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People v. Butler





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. MASSEY, Judge, presiding.


At the conclusion of a jury trial in the circuit court of Cook County, defendant, Johnny Butler, was found guilty of attempted rape (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 11-1). He was sentenced to a term of 5 to 15 years imprisonment. On appeal, defendant contends the trial court committed reversible error in permitting the State to cross-examine him concerning the details of a prior unrelated offense.

While we find the trial court did commit error, we nevertheless find the error harmless rather than prejudicial and, accordingly, we affirm.

Prior to the selection of the jury, the defense presented a motion in limine in which it sought to prevent the State from using a 1970 armed robbery conviction to impeach the defendant were he to testify in his own defense. After hearing arguments, the trial court denied the motion and ruled that evidence of the conviction could be admitted for purposes of impeachment.

At trial, the 23-year-old victim testified that in May 1975 she was a student at the University of Illinois, Chicago Circle. On May 3, between 4 and 5 p.m., the victim asserted she was walking alone on the campus' second level walkway toward the library building. A man, who she later identified as the defendant, approached her and asked if she had change for a dollar. She said she did not. When the defendant asked if she knew where he could acquire change, the victim responded that he should try the "pier room" in the Chicago Circle Center building. The defendant requested that she accompany him as he did not know where the room was located. Although initially refusing, after repeated requests she relented and began to walk with the defendant toward the Center.

As they were passing a miniature enclosed amphitheater on the second level walkway, the defendant grabbed the victim's hand and stated, "Give me your money." She refused. The defendant then told her he was going to rape her. She screamed. The defendant shoved his hand over her mouth and she bit it. The defendant then tore her coat off, pulled her into the amphitheater, punched her in the face and then ordered her to take her pants off, again saying he was going to rape her. She tried to run but the defendant grabbed her and forced her down upon her back. As he climbed on top of her, the victim stated that she scratched the defendant's face and kicked him. The defendant stood up and again said, "Take your pants off, I am going to rape you." The victim scrambled to her feet and tried to escape but the defendant caught her, pulled her down and began to beat her.

The ordering of the victim to take her pants off, her escape, recapture and beating repeated itself approximately five times. When the defendant caught her attempting to escape for the fifth time, he pulled her to the ground and began ramming her head against the concrete, stopping only after she agreed to unzip her pants. The victim, however, broke loose and attempted to run away. The defendant caught her, ripped the blouse from her shoulders and punched her in the face. Thereupon, the victim screamed as loud as she could and at that point, the defendant ran from the scene. The entire incident lasted approximately 15 minutes.

As she arranged her blouse and began to walk out of the amphitheater area, the victim testified she saw William Thomas, a University of Illinois policeman, running toward her. When the officer asked what had happened, she responded, "He tried to rape me." She described her assailant as black, five feet nine or ten, very thin, with an oval face, high cheek bones and almond eyes. He wore maroon pants and a white shirt with red polka dots. Later that same evening, the victim viewed a lineup at the police station and identified the defendant as her assailant. She also identified the defendant at trial.

Officer William Thomas testified that on May 3, 1975, he was in the Chicago Circle library building when he heard screams coming from outside. He rushed out onto the second level walkway and ran toward the screams. He saw a black male, who he later identified at the trial as the defendant, run out of the amphitheater 30 feet away and head for the east stairs leading to ground level. The defendant was wearing a black hip length jacket and maroon pants.

Officer Thomas broadcasted on his walkie-talkie the defendant's description and the direction in which he was running. The officer then observed the victim standing outside the amphitheater. He noted that her face was bloody, her clothes in disarray. She was crying and appeared to be emotionally upset. She told Officer Thomas that a man had tried to rape her. She described her assailant in detail. On the way to the police station the victim revealed that the man who attacked her would have a bite mark on his hand.

James Bell, a University of Illinois police officer, testified that on May 3, 1975, at approximately 5 p.m. he was patrolling on foot the ground level area outside the Chicago Circle library building. He received a dispatch call that an attack had occurred on the second level walkway near the library and that the attacker was heading for the east stairs. As he dashed for the stairs, Officer Bell saw Richard Strieter, another University of Illinois police officer, running toward him from the opposite direction. When Officer Bell was approximately 30 feet from the stairs, he saw a man, who he later identified at the trial as the defendant, running down from the second level. The defendant paused on the last step, looked towards Officer Bell and then ran off.

The two officers gave chase but lost the defendant when he turned the corner of a building and disappeared among trees and shrubbery. Officer Strieter continued to search the area while Officer Bell returned to his squad car parked a short distance away. Officer Bell drove to a university parking lot located on the east side of campus at the corner of Polk and Halsted. He told the parking lot attendant to be on the lookout for a black male, about five feet nine, weighing 140 pounds, wearing a white shirt, black leather jacket and maroon pants. Officer Bell then returned to aid Officer Strieter in searching the area around the library building for the defendant.

While combing the campus area, the two officers received a dispatch call that the parking lot attendant had observed a man matching the description given him by Officer Bell. Both officers ran to their respective patrol cars and headed for the parking lot. Officer Bell reached the lot first. The attendant pointed down the street and yelled, "He went that way." Officer Bell drove off in the direction indicated and soon noticed the defendant walking on Jefferson Street. The defendant ran into a parking lot.

Officer Bell began a search of the lot and after about 30 seconds was joined by Officer Strieter. After a short period of time, Officer Bell heard Strieter call. When Bell looked up, Strieter was holding the defendant by the arm. Bell ran over to the two men and told the defendant he was under arrest. The defendant replied: "Why are you grabbing me for, I didn't touch no little girl. I'm looking for my car keys." Officer Bell testified that he then ascertained that the defendant did not own any automobile in the parking lot.

The defendant was handcuffed and taken to a Chicago police station. Officer Bell asserted that at the station he noticed the defendant had a cut covered with dried blood over his left eyebrow and a fresh distinctive bite mark on his left hand just behind the base of the thumb.

Officer Strieter testified that on May 3, 1975, he was on foot patrol on the ground level of Chicago Circle campus. His testimony corroborated Officer Bell's version of what transpired that night at approximately 5 p.m. Officer Strieter received a broadcast from Officer Thomas that an attack had occurred on the second level walkway near the library and that the assailant was heading for the east stairs. Officer Strieter later at the trial identified the defendant as the man he subsequently saw run down the east stairs from the second level. Officer Strieter also testified that when he and Officer Bell later searched a parking lot on Jefferson Street, the defendant was found hiding underneath a car. While waiting at the Chicago police station for the lineup to be held, Officer Strieter noticed that the defendant had a scratch above his left eyebrow and three indentations that looked like teeth marks on his left hand just behind the base of the thumb.

On cross-examination both Officer Strieter and Officer Bell admitted that the joint report they submitted concerning defendant's apprehension contained nothing about a scratch on defendant's forehead, a bite mark on his hand or any statement he made when placed under arrest. The State then rested.

Officer Strieter was called as the first defense witness. He testified that the handcuffs placed on defendant at the time of the arrest could have made small impressions on defendant's wrists resembling teeth marks. Officer Strieter did not believe, however, that the marks on defendant's hand were made by the handcuffs.

The defendant took the stand and testified that in May of 1975 he was employed as a bus boy and stock clerk at a Burger King establishment located at 500 South State Street. On May 3 of that year he worked from 6 a.m. to 3 p.m. Following his shift, he relaxed on the restaurant's patio talking with friends.

At approximately 5:30 p.m. the defendant left Burger King with Bernard Lewis and Robert Mixon. The three men walked west on Harrison Street, the defendant intending to return to his home at 616 South Oakley. When they reached the corner of Harrison and Clinton, the three men split up. Lewis and Mixon caught a bus heading south. The defendant continued walking west on Harrison.

When the defendant reached the corner of Harrison and Jefferson, he dropped his house keys near a car. As he bent over to retrieve them, Officer Strieter pulled up in his squad car and yelled, "Don't move." The defendant informed Strieter that he was looking for his house keys. Officer Strieter told him he was under arrest. Defendant asked why and Strieter answered, "For attempted rape." The defendant denied doing anything. He was then handcuffed and taken to the Circle Campus security station from where he was later transported to a Chicago police station.

The defendant testified that at the time of his arrest he had no cuts or scratches on his face, hands or wrists and there was no dirt, grease or blood on either his person or his clothing. He denied assaulting the victim.

On redirect examination, the defense attorney explored the defendant's prior arrest record:

"Q. Prior to May 3, 1975 were you ever arrested before that?

A. Yes.

Q. How old were you?

A. 17.

Q. And what happened with that case?

A. I pleaded guilty."

On re-cross-examination the prosecutor elicited the nature and year of the conviction and also delved into the details and ...

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