peephole, they told her to leave the chain on her door and open it so she could see out into the hallway. Luhman opened the door about five inches, looked out, and confirmed that defendant was the man who attacked her.

On the date of the attack, Luhman was taken to the hospital. According to Luhman, she had incurred several cuts inside her vagina as a result of the attack on her. When asked if the hospital had sutured or fixed these lacerations, Luhman replied, "They took care of what was necessary." Luhman was then taken to the Rockford police department where she gave a statement to the police.

Officer Erik Swenson of the Rockford police department testified that on September 11, 1991, he responded to a report of an attempted rape in room 226 at the Inn Town Motel. The officer did not testify as to the time of the call from the police dispatcher or the time of his arrival at the motel. When he arrived, the victim, Luhman, who was crying and shaking, said a man had assaulted her and had left about 15 minutes earlier. Luhman described her attacker as a black male, between 25 and 30 years old, six feet tall, with a big muscular build, and wearing a black shirt and dark dress pants. Luhman told the officer that she had smelled alcohol on the attacker's breath. Luhman also told Swenson that she had seen her attacker on two prior occasions and that she believed he lived in the motel.

When Officers Kevin Ogden and Larry Foster arrived, Swenson gave them the description of Luhman's attacker and instructed them to investigate several rooms down the hallway, as Luhman thought the attacker had friends who had rooms on that floor. Ogden and Foster left to look for the suspect while Swenson stayed with the victim to gather more details.

Swenson stayed in radio contact with Officers Ogden and Foster. Within a short time, one of them contacted him and asked him to step out into the hallway. Standing in the hallway with the officers was a black male, the defendant, who matched, "very closely," the description Luhman had given Swenson. When the officer asked defendant to breathe in the officer's face, he detected an odor of alcohol. Swenson testified that he reentered Luhman's room and told her that the officers had an individual at whom Swenson wanted her to look. Swenson did not tell Luhman that the officers had caught the person who had attacked her.

Swenson recalled that he asked Luhman to look through the peephole in her door. He felt a face-to-face confrontation would upset her further. Swenson first looked through the peephole to determine if the person on the other side of the door could be seen clearly, and then he had Luhman look through the peephole. Luhman identified the defendant as her attacker.

Swenson related that when his sergeant arrived at the motel, the sergeant decided that Luhman's door should be opened a few inches to allow her to get a clearer view of the suspect standing in the hallway. Luhman looked out the door for three or four seconds and again identified defendant as her assaulter.

On cross-examination, Swenson related that Luhman told him that she had attempted to bite defendant's hand when it was covering her mouth. She did not know if the bite left a mark or injured defendant's hand. Swenson acknowledged that a statement in his written report, particularly reciting that Luhman bit her attacker on the hand causing a small cut to the finger, was ...

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