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People v. Devine

OPINION FILED OCTOBER 15, 1981.

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

v.

WILLIE DEVINE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN J. COVEY, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The defendant, Willie Devine, was charged by indictment with two counts of deviate sexual assault and one count of indecent liberties with a child in violation of sections 11-3(a) and 11-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 11-3(a), 11-4(a)(3)). Following a jury trial, he was convicted on one count of deviate sexual assault and of indecent liberties with a child. He was acquitted of the remaining count of deviate sexual assault. A sentence of 20 years' imprisonment for deviate sexual assault and a concurrent term of 10 years' imprisonment for indecent liberties with a child were imposed on the defendant.

The facts adduced at trial revealed the following sequence of events. Rodney Hatfill, the complainant, testified that he first met the defendant in July 1980, when Hatfill and a friend of his, 25-year-old Jimmy Dalton, went to the defendant's apartment to play cards. Hatfill was 12 years old at the time.

Two black girls were present at the apartment with the defendant when Hatfill and Dalton arrived. Everyone played cards for about half an hour when two men arrived with a bottle of beer. Hatfill testified that he had a glass of beer and smoked some marijuana. The two men stayed about 20 minutes and then left.

Hatfill further testified that the two girls left the apartment to go shopping. Jimmy Dalton then left, saying he would return in 15 minutes. Hatfill and the defendant were left alone in the apartment.

The complainant was sitting on a couch in the kitchen when the defendant came over and started squeezing the youngster's penis through his pants. Hatfill told the defendant to stop it. Devine then took Hatfill by the hand into the bedroom. Hatfill began to cry, and the defendant threatened to hit him with a claw hammer. The hammer, which had previously been in the living room, was retrieved by the defendant and placed in the bedroom.

Hatfill testified that the defendant told him to take off his pants. When he failed to do so, the defendant took them off, and Hatfill began to cry more. The defendant then raised the hammer, and Hatfill stopped crying. The defendant removed his shorts, made Hatfill lie on his stomach and inserted his penis into Hatfill's anus. When Hatfill started screaming, the defendant got up, started to pick up his hammer, and then placed his penis in the complainant's mouth. The complainant testified that he "acted like" the defendant had ejaculated in his mouth and then asked the defendant if he could wash out his mouth. The defendant said "Yes", and the complainant went to the bathroom. The complainant testified that he observed the defendant wiping the "cum" off his penis and stomach with a brown towel.

According to his testimony, Hatfill "acted like" he had washed his mouth out. The defendant returned Hatfill's pants to him and said, "Don't never tell anybody." The complainant unlocked the door and ran down the stairs. While running down the stairs he passed the two girls who had previously been in the apartment, but he did not say anything to them. Hatfill ran to Imogene Knott's house, where his friend, Jimmy Dalton, lived. The police were called and arrived about five minutes later. Hatfill directed the police to Willie Devine's apartment. The complainant was then taken to the hospital and later to the police station where he made a statement.

During cross-examination defense counsel confronted the witness with a number of inconsistent statements which he made to the police and the examining doctor. Hatfill denied making the inconsistent statements.

Jimmy Dalton appeared as the second witness for the State. His testimony of events preceding the attack by Devine substantially corroborates that of the complainant, Rodney Hatfill.

Officer Henry Minton testified that he met Rodney Hatfill, Imogene Knott and Jimmy Dalton at 6:50 p.m. on July 11, 1980, at the Knott residence. After speaking with Hatfill, Minton proceeded to 505 West Third Street, where he left Hatfill in his squad car and met some other police officers. The officers proceeded up to the second floor and knocked on the door. Willie Devine answered. Present in the apartment in addition to the defendant were two black females and a small child. Devine left with the officers. Hatfill was then transported to St. Francis Hospital.

Officer Larry Layman testified that on July 14, 1980, he and Officer Minton returned to Devine's apartment and served a search warrant which mentioned two items. The two items — a broken, silver-colored claw hammer and a brown towel — were recovered. The hammer was found in the kitchen behind a couch, and the towel was lying on the couch in the living room of the house. After a thorough search for other towels was made, no other brown towels were found in the apartment.

Layman related that he spoke to Devine on July 11, 1980, and learned that the defendant was born on June 11, 1957, and was thus 23 years of age.

The final witness for the State was Dr. John Byler, who examined the complainant at St. Francis Hospital emergency room on July 11, 1980. He performed a general examination, and a specific exam of Hatfill's anal/rectal area. The doctor testified that "[t]here were two or three small fissures which are small cracks in the anal/rectal mucosa at about 6 o'clock and the tone of the sphinctor [sic] was patchless, that is in appearance, it appeared to lack a normal tone." The normal tone of a sphincter of a boy that age would generally be fairly tight. The loose and patchless sphincter and the fissures would be consistent with some type of penetration. The fissures seen on Hatfill's anus would also be consistent with constipation or straining in going to the bathroom. The fissures were probably not more than 12 hours old. The doctor could not say for sure whether or not the fissures were caused by anal penetration. He related that the tone of the sphincter was consistent with penetration, but not constipation.

The doctor also noted that the complainant had very poor hygiene and was dirty. Both oral and rectal swabs were taken from the complainant for later testing. The doctor also noticed a brownish ring around the anus ...


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