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People v. Emmett

NOVEMBER 17, 1975.

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

v.

DOUGLAS EMMETT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.

MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:

The defendant, Douglas Emmett, was found guilty after a jury trial of the crimes of aggravated assault and deviate sexual assault of a woman on January 26, 1972; and sentenced to a term of 7 to 21 years.

The complainant testified that between 7:00 and 8:00 p.m. on January 26, 1972, she was returning home from the grocery store with several packages. As she entered the lobby of her building she observed a man she identified as the defendant, who offered to help with her packages. She first declined the offer, but when the man repeated the offer, she accepted. They took the elevator up to the fifth floor where she lived. She accepted his offer to take the groceries into her apartment. After setting down the groceries, he asked to use her telephone book to call a person he was seeking. While he made the call, she began to put away the items she had purchased. As she was putting certain things away in the bathroom, she turned to leave, but the man was blocking her path. He then turned off the light in the bathroom and put his hand over her mouth; he put a knife in front of her face and told her that she would not get hurt if she did what he wanted. He ordered her to disrobe and to lie down on the sofa bed. He then took his pants off and while holding the knife at her side performed an act of cunnilingus. He then forced her to perform an act of oral copulation upon him. After he left the apartment, she immediately called a friend who lived a short distance away. The friend contacted the police who arrived several minutes later. On March 11, 1972, she identified the defendant in a line-up consisting of five or six men.

A second woman testified that on January 14, 1972, at approximately 6:00 p.m., she was returning home from work when she observed a man she identified as the defendant in the elevator of her building. When she got off the elevator on her floor she went to the left while the man went to the right. She was entering her apartment when the man suddenly appeared behind her. He put his arm around her neck, produced a small knife and threatened to kill her if she screamed. He pushed her into the apartment and ordered her to disrobe. When he saw that she was having a period, he told her to put her pants back on and sit down on the bed. He grabbed a phone book which was lying on the bed and threw it to the floor. He then forced her to perform an act of oral copulation upon him. He ordered her not to scream and then left the apartment. She immediately called the police. On March 11, 1972, she identified the defendant's photograph from a group of eight or nine which she viewed.

Robert L. Hinman, an evidence technician for the Chicago Police Department, and John Olejniczeak, a fingerprint technician for the Chicago Police Department, established that fingerprints, taken from the telephone book in the apartment of the second woman, in Olejniczeak's opinion, were the defendant's.

The defendant testified that at the time of the assaults upon both women he was attending singing lessons from Mildred Collins at 20 East Jackson Boulevard.

Mildred Collins was a professional voice coach and had a studio at 20 East Jackson Boulevard, in Chicago. She testified that the defendant was in her office receiving singing lessons on January 14 and January 26, 1972. On January 14 he arrived at approximately 6:30 p.m. On January 26 he arrived at 8:30 p.m. although her book showed his appointment at 9:00 p.m.

In rebuttal, Edward Adorjan and William McCoy, Chicago police investigators, testified that on April 10, 1973, they interviewed Mildred Collins. At that time Miss Collins stated that on January 26, 1972, defendant arrived at her studio at 5:30 p.m. to receive singing lessons and left between 6:30 and 7:00 p.m.

Defendant first contends that the trial court improperly admitted the testimony of the second woman and the police technicians because it was evidence of a crime other than the one for which he was being tried.

As a general rule, evidence of other crimes is admissible to establish identity, intent, absence of mistake or accident, motive, knowledge, or a common scheme or design. (People v. Lehman, 5 Ill.2d 337, 125 N.E.2d 506.) In People v. Scott, 4 Ill. App.3d 279, 280 N.E.2d 715, the prosecutrix testified that the defendant raped and robbed her at knife point in an elevator. The State proved that the defendant attempted to rape another woman four hours later in an elevator at knife point in a building less than a quarter of a mile from the rape of the prosecutrix. The appellate court upheld the admission of the proof of the other offense partly on the ground that it indicated a common design or scheme in the commission of the two crimes.

In McCormick on Evidence it was noted that other crimes were admissible if they were "so nearly identical in method as to earmark them as the handiwork of the accused." McCormick on Evidence § 190, at 449 (2d ed. 1972).

• 1 In this case, the two attacks occurred only 12 days apart. While the time span would not be sufficient to establish admissibility under the identification exception we think it may be considered along with other circumstances in determining whether the evidence showed a common scheme or design. Both women lived in elevator buildings located within five blocks of each other. The same type of weapon was used, and the deviate sex acts proposed or performed were identical in nature and in sequence. Although strangers to him, he initiated conversations with both women. He asked both for money but took none. We believe that all of the evidence shows that both crimes were "so nearly identical in method as to earmark them as the handiwork of the accused," and we judge that the trial court did not abuse its discretion in permitting the testimony of the second woman.

• 2 In his brief in this court, the defendant raises the question of the admissibility of the fingerprint evidence for the first time and then only for the same reasons ascribed for the exclusion of the second woman's testimony. No argument is made here that the evidence is cumulative or unduly emphasizes the other crime. In his opening statement, the assistant state's attorney informed the jury of the offense against the second woman and the fact that the defendant's fingerprints were found in her apartment. No objection was made to any part of the opening statement. Later, the defense did object to the testimony of the second woman before she testified; but at no time did the defense object to the testimony of the police technicians. If there be any error in the admission of the technicians' testimony, we deem it waived. People v. Trefonas, 9 Ill.2d 92, 98, 136 N.E.2d 817; People v. Zemola, 9 Ill. App.3d 424, 430-431, 292 N.E.2d 195.

Milton H. Ader, an attorney, knew the defendant when the defendant worked in a supermarket. He testified that the defendant had a good reputation in the community as a law-abiding citizen at the time of the offense. On cross-examination, he testified that he had not seen or spoken to the defendant for four years before the trial. During the time he knew the defendant, he did not discuss the defendant's reputation in the community with anyone. Ader admitted that his knowledge about the defendant's reputation was based solely upon his personal observations and contact with the ...


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