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People v. Gardner

JUNE 30, 1965.




Error to the Criminal Court of Cook County; the Hon. ALFONSE F. WELLS, Judge, presiding. Affirmed.


Defendant appeals from a conviction, by a jury, of the crime of forcible rape for which he was sentenced to a minimum of one year and a maximum of ten years in the penitentiary.

Defendant argues that he was not proven guilty beyond a reasonable doubt; that certain instructions were erroneously refused; that comments by the State's Attorney in closing argument were prejudicial; and that the court erred in overruling defendant's motion for new trial.

People's witness Helen L. Davis testified that on September 15, 1963, she occupied a second floor apartment at 6028A South Blackstone Avenue in Chicago; that about ten o'clock of that evening she went to the back porch door and locked it; that she returned to her apartment; that the bedroom window was about 33 inches wide; that the window had "sheer curtains"; that the shade was "partly down"; that the window was open "about three-fourths of the way"; and that there was a screen which was nailed to the window frame. She further testified that she locked her apartment door and left a 150 watt light on in her kitchen; that she entered her bedroom and completely undressed and put on a gown and housecoat. She testified that she went back to her kitchen to listen to the "last two records" on her phonograph; that while there:

Well, I heard a swishing noise, but I knew that I was in the house and I had the door locked . . . I took it for granted, it was the wind blowing the curtains at the window. The next thing I knows, I heard a footstep. And when I heard the step, I automatically turned around and jumps up and I looked right in the man's face. And, when I did, he grabs me around the throat with both his hands.

She testified that defendant said "Don't scream" and admonished her not to look at him; that he kept one hand on her throat while he had intercourse with her which lasted "about two or three minutes"; that he apparently had a climax because "I was extremely wet." She testified that defendant left her apartment by the kitchen door; that she "jumped up" after she heard him unlock the hall door. The witness testified that she went to the porch door; that neighbors joined her there; that a neighbor called the police and that she told the assembling neighbors about the incident. She testified that:

They wanted to know what was the commotion. I guess I must have been hollering, or something, you know, and I was saying what happened, meanwhile, what the noise was all about.

She further testified that she was able to observe defendant's attire during the carnal act. She testified that:

He had on these kind of big shoes like boot shoes. In other words, they're brogans, or something like that. And, then, he had on some kind of bluish green pants or greenish blue pants, light, work, washable pants, and he had on a white shirt . . . and a kind of bluish greenish looking sweater.

She testified that defendant has "long sideburns" and "a little slur" in his voice. She further testified that she identified the defendant at Billings Hospital the following morning; that she recognized the voice; and that there was no question in her mind that it was the same man who had raped her.

On cross-examination she testified that defendant removed his left hand from her neck because "I guess he take his penis out of his pants with it"; that she did not have any "gentlemen company" around the day or night of the incident; that she did not hear the window screens being pried loose because "my two neighbors and myself was sitting in the kitchen playing my record player"; that she told the police that defendant "weighed around 200 pounds. He was six feet tall, he had to be, because he take up my whole doorway," and that defendant was in her apartment "approximately fifteen minutes."

People's witness Chicago Police Officer John Jackson testified that he arrived at the Davis apartment at about 11:15 p.m.; that he had "had the call as a burglary. But, when I interviewed the victim she said she was a rape victim." He asked her for a description which he then had broadcasted to police vehicles. On cross-examination he read the description from a report that he had made to the Police Department and which had subsequently been transcribed. The description: "One male Negro, between the age of 29 and 30, six feet one inch tall, 160 pounds, light complexion, black short hair, wore blue shirt and blue fatigue pants." On redirect examination Jackson testified that Mrs. Davis' "appearance was [that] she was emotionally upset and hysterical."

People's witness Police Officer DeArmand Carter testified that on September 15, 1963, at approximately eleven o'clock he heard a description of an alleged rapist on the police radio; that he stopped defendant at 60th Street and University Avenue (about four and one-half blocks from the Davis apartment) at about 11:15 p.m. He testified that defendant was walking east toward Blackstone; that when he stopped him the defendant "was sweating very profusely" and that he "seemed to have been running or walking very fast." In response to Officer Carter's questioning defendant said that he had been at the Regal Theater (47th Street and South Park Avenue); that he was proceeding on foot to his home at 7339 Kimbark; that he could not recall the name of the movie; and that he had not been with or seen anyone he knew at or in the vicinity of the theater. The officer testified that he conducted a search for narcotics on the defendant; that he uncovered $129 in currency and one ticket stub (Defendant's Exhibit No. 2) without a date or name on it. He testified that he took the defendant to Billings Hospital where Helen Davis was being examined; that she stated: "This is the man. This is the man that raped me"; that defendant "didn't say anything, he dropped his head." On cross-examination he testified that defendant "didn't have an impediment of speech" and that he did not observe a "retarded condition."

Chicago Police Detective Jack Wallenda testified that he arrived at the apartment about 12:45 a.m. September 16, 1963; that he unsuccessfully dusted the room and entrances for finger prints; that he saw the defendant afterwards; that he estimated defendant's weight at "approximately 225, 230"; and that he was "very light" complexioned.

It was stipulated by both parties that an analysis of liquid taken from Mrs. Davis' privates on September 16, 1963, at the hospital ...

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