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People v. Burgin

OPINION FILED JUNE 25, 1979.

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

v.

WILLIE H. BURGIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARION E. BURKS, Judge, presiding.

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

Following a jury trial, Willie H. Burgin (defendant) was found guilty of rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1), and sentenced to 50 to 100 years. Defendant has appealed.

Defendant's brief in this court raises nine issues. This opinion will summarize the evidence, consider the issue of reasonable doubt and then consider each of the remaining issues.

The complainant, a full-time summer student at Northwestern University in Evanston, testified that on Saturday night, July 3, 1976, after dinner, she walked from her apartment to the library. She left the library at approximately 10 p.m. and walked toward home alone. The area was well lighted. Not many students were on campus that night.

A man wearing a faded light blue, patchwork, waist-length, blue-jean jacket and riding a bicycle, rode past her on her left. He made a U-turn and came straight at her. He said, "Let me get on you for five minutes." She continued to walk. The man then came up behind her on her right. He grabbed her arm with both his hands and while straddling his bicycle stated, "I'm trying to talk to you." Complainant told him, "Let go of me. I'm going home." She then tried to draw her arm away. The man just grabbed her arm tighter and said, "Don't do that." She again told him to let go of her and that she was going home. While continuing to hold her arm, he asked her if she lived "with her people." She said, "Yes, on Chicago Avenue." That was not really where she lived. During this time complainant was looking for other people who could help her. She saw no one.

As she tried to draw away, she felt her hand "being pushed down towards his crotch." He then told her he just wanted to talk to her. After further conversation, she tried to draw her arm away. The man said, "I'm stronger than you. Don't make me hit you." At the time, complainant was wearing hard contact lenses. She testified that this made her fearful of being hit in the eyes. She asked him not to hit her and he told her, "Let's go that way and talk." The man started pushing her toward a darker area. She tried to go over toward a lighter one. The man told her to stop that and dropped his bicycle to the ground. He then said, "Let's go down here." He indicated a driveway that led underground. Complainant tried to get away and the man asked her if she was afraid of him. She told him that she was. He said, "Don't make me hurt you. I'll hurt you." At that time he was walking the complainant down the driveway. He again repeated, "I'll hit you." The driveway had concrete walls which became higher as they descended. There were no lights there.

As the man was pulling the complainant down the driveway, she said, "Please don't hurt me. I'm a virgin." He continued walking her down and put her against one wall. He then kissed or tried to kiss her on the mouth, undid her pants, and pulled her pants and underpants down to her feet. He then sat her on the ground by pushing her shoulders down. The man was trying to keep her from curling up while she was rocking back and forth saying, "No, don't do it, please." Complainant thought she heard someone at the top of the driveway. She was too scared to scream. She started to talk in a loud voice saying, "Please don't do it, just stop." The man said, "We'll have none of that. Just let me in for five minutes." He was grabbing complainant by the shoulders and had her head up. She was afraid that her head would hit the cement floor. He then had intercourse with her and left the scene. Complainant then began walking up the sidewalk toward a building where she knew there was a telephone. In a few minutes, she saw a couple in front of a building. She walked up to them and stated, "I've just been raped."

The complainant made an in-court identification of defendant as the man who had intercourse with her. On cross-examination she stated that she had attended a campus karate course for 8 weeks with two sessions of 2 hours each per week.

The couple that complainant saw were Jason Cortina and Valerie Brown. They testified that she was staggering and appeared to be breathing deeply and most rapidly. Also, she was sobbing. She told them, "I've just been raped." Then she began to scream. They walked toward the telephone together.

Complainant described her assailant to them as a black man, 5 feet 7 inches tall to 5 feet 8 inches tall. He had a mustache and goatee, and his hair was cut in a 2-inch afro style. She told them that he was riding a multispeed bicycle. She continued to sob. The police were called. Neither Brown nor Cortina saw anyone else on campus that night before they saw the complainant. They did not hear any loud noises, screams or cries for help.

The police arrived about 5 minutes after the telephone call. Complainant returned to the scene of the attack with the police officers and then was taken to the Evanston Hospital emergency room by Detective Glanz.

The complainant was examined by Doctor Ralph Tamura, assisted by Nurse Bonita Rich. The doctor observed that she appeared anxious and that she had a bruised area on her left elbow. The nurse noted that she was emotionally upset. The nurse did not notice any rips or tears in complainant's clothing; nor did she observe any cuts, bruises or lacerations on complainant's body.

After leaving the hospital, the complainant and a girlfriend went to the Evanston Police Station where complainant described to Detective Glanz what had happened to her. She described her attacker and looked through a number of photographs. The next day complainant described her attacker to a police artist who made a composite drawing of the suspect.

At approximately 8 p.m. on July 4, 1976, based on the description supplied by complainant, the police picked up the defendant in Evanston. At the police station Detective Glanz advised defendant of his constitutional rights and defendant stated that he understood. The detective also informed defendant that he matched the description of a suspect who was wanted for a rape that had occurred on Northwestern campus the previous night. Defendant stated that he had not raped anyone. He had been with his people (his aunt and uncle) until 10 p.m. on July 3. Later defendant told a police officer that he had been on Northwestern campus the night of July 3 and had encountered a girl there and they had had sexual intercourse. This was around 10 p.m. that night. A written statement was taken in which defendant claimed that the girl had initiated both the meeting and the intercourse. He stated that he told her his name and where he worked. He denied ever threatening her.

Complainant identified defendant in a lineup. Defendant asked if he could see the complainant. The detective asked complainant's permission, which she gave. A police detective asked defendant if the complainant was the girl with whom he had sexual intercourse. The defendant said that she was the girl.

The State also called another Northwestern student who was raped on the campus 2 weeks before the attack on complainant. The student identified defendant in court as her assailant. She testified that on Saturday, June 19, 1976, around 8:30 p.m., while she was walking on the campus she saw defendant ride past her on a bicycle. He stopped his bicycle just ahead of her and got off. He told the student, "Come over here, and you're going to do something for me." She tried to run away but defendant grabbed her. She continued to try to get away and screamed. Defendant told her not to scream and put his hands over her mouth and squeezed her nose. She was afraid that she would be choked. He told her to be quiet and if she did what he wanted he wouldn't hurt her. He did not have a weapon. Defendant then grabbed her arm and dragged her to a construction site. He dragged her to the bottom of the site, about 20 feet deep. Defendant then had intercourse with her against her will. He walked quickly up the grading and away. She told her parents she had been raped. She told the police her attacker was a "Negro male in his twenties," between 5 feet 8 inches and 6 feet tall, but it was difficult for her to judge because she was very short. He had a short afro hairstyle and a goatee. His face was "medium", not full or thin. She then talked to the police artist who made a composite drawing of her attacker. She told the artist that her attacker's face was not as full as the one in the portrait and his hair was curlier. She was only fairly satisfied with the drawing.

The prosecution rested. Defendant then rested without evidence.

I.

On the issue of sufficiency of the evidence, we note first that in rape cases the State is required to prove beyond a reasonable doubt that the act was committed by force and against the will of the complainant. (People v. Carroll (1977), 49 Ill. App.3d 387, 391, 364 N.E.2d 408, appeal denied (1977), 66 Ill.2d 632; Ill. Rev. Stat. 1975, ch. 38, par. 11-1(a).) In these cases, courts> of review "have a special duty of carefully examining the evidence * * *. [Citation.] But in doing so the court may not encroach upon the function of the trier of fact to weigh credibility and otherwise assess the evidence * * *. * * * A court of review will not set aside a finding of guilty unless the evidence is so palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused." People v. Reese (1973), 54 Ill.2d 51, 57-58, 294 N.E.2d 288.

• 1, 2 While the evidence must prove that the act was against the will of the complainant, there is no definite standard for determining the amount of resistance required. Such determination must be made from the facts and circumstances of each case. (People v. Jones (1976), 40 Ill. App.3d 850, 856, 353 N.E.2d 375, appeal denied (1976), 64 Ill.2d 597.) The evidence as above set forth shows that the complainant's clothes were not torn, she had only one bruise and she was not struck by defendant at any time. "However, rape can be established by the threat of force which coerces a female to engage in sexual intercourse, as well as by the actual use of force." (People v. Merritt (1978), 64 Ill. App.3d 482, 486, 381 N.E.2d 407.) The complainant testified that defendant grabbed her arm with both his hands. When she tried to draw away he grabbed her tighter and told her, "Don't do that." Later he told her that he was stronger than she. He said, "Don't make me hit you." She further testified that she was frightened. She wore hard contact lenses and was afraid of being hit in the eyes. Defendant further threatened her by saying, "Don't make me hurt you. I'll hurt you. I'll hit you." She stated that she was too scared to scream. In our opinion, this testimony strongly supports the finding that the attack was forcible and against the will of the complainant. We reject the argument that the similarity of height and weight of complainant and defendant is sufficient evidence of the ability of complainant to engage in a test of physical strength with her attacker.

The issue of whether the complainant's testimony is credible is one for the jury. "[I]t is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of the disputed evidence or credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses." People v. Montgomery (1974), 19 Ill. App.3d 206, 211, 311 N.E.2d 361, appeal denied (1974), 55 Ill.2d 606, citing People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.

• 3 On the issue of corroboration raised by defendant, it has been repeatedly held that where a complainant's testimony is clear and convincing, corroborating evidence is not necessary. (People v. Secret (1978), 72 Ill.2d 371, 376, 381 N.E.2d 285.) A careful examination of the record persuades us that complainant's testimony was so clear and so convincing as to eliminate the necessity of corroboration. This is especially true in the instant case where defendant, after proper warnings, gave the police two conflicting statements concerning his activities on the night of the offense.

Furthermore, complainant's testimony was strongly corroborated by evidence of her immediate outcry to Cortina and Brown, their testimony that complainant was sobbing, emotionally upset and trying to describe her attacker to them while they were taking her to a telephone for her prompt complaint to the police, and the testimony of the doctor and nurse at Evanston Hospital.

Defendant raises the issue of consent. This attempted defense is completely negated by the strong testimony as above analyzed which impels to the conclusion that the act of intercourse was forcible and against the will of the complainant. We will add that the only evidence of consent in this record arises from the exculpatory and self-serving statement which defendant made to the police. As shown, the probative value of this statement is virtually destroyed by the contradictory statement defendant gave to the police that he was home with his people during the night in question. Considering the evidence on the narrow question of consent, it is clear from this record that the People proved lack of consent and that the act was by force and against the will of the complainant by strong, convincing and corroborated evidence beyond any reasonable doubt. Using the vernacular, we might readily describe the situation ...


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