Appeal from the Circuit Court of Cook County No. 94 CR 12081 The Honorable Thomas F. Dwyer, Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Following a jury trial, defendant Omar Chaney was convicted of three counts of aggravated criminal sexual assault and one count of armed robbery. The trial court sentenced Chaney to consecutive prison terms of 25, 9 and 6 years, respectively, for the three aggravated criminal sexual assault convictions. The court also imposed a concurrent prison sentence of 25 years for the armed robbery conviction. This appeal followed.
Chaney argues that his convictions must be overturned and a new trial granted because the prosecution impermissibly elicited testimony that before the victim identified Chaney from an array of photos, she had examined other photos in mug books without recognizing anyone. Chaney further argues that because consecutive (rather than concurrent) sentences were imposed, based on a finding by the trial court on a matter neither charged nor submitted to a jury, his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.
The victim, A.P., testified as follows. On the evening of August 17, 1993, A.P. was waiting at Union Station for a friend to pick her up and drive her to suburban Elmhurst, where A.P. lived with her parents. A.P. had just completed new student orientation at the University of Illinois at Chicago earlier that week. A.P. had been waiting in the station between an hour and a half and two hours for her friend when she was approached by two men, who introduced themselves as "Mike" and "Ardmore." A.P. later learned that "Ardmore" was the defendant, Omar Chaney.
The two men said that A.P. looked "kind of lost" and asked if they could help her. A.P. agreed and explained her situation. At their suggestion, A.P. had her friend paged over the station intercom, but there was no response. They waited another half-hour and then, around 9:30 p.m., A.P. called her stepmother. Her stepmother told A.P. that she needed to return home quickly because her curfew was 10 p.m. No trains left Union Station for Elmhurst for another hour and a half. The men said that their car was only a few blocks away and offered to give A.P. a ride to Elmhurst. Because the men "seemed nice," she accepted.
After they began walking to the car, the men said that they needed to stop at a friend's house prior to leaving for Elmhurst. They walked for many blocks until they came to a red brick building at 846 South Racine. They went into an apartment on the third floor. Ms. Freddie Mae Harris, who resided in the apartment, let them in.
Harris testified that on August 17, 1993, she knew the defendant as "Omar Chaney." She said that Chaney was a friend and that they had lived together on and off for about eight months. Chaney arrived at Harris' apartment that night along with another man and a woman, whom she later learned to be A.P. Harris' apartment was used as a "smoke house," a place where drug users gather to smoke cocaine. A.P. and Harris sat in the kitchen, while Chaney and Mike went into another room to use cocaine. Harris also used some cocaine. A.P. just sat at the kitchen table and stared out the window.
A.P. testified that she kept telling Harris that she had to go back to Elmhurst. However, she didn't want to leave the apartment by herself because "everybody was already staring at [her] and looking at [her] crazy." A.P. said that she felt safer in the apartment because she did not know exactly where she was and she did not know anyone other than Mike and Chaney. After about an hour, A.P. left the apartment with the two men. Mike told her that the car was only a couple of blocks away.
The men walked A.P. down a series of alleys. Chaney put his arm around her. The men said they needed gas money. Eventually, Mike grabbed A.P. from behind, covering her mouth with one hand. Chaney drew a knife with a four-inch blade and a red handle. The men dragged A.P. down an alley until they reached a rat-infested pile of flattened cardboard boxes near a loading dock, where they ordered A.P. to remove her clothes. A.P. responded, "Why are you doing this to me. Please don't do this to me." Mike replied, "Take off your clothes, bitch. You're getting what you deserve."
Each of the men then raped A.P. multiple times, both orally and vaginally, while the other held the knife. The first time they raped A.P., they allowed A.P. to dress herself, then the men walked her toward some parked cars while Chaney went through her backpack. They then returned her to the pile of boxes, where both men again raped her multiple times. They also beat her and choked her. When they had finally finished, Mike and Chaney had an argument about whether to kill A.P., with Mike stating that "I'm not going back to the pen. I'm not going back there for that bitch." Chaney, who argued against killing A.P., told A.P. to get dressed.
Chaney then walked A.P. along the streets for a while, telling her "You know, you really could be my girlfriend." Chaney then hailed a taxi and put A.P. inside. The driver asked if A.P. had any money. When she said no, he told her to get out. Chaney then put her in a second cab. That cab was driven by Mehdi Seyf Tolooi.
Tolooi testified at trial that a man and a woman approached his cab between 2 and 2:30 a.m. on the morning of August 18, 1993. He thought it looked as if "they had some kind of argument, some kind of disturbance, something was going on." It was clear to him that something was wrong. The woman's face "was jammed, smushed, very disturbed." The man was holding a purse. ...