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People v. Bivens

OPINION FILED SEPTEMBER 28, 1981.

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

v.

CHARLES BIVENS (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. FITZGERALD, Judge, presiding. MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 2, 1981.

After a jury trial, Charles Bivens (defendant) was convicted of rape and deviate sexual assault. He was sentenced to two concurrent terms of 25 years. Defendant appeals.

On appeal, defendant contends the evidence was too confusing and contradictory to sustain his conviction beyond a reasonable doubt; the defense was not tendered allegedly exculpatory evidence; and the trial court made evidentiary errors which require reversal.

On July 10, 1979, the complainant was working at a snack shop on 43d Street in Chicago. At approximately 3 a.m. two of her friends, John Green and Tyron Hodges, arrived at the store to escort her home. After about 15 minutes, complainant closed the store and the three left. They saw defendant and LeRoy McCaster, a co-defendant, whose case was severed from defendant's. Complainant knew defendant prior to this occasion, and had actually lived with defendant for a period in 1977.

Defendant and McCaster approached complainant and her friends. Defendant put his arms around the complainant and asked whether Green was her boyfriend. She replied he was not. Defendant then started an altercation with Green, knocking a cigarette and a bag of food out of his hands. McCaster then put his hand in his pocket and told defendant not to worry because he (McCaster) had Green covered. Green then withdrew from the scene, presumably to get help. He returned in approximately 5 to 10 minutes but defendant, complainant and McCaster were no longer there.

The complainant testified that when Green left, defendant and McCaster each grabbed one of her arms and pulled her away. They went through an alley and walked south until they reached a school. They went through the schoolyard until they emerged at Drexel Park. Complainant testified she yelled for help from several people in the park, but no one responded. She also testified that throughout this period she pleaded to be left alone, to which defendant replied that if she did not "shut up" he would "kick her ass."

Finally, complainant was taken to a courtyard building on the west side of Drexel. She testified that defendant either ordered her to take her pants off or to take one leg out of her pants, and to get on her knees. He then ripped off her underpants and forced her to perform a deviate sexual act on him. Defendant then told McCaster he was next. McCaster also forced complainant to perform such an act. She was then pushed down and McCaster had intercourse with her.

Complainant was then taken to another gangway where defendant again ordered her to perform a similar sexual act. She refused and defendant hit her in the jaw, "breaking her tooth." She was then forced to perform the act on both defendant and McCaster, and both men had intercourse with her. Defendant then poured some rum on complainant stating if she told the police anything, they would think she was drunk.

Defendant and McCaster then took complainant back across Drexel Park to a playground. There she was again forced to perform deviate acts on defendant and McCaster. As complainant was led down 43d Street, she noticed a parked police car. At approximately 4:50 a.m. the two men left her.

Complainant immediately boarded a bus at 43d Street and Ellis and told the driver she had been raped. The driver drove to an "L" station where he called police. They arrived shortly thereafter.

Complainant was taken to Mercy Hospital where she was interviewed and examined by Nurse Colleen Burns and Dr. Jose Balboa. Nurse Burns wrote a report which stated complainant denied vaginal contact but said she had oral sex. Dr. Balboa examined complainant for external injuries but could not detect any. He also took smears from complainant's throat and vagina. In his preliminary examination he could not detect any sperm. At the same time, Dr. Balboa created more slides from the smears and placed them in a "rape kit", which is a kit used in the collection and transportation of evidence on sexual assault. Dr. Balboa also placed in the kit a report which was signed by himself and Nurse Burns that "she [complainant] was forced to have vaginal and oral sex with two unknown males." The kit was then sealed.

Later, the slides in the kit were examined by Michael Zefeldt, a microanalyst for the Chicago Police Department. After a detailed microscopic examination, Zefeldt found the presence of sperm.

At approximately 5 a.m. Chicago Police Officer Daniel Nendza and his partner responded to a call directing them to 4155 South Lake Park. When they arrived they heard a woman scream "Charles, leave me alone." Officer Nendza ran into the building and saw defendant holding a woman in his arms. LeRoy McCaster was also at the scene. Defendant and McCaster were arrested, but neither of them were charged with any crime regarding ...


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