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People v. Fink

OPINION FILED APRIL 17, 1978.

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

v.

KEVIN FINK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES K. ROBINSON, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Fink's attitude, as well as his conduct, is criminal.

His unsolicited statement about the rape incident resulting in his jury conviction speaks legion. It is needless for us to print here that obscene and vulgar utterance, although the baseness of his attitude may pale somewhat in the translation. We deem it ample to merely relate that he didn't "know what the big deal" was since all he did was have sexual intercourse with the victim "after I got her high."

Fink does not contest the sufficiency of the evidence to convict. Rather, he alleges the trial court committed reversible error in three separate evidentiary rulings and that the trial court erred in entering judgment on the two counts of rape.

We affirm.

It's undisputed that defendant and the victim met in downtown Hoopeston near midnight on August 20, 1976. Fink's version is that the victim had been seeking to obtain "speed" from him, that they went to defendant's house where the victim took some "speed," that they went out into the backyard where the two had consensual intercourse, and that then they both went their separate ways. He indicated that the cuts he carried were received from a bike fall earlier the same day. Defendant denied possessing or using a knife on the night in question and also denied that a second incident of intercourse occurred.

The victim testified that Fink made sexual advances to her in his apartment, which she rebuffed. Once outside, Fink held a knife to her throat, and after an intense struggle, she was a subdued — but unwilling — partner to an act of intercourse. She also testified that defendant then took her to a field where he again had nonconsensual intercourse with her. After he left, the victim went to a house and sought help. She also denied taking any speed.

An occupant of the house the victim went to for help testified the victim was crying, was very shaky and her hair was messed. A nurse also described the victim as upset with bruises on her face and blood flowing from her mouth. A doctor's pelvic examination showed no evidence of physical trauma.

I. It is first argued that defendant should have been permitted to impeach by corruption the credibility of the victim, because the victim purportedly telephoned the defendant's mother and offered to leave town if paid $1,000. The trial court excluded the testimony since no foundation had been laid for impeachment during cross-examination of the victim. Defendant contends, alternatively, that it was error to require a foundation, that the trial court abused its discretion by not permitting recall of the victim, or that, by defense counsel's error, defendant was denied effective assistance by counsel.

• 1 Impeachment by corruption is discussed in Aneals v. People (1890), 134 Ill. 401, 25 N.E. 1022. Appellant sought to show by witness Gould's testimony that witness Hunter offered him $50 to testify to certain facts. No foundation had been laid in the examination of Hunter and the impeachment was not permitted; the supreme court held refusal of the impeachment was proper. The witness sought to be impeached must first be offered the opportunity for explanation. (See also 3A Wigmore, Evidence § 964 (Chadbourn rev. ed. 1970).) It is well within the discretion of the trial court to grant or deny recall of a witness for further cross-examination. People v. Ellis (1976), 41 Ill. App.3d 377, 354 N.E.2d 369.

• 2 Based on Aneals, the trial court did not err in requiring foundation for the impeachment by corruption and did not abuse its discretion when recall was refused. Defense counsel made several attempts to impeach the victim by bringing out minor inconsistencies between trial and pretrial statements during cross-examination. The trial court correctly viewed the attempt to introduce the impeachment by corruption through the mother's testimony as a bypass of the normal impeachment process. The defendant apparently wanted the fact of impeachment before the jury prior to any denial of that fact by the victim. In a psychological sense, the victim would then have to disprove to the jury that she had made an offer to defendant's mother.

No error.

• 3 II. On the question of counsel's competency, the trial court observed on the record that defense counsel "is an extremely competent trial lawyer" and that the counsel was "probably as good a defense counsel as I have ever had before me." From the record in this case it is readily apparent that the representation given defendant was clearly not so poor as to amount to no representation at all or ...


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