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People v. Stein

OPINION FILED AUGUST 1, 1977.

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

v.

KARL STEIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

After a jury trial, the defendant was found guilty of rape, aggravated kidnapping, and indecent liberties with a child. The jury acquitted the defendant of an additional charge of deviate sexual assault. The trial court entered judgment on the rape and aggravated kidnapping verdicts and sentenced the defendant to concurrent terms of 6 to 18 years.

From these judgments defendant now appeals and contends as follows: (1) that he was not proved guilty beyond a reasonable doubt; (2) that he did not receive adequate assistance of counsel; (3) that the prosecution's closing argument denied him a fair trial; (4) that the trial court erred in failing to instruct the jury to disregard the prosecutor's questions referring to a pretrial motion to suppress identification; (5) that there was no evidence presented showing that the alleged intercourse was by force and against complainant's will; (6) that the trial court erred in denying his motion to suppress certain evidence recovered from a garbage can in his backyard; and (7) that the conviction and sentence for aggravated kidnapping be reversed because the aggravated kidnapping arose out of a single course of conduct, the sole goal of which was sexual intercourse.

We affirm.

The complaining witness, 11 years old at the time of the incident, testified at trial that at approximately noon on June 10, 1973, as she was leaving a McDonald's restaurant, a man (whom the complainant identified at trial as the defendant Karl Stein) came up and winked at her. She left the restaurant on her bicycle and the man followed her in his auto. After pedalling down an alley, the complainant came to an intersection where the man who had winked at her was blocking her way with his car. He told her he would give her $5 if she would "do a job." When the complainant replied that she had to get home, the man told her to get into the alley. The complainant did as she was told. The man drove his car into the alley, pulled the complainant inside the car, and locked the car door. He pulled down his pants, got on top of the complainant, and after a few seconds stated, "This won't do." The man pulled up his pants and drove out of the alley with the complainant. Eventually, the car pulled into another alley and up to a garage. The complainant and defendant exited the car, walked through a backyard and up to the side entrance of a house. The defendant left the complainant a moment as he walked to the front of the house. The defendant returned immediately, took a key from his pocket and opened the side door. They both entered the house and went downstairs into a room in the basement. The defendant took off his clothes, told the complainant to do the same, and instructed her to get into bed. At this point, the defendant attempted to insert his penis in the complainant's vagina.

The defendant then removed a blue leather box from a dresser drawer. From the box defendant removed some tissue, a jar of Vicks, and a stick 8 or 9 inches long, one-half inch in diameter and shaped like the end of a broom handle. After coating the stick with Vicks, the defendant inserted it into the complainant's vagina for two to five minutes. At this time the complainant was screaming. The defendant removed the stick and then had intercourse with the complainant. The defendant then ordered the complainant to perform an act of fellatio. Frightened, the complainant refused. After the defendant told her he would kill her if she did not, she performed the act of fellatio. The defendant fondled the complainant's breast and vagina and again had intercourse with her. After instructing the complainant to dress, the defendant went upstairs. When he returned, he put on a yellow short-sleeved shirt, put the stick, the Vicks, and the tissues back in the blue box. He then left with the complainant. As they walked through the backyard, the defendant threw the blue box into a garbage can near the gate. The defendant then drove the complainant back to the alley where she had left her bicycle. Several times during this trip the defendant threatened to kill the complainant if she told anyone what had occurred.

The complainant went on to testify that after the defendant dropped her off in the alley, she rode her bicycle home. She told her parents she had been raped and her father called the police.

A uniformed officer arrived at the house, questioned the complainant, and took her to a hospital where she was examined by a doctor.

The doctor who examined the complainant testified at trial that there was a bruise on one of her breasts and swelling at the entrance to her vagina. He performed tests which indicated that the complainant had recently had intercourse. Also called as a witness by the prosecution was the complainant's mother who testified that when her daughter arrived home she was upset and crying and stated that she had been raped.

The complainant further testified at trial that she spoke to three plainclothes policemen. After a conversation with the officers, the complainant, her father and three officers attempted to locate the defendant's house. They drove for approximately one-half hour before the police car drove down an alley. The complainant told the police that she saw the house. She knew that was the house because she recognized a garbage can, a picnic table with an animal skin tablecloth, a glass of water, benches and pepsi bottles in the backyard. They entered the yard and 10 minutes later she saw the defendant and told one of the officers "that was the guy who did it." The defendant was then handcuffed and taken away.

The complainant also testified that the above acts occurred between noon and 1 p.m.; that she did not give the defendant permission to put his penis in her vagina or her mouth or to fondle her; and that the defendant had a tattoo that looked like a fancy "T" on his left arm and a cut above his upper lip. She further testified that the defendant was wearing light blue pants and a light blue "net shirt." She also described defendant's car as a brown two-door with a black roof. The complainant testified that defendant's auto had several speakers and clothing in the back seat at the time of the incident.

Also called as a witness by the State was Investigator Shanahan of the Chicago Police Department who testified that he spoke to the complainant at the hospital and later accompanied her in an unmarked squad car in an attempt to locate her assailant's home. Prior to reaching the house, the complainant described to Investigator Shanahan the house, its physical surroundings, the assailant, and his car. As the police car was proceeding down an alley behind the defendant's parents' home, Shanahan observed a redwood picnic table with an animal print cover and a small glass of water which the complainant had previously described. When the defendant later arrived at the scene, Officer Shanahan arrested him and discovered keys to the house in defendant's pocket.

After receiving the defendant's permission to enter the house, Investigator Shanahan entered the house along with four other officers looking for other items in the house which the complainant had described to him. Inside the house Officer Shanahan saw an automobile tire resting on the basement landing, a large poster at the bottom of the stairs, and a door with the name Karl Stein Junior affixed thereto. Officer Shanahan passed through this door and noticed a poster with a picture of smiling lips and teeth. Later Officer Shanahan observed the automobile that defendant drove to the house. He described this car as a 1968 Buick two-door, with two radio speakers and clothing in the back seat.

Officer Shanahan further testified that he discovered a blue box in a garbage can in defendant's backyard. He opened the box with a pen and saw a stick, tissue paper, a ruler and a jar of Vicks inside. Officer Shanahan also spoke to the defendant's girl friend Mary Ann Boivin at the scene, went to her house, and recovered a blue shirt from underneath her bed. This blue shirt was the same blue shirt that the complainant had earlier identified as the one worn by her assailant.

Police officer Thomas Walsh, called by the State, testified that he was an evidence technician and had examined the contents of the blue box found in the garbage can behind defendant's house. The items were covered with an oily, greasy substance. He dusted the box and its contents for fingerprints and found none. Officer Walsh explained that a surface has to be smooth and clean in order for a fingerprint to be lifted from it.

Investigator John Leonard, also called by the State, testified that he had a conversation with the defendant's girl friend in the alley in back of defendant's house. After this conversation, Investigator Leonard accompanied Miss Boivin back to her house where she gave Investigator Leonard a pair of blue pants belonging to the defendant. The complainant had previously testified that those trousers were the ones worn by her assailant.

Also called by the State was Police Investigator Cindy Pontoriero who testified that she accompanied the complainant, her father, and police officers Cagney and Shanahan in an attempt to locate defendant's house. They stopped at a house located at 4505 North Lawndale. While standing in the backyard with the complainant, Officer Pontoriero saw a man walking toward the gangway of the house. The complainant spoke first saying, "That's him, ...


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