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People v. Mccabe





APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding.


Defendant Jerry Lee McCabe was found guilty of rape and armed violence by a jury in the circuit court of Madison County. He received a term of imprisonment of 20 years for the rape offense and five years for the offense of armed violence. The two sentences were ordered to run concurrently.

Defendant raises the following issues on appeal: (1) whether the trial court erred in denying defendant's motion for a new trial on the basis of the State's failure to comply with certain discovery requirements; (2) whether the evidence supported defendant's convictions beyond a reasonable doubt; (3) whether the trial court erred in failing to rule on the State's motion to amend its original information and by trying defendant on an unverified amended information; (4) whether the trial court erred in allowing evidence concerning the complainant's lack of prior sexual conduct; and (5) whether the trial court erred in failing to grant defendant's motion for a continuance prior to its ruling on his motion for a new trial.

The evidence at trial shows that on February 27, 1978 at approximately 7 p.m. the complainant was raped in the back seat of an automobile located in a parking lot adjacent to the Granite City South High School in Granite City, Illinois. Complainant testified that as she neared the high school to attend a night class she was struck on the head with an object she later described as a crowbar. Next she was grabbed by the neck and pulled through a field to the parking lot where she was shoved into an automobile. She was positioned on the driver's side of the rear seat. The attacker removed her coat, shoes, socks, jeans and panties and proceeded to have sexual intercourse with her against her will. During the ordeal, which lasted approximately 25 minutes, the assailant spent much of the time talking. The complainant was finally permitted to exit the vehicle and was cautioned not to do anything stupid. As she walked back to the high school she heard a car door slam and turned around and observed the man who raped her enter a yellow or white automobile on the passenger side. The latter vehicle then sped off.

Throughout the incident the complainant was unable to get a good view of the man's face. She stated that she was looking down at her feet as she was being pulled through the field. In the automobile she was unable to perceive more than a dim outline of the assailant's face, because the dome light in the vehicle was inoperable and the parking lot was not lighted. The day after the attack she related to Officer Don Knight that the rapist was husky and roughly 18 to 20 years old with wavy brown hair parted in the middle. She also stated that the attacker was taller than she was, her height being five feet eight inches. A few days later she assisted officers in the construction of a partial composite sketch of the assailant featuring a facial outline, lips and hair. After undergoing hypnosis she was able to add that the man's nose seemed straight and that he had bushy eyebrows with weird eyes. On March 9 defendant was identified by the complainant as the man who attacked and raped her. When cross-examined as to her certainty at the lineup, she replied:

"When I first saw him I was 99% sure. Then when I heard him talk I was really positive."

She made a positive identification of defendant in the courtroom although his appearance changed from the night of the attack. His hair was shortened and was not parted in the middle during the trial.

Complainant identified the automobile she was raped in as being bluish-green with a black vinyl top. She also recalled that there was rust along one of the rear fenders by the wheel. She identified People's Exhibit 13, a black and white photograph of defendant's automobile, as similar to the vehicle she was raped in. Defendant owned a bluish-green 1968 Pontiac with a black vinyl top.

At 7:55 p.m. on the evening of the rape the complainant signed into the emergency room of St. Elizabeth's Hospital in Granite City. Dr. Charles J. LaTenderess examined her and noted a freshly torn hymen as well as a scalp laceration.

Dennis Aubuchon, a serologist testifying for the State, performed various tests on items of clothing worn by the complainant when she was attacked. The tests were designed to isolate and identify foreign substances found on the clothing. Of particular interest are the results of tests conducted on complainant's jeans, coat and panties. Traces of Type B semen were found on the jeans and coat. The panties contained both blood and semen of Types B and O; however, the serologist was unable to assign a specific Type to either the blood or the semen. On cross-examination the following colloquy occurred between the serologist and defense counsel:

"Q. All right. Didn't you tell us that a secreter — that the secretions from a secreter will type the same in the semen as the blood of the person expelling the semen?

A. A secreter with Type B blood would come out with Type B semen also. That is the very nature of the word secreter.

Q. Okay. Is it your testimony then that these secretions were made by a human ...

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