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People v. Belcher

OPINION FILED DECEMBER 29, 1980.

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

v.

MICHAEL BELCHER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Defendant, Michael Belcher, was found guilty in a bench trial of armed robbery, rape and deviate sexual assault and sentenced to a term of 8 to 15 years. He appeals, contending (1) he was not found guilty beyond a reasonable doubt; (2) the trial court improperly admitted hearsay testimony; (3) he was denied effective assistance of counsel; and (4) his sentence was excessive.

The complaining witness testified that on November 16, 1977, she finished work at the Gas USA station on 101st and Halsted at 12:30 a.m. She then walked up Halsted toward 95th Street to catch a bus home. When she reached 96th Street, a Cadillac made a U-turn, pulled up and blocked her path. There were two "boys" in the car. The passenger got out of the car with a gun in his hand, grabbed her arm and told her to get into the back seat of the car. After she got into the Cadillac, the driver, whom she identified in open court as defendant, took off and drove around for a few minutes. The passenger kept the gun pointing at her. The car stopped behind a building near railroad tracks. Defendant then asked her if she had any money. She had $16 with her. Defendant took her handbag and threw it on the front seat of the car.

Complainant further testified that defendant got into the back seat with her, while the passenger bent over the front seat and pointed the gun at her. Defendant ordered her to take off her coat. He took off her sweater and shirt, tearing the latter. Defendant ordered her to pull down her pants and he pulled down his.

She testified that defendant then told her to "give him some head." She did what defendant told her to do; she put her mouth on defendant's penis. Defendant then lay on top of her and put his penis in her vagina. The passenger in the front seat was still holding the gun and pointing it at her.

Defendant then got up, got out of the car, pulled up his pants and got into the front seat. The passenger gave defendant the gun, jumped over the back of the front seat into the rear seat, took down his pants and put his penis in her vagina, with defendant holding the gun in his hand and leaning over the seat back. The passenger then told her to put her mouth on his penis. She did what he said. She cried the whole time.

Defendant told the passenger to get up and let her put her clothes on. Defendant started the car, backed out and went down the street, stopping after a block or two. The complaining witness did not know where she was. Defendant told her to get out of the car, to walk with her face toward a fence and not to turn around. The passenger asked defendant if he was going to shoot the gun. Prior to getting out of the car, she heard the passenger say to defendant, "Don't go around 90th and Morgan."

Just before or just after she got out of defendant's car, she heard another car pull up. When she left defendant's car, she had her shirt in her hand. Her sweater and her handbag were left in defendant's car. She walked toward the fence and then turned toward the car that pulled up. Defendant's car pulled off. There were three men in the car that pulled up. One of the men got out and asked her what was the matter. She told him she had been raped. She was crying and had been crying "all the time." The man then got back in the car and chased defendant's car. Complainant walked toward 87th Street with another passenger from the car which had pulled up as defendant drove away. They stopped a police car and had a conversation with the police. She then went to 90th and Morgan with the police, where she saw defendant Belcher's car and pointed it out to the police. She was then taken in a squad car to the Little Company of Mary Hospital and then, after being examined there, she went to the police station where she identified her sweater. Her purse was never recovered. She then went to another police station. There she identified defendant in a lineup. He was not wearing the same clothes as at the time of the rape.

On cross-examination, complainant testified that she never tried to run away "because he had a gun." She didn't scream or holler; just cried. The only thing she said was "not to hurt me." She said that she told the police that when she saw the person who got out of defendant's car he had the gun in a holster and it remained there. She also testified that the conversation concerning 90th and Morgan occurred while driving on Halsted Street before she had intercourse with defendant. She further testified that when they first went to court at 26th and California defendant's mother offered her $1000 to drop the case.

Riley Tubbs testified that he was a passenger in a car in the vicinity of 88th and Normal sometime after 1 a.m. on November 16, 1977. As the car in which he was riding turned the corner of 88th and Normal, he saw a car parked at 88th and Parnell. He could tell from its lights that it was a Cadillac. As the car he was in pulled up, the Cadillac pulled away. He saw a girl "sitting" on the ground with her clothes half off. There was a fence nearby. The girl was "standing" there crying and hollering she had been raped.

On cross-examination, he testified that he saw a car which he recognized as a Cadillac from a distance, although he was not close enough to see its year, color or interior. He further testified that he "seen a glimpse of" the car. He also testified that two of his friends got out of the car in which he was riding, while he stayed in the car, rode to 87th Street to find a police car, and met a police car.

Police Officers Kripner and McNally were involved in the investigation. Officer Kripner testified that some time after 1 a.m. on November 16, 1977, he saw defendant's 1970 Cadillac parked at about 9014-9016 South Morgan. He saw a red sweater in the back seat of the car. He took the sweater to the police station after defendant's arrest.

Officer McNally saw defendant at the police station. He gave defendant his Miranda warnings, which defendant said he understood. McNally asked defendant if he wanted to speak and defendant said he did. McNally showed defendant the sweater which had been found in defendant's car. Defendant said it belonged to his girlfriend, Janice Jones, and that he had been at his girlfriend's home from 6:30 p.m. on November 15, 1977, until he was arrested on November 16, 1977.

Defendant testified that at about midnight on November 15, 1977, he was driving his Cadillac northbound on Halsted with his friend, Maurice Jones. He drove into the Gas USA station at 101st and Halsted and saw a young woman he identified as complainant. She walked over to his car, said she was just finishing work and asked defendant where he was going. Defendant told her he was going to 90th and Morgan and she then asked for a ride. She got her sweater, made a telephone call and got into the back seat of the car. They exchanged names. She agreed to share a pint of gin with defendant and his friend and to go park. They parked in a secluded area behind a factory on 90th and Eggleston for 15 to 20 minutes. Complainant agreed to have sex with both men. Defendant had both oral sex and sexual ...


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