Appeal from the Circuit Court of Cook County. Honorable John Morrissey, Judge Presiding.
Released for Publication December 21, 1995. Petition for Leave to Appeal Denied April 3, 1996.
The Honorable Justice Rakowski delivered the opinion of the court: Zwick, J., concurs. Egan, J., dissents.
The opinion of the court was delivered by: Rakowski
JUSTICE RAKOWSKI delivered the opinion of the court:
Following a jury trial, defendant was found guilty of two counts of armed robbery and seven counts of aggravated criminal sexual assault. He was sentenced to 50 years for each aggravated criminal sexual assault to run concurrent, and to 15 years for each armed robbery, to run consecutive to the aggravated criminal sexual assault sentence. On appeal, defendant contends: (1) he was denied his right to counsel of choice; (2) the trial court conveyed improper impressions to the jury; (3) the trial court erred in refusing to give a lesser included offense instruction; and (4) the State failed to prove him guilty beyond a reasonable doubt. We reverse and remand.
Defendant was indicted for aggravated criminal sexual assault and armed robbery for events which occurred on November 19, 1992, involving three separate women, R.C., L.M., and V.G. The indictments were consolidated for trial. Because defendant contends the evidence was insufficient to prove him guilty beyond a reasonable doubt, a somewhat lengthy recitation of the facts is necessary.
R.C. testified that on November 19, 1992, at approximately 12:30 a.m., she was walking home from a friend's house. A man grabbed her from behind, putting his left arm around her neck and holding a gun to her right temple. She heard the gun click and the man said, "Bitch, you're going with me. Hold your head down." R.C. turnedaround and saw the man's face. She identified defendant in court. After R.C. looked at defendant, he told her to put her head down and walk with him. They walked passed two houses at which time, she saw a black Blazer with silver trim. Defendant opened the door and R.C. saw another man sitting in the driver's seat. She identified codefendant in court.
After defendant and R.C. got in the back seat, defendant told codefendant to drive. Defendant ordered R.C. to take her clothes off. He unzipped his pants and told R.C. to "suck his -- give him some head." Defendant had the gun pointed at R.C.'s head. While R.C. performed oral sex on defendant, codefendant sat in the front seat watching. After this, defendant made R.C. turn over, holding the gun to her head, and performed anal sex for about five minutes. He then ordered R.C. to turn over and had vaginal intercourse for another five or six minutes.
When defendant finished, he and codefendant switched seats and R.C. performed oral sex on codefendant until he ejaculated. R.C. did not know where the gun was at this time.
After switching places again, defendant, with the gun in his hand, asked codefendant, "Should we kill this bitch?" and codefendant replied, "No. It's not that serious." Defendant asked R.C. if she had any money, she said $20, and defendant took it out of her pocket. Defendant told her to put her coat on, he put a hat on her head, and pushed her out of the Blazer. While cocking the gun and pointing it towards R.C.'s chest, defendant told her to turn around, cover her head, keep walking, and not to look back or he would shoot her.
After returning home, R.C. called the police. When they came, she told them she had been raped and they took her to the hospital. After leaving the hospital, she went to the police station to view a lineup. R.C. immediately identified defendant and codefendant as the two assailants.
R.C. told the first set of officers, concerning the sequence of events, that she had anal intercourse with defendant, then anal intercourse with codefendant, and then vaginal intercourse with both. She told the second set of officers she had anal, vaginal, and oral sex with defendant and then anal, vaginal, and oral sex with codefendant.
R.C. did not remember if the police questioned her as to whether either man ejaculated, but she stated she told them one did. Defendant ejaculated in her vagina but she did not remember if she told the police this. R.C. also did not remember if she told the police about the conversations between defendant and codefendant or about the "kill the bitch" comment.
Officer Kinasz testified on behalf of the State. He and his partner, Officer Hardesty, received an assignment at approximately 12:30 a.m. to meet a criminal sexual assault victim at her home. As they exited their car, R.C. approached them and said she had been raped. According to Kinasz, R.C. was "visually shaken, hysterical, emotionally upset," and crying. The officers took R.C. to the hospital. Kinasz interviewed R.C. in the car en route to the hospital and at the hospital, taking notes each time. He made his report from the interviews and notes and included the details of the rape in summary fashion.
R.C. described the gun as a bluesteel revolver. She told Kinasz the first sexual encounter involved forced anal sex with defendant. Kinasz did not remember if he asked R.C. whether either man ejaculated and did not recall if she offered this information. He stated that R.C. did not tell him she had conversations with defendants. He also did not recall if R.C. told him defendant threatened to kill her. Kinasz did not recall R.C. telling him she was grabbed off the street with a gun to her head nor did he remember her saying that when she was let out of the car, defendant put the gun to her head and she heard a click.
L.M. testified that on November 19, 1992, between 12:30 and 1 a.m., she was walking home from a neighborhood store. As she crossed the street, she noticed a black Blazer with one headlight out parked on the street. L.M. slowed down because the car looked familiar. A slim man with long hair and light skin got out with a gun. L.M. could see his face. The man grabbed her by the arm, put a gun to her right side, and told her to get in the Blazer. L.M. identified defendant in court. Defendant pushed her into the Blazer and forced her head to the floor. As she was pushed into the car, she saw another man, in the driver's seat, whom she described as heavy set. L.M. could see the side of his face and, she identified codefendant in court.
After driving around for five minutes, defendant ordered L.M. to take off her pants, shoes, and socks. Codefendant got in the back seat because defendant told him he was going first. Defendant exited the vehicle and L.M. did not know where he went. When codefendant got in the back seat he was naked. He had vaginal intercourse with her for about 10 minutes. According to L.M., the gun was in the front seat and defendant had told codefendant to use it if he had any problems. After finishing, codefendant exited the car and defendant got back in. He inserted his penis in her rectum, which lasted for 10 minutes. Defendant had vaginal intercourse with L.M. for another 10minutes. Defendant then sat L.M. on top of him with her back facing him. He again inserted his penis in her. After that, he told her to put her clothes on.
After L.M. dressed, defendant displayed the gun and said "he was going to walk [her] through this gangway and [when they] get through the gangway, make a left and keep walking. If [she] looked back he was going to shoot [her]." She did as instructed.
When L.M. looked up, she was two blocks from home. She walked to a neighbor's house, the Crutchers, which was across the street from her home, so she could tell someone what happened. After she told them she had been raped, Mrs. Crutcher called the police. When the police arrived, they took her to the hospital. After leaving the hospital, she went to the police station and viewed a lineup. She identified defendant and ...