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People v. Harvey

OPINION FILED DECEMBER 30, 1980.

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

v.

LAWRENCE HARVEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. BARBARO, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant Lawrence Harvey was convicted of rape and deviate sexual assault by a jury, was sentenced to concurrent penitentiary terms of 10 years, and appeals from the verdicts and sentences. As issues on appeal, Harvey claims error in the admission of hearsay statements in evidence; in the denial of his request for a hearing on the voluntariness of his statement to police; in the allowance of certain police testimony; in improper prosecutorial comment; in the failure of the evidence to prove his guilt beyond a reasonable doubt; and, in certain sentencing errors. For the reasons which follow, we affirm.

The State's case in chief developed evidence which showed that the victim, who resided with her two children in an apartment building on South Luella Avenue in July 1978, left the building on July 9 at 2 a.m. in order to move her car. The car could not be locked and she sought to move it closer to her residence than where it had been parked. She returned to the apartment building and, upon entering the vestibule, a man grabbed her from behind. She fell to the floor and the man, later identified by the victim as Harvey, placed a sharp object in her back and threatened to blow her brains out if she screamed. She told the offender that her boyfriend was waiting for her. They then walked up four steps to a window and upon the offender's order she jumped from the window ledge about four feet to the ground. Looking back to the window she observed the offender's face, the only time she observed it that night. She had seen the offender previously two or three times per week, in front of her building. The victim stated that she recognized his voice and scratch marks on his hands as he stood there. The only light in the dark area was a small bulb in the ceiling of the first floor landing. There were no lights in the gangway area. The offender told her he would blow her brains out if she ran, and he then jumped from the window and landed behind her.

The victim was directed into the alley, where the offender instructed her to remove her clothes and kneel, which she did. He then placed his penis into her vagina from the rear, then forced her to perform oral copulation, then told her to "play with herself," and thereafter raped her again. The offender told the victim to dress and wait five minutes before leaving, which she did. After five minutes passed, she went back into her apartment building, enlisted a neighbor to walk her to her car, drove to a service station after noticing the car's flat tire, and was driven to her boyfriend's apartment. He was not there, but a security officer in the building allowed her to use a telephone which she did to call her mother, whom she told she had been raped.

The victim was then picked up by her parents and two brothers and was ultimately taken by them to Billings Hospital where she was treated. That morning she gave investigating police officers a description of the man she thought had raped her, based upon what she had seen of Harvey in the past, rather than at the time of the incident. She told police that the offender was 5'10" tall, weighed 160 pounds, and wore a black, long-sleeved shirt. She forgot to tell them that defendant had a mustache. She viewed police photographs, but could identify no one. Ten days later, as she drove by the apartment building, she recognized defendant standing in front of the building with other people. She called police and told them she saw the man who had raped her. She identified him for police near the building and defendant was placed under arrest.

The victim's mother testified that during the early morning hours of July 9, 1978, she was at home with her family when she received a telephone call from her daughter, who was hysterical and crying. Her daughter told her she had been raped and the family picked her up. She was hysterical, crying, shaking all over and in a state of shock. She was taken ultimately to Billings Hospital for treatment.

Chicago Police Officer Joseph Theilmann testified that on July 28, 1978, while assigned to a "beat" car, a radio message directed him to 75th and Yates Avenue where he met another "beat" car and the victim. They proceeded to 73rd and Luella Avenues, where the victim identified defendant as the man who had raped her. Officer Theilmann placed defendant under arrest. Michael Zelfeldt, a microanalyst employed by the criminalistics division of the Chicago Police Department testified that specimens taken from a vaginal swab of the victim revealed the presence of spermatozoa. The parties entered into a stipulation establishing the origin and custody of the vagina swab until it was examined in the laboratory. Certain other exhibits were received in evidence and the State rested.

After a defense motion for a directed verdict was denied the defense put on its case. Carlton Williams, employed by the public defender's office, testified that, in company with defense lawyers, he took photographs inside the victim's apartment building depicting the vestibule, hallway, the window and light fixtures. The light fixture was 15' to 20' from the window.

Phyllis Westmoreland testified that she knew defendant and lived in the same apartment building with a roommate Emma Macklin. On July 8, 1978, between 4 a.m. and 4:15 a.m., she saw defendant and Emma Macklin sitting together outside the building. They had been celebrating Emma Macklin's birthday and had come to her apartment several times to get phonograph records. Westmoreland was baby-sitting for Macklin's nine-year-old boy and at 2 or 2:30 a.m., she went to defendant's mother's apartment to ask Macklin to return because Westmoreland had to rise early the next day to go to work.

Emma Ruth Macklin testified for the defense that she had been defendant's girlfriend for three years. She and defendant had been celebrating her birthday at a friend's home until 12 p.m. on July 8, and then, after securing some liquor, at his apartment. She and defendant were together there until 7 a.m. on July 9, when she left. He did not leave the apartment the entire time, except to go with her to her apartment for records after which they returned to his apartment.

Chicago Police Investigator Anthony Lowrey testified that he had interviewed the victim about the incident at the police station. Pursuant to the interview, he wrote that the victim saw a window nearby, broke away, and jumped out of the window. The victim told him that the offender lived in the area and gave him the following description: "one unknown male negro, age twenty-three to twenty-six years old, five feet ten, one hundred sixty-five, brown, light complexion, black hair, possible needle marks on arm and hand, last seen wearing a black long-sleeved shirt."

Emma Macklin, recalled by defendant, testified that he had worn a mustache for as long as she had known him and that he was missing his two bottom front teeth.

After failing to have an exhibit received in evidence, a photograph showing the inside first floor landing and location of the light source, the defense rested.

The State sought to call assistant state's attorney Joel Goldstein in rebuttal. Defendant objected. Goldstein would testify that as a member of the Felony Review Unit he interviewed defendant at the time of the arrest. Defendant told him that he knew nothing of the rape and was at home with his mother at the time of the incident sleeping. The defense claimed that the State was offering Goldstein's testimony as an admission in order to contradict the alibi testimony given by defense witnesses and was in fact a prior inconsistent statement that could not be used since defendant did not testify. It was also argued that use of the statement would ...


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