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People v. Downey

OPINION FILED SEPTEMBER 22, 1977.

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

v.

LEONARD DOWNEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MINOR K. WILSON, Judge, presiding. MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Leonard Downey, was indicted for the offenses of armed robbery, deviate sexual assault, rape and two counts of aggravated battery. (Ill. Rev. Stat. 1971, ch. 38, pars. 18-2, 11-3, 12-4, 12-4(b).) Following a bench trial in the circuit court of Cook County, defendant was found guilty on all charges and was sentenced to concurrent terms of 4 to 30 years for armed robbery, 4 to 30 years for deviate sexual assault, 4 to 30 years for rape and 4 to 10 years for aggravated battery. On appeal, defendant seeks reversal of the convictions and a new trial contending the trial court improperly admitted prejudicial comments by one of the State's expert witnesses. Defendant further urges that the trial court erred in entering judgment and sentencing him for the crime of aggravated battery since the offense arose out of the same course of conduct as the rape.

We affirm the trial court.

THE STATE'S CASE

At trial, the State's witness, Mrs. Linda Wells Olinger (Wells) testified that at approximately 4 a.m. on September 2, 1972, she was sleeping in a bedroom of her cottage when she was suddenly awakened. She saw the shadow of a man coming toward her. As she sat up, the man stepped behind her, put his hand over her mouth, placed a gun to her head and stated, "Scream and I will kill you." As she got out of bed she felt a knife and gun in the man's pocket. The man asked her if she had any money. She said she did and at the same time, she moved to the base of her bed and stood up. The man kept his hand around her neck and then moved in front of her. Since there was very little light in the bedroom, all she could observe was the shadow of the man, who appeared to have curly hair. While the man kept his hand around her neck, she took $50 out of a dresser in her bedroom and obtained an additional $4 from her wallet in the kitchen.

Wells further stated that the man then led her to the unlit living room and forced her to perform and to submit to two acts of oral sex with him. He then forced her to have intercourse with him. During this time, the man kept her from facing him directly. During the act of intercourse, she reached beside her and felt a knife on the floor. She had not left a knife there previously. Wells picked up the knife and began stabbing her assailant who then grabbed the knife away from her. Thereupon she discovered a gun on the floor. She picked up the gun, pointed it at the man and pulled the trigger but the gun did not fire. The man grabbed the gun away and forcibly yanked out a patch of her hair. He then dragged her to the front of the house and while she lay face down on the floor he placed a throw rug over her head. The man then stated, "Don't pull a stunt like that again." He then turned on the living room lights for a moment. At that point her position on the floor prevented her from seeing the man. Just before he left, she heard the man say, "Wait ten minutes — I have to go to Harvey." Upon hearing that statement, Wells recognized the man's voice as belonging to "Lonnie," a man she had seen and heard speak a number of times while in the presence of mutual friends. At the trial, she identified her assailant as defendant, Leonard Downey.

Wells further stated that after defendant left, she got dressed and ran to a nearby restaurant exclaiming to the people there that she had been raped. The police were called and after they arrived they took her to the hospital and later to the police station. At the hospital, she was examined and treated for cuts on her legs. She was then taken to a room in the hospital, where she identified the defendant as the man who had assailed and raped her.

Jacqueline Beechy, a waitress at the nearby restaurant where Wells fled after the incident, testified that Wells ran into the diner holding a pair of scissors and screamed "I have been raped. He has got a gun." Beechy noted that Wells was scratched about her eye and was bleeding from her ears. Wells' legs were also bleeding from small deep puncture wounds. Beechy then called the police.

Police officers Carol Cummings, Joseph Flaherty, Arthur Wolff and Leonard Zielinski testified as to the events subsequent to Beechy's telephone call. When the police arrived at the diner, they spoke to Wells and then drove her to the hospital for medical treatment. Wells was bleeding from her ears, legs and scalp. At the hospital, a doctor sutured Wells' leg wounds and performed tests that confirmed the presence of sperm in her vagina.

The police then proceeded to the neighborhood where defendant lived and located his apartment. They noticed a trail of blood leading up to defendant's apartment door. They knocked, and defendant opened the door approximately 6 inches, keeping the security chain fastened. The officers saw blood on defendant's chest beneath his unbuttoned shirt. Defendant asked the police for a search warrant and repeatedly refused to talk to the officers. When defendant walked away from the door, the officers observed that the back of defendant's shirt was saturated with blood. The officers thereupon forced open the door and arrested defendant.

Shortly after the arrest, the police drove defendant to the hospital for medical treatment. During the drive to the hospital, defendant repeatedly asked the police about the security of his apartment.

When asked at the hospital how he had incurred his wounds, defendant replied, "It's for me to know and you to find out." Defendant refused medical treatment. At the emergency room, Wells identified defendant as her assailant. Shortly thereafter defendant telephoned his attorney.

Pursuant to a post-arrest investigation, the police examined Wells' residence and defendant's automobile and apartment as well as an adjoining parking lot where defendant's car was parked. This investigation produced the various weapons mentioned in Wells' testimony, as well as a few articles of bloodied and torn clothing including a man's T-shirt found lying on a hedge near defendant's car.

DEFENDANT'S CASE

At trial, defendant testified on his own behalf but only had a limited recollection of the events. Defendant recalled that after he and four others had been drinking in a tavern, they plotted to kill Wells. One of the others gave defendant two pills and an injection. Defendant then went to his apartment, took a gun and broke into Wells' apartment. While he committed deviate sexual acts upon Wells, one of the co-conspirators watched him and then hit him on the head with a gun. Defendant remembered fleeing after being stabbed. He also recalled disposing of his pistol and T-shirt.

Defendant relied on the defense of insanity. Defendant, his sister, and five experts in the fields of neurology, psychiatry and psychology testified to the effect that defendant was insane at the time the crimes were committed.

Defendant and his sister, Janelle Kempae, testified as to defendant's emotional and family background. Defendant's stepfather was effeminate and a heavy drinker, and neglected defendant. Furthermore, defendant's father on one occasion forced Kempae and her younger brother, when they were young children, to have sexual intercourse. Defendant refused to participate when his father asked him to do so. The father also performed deviate sexual acts with Kampae, ...


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