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People v. Montgomery

DECEMBER 3, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Harvey Montgomery (defendant) was indicted for rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1971, ch. 38, par. 11-3) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2.) A jury found him not guilty of rape and deviate sexual assault but guilty of armed robbery. He was sentenced to the penitentiary for five to 20 years.

In his appeal to this court, he contends:

1. The evidence is not sufficient to support the conviction beyond reasonable doubt;

2. The trial court erred in preventing him from testifying to his reasons for a certain activity and in permitting the prosecutor to argue to the jury the failure of defendant to explain this very activity;

3. The court erred in preventing him from presenting evidence of his reputation for truth and veracity; and

4. The sentence should be reduced.

The evidence shows that two friends of the complainant drove her to her place of residence at about 5:30 in the morning and left. She testified that defendant, whom she had never previously met, accosted her, entered the building with her, told her that he also lived there and then forcibly entered her apartment after she had unlocked the door. She testified that defendant was armed with a steak knife with which he threatened her and held against her until she complied with his demands to undress. An act of

committed at that time. Defendant then took the complainant into the bathroom where he made her douche and use a vaginal suppository. The complainant further testified that thereafter defendant took five single dollar bills, 15 bus tokens and some change from her purse and put these items in his pocket. He then picked up a ceramic or pottery bank, emptied the change therefrom and put this into his pocket. She also testified that defendant then again threatened her with the knife and compelled her to perform additional sexual acts. Defendant then fell asleep.

Complainant further testified that she put on her robe, locked the apartment door from the outside and ran downstairs to a neighbor where she made a complaint of rape. She was examined at a hospital but there was no evidence of sperm or laceration. The police were called and entered the building. They unlocked the door to complainant's apartment with the key she had given them but found the door secured by the chain on the inside. When the police announced their office, the door was slammed shut. They testified that they broke in and defendant ran toward the window and kicked out the screen. At that time, he had a knife in his hand. Defendant then jumped out of the window to the roof of an adjacent garage. Under command from the officers, he dropped the knife and was taken into custody. A search and police inventory evidence showed that in one of the defendant's pockets he had five single dollars, a quantity of small change and 15 bus tokens. In another pocket, he had currency exceeding $200. Investigation showed defendant's fingerprints on the ceramic bank and on the sill of the window through which he had jumped. There is no evidence regarding testing of the knife for fingerprints.

Defendant testified that he had known the complainant for one and a half or two years and that he had spoken to her some 12 or 13 times before the date of this episode. He had visited complainant in her apartment on some five or six previous occasions. He stated that he had not seen her at the elevator but that he "buzzed" the apartment door and complainant invited him in to wait for her boyfriend. He denied armed robbery or any robbery, denied that he ever had the knife in his possession and denied that he had fastened the door with the chain. He denied that he had taken the contents of the ceramic bank but stated that he had handled it during his visit. When the police entered the apartment, they found the bank lying on the floor in the middle of the room. He testified that he had no bus tokens in his possession and that he kept his currency in one pocket and his change in another. Defendant also testified that some six months after the occurrence, he met the complainant at a bar and she asked for $500 in return for dropping the charges against him.

A friend of defendant testified that she saw defendant and the complainant in this bar at the time in question sitting together but did not hear the conversation. The complainant denied defendant's version of this incident and denied that she had ever been in the bar. A friend of complainant corroborated her testimony that they had been together on the evening in question and that she, accompanied by a male friend, had driven complainant to her home. There is also police testimony that defendant stated shortly after the occurrence that he met the complainant at a restaurant that night and that she had then invited him up to the apartment.

We will first consider the sufficiency of the evidence. The record showed beyond reasonable doubt that defendant took possession of certain property of the complainant. The complainant testified directly and postively that defendant took five single dollars and 15 bus tokens from her purse and that he also took a quantity of change from the ceramic bank. This testimony is strongly corroborated by the police search and inventory showing that defendant had five single dollars, some small change and 15 bus tokens together in one pocket. Defendant's general denial of these facts is hardly sufficient to raise a reasonable doubt.

Further corroboration is found in the presence of defendant's fingerprints upon the coin bank and the fact that the bank was found lying on the apartment floor. Defendant's statement that he did not put the chain on the door is another instance in which his testimony is discredited by obvious physical facts. There may be discrepancies and issues of credibility on both sides but certainly the ultimate fact that defendant took possession of this property with intent criminally to deprive complainant thereof has been proved beyond a reasonable doubt. We also note here that in this aspect of the evidence, the testimony of the complainant is strongly corroborated by a number of factors. Her testimony regarding rape is corroborated only by her spontaneous complaint to a neighbor and tends to be negated by the absence of medical evidence. The testimony as to deviate sexual assault also lacks corroboration. Although logical consistency of the verdicts is not necessary for affirmance of the judgment (see People v. Joyner, 50 Ill.2d 302, 308, 309, 278 ...

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