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People v. Mcgee

OPINION FILED MAY 14, 1976.

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

v.

FREDERICK MCGEE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

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

Following a jury trial, defendant was convicted of the offenses of rape (Ill. Rev. Stat. 1973, ch. 38, par. 11-1) and armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and sentenced to 4 to 12 years imprisonment. On appeal, he contends that: (1) he was identified in an unconstitutionally suggestive one man show-up and (2) he was not proved guilty beyond a reasonable doubt.

The following pertinent evidence was adduced at trial.

For the State:

Regina Boyd

She is married and resides with her husband Gene. At approximately 8 p.m. on February 2, 1971, she left her home to walk three blocks to her sister's house. Although it was not quite dark the streetlights were on. In the vicinity of Ohio Street and Homan Avenue, defendant approached and as he walked alongside of her he pointed a handgun at her temple. He demanded her money and after they walked a quarter of a block he led her into the hallway of a building at 636 North Homan. After demanding her purse he then took the $55-$60 from inside it.

He then indicated that he intended to rape her. She specifically asked him if he had a wife or children and he said yes. She then suggested that he "go to his wife." Nonetheless with the gun at her temple defendant led her out of the hallway and into an adjoining building where he told her to remove her underclothing. He then led her to an abandoned garage behind the first building where she was forced to remove her coat and dress and lie down on the garage floor. With the gun pointed at her temple, he then forced her to have intercourse. She did not look at his face during the 3 or 4 minutes before he climaxed because his face was on hers. After he finished he used her scarf to wipe his penis and left the garage. She ran to her sister's house and immediately phoned the police. She was taken to a hospital where a sperm culture test was performed.

In April, 1971, she saw defendant standing behind her at the checkout counter in a local grocery store. She did not leave the store after paying for her groceries. Defendant walked towards the exit, stopped, looked at her for 2 to 3 minutes, and then left the store. Although she and her husband toured the neighborhood, they were unable to find defendant. After they arrived home she called the police station and reported the incident.

In October, 1973, she spotted defendant in the vicinity of Ohio and Christiana. She called the police and was present to identify defendant when he was arrested near the corner of Christiana and Huron.

On cross-examination, she admitted that the abandoned garage was not lighted. On February 2, 1971, she had described her assailant as having hair with a nappy texture and as wearing a short coat, blue pinwale pants, a cap, and black gloves. Although she admitted selecting an incorrect mug shot previously, she had told the police that she would have to see the actual person, not a picture, because she would never forget his face. When the police arrived in October, 1973, she pointed defendant out from a group of men who were standing together.

On redirect, she stated that although it was semidark in the garage, she had been able to get a good look at her assailant's face.

Ethel Russell

She is Regina Boyd's sister. Regina arrived at her apartment on February 2, 1971, in a hysterical condition. Over objection, she was allowed to state that Regina's first words were "I have been robbed and raped." She was also present on October 22, ...


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