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People v. Garner

MAY 3, 1974.




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


Defendant was charged with two counts of burglary (Ill. Rev. Stat. 1971, ch. 38, par. 19-1), one count of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2), two counts of deviate sexual assault (Ill. Rev. Stat. 1971, ch. 38, par. 11-3), two counts of indecent liberties with a minor (Ill. Rev. Stat. 1971, ch. 38, par. 11-4), and two counts of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1971, ch. 38, par. 11-5). Following a bench trial he was convicted on one count of burglary, acquitted on all other charges, and sentenced to 4 to 12 years. On appeal he contends: (1) the verdict is inconsistent and not supported by evidence sufficient to establish his conviction beyond a reasonable doubt; and (2) it was error to exclude the results of a polygraph test administered by the Chicago police department.

The following evidence pertinent to this appeal was adduced.

Franklin Jones, for the State:

He is 15 years old. He has resided with his mother, brother and two sisters on the second floor of a six-unit apartment building at 949 Winona Avenue since February, 1972. On the evening of May 12, 1972, he was cleaning his aquarium in the living room. His brother and two sisters were sleeping in their bedrooms and his mother was asleep on the living room couch. Shortly before midnight while passing through the kitchen, he was confronted by defendant who beckoned him with a small pistol and commanded him to fetch his mother's purse which lay next to her on the floor. After he retrieved the purse, defendant ordered him to go into his bedroom and shut the door. He walked around his room for about 2 minutes. He had assumed defendant had left when there was a light knock on his bedroom door. Defendant entered and held a pistol to his head forcing him to commit oral copulation and anal intercourse. While being subjected to anal intercourse, he heard the apartment bathroom toilet flush. Defendant arose, peered out the bedroom door and ran out the apartment's back door. His mother appeared at the bedroom door and in response to her question, he related what had occurred. She called the police. While waiting for the police, his mother walked toward the kitchen and reappeared 2 or 3 minutes later with her purse. He underwent a medical examination that night at Weiss Memorial Hospital. He was shown photographs at the police station immediately thereafter, but was unable to identify anyone.

On June 8, 1972, he saw defendant exit the front door of their building, get into an automobile and drive away. He telephoned the police. Investigator Larry Evans and another police officer arrived at his apartment and arrested defendant when he returned to the apartment building.

On cross-examination he admitted that subsequent to defendant's arrest he learned that defendant lived with a roommate directly above his apartment.

There was a stipulation that Franklin's medical examination conducted on May 13, 1972, at approximately 1:30 A.M. revealed no abnormal finding; the rectal area was negative and there was no blood.

Constance R. Jones, for the State:

She is Franklin's mother. She is a school teacher and is at work during the day. On the night in question she was asleep on the living room couch when she was awakened by the sound of a door closing. As she started to get up, a Negro man appeared in the entrance way adjacent to the living room, ran toward the kitchen, turned around to face her momentarily and then fled out the back door. She called to her son who came into the living room and related what had occurred. After phoning the police she went into the kitchen and looked out the window. She observed the same Negro man coming up the steps with her purse. The porch was lighted. He looked up at her when she screamed, he dropped her purse and ran away. She retrieved the purse and found that approximately $150 was missing. She went to the hospital with her son. She was unable to identify anyone from a series of photographs shown to her at the police station later that morning.

On the afternoon of June 8, 1972, while at home with her son Franklin, she observed defendant, recognizing him as the same man she had seen in her apartment on May 12. In response to her summons, Chicago police detective Larry Evans arrived. Evans arrested defendant later that afternoon.

She admitted that she saw defendant with his dog sitting in front of her apartment building sometime in August, 1972; that she approached him with her sister in tow and that she apologized for her sister's behavior in throwing pebbles at his car. No one else was present.

Allen White, for the State:

He is a Chicago police officer. On May 13, 1972, at approximately 12:40 A.M. he and Officer Larry Evans responded to Mrs. Jones' burglary call at 949 Winona Avenue. A glass plate from her apartment's back door was missing and a piece of cardboard approximately the same size of the opening was lying on the back porch. Mrs. Jones' purse contained no money. They drove Mrs. ...

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