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People v. Walton

OPINION FILED OCTOBER 28, 1976.

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

v.

SPENCER WALTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of De Kalb County; the Hon. WILSON BURNELL, Judge, presiding.

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

Defendant, in a jury trial, was found guilty of the rape of two women and burglary of their apartment. He was sentenced to 4-6 years on each of the rape convictions and 2-6 years for the burglary, the sentences to be served concurrently.

In this appeal defendant contends first that the testimony of the treating doctor concerning the details of the alleged rape deprived him of a fair trial and, secondly, that the burglary conviction should be reversed because it arose from the same transaction as the rape convictions. The State has conceded the burglary conviction should be reversed.

In the early morning hours of May 17, 1974, the defendant entered the apartment of the complaining witnesses in De Kalb, Illinois. Without going into detail, both of the complaining witnesses testified that the defendant placed a pillowcase over the head of each woman and forced them to commit unnatural sex acts between each other, that subsequently he, in the course of several hours, raped both of them, tied them up and placed them in a closet before he left. The defendant, on the other hand, testified that the two women were, in fact, willing participants in sexual and perverted sex acts between the three of them.

As indicated above, the sole question presented in this court is whether the admission of the testimony of the physician who treated both victims shortly after 6 in the morning of the occurrence in the emergency room at the local hospital was plain error. The testimony of the doctor as to the first victim is as follows:

"Q. What did she tell you had happened?

A. She told me that her roommate was awakened by a black man who asked her roommate to go into her bed, and he asked them to make love to each other, and while they were doing that, he entered the bed with them and proceeded to make love to both girls, going from one to the other, using his finger and his penis, and, during the activities Miss ____ [roommate] yelled out and said that he was going into, too deep, and I don't recall whether it was she or the other patient that stated that he, they did not recall that he ejaculated into either of them, but after she had yelled out, he ceased his activities and they both told me that he tied them with clothes after this and forced them into their closet and put a dresser up against the door."

When asked if he had a conversation with the other victim, he said:

"A: Yes, I did.

Q: What did she tell you?

A: She told me the same story; she was the one first awakened by the black man and was forced into the bed with her roommate.

Q: Okay. Did she also mention anything about a closet and being tied up?

A: Yes, she did."

• 1 We note that no objection was made to the testimony outlined above at the trial. In a situation where no objection is proffered to evidence admitted at the trial the basic rule is: "A rule of evidence not invoked by timely objection is waived." (People v. Akis (1976), 63 Ill.2d 296, 299, 347 N.E.2d 733, 735.) However, defendant properly points out that there are exceptions to this rule when the evidence is so prejudicial that the defendant is deprived of a fair trial and that the same may be the basis for reversal under the plain error doctrine. Defendant contends that Dr. Millikan's testimony was hearsay and its admission into evidence, despite defendant's failure to object, was plain error as it prejudicially corroborated the testimony of the two victims. ...


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