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People v. Murdock





APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.


This is an appeal from the Circuit Court of Peoria County by James Murdock (hereinafter referred to as the defendant), who after trial by jury was found guilty of the offense of robbery and two acts of deviate sexual assault and not guilty of the offense of burglary. The defendant was sentenced to the Department of Corrections to serve two concurrent terms of not less than 40 years nor more than 120 years in the penitentiary for the deviate sexual assault charges. The court reserved judgment on the robbery conviction.

The evidence adduced at the trial of the defendant disclosed two versions of the incidents which resulted in his conviction. A verbatim recital of the testimony presented in the trial court would indeed present an odious picture, yet we are nevertheless compelled to set forth a portion of such testimony in order to determine issues raised in this appeal.

The complainant, Janet Wavering, testified that she is a 29-year-old woman, blind since birth, and that on September 11, 1975, a male individual forced an entry into her apartment at approximately 10 p.m. and remained there until approximately 3 a.m. of September 12, 1975. During this approximate five-hour period the complainant was subjected to vile and profane language, an attempted choking, repeated slappings, fondling of her breasts, an invasion of her vagina by the hands of the intruder, an act of cunnilingus, and an attempt to make a sexual contact of some nature with her anus. The sexual activities of the intruder were interrupted twice during the approximate five hour period that he remained in the complainant's apartment, first when he threatened to kill her and told her that he possessed a gun and a knife, and demanded money. The complainant complied by giving the intruder the contents of her purse including a government check. The second interruption occurred when the intruder ceased his acts of sexual aggression in order to eat some hot dogs. It was further the testimony of the complainant that when the intruder first appeared at the door of her apartment he identified himself as the man who had helped her put up a sign and that during the preceding August a man had in fact assisted her in posting a notice in the lobby of the apartment building in which she was advertising for cleaning help. The complainant acknowledged that she did not know what it was that the man placed in her anus.

The State called three police officers as witnesses. Officer Hibser testified that he was called to the complainant's apartment in the early morning hours of September 12, 1975. Upon arrival at the apartment he found the complainant alone, crying, gasping for breath, somewhat incoherent, and her speech rambling. The complainant told him that she had been raped. Approximately one-half hour after his arrival he, in the company of other police officers, took the complainant to the hospital.

Officer Ganda testified that he conducted a search of the complainant's apartment at approximately 3 a.m. He identified a "Pepsi" can as the one he found on a dining room table in the apartment. The can was processed for prints and a latent print was discovered which led to the identification of the defendant when compared to prints on file at the Peoria Police Department. The defendant was subsequently fingerprinted at the county jail and it was determined that the fingerprint on the can was made by the thumb on the defendant's right hand. Officer Ganda also identified other objects found in the apartment, i.e., a United States Treasury check in the sum of $136.90, and the bottom sheet from the complainant's bed which had blood stains and hair on it. The sheet was turned over to Ms. Kienzler of the State of Illinois Crime Laboratory.

Officer Hilst testified that he talked to the defendant at the Peoria Police Department on September 29, 1975, regarding the occurrence involving the complainant, that Miranda warnings were given to the defendant and that the defendant initially denied any knowledge of the incidents which concerned the complainant and further denied any acquaintanceship with her. After being informed that his fingerprint was found in the apartment the defendant acknowledged that he had been in the apartment, that he knew the complainant and then recounted his version of the occurrence which commenced at her apartment on the night of September 11, 1975. The defendant's version was substantially the same as that contained in his testimony during his trial and will be later set forth in this opinion.

Ms. Kienzler of the State of Illinois Crime Laboratory testified that she found 16 black Negroid hairs on the bedsheet which was removed from the complainant's apartment, six of which were similar to the defendant's pubic hair and six which were similar to the hair on the defendant's head. She further testified that the technology involved in hair comparisons permits a conclusion confined to similarities but precludes a definite and certain identification.

The final witness for the State was Dr. William Reid, who testified that he was on duty in the emergency room at the St. Francis Hospital located in Peoria during the early morning hours of September 12, 1975, and that he examined the complainant at approximately 4:15 a.m. He testified that the complainant was very hysterical and her complaint was that she had been raped. His examination of the complainant revealed that she had fresh bruises on both breasts, her upper arms and the shoulder area.

Pathologist Angel Gaurie of the St. Francis Hospital, a witness called by the defendant, testified that an analysis of the "rape smear" taken when the complainant first arrived at the hospital and a rectal smear taken at 5:30 p.m. on the same day failed to show any evidence of sperm.

The defendant, taking the witness stand, testified that on September 11, 1975, he had been drinking in a tavern located in the same building as the complainant's apartment. He first attempted to call a friend living in the building, but when he received no answer he recalled an invitation from the complainant to visit her after he had assisted her in posting a sign in the lobby of the building. He testified that he buzzed the complainant's apartment from the lobby and received a return buzz indicating that he would be admitted so he went upstairs and rang the bell to complainant's apartment. The complainant partially opened the door; he identified himself and waited at the partially opened door while the complainant left to put on some clothing, since she had just gotten out of the bathtub. The complainant returned, unlatched the burglary lock chains and allowed him to come in. He testified that since there was no couch in the apartment he led her to the bed where she was sitting and watching T.V. He said that he and the complainant conversed for an hour and a half to two hours and after making "small talk" he embraced her, kissed her and that he inserted his finger into her sex organ and she became "tensified, frightful and embarrassed." Upon the complainant objecting to his sexual advances he refrained from pursuing the matter but instead attempted to call a friend, but on receiving no answer he asked the complainant for cab fare. He testified that she gave him a $10 bill and told him to "go ahead and keep it" when he stated that it was too much money, and, upon leaving, the complainant gave him her phone number and told him to call her the next evening. He testified that, during the evening, he ate a hot dog and drank some Pepsi or root beer, that he never threatened her, used force or compelled her to submit to any of the sexual acts testified to by the complainant, nor did he take any property from the apartment except the $10 which had been given to him. On cross-examination he admitted that when he first talked to Officer Hilst he denied being at the complainant's apartment until he was told that his fingerprints were found there.

Over objection the State read to the jury and introduced into evidence a certified copy of defendant's prior conviction for armed robbery in the year 1968.

We have set forth with considerable detail the testimony of the witnesses at the defendant's trial, sordid and revolting as it may be. However, such testimony could not be permitted to remain buried in the record since it has a distinct bearing upon the determination of one or more issues raised in this appeal.

The defendant assigns as reversible error the trial court's refusal to rule prior to trial on his motion to suppress the use of his previous armed robbery conviction for impeachment purposes.

On December 11, 1975, at a pretrial motion session, counsel for the defendant argued that the prayer of a written motion to suppress use of the defendant's prior conviction of the offense of armed robbery should be granted. The court reserved ruling on this motion with the understanding that a ruling be made when the matter "comes up."

This court was recently confronted with this issue and resolved it adversely to the defendant. (People v. Spicer (1976), 44 Ill. App.3d 200, 358 N.E.2d 104.) In Spicer we had a situation that differs from that in the instant case in that the trial court prior to trial did deny the motion to suppress evidence of a prior conviction, but without prejudice and with the ...

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