The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County.
Honorable Michael P. Toomin, judge Presiding
Following a jury trial, defendant Don Harris was found guilty of aggravated criminal sexual assault, criminal sexual assault, armed violence and aggravated kidnapping. Defendant now contends his convictions should be reversed and a new trial granted because: (1) the trial court erred in failing to quash the arrest and suppress evidence; (2) the trial court erred in admitting evidence of other crimes; (3) the prosecutor improperly commented on his failure to testify; (4) the trial court erred in allowing evidence and argument as to the complainant's alleged loss of virginity; (5) he was denied his right to confront witnesses; (6) cumulative errors denied him a fair trial; and (7) the sentence imposed was an abuse of discretion and unjust.
For the reasons that follow, we affirm.
On the morning of June 17, 1995, N.G., a 14-year-old girl, awoke around 8:30 a.m. Her aunt asked her if she would go to the store to buy some milk. She and her four-year-old male cousin, R.W., walked to the corner store. On the way home, N.G. saw a man, whom she identified as defendant. He wore a City of Chicago orange construction worker vest. He put a gun against her side and said, "[D]o you see this[?]" She said "yes." Defendant made N.G. wear some sunglasses that had black tape in the inside of the lens so she could not see. He led them to his car. N.G. was saying "no" and R.W. was crying and saying "no. We want to go home." Defendant put R.W. in the back seat and N.G. in the front seat. When he entered the car, he set the gun by his leg.
As he drove, defendant said N.G. fit the description of a girl who stabbed his sister. N.G. told him that she was not that person. He asked her where she lived and she gave him a false address. He asked her for her name and she told him it was Kiki. He asked her age and she told him 12 years old. He continued to ask her various questions, including whether she was a virgin. She replied "[y]es" and he said he would know if she was lying.
N.G. stated that she was crying and the tape on the sunglasses started to loosen so that she could see. Defendant stopped the car and said, "I think you can see." He took the sunglasses off, pulled duct tape from his pocket and put it directly on her eyes. He put the sunglasses back on and started to drive again. She was able to see some of the streets because the tape on her eyes became wet and started to loosen. Defendant finally drove to an alley and stopped the car near a garage.
Defendant then pushed the door of the garage open and took them inside. N.G. could see a vehicle on the first floor of the garage. It was a dark black or gray car with red lines. Defendant took them up some stairs. R.W. was crying and saying "no" and stating that he wanted to go home. When they reached the top of the stairs, there was an old red couch and he ordered them to sit. N.G. stated that there were old sales papers, a rolled up carpet, an old gutter, and a lot of dirt and rocks on the floor.
Defendant took her hat and the sunglasses off. He told her to stand up and to lift her shirt so he could unbutton her shorts. He could not get them unbuttoned so he told her to do it. His face was a few inches from her face. She unbuttoned her shorts and he told her to lie down. R.W. was still screaming on the couch. Defendant said that she did not look like she was 12 years old and asked why she was lying. He pulled her shorts and underwear down. N.G. was crying. He then pulled her shirt off over her head and turned her on her stomach. He told her just go along with it and he would not hurt her. Defendant took his penis and put it in her vagina. As she was crying and screaming, he told her to be quiet and threatened to slit her throat. Next defendant turned her on her back and put his penis in her vagina again. He told her to hold her legs up and be quiet. Then defendant ordered her to put her arms around him and hug him. She did so, and she could feel the gun in his back. Then defendant took his penis out of her vagina. He "got mad and jumped up. He turned to [R.W.] and said, thanks for ruining my fun."
Defendant told her to dress and then walked them downstairs where he pulled the tape off her eyes and threw it on the floor. He took a blue rag and tied it around her eyes. He drove them to 54th Street and Wood, which was about four blocks from the store where she had purchased the milk. He told her that he was glad she had cooperated with him and that she "was the first one he didn't kill." He walked them to the middle of the street. He told them to walk home and said that if they turned around he would shoot them. He threatened to kill them if they said anything. Then he untied the blindfold. After she made sure he was gone, N.G. ran with R.W. to her grandmother's house.
When they arrived at the house, N.G. told her aunt what happened and her aunt called the police. When a police officer arrived, N.G. led him to the garage where the assault occurred. She identified defendant's vehicle, a gray Riviera. Later she identified a gun as the one defendant had used during the assault. N.G. went to the hospital where she was examined by medical personnel and she went to the police station that afternoon and identified defendant from a lineup.
Defendant was charged with various counts related to these events, including criminal sexual assault, aggravated sexual assault, armed violence and aggravated kidnapping. Defendant moved to quash his arrest and suppress evidence.
At the suppression hearing, Officer Vernon Mitchell testified that he and other officers were called to defendant's residence on July 17, 1995, sometime after 9 a.m. They were to assist other officers in the possible apprehension of a criminal sexual assault suspect. Upon arriving at the scene, he was informed as to the details of the assault as given by N.G. Officer Mitchell spoke with a person on the street and learned that a man had gotten out of the gray car in front of the residence with a brown paper bag and had gone into the house a few minutes before the other officers had arrived.
The officers rang the doorbell and knocked but did not receive an answer. A girl, later identified as defendant's daughter Lokeya Caldwell, came to the window on the second floor. She appeared to be between 11 and 13 years old. She was visibly upset, shaken and crying. The officers told her to come to the door and eventually she did so, but she only opened the inner door. She said she was alone and that her father had locked her in and gone to work. She closed the door and left the doorway. The officers began calling to the girl. They were concerned for her safety and called the fire department. The officer stated, "We had no idea who was in the house with her, if something was wrong with her or not, so we called the fire department." He also stated they were aware that the victim had identified the car. "Maybe he might have been holding her hostage or something like that. We really weren't sure at all."
When the fire department arrived about five minutes later, they put a ladder up to the window on the second floor and the officers entered the house. Officer Mitchell found the girl and asked her if she was okay and what was happening. She was still shaking and crying. She told him in a whisper "[h]e's in the house." The other officers proceeded downstairs. The girl told Officer Mitchell that it was her father who was in the house and he had come in excited, running around with a bag that he was trying to hide, and saying that the police were coming to get him for something he did not do.
In going through the residence, the other officers found a shotgun in the second-floor bedroom under the bed, a "Tek-9" in a closet also in the bedroom and two additional guns in a brown paper bag on the second floor in an oven. One of the officers heard some noise in the basement and went downstairs to find defendant trying to conceal himself behind the paneling.
Officer Mitchell asked the girl to call her mother. When Linda Caldwell arrived about 5 to 10 minutes later, the officers explained what happened and why they were there. Ms. Caldwell signed a form, stating:
"I, Linda Caldwell, give permission to Chicago police officers to search my residence at 5315 South Laughlin on June 17, 1995, and take out of my residence any illegal weapons."
The officers explained to her that the form was to search the house and the other properties. The officer said she was "very cooperative," stating that she wanted to see for herself. Ms. Caldwell led them through the yard, moved the family's dogs to allow the ...