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People v. Isenberg

OPINION FILED MAY 26, 1978.

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

v.

DAVID E. ISENBERG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. ROGER H. LITTLE, Judge, presiding. MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rape and deviate sexual assault.

Jury trial.

Guilty.

Concurrent sentences, 5-8 and 4-6.

We affirm.

The facts are bizarre. At about 4:30 a.m. one morning, the victim was sleeping alone on a mattress on the floor in the bedroom of her apartment in Champaign, Illinois. She awoke and saw a naked man standing at the foot of her bed. Holding something in his right hand, he threatened her not to scream and told her he was going to rape her. She pleaded with him not to do it and told him that she was ill and had been operated on for cancer. Nevertheless, he proceeded to have intercourse with her three different times. And in between the second and third act, there was an act of deviate sexual assault. All of these acts spanned about one hour. The victim finally got away and ran naked and screaming into University Avenue. A neighbor came to her rescue and took her to his apartment where his wife called the police.

Meanwhile, Isenberg got into his automobile and drove a distance of 60 or 70 miles to the home where he had been staying in Saunemin, Illinois, and where he was arrested later the same day. He had left behind in the victim's apartment a pair of shoes, a pair of men's shorts, and a pair of dogtags bearing the name "David Isenberg." Isenberg stipulated with the State that the shoes, underwear and dogtags in the apartment were his. Furthermore, he stipulated that he was the one who performed the acts of intercourse and the act of deviate sexual assault. The defense interposed was insanity.

Now, let us backtrack to the evening prior to the subject acts. Defendant left Saunemin apparently to go to work in Dwight, Illinois, but instead went to a tavern in Pontiac. Isenberg believed he had a few beers at the tavern and purchased a few more upon leaving but claimed he was not intoxicated. He then took a young man from the tavern to his home where the defendant believed he (Isenberg) drank a couple of beers and smoked some marijuana. He got in his car and after stopping in Bloomington, defendant vaguely recalled pulling up in front of the victim's apartment in Champaign. He entered the first floor apartment by the back door and is "almost positive" he just walked in.

The expert testimony was diametrically conflicting. Based on the facts of the crime and the background of the defendant, Dr. Arthur Traugott was of the opinion that the defendant was suffering from the impact phase of adjustment reaction to adult life. Because of this mental disease, the defendant was unable to conform his conduct on the occasion in question to the requirements of the law, and could have memory lapses as to the events that occurred. On the other hand, Dr. Theodore Kiersch, after examining the defendant, was of the opinion that the defendant was not suffering from any mental disorder or disease and was able to conform his conduct to the requirements of the law. He also stated that a person who has been drinking or consuming marijuana can have a memory loss.

On these trial facts defense counsel on appeal vigorously argues four primary issues:

• 1 I. Defendant first alleges that the trial court abused its discretion in denying his motion for a continuance for substitution of counsel. An accused, of course, has a constitutional right to counsel which includes the right to be represented by counsel of one's own choice. (People v. Green (1969), 42 Ill.2d 555, 248 N.E.2d 116.) However, the right to counsel of one's own choosing cannot be used to indefinitely thwart the administration of justice and the granting of a continuance for substitution of counsel is a matter resting within the trial court's discretion. People v. Solomon (1962), 24 Ill.2d 586, 182 N.E.2d 736.

Isenberg was charged on October 14, 1976, and on October 26, 1976, the public defender was appointed to represent him. On January 7, 1977, the public defender withdrew at defendant's request and private counsel entered his appearance. Defendant was tried by jury in April 1977, but, following the verdict, his motion for a new trial was allowed on May 20, 1977. Then on July 18, 1977 — the eve of the new trial — defendant made a motion for a continuance based upon the need to contact additional witnesses. That motion was denied. On the day of the trial itself, defendant made a motion for a continuance and substitution of counsel, and during the hearing on the motion defendant stated that there had been a "communication breakdown" between him and his attorney.

• 2 These facts indicate that the trial court was justified in denying the motion because defendant's request for substitution of counsel was "not in good faith." Furthermore, before a conviction will be reversed because of a denial of a motion for substitution of counsel, the denial must have embarrassed the accused in preparing his defense and prejudiced his rights. (People v. Solomon.) There was no demonstration that defendant's rights were prejudiced by the denial of the continuance in this case.

II. Isenberg next claims the trial court erroneously gave the instruction offered by the State that intoxication is not a defense to rape and deviate sexual assault. It is a legal truism that both the State and the defendant are entitled to instructions presenting their theories of the case. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 308 N.E.2d 601.) And only slight evidence relating ...


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