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People v. Drayton

AUGUST 31, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.


Defendant was charged with aggravated kidnapping, armed robbery, attempt rape and battery. The armed robbery charge was reduced to robbery, and a jury found defendant guilty of all four charges. The court sentenced him to 15 to 25 years for aggravated kidnapping, 8 to 15 years for robbery, 6 to 12 years for attempt rape and 6 months for battery, the sentences to run concurrently. On appeal, defendant argues that he was denied a fair trial by the improper remarks of the prosecutor during closing argument; that the court erred in communicating with the jury in the absence of defendant and his counsel; and that the court erred in denying defendant's motions to suppress physical evidence and identification testimony.

The victim, an 18-year-old girl, testified that on February 17, 1969, at about 8:30 P.M., she was walking west on 104th Street in the City of Chicago. As she approached Calumet, a car turned onto 104th Street. She continued walking west and, as she came to the next street, Forrest, she saw a man walking toward her from Prairie Avenue. She observed the man for about three to five seconds before he started walking toward her. She had occasion to look at him as he walked toward her, and when he was about ten feet away, the street lighting provided a good opportunity to observe the man. The victim described him as a Negro, about 5'7", small build, with a large natural haircut, wearing a black three-quarter length coat and no hat.

As the man walked by, he turned around, put his arm on her shoulder and told her to keep walking. As her assailant did this, she had another opportunity to look at his face. His other hand was in his pocket, and he put it to her side in a manner indicating that he had a weapon. He walked with her to a 1967 avocado green Camaro, the same car she had observed turning in front of her a few minutes earlier. He ordered her to shut her eyes, and forced her into the front of the car with her body down. As he drove away, he covered her head with a towel.

While driving, her assailant removed a ring from her finger and some cash from her purse, and he threw the purse and ring in the back seat. He eventually stopped the car, and ripped the towel covering her head in two. He threw half the towel into the back seat and blindfolded her with the other half. He unbuttoned her coat and told her to remove it. While her coat was half off, she started screaming and kicking him and scratching his face and arms. He was striking her on the head. Opening the door, she rolled out of the car. She removed her blindfold and watched her assailant drive away.

The victim ran to a nearby house and called the police. When they arrived, she related the incident to them. While enroute to the hospital in a squad car she heard on the radio that other officers had found a suspect. She was immediately driven to where the other officers were waiting with the suspect. She identified the car and the defendant. She gave the police the half of the blue and white towel which had been tied around her eyes. She made an in-court identification of the defendant as her assailant.

Officer John Bickham of the Chicago Police Department testified that on the evening in question he was called to 425 West 99th Street in Chicago. There the victim told him about the incident and said she had been abducted in a 1967 Camaro. She described being blindfolded by part of a towel, and the police officer saw a torn piece of the towel in her possession. After getting a description of the vehicle, Bickham and his partner proceeded to tour the neighborhood. About five minutes later, they observed a car fitting the description, a 1968 Camaro, being driven by defendant, at 99th and Normal. Officer Bickham first stated that the Camaro was gold, then described it as goldish green. As the car pulled over, the officer observed that the driver fit the description of the assailant. When the defendant exited from the Camaro, Officer Bickham noticed fresh scratches on his face. The officer flashed his light into the back seat and noticed a torn towel on the floor. He subsequently observed the victim drive up to the scene in the sergeant's car, and a few moments later, he was instructed to arrest defendant.

Bernadette Kwak, a microanalyst for the Chicago Police Department, testified for the State that the piece of towel given to the police by the victim and the piece of towel removed from defendant's car were originally part of the same towel.

Laneare Drayton, wife of defendant, testified for the defense that on the evening in question she had an argument with defendant. During that argument, she scratched his face and arms. As a result, defendant drove to the drug store for mercurochrome. Defendant did not testify.

Defendant's initial contention is that the prosecutor denied him a fair trial by improperly commenting on the failure of the defendant to testify in his own behalf. During closing argument, the prosecutor remarked as follows:

"How did human blood get on the towel? * * * So these are all factors, ladies and gentlemen, these are all ramifications to corroborate or bolster * * * identification of this man and all the circumstances as they build up one upon the other and they ultimately get down to this towel, which he can't refute and as he even in no way tried to * * *"

• 1 A direct reference by the State in its argument concerning defendant's failure to testify is prejudicial error. (People v. Cheney, 405 Ill. 258, 90 N.E.2d 783; Ill. Rev. Stat. 1967, ch. 38, par. 155-1.) However, it is permissible for the prosecutor to comment on the uncontradicted nature of the State's case even where the only person who could have contradicted the State's evidence was the defendant himself. (People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697.) The standard used to determine whether the closing argument is improper is whether the reference in closing argument was intended or calculated to direct the jury's attention to the defendant's neglect to exercise his right to testify. People v. Burton, 44 Ill.2d 53, 254 N.E.2d 527; Watt v. People, 126 Ill. 9, 18 N.E. 340.

• 2 Under the foregoing criteria, we find that the prosecutor's comments in closing argument were not improper. In our view, the remarks did not direct the jury's attention to the failure of defendant to testify, but rather emphasized that there was no evidence contradictory to the State's explanation of the two halves of the towel. The torn towel fully corroborated the identification testimony of the victim. The prosecutor's remarks emphasized that the defense could not and did not refute the evidence concerning the towel. The comments were directed to the evidence of the towel, and not to the defendant as a witness.

Cases cited by defendant in support of his argument that the remarks were improper are clearly distinguishable from the instant case. In People v. Burton, 44 Ill.2d 53, 254 N.E.2d 527, the court held the following remarks to ...

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