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People v. Popely





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


Defendant, Ronald Popely, was found guilty after a jury trial of the offense of attempt rape. The trial court entered judgment on this verdict and sentenced defendant to 2 to 6 years in the Illinois State Penitentiary. Defendant now appeals.

On appeal defendant makes the following contentions: (1) that the trial court erred in denying his motion to suppress evidence; (2) that defendant was not proven guilty of attempt rape beyond a reasonable doubt; (3) that comments in the prosecution's closing argument concerning defendant's failure to call a certain witness deprived defendant of his right to a fair trial; (4) that certain statements defendant made should not have been admitted into evidence when there was no showing that defendant was given his Miranda warnings; and (5) that the failure of the State in response to defendant's specific request in his discovery motion, to disclose a statement allegedly made by defendant, should have precluded the admission of the statement for any purpose.

We reverse and remand.

At the time of the incident, early May of 1973, the prosecutrix, Julie, was an 18-year-old college student who was seeking summer employment. She went to Fore Personnel at 7 West Madison Street where defendant worked as a counselor. There she was interviewed, filled out an application and returned home. Subsequently, defendant's employer, John Andros, asked defendant to contact Julie to see if they could place her. Defendant then called Julie telling her of the possibility of a summer modeling job. At first the prosecutrix was not interested, but after speaking to her mother and boyfriend who told her not to be so shy, Julie changed her mind, called defendant back and set up an appointment for Saturday, May 19, 1973. Julie was told to bring a skirt, a casual outfit and a bathing suit.

When the prosecutrix arrived at Fore Personnel on May 19, defendant, another man and two girls were present. After she filled out an application card, defendant asked the prosecutrix to go into the men's bathroom to change into her bathing suit. As Julie changed into her bathing suit, she left her underwear panties on underneath her bathing suit bottom.

At this point Julie's testimony and that of defendant differ substantially. Julie testified that the defendant came into the washroom to take her measurements. Julie testified that defendant first measured her bust and conceded that defendant's hands touched her bust but that she did not say anything. Defendant then asked Julie to remove the bottom half of her bathing suit because the suit was baggy and he could not get an accurate measurement. Julie voluntarily lowered the lower half of her suit. While taking these measurements, defendant told Julie that the modeling business was very competitive and that she might have to go to bed with her employers to get jobs. Julie replied that she was not going to prostitute herself for a job and defendant then said she could have the job. Defendant then asked Julie if she would go to bed with him and when she replied in the negative, defendant said, "I'm going to rape you." Defendant turned off the light, pushed Julie against the wall and knocked her down. As Julie was fighting and screaming, defendant ripped her undergarment off with his hand. Defendant then put his hand over Julie's mouth and Julie bit him. He then put one hand across her chest and undid his pants with the other.

Julie struggled with the defendant for approximately 30 seconds, until someone came in or knocked on the door. The defendant then got up, pulled up his pants, turned on the light and exited. Julie then dressed and picked up the two pieces into which her panties were torn and put them into her briefcase. As Julie was leaving, she walked into the office area where she saw defendant and another man. The defendant took one section of the panties from Julie's case and told her that she would not be able to prosecute him because she would have no evidence. After seeing the defendant burn that section of the panties, Julie left the office.

Julie then attempted to call her boyfriend and received no answer. She went home on the rapid transit train and on the train she began to menstruate. Arriving home, she again called her boyfriend who took her to the train station where she called the police.

When the police arrived at the station she gave them the piece of undergarment she still had in her possession. The police officers took Julie to the hospital. Julie did not want to be medically examined because she had begun to menstruate.

Julie's boyfriend testified that he received a phone call from Julie at approximately 3 p.m. the day of the incident. She sounded hysterical and when he arrived at her house she was crying. He drove Julie to the train station where she again called the police.

Officer Pet testified that he and his partner met Julie at the train station and that Julie appeared emotionally shook up. After taking Julie to the hospital he received from her the section of the undergarment still in her possession. Officer Pet inventoried this section of the undergarment and sent it to the crime lab. He also recounted the story Julie told him. It was substantially consistent with hers except that Julie told Officer Pet that she refused to remove the bottom of her bathing suit.

Officer Bobko, one of the investigators assigned to the case, testified that he interviewed the prosecutrix the day following the incident. The prosecutrix told him that the defendant attempted to fondle her breasts and unbutton her halter top. After talking to the prosecutrix, Officer Bobko took handwriting examplars from her. He then proceeded to Fore Personnel where he found on the floor some charred material which he recovered and preserved. Officer Bobko further testified that it would not be normal procedure to examine the victim in an attempt rape case and that there never was an examination of Julie's body to detect any bruises. Officer Bobko also indicated that defendant surrendered voluntarily to the police the Tuesday after the incident and that when he saw defendant the following day he saw no bite marks on the defendant's hands.

The State's next three witnesses were all experts. One of these experts, a technician, testified that he removed certain charred material from the wastepaper basket, and from the floor in Fore Personnel and brought it to the evidence lab. Another of the experts testified that the burnt portion of panties recovered from the agency had fibers similar to the portion of panties recovered from the prosecutrix. Minute traces of blood were recovered from the panties but it could not be determined if the blood was from menstruation. There was no trace of semen on the panties. The third expert testified that it ...

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