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People v. Morrow

OPINION FILED MARCH 9, 1982.

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

v.

WILLIE MORROW ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE M. MAROVICH, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 31, 1982.

Defendants Willie Morrow and Maurice Jones were charged with rape, aggravated kidnapping, unlawful restraint and armed violence. Following a jury trial, both defendants were convicted of rape and acquitted of the other charges. Defendant Morrow was sentenced to 15 years in the Illinois Department of Corrections; defendant Jones received a 10-year sentence. Both defendants appeal. Defendant Morrow makes five assignments of error, contending that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly admitted evidence of a witness' prior consistent statement; (3) the prosecutor made an inflammatory and prejudicial remark in closing argument; (4) evidence seized in a warrantless search of defendant's garage should have been suppressed; and (5) his warrantless arrest was illegal. Defendant Jones raises only one point on appeal. He contends that he was denied the effective assistance of counsel at trial.

Defendants called no witnesses at trial. The principal issue for the jury was whether the two complainants consented to the acts charged. No issue was raised as to the identity of the two defendants. The complainants were Jacqueline Plump and Juanita Bell, age 18 and 19 respectively. The two women testified that at about 11 p.m. on November 3, 1979, they went to the New Here's Lounge at 79th and Racine in Chicago, where they met three friends. According to their testimony, the complainants each had one drink while at the lounge. The two women and their three friends left the lounge at about 3 a.m. and waited outside for a bus. At this time, the two defendants approached the group and began talking with the two women. Defendant Morrow introduced himself as "Eddie" and defendant Jones introduced himself as "Maurice." The complainants told defendants their names. The conversation lasted approximately 15 minutes. During this 15-minute period, an eastbound 79th Street bus came by and the complainants' three friends boarded it. When the complainants saw a westbound 79th Street bus approaching at a distance, they crossed Racine Avenue to get to the opposite corner where the bus would stop. While the women were crossing the street, defendants followed them and defendant Morrow pulled out a gun and directed the two women to get into a black car parked at the curb. Plump did not see the gun but testified that defendant Jones pushed her in the direction of the car. The women entered the vehicle. Bell sat in the back seat with defendant Jones and Plump sat in the front seat with defendant Morrow. Morrow drove the car for about 10 minutes and parked in an alley.

Once in the alley, defendant Morrow again displayed the pistol and demanded that both women disrobe. Defendant Jones, who was drinking from two bottles of liquor, advised the women that Morrow was "crazy" and would carry out his threat to kill them and put them in a garbage can if they didn't comply. Plump then opened her blouse, removed her pants, and engaged in intercourse with defendant Morrow in the front seat. After this act, Morrow left the car and opened the overhead door of a nearby garage. He backed the car into the garage and closed the overhead door. When he returned to the car, Morrow again displayed the pistol and ordered the women to disrobe. He then engaged in a second act of intercourse with Plump. At the same time, defendant Jones had intercourse with Bell in the back seat. After these acts, defendant Jones ordered the women to switch places. The two women climbed over the seat and engaged in two more acts of intercourse, Bell with Morrow and Plump with Jones.

After these acts, when the two women asked to be let go, the defendants offered to drive them home. The complainants declined the offer and said they would walk home (a considerable distance), but they accepted defendants' offer to drive them to a nearby bus stop. The complainants took a bus to Jacqueline Plump's home and arrived at about 7 a.m. Mrs. Plump was up and waiting for Jacqueline to return. The complainants told her they had been raped. Mrs. Plump called the police. The women were taken to a hospital where a doctor reported the presence of sperm in the vaginas and noted the absence of vaginal lacerations. Mrs. Plump testified that the complainants were crying and disheveled when they arrived at her home, but their clothes were not torn. Jacqueline Plump testified that she wet her pants while walking home from the bus stop and she vomited after reporting the rape to her mother.

While the complainants were at the hospital, they were interviewed by Investigator Charles Grunhard. The women gave Grunhard descriptions of the garage, the car and the two men. The complainants then left the hospital with Grunhard and his partner, Thomas Bennett, in an unmarked police car. The officers drove the women to the New Here's Lounge and began retracing the route taken by defendants' car. Near the intersection of 93rd and Elizabeth, Juanita Bell recognized an alley. The police drove down the alley until Miss Bell recognized the garage where the defendants' car had been parked. She recognized the garage because the service door (the small entry door on the side of the garage) was off the hinges. It was now about 11 a.m. on the morning of November 4, a Sunday.

The yard in which the garage was located had a fence at the rear lot line. Investigator Bennett went through the gate in the fence (the evidence does not establish whether the gate was open or closed) and into the yard. He then looked into the garage through the open service door. The service door was on the side of the garage, facing a sidewalk that led from the rear gate to a house near the front of the lot. Bennett saw a car matching the description given by the complainants: a large black two-door car with the driver's window replaced by a plastic sheet and with no license plates but a "license applied for" sticker on the windshield. Bennett called to Grunhard, and the two police officers entered the garage. The officers opened the car's door and found a baseball bat next to the driver's seat and a .25-caliber bullet on the floor by the driver's seat. Two empty liquor bottles were on the back seat. The officers also noted that the "license applied for" sticker bore the name "Willie Morrow."

The officers returned to their police car, called for additional units, and drove around the block to the front of the lot. The address of the house on the lot was 9212 South Elizabeth. As the officers got out of the police car and approached the house, a boy (later identified as defendant Morrow's 15-year-old brother, Mark) was coming down the front steps. Grunhard called out to the boy and the boy began to return to the house. The officers caught up with the boy on the front porch and there ensued a very brief and confusing conversation in which Bennett mentioned "Willie" and asked the boy about the car in the garage and whether anyone was home. The boy said, "My sister is here," and went into the house, closing the door behind him. The officers, looking through a window, saw the boy run to the rear of the house. At the same time, a young woman (later identified as defendant Morrow's sister, Vickie Morrow) came to the door. Without speaking to Vickie, the officers entered the house and ran to catch up with the boy, who was going upstairs. The officers followed the boy to an upstairs bedroom. In that room, one individual (later identified as defendant Morrow's 16-year-old brother, Fred) was lying in bed watching television; the other individual, who matched the description given Grunhard by the two complainants, was asleep in his bed. The police woke the sleeping man, identified in court as defendant Morrow, and asked if he was "Willie" and if the car in the garage was his. Defendant Morrow answered "yes" to both questions and was arrested.

The police allowed Morrow to dress and then took him to the garage, where they advised him of his constitutional rights. Defendant Morrow at first denied being with women the night before and said he had been out drinking with a friend, Derrick Sullivan. Defendant Morrow was then taken to the police station, where he was advised that Sullivan did not back up his alibi. Morrow then admitted that he was out with two women and had intercourse with them. He also gave the police defendant Jones' name.

I

• 1 Defendant Morrow contends that he was not proved guilty beyond a reasonable doubt. The State offered testimony from the two complainants, from Plump's mother, from Investigator Grunhard and from Officer Brown, who responded to Mrs. Plump's phone call reporting the rapes. Defendants called no witnesses and stipulated to the complainants' identification testimony. Morrow and Jones both relied on the defense of consent. Defendants assert that the two women made no "prompt complaint" of the attack. In fact, the victims did announce that they had been raped, but they waited until they reached Plump's home and did not seek assistance from the bus driver or passengers. Whether this delay in making a "prompt complaint" diminishes the probative value of the accusation is a question for the jury. There is no fixed time limit within which a prompt complaint must be made. (See People v. Secret (1978), 72 Ill.2d 371, 377, 381 N.E.2d 285.) Defendants also stress the lack of physical evidence of force. The lack of physical evidence corroborating a claim of forcible rape is not fatal to the State's case. The testimony of the complainant, if clear and convincing, is sufficient to support a conviction. (See People v. Secret (1978), 72 Ill.2d 371, 376.) In the case at bar, the complainants testified unequivocally regarding the use of force. Their credibility was an issue for the trier of fact. The reviewing court will not substitute its judgment for that of the jury which heard the evidence and saw the demeanor of the witnesses. See People v. Sherman (1980), 87 Ill. App.3d 937, 940, 407 N.E.2d 486.

Defendant Morrow also contends that the trial court erred in admitting evidence of a prior consistent statement of Juanita Bell. On direct examination, Bell related that defendant Jones had threatened to rob her, but defendant Morrow advised against it. When asked if Jones robbed either Plump or herself, Bell said, "No." On cross-examination by defendant Morrow's attorney, Bell gave a different answer:

"Q. Now, after the acts of sexual intercourse had been completed and there was a discussion regarding a robbery, nobody robbed anybody, did ...


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