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People v. Madden

OPINION FILED JANUARY 9, 1978.

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

v.

IRVING MADDEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. BARBARO, Judge, presiding.

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

After a jury trial, Irving Madden (defendant) and co-defendant Eddie Merritt (not involved in this appeal), were found guilty of rape (Ill. Rev. Stat. 1973, ch. 38, par. 11-1), aggravated kidnapping (Ill. Rev. Stat. 1973, ch. 38, par. 10-2) and armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). Defendant was sentenced to 50 to 75 years on each of two charges of rape and on two charges of aggravated kidnapping and 15 to 30 years for armed robbery, all sentences to run concurrently. Defendant appeals.

At approximately 2 a.m. on July 4, 1974, two sisters, Debra, 19 years old, and Vivian, 22, were accosted on a street on the near west side of Chicago by three young men. They identified two of these men as the defendant and the co-defendant. The sisters testified that defendant drew a gun and announced a stickup. The testimony of the two sisters conflicted regarding which sister had the gun held to her side. Vivian gave defendant $6 and some jewelry. He told the girls to get into their Volkswagen car. He instructed Debra to drive the group to an empty lot nearby. The third male, unidentified, sat next to Debra. Vivian was in the back seat with defendant and co-defendant.

The girls also testified that when they arrived at the empty lot, defendant instructed Debra and Vivian to remove their clothes. The three men had sexual intercourse with the girls. Vivian's statements at the preliminary hearing and the trial differed regarding the order in which the men had relations with the women. Defendant then directed Debra to continue driving and ordered the car stopped in front of an empty garage in an alley. During this drive he had intercourse with Vivian in the back seat. The girls were instructed to lie down on the garage floor which was covered with broken glass and foliage. Debra protested that she was pregnant. Defendant and the unidentified male then had intercourse with Vivian.

Thereafter defendant left with Vivian so that she could get more money. He instructed the other two men to kill Debra if he and Vivian did not return in half an hour. Debra testified that she had intercourse with the unidentified man and twice with the co-defendant. The two men fled when they heard the police approaching and the co-defendant was apprehended.

Vivian testified that she obtained $200 from her employer at the rear entrance to his barbershop. She then drove to the street in front of the barbershop and picked up defendant, who had been waiting. He placed a gun to her head, the two began struggling, the gun went off and defendant was wounded. Vivian's employer and some friends dragged defendant from the car into the barbershop and called the police. Two eyewitnesses, who had been driving down the street, testified that they saw several men fire into the Volkswagen car. Police officers testified that they recovered several expended cartridges of different types near the car and the stock of a sawed-off shotgun and shells in the vicinity of the barbershop. An officer testified to the presence of holes in the car made by a large caliber weapon and by a shotgun.

Both Debra and Vivian were examined at a hospital on the morning of July 4, 1974. Neither girl evidenced any cuts or wounds from broken glass or foliage or vaginal trauma. Vivian's pelvic examination did not reveal the presence of semen. Debra's examination did.

Defendant testified that he and his girlfriend, now his wife, had spent the early morning hours of July 4, 1974, in Columbus Park. He left his girlfriend at her home at 2:15 a.m. She corroborated this evidence. Defendant returned to the park where he visited with another girlfriend until 3:45 a.m. He left the park intent upon visiting a third female friend. Vivian hailed him from her car and offered him a ride. He had never seen Vivian before. He got in the car and suddenly several people began firing into the car shouting obscenities at Vivian. He was struck by several bullets and dragged into the barbershop, where he was kicked. He testified that he was subsequently treated for two bullet wounds in the head, five bullet wounds in the arms and all his front teeth had been knocked out. Neither defendant nor his wife had ever met the co-defendant. The co-defendant testified to the same effect.

Defendant does not contend that the evidence failed to establish his guilt beyond a reasonable doubt. Defendant urges that procedural errors at trial, and lack of overwhelming evidence of guilt, create sufficient basis for reversal. The various contentions of the defendant will be considered in order.

I.

Defendant initially contends that the trial court erred by admitting into evidence a vial and two slides which revealed the presence of semen in Debra. Defendant urges that a sufficient chain of possession was not established linking the vial and slides with those utilized in Debra's hospital examination because there was a possibility of tampering with the lab report and because a 24-hour period between the examination and the laboratory test was not accounted for.

Dr. Morgan, the examining physician, testified that he examined Debra in the emergency room at 5:40 a.m. on July 4, 1974. He took two smears and a vaginal washing and handed them to the nurse on duty. Dr. Morgan also had an independent recollection of Debra as a pregnant rape victim and specifically recalled that her pelvic examination revealed the presence of visible semen in the vaginal vault. The nurse on duty testified that she placed the vial and two slides in a urine specimen bottle and affixed a report thereon with a rubber band. She wrote the time, Debra's name and address, and type of lab test necessary on this lab report. This bottle was picked up by the lab before 7 a.m. on July 4, 1974. The lab technician testified that she first saw the bottle on the morning of July 5, 1974. She wrote Debra's name on the vial and slides, placed them in an envelope and performed the test. She dictated the results to an assistant who typed the information on the lab report. The lab report also revealed a July 5, 1974 time stamp and the name of Dr. Citelik, a gynecologist.

Defendant contends that the addition of Dr. Citelik's name on the lab sheet and the unaccounted for 24-hour period before lab examination suggest tampering with the lab sheet, as well as a possible mix-up of vial and slides. The duty nurse explained the presence of Dr. Citelik's name in that he is a follow-up gynecologist and might have been assigned to the case later. The record neither suggests nor indicates any alterations in the slides, vial, sealed container or its contents.

• 1, 2 In establishing a sufficient chain of possession, the prosecution is not required to exclude all possibility of tampering. In the absence of any tangible suggestion of tampering, alteration or substitution, it is sufficient to prove a reasonable probability that the articles have not been changed in any important respect. (People v. Sansone (1976), 42 Ill. App.3d 512, 514, 356 N.E.2d 101; People v. Richards (1970), 120 Ill. App.2d 313, 340, 256 N.E.2d 475, appeal denied (1970), 44 Ill.2d 585.) We cannot conclude that the addition of a time stamp or ...


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