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People v. Tolefree

OPINION FILED JUNE 10, 1980.

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

v.

ROGER TOLEFREE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Roger Tolefree, was found guilty of rape and not guilty of burglary with intent to commit rape, and was sentenced to the penitentiary for 30 to 100 years, plus a 5-year parole period. During the pendency of this appeal defendant attempted to discharge his court-appointed public defender and to have other counsel appointed. His motion was denied both by this court and the Illinois Supreme Court. Defendant then submitted a pro se brief to supplement the one already presented by his appointed counsel. On appeal, the brief of defendant's counsel raises issues of inflammatory and prejudicial prosecutorial comments and of errors in the sentencing process. In his pro se brief, defendant contends that his trial counsel was incompetent, that verdicts arrived at by the jury were legally inconsistent, that he was deprived of his right to counsel at a critical stage of the proceedings, and that his guilt was not proved beyond a reasonable doubt.

The first witness called at trial was the complainant. She testified that she encountered a man, whom she identified at trial as defendant, in the hallway outside her apartment. She felt somewhat fearful so she went to the apartments of friends on two different floors to see if either was home. When no one answered at their apartments, complainant went to the lobby; after a few minutes, she decided that she was being overly cautious and returned to her apartment. As she reached her apartment door she saw defendant standing in an adjacent hallway leading to a fire escape. She quickly attempted to open her door but defendant pushed the door in. The force of the door knocked complainant to the floor and she began to scream for help. She struggled but defendant grabbed her and forced her into the bathroom, throwing her head against the wall. He then slapped her across the face and held a sharp rattail comb against her throat. Complainant stated that defendant threatened to use the comb as a weapon.

After this threat, complainant stopped struggling. She attempted to talk him out of his plan but that too was unsuccessful. When she refused to enter the bedroom, defendant dragged her in by her arms. During the first assault, the phone rang. Defendant told her to answer the telephone and she did, telling the caller she would return the call later. Defendant then told her that he thought he could trust her to not report him to the police. When he showed her his chess club membership card, she observed his first name. Soon thereafter, he forced her into the bedroom for a second time and once again compelled her to have intercourse.

As soon as he left, complainant called the person who had called while defendant was in her apartment. She told this friend that she had been raped and that she was afraid to leave the apartment. Complainant then called another friend, who, like the complainant, was also a nurse, and lived in the same apartment building. Complainant told her that she had been raped. The nurse accompanied complainant to the hospital where the victim was examined by a doctor. Complainant testified that she had a scratch across her face, bruises on her arms and knees, and a severe headache.

The nurse who accompanied complainant to the hospital testified, affirming her participation in the above events. She also stated that complainant was very upset and had scratches on her face.

The third witness was the examining physician who saw the victim in the emergency room of the hospital. She noted bruises and lacerations on the victim's nose, cheeks, elbows and knees. Police officers also testified, confirming complainant's report of the incident and establishing defendant's fingerprints as those found in complainant's apartment after the assault. The State rested its case after introducing into evidence photographs taken of complainant immediately after the assault.

Defendant testified in his own behalf. He stated that he was in the apartment building on the day in question looking for a friend with whom he had played chess. While on the 10th floor, he encountered complainant, who invited him into her apartment. Defendant admitted his participation in the sexual act but stated that it was performed with complainant's consent and encouragement. He further testified that he considered himself desirable to women and that he is a "smooth talking guy" and talked her into having sex with him, but he did not find it pleasurable and did not enjoy the relationship. Defendant said the victim attacked him when he was critical of her performance and the size of her vagina, and he scratched her face defending himself. He left soon after, when it became apparent to him that he could not establish a relationship with complainant because she was "too out of it." On cross-examination, defendant denied that he had told an investigator that he had not had sexual contact with complainant. He said that he had told the investigator that he had not raped complainant.

Investigator John Toenings of the Chicago Police Department was called by the State in rebuttal. He testified that defendant had said that he "never raped her, he never had sexual intercourse or ever harmed the lady."

Following the guilty verdict, a hearing in mitigation and aggravation was held. In aggravation the State reiterated the circumstances of the crime and the repeated nature of the assault as well as the prior convictions of defendant for other violent crimes. Defendant, on the other hand, presented evidence about his religious practices and his employment record. He was sentenced to not less than 30 nor more than 100 years in the penitentiary plus a 5-year parole period. This appeal followed.

The first issue raised in the brief by defendant's appellate counsel pertains to comments made by the prosecution during closing arguments. In the rebuttal portion of the closing argument the prosecutor stated:

"Ladies and gentlemen, it is very easy for that man to stand up here and say why but what more could you want out of that witness [complainant]? What did she do first when the man first attacked her? She screamed, you heard the testimony she was in a corner apartment down the hall, no one came, ladies and gentlemen. Why is that so curious?

We all know about the case in New York where a woman was killed while ...


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