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People v. Kilzer

OPINION FILED MAY 1, 1978.

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

v.

WILLIAM L. KILZER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

William L. Kilzer was convicted of rape in a jury trial in the Circuit Court of St. Clair County and sentenced to a penitentiary term of 8 to 24 years. On appeal he assigns as error several allegedly improper remarks by the prosecutor at trial and the severity of his sentence.

Defendant was charged with raping, in her home, a 13-year-old girl, described as mentally retarded, who is physically handicapped. The girl's mother, Dorothy McCombs, testified that between 10 and 11 o'clock on the morning of August 21, 1976, she left her Alorton home to work in her garden a mile and a half away; remaining at home were her daughter, Maxine Cole, and her 10-year-old son, LeBrant Crawford. While gardening, she noticed a man, whom she later identified as the defendant, drive up and park behind her car. During their conversation the man told her his name was Bill, he worked at McDonnell Aircraft, he had in his car a container of nerve pills for his 84-year-old mother, he was not married, he had just purchased some snow tires for $35, he lived in Belleville with his mother and he was on his way to Lake Drive in East St. Louis. She pointed in the direction of her home during the conversation and told him her name. The next time she saw Maxine was when the police took her to the hospital and Maxine was there holding two dollar bills.

LeBrant Crawford testified that he began mowing the lawn soon after his mother left home that morning. He said that a man, who was somewhat fat, wearing a white T-shirt and beige pants, drove up in a beige or white car and asked where LeBrant's mother was. Upon being told that she was not at home, the man said something about a job in a bar. LeBrant remembered having written a telephone number on a paper bag earlier that morning with regard to a man calling about a job in a bar. As the boy resumed cutting the grass he noticed the man leaning against a pillar on the front porch. When he turned around later the man had disappeared.

LeBrant testified that he entered the house and saw the man standing over his sister. When the man saw LeBrant, he turned around and zipped up his pants. Upon his sister's request to get the man out of the house, LeBrant turned to call the police but dropped the phone when the man said not to call. As the man left in his car, LeBrant wrote on a paper bag the car's license number as DRB 18 and DR 9518. The boy then called the police. LeBrant identified the defendant as the man who came to his home that day. The parties stipulated that defendant owned a cream color 1965 Plymouth with license number DR 9518 at that time. Upon the suggestion that the letters the boy saw might actually have been "BR", the State called Leroy Kuhl of LaGrange Park who testified that he owned the car, a black 1975 Thunderbird, with Illinois license plate number BR 9518 but that he was not in St. Clair County on that date. On cross-examination LeBrant's testimony was impeached regarding whether the man was standing over Maxine or whether they were both standing beside the bed when the boy entered the room.

Maxine Cole testified that soon after she had taken a bath, a man came into the house and asked for the telephone. He then asked her if she wanted to make $2 and she refused. He threw her on her brother's bed, unzipped his pants, got on top of her, and forced her to have intercourse. He then gave her two dollar bills. After the man had gotten up, LeBrant came into the house. She identified defendant as the man.

On cross-examination, she stated that she was not positive in her identification and that her testimony had been directed by others. She stated that prior to trial she, Dorothy McCombs, and LeBrant had jointly rehearsed their testimonies with the prosecutor. She admitted that she had lied during direct examination when she had stated that it was she who had called the police. When shown her three-page statement to the police, she said, "This is what they made up." Although she had signed the police report, Maxine admitted that she could not read it. She could not recall the man removing his pants, what she was doing while the man was on top of her, how soon after her mother left that the man arrived, or generally when the incident occurred. She said the man was dressed in a white T-shirt and blue jeans. She also testified, during cross-examination, that the man was pulling up his pants when LeBrant entered the room; the police report reflects that in her original statement she said that the man was still lying on top of her when LeBrant appeared. Also on cross-examination, she remembered that when she was taken to the hospital after the incident, she told the nurse that she had been raped at about 10:30 a.m., while she testified on direct examination, because other people told her, that it happened around noon.

On redirect examination, Maxine stated that when the prosecutors went over her testimony with her prior to trial, they cautioned her to tell the truth. The following colloquy then occurred between the State's attorney and the witness:

"Q: Now, what I want you to do is to tell the truth. I'm going to ask you again, you have testified when I asked you on direct examination that you were positive that Mr. Kilzer was the man that was in your home.

A. Yes, sir.

Q: On cross-examination you have testified that you don't remember whether he's the man. Now, what I want is the truth. I'm going to ask you, was Mr. Kilzer in your home on August 21, 1976, doing the things that you have testified happened to you?

A: (Pause)

Q: Do you understand the ...


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