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People v. Jenkins

FEBRUARY 20, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALBERT N. JENKINS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Albert Jenkins, was charged with one count of rape and one count of armed robbery. He was tried before a jury and was found guilty of both offenses. The trial judge sentenced him to the Illinois State Penitentiary for concurrent terms of not less than twelve nor more than twenty years on the rape offense, and not less than ten or more than twenty years on the armed robbery offense.

Defendant has appealed his convictions and raises these issues for our review: (1) whether the trial court erred in admitting testimony of the circumstances surrounding defendant's arrest when these circumstances revealed defendant's commission of another unrelated crime; and (2) whether the trial court erred in admitting the testimony of the victim's examining physician when the physician admittedly did not recall examining the victim and testified only as to the contents of his written hospital report.

The evidence in this case indicates that, on October 12, 1967 at approximately 6:00 P.M., the victim, Beverly Jones, returned home from work. Miss Jones testified that, as she entered the vestibule of her building, she stopped at her mailbox. She then unlocked the door leading to the stairway and met a man coming out of the building. They had a brief discussion concerning the tardiness of the mailman, and, as Miss Jones proceeded up the stairway to her apartment on the third floor, the same man followed her. When she reached the landing between the first and second floors, the man grabbed her, put a hand over her mouth and a gun to her head and told her to give him one dollar. Before she could comply, he told her to be quiet and to continue up the stairs. He led her through the second floor to the back stairway, then up the back stairs to the third floor doorway. He told her to put down her packages and brought her back down to the landing between the second and third floors. The man again asked her for one dollar, and she gave it to him. He immediately asked for all her money, and she complied by giving him an additional seven dollars. He then ordered her to remove her pants, and when she did not, he slapped her, repeated his order and told her to lie on the floor. She obeyed, and the man then raped her. When Miss Jones observed a woman tenant open the second floor doorway leading to the stairs, she screamed for help. The man got up and ran down the stairs. A few days later Miss Jones identified two photographs of defendant as the man who raped and robbed her, and she subsequently made an in-court identification of defendant.

The tenant who observed the rape testified at trial that she saw defendant lying on top of the victim and ran back to her apartment to call the police. She testified that she had seen defendant in the building a few days earlier. In addition to the in-court identification of defendant by this witness, prior to trial she, too, had identified two photographs of the defendant as the man she saw.

The prosecution introduced evidence that the police arrived at the apartment and took the victim to the hospital, where she was examined. The examining physician testified that his examination revealed the presence of spermatozoa. On direct examination the prosecution attempted to refresh the doctor's memory by showing him the hospital report he had made at the time of the examination. On cross-examination the witness admitted that he had no recollection of examining Beverly Jones and could only testify from the contents of his report. The report was not put into evidence, and a motion by defense counsel to strike the witness's testimony was denied.

A police officer testified that he arrested defendant eighteen months after the rape and robbery in response to a radio message concerning another crime. When defendant was in custody, his fingerprints revealed that he was Albert Jenkins and that there was a warrant for his arrest for the rape and robbery of Beverly Jones. The officer testified that until that time defendant had maintained that his name was William Nesbitt.

OPINION

Defendant first contends that the admission of testimony regarding his arrest was prejudicial error. The arresting officer testified that he arrested defendant as a suspect in an unrelated crime eighteen months after the offense against Miss Jones. The officer further testified that he drew his revolver in making the arrest and that defendant was at that time using a false name. Defendant contends that, even though the unrelated crime was not specified at trial, the narration of these facts suggested to the jury that defendant had committed a serious crime. Defendant argues that this testimony was irrelevant and highly prejudicial. The State maintains that the officer's narrative merely set out the circumstances surrounding defendant's arrest and was highly probative in showing flight and consciousness of guilt.

When the arresting officer commenced his testimony regarding the circumstances of defendant's arrest, defense counsel immediately objected, and, at his request, a conference was held out of the presence of the jury. The following colloquy took place:

"Defense Counsel: I can guess, from the opening statement of the State's Attorney, what he is going to attempt to show with this police officer.

I submit that we are now talking about March of 1969, a year and a half after the occasion of the occurrence. He is going to attempt, apparently, to talk about the arrest of this defendant for another crime. It has nothing to do with this crime.

I submit that it would be completely improper, prejudicial and not competent evidence, completely irrelevant to the ...


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