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People v. Brown

OPINION FILED MAY 28, 1982.

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

v.

LEWIS BROWN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant was convicted in a jury trial of rape and sentenced to 12 years. On appeal, he contends that (1) the trial court erred (a) in allowing the State to use in rebuttal for impeachment purposes a statement of defendant made to an assistant State's Attorney (the assistant) and not given to defendant until the day before the assistant was to testify and (b) in admitting evidence of ammunition recovered from defendant's apartment when he was arrested; (2) he was denied a fair trial by the State's withholding until trial information concerning recovery of the gun allegedly used during the offense; and (3) the sentence was improperly based on the trial court's belief that defendant had committed attempt murder. A detailed statement of facts is unnecessary here, inasmuch as the issue of reasonable doubt is not raised, and only those facts bearing directly upon the questions presented will be discussed.

At trial, the victim testified that defendant knocked at her door and asked to use the telephone; that after making a call, he grabbed her by the neck, pulled out a gun, pointed it at her head and pulled the trigger, but the gun did not fire; that he clicked the gun again and put it back into his pocket; that defendant told her not to scream or he would kill her; that on two separate occasions, he pushed her to the couch and raped her; and that, after defendant left, she called and told both her cousin and the police about the occurrence.

Asserting the defense of consent to the alleged offense, *fn1 defendant testified that he lived with his girl friend in a neighboring apartment in the same building as the victim; that on the night in question, the victim knocked on the door of his apartment; that he and the victim had an argument, and he pushed her back to her apartment; that the victim returned, and he again pushed her back to her apartment where he made a telephone call and then sat next to her on the couch; that they had sexual intercourse twice; and that he had sexual intercourse with the victim five or six times during the previous year.

OPINION

We first consider defendant's contention that the trial court improperly allowed in evidence on rebuttal a statement of defendant which had been barred in the State's case in chief. In particular, he refers to a statement he made to the assistant after being arrested and advised of his rights, to the effect that he threw a gun out of his apartment window before the police arrived. He maintains that contrary to the discovery rule (73 Ill.2d R. 412(a)), testimony as to the statement was improperly admitted on rebuttal because defense counsel was not informed of it until the day before the assistant was to testify and because the substance of the statement was not brought out until the State's cross-examination of defendant. It is our belief, however, that the trial court acted within its discretion in admitting the statement as rebuttal evidence of a prior inconsistent statement which impeached defendant's direct testimony.

The record reveals that on direct examination, defendant denied pointing a gun at the victim, and his counsel avoided reference to any conversation defendant may have had with the assistant. However, he did question defendant about a gun as follows:

"[Defense Counsel]: At the time of your arrest did you have any guns inside your apartment?

[Defendant]: No.

[Defense Counsel]: At any time on [the night in question] — you've seen the gun introduced in the trial today?

[Defendant]: Yes.

Q: At any time during that night did you take that gun and point it at anyone?

A: No.

Q: Did you take that gun and point it at ...


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