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People v. Hopkins

OPINION FILED JUNE 2, 1982.

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

v.

NATHANIEL HOPKINS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN J. PETERS, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Defendant, Nathaniel Hopkins, was charged by a seven-count information with the offenses of rape, armed violence based upon rape, two counts of deviate sexual assault, aggravated kidnapping, unlawful restraint, and armed violence based upon unlawful restraint. Following a jury trial, he was found guilty of all seven counts, and judgment was entered on the verdicts. Defendant was sentenced to concurrent terms of imprisonment of 15 years for rape, 15 years for armed violence based upon rape, 15 years for each count of deviate sexual assault, and 10 years for aggravated kidnapping. No sentence was imposed for unlawful restraint or armed violence based upon unlawful restraint. On appeal, defendant contends that various prosecutorial errors deprived him of a fair trial, and in the alternative, that certain convictions must be vacated as part of other offenses and that he is entitled to a corrected mittimus to reflect the sentence for aggravated kidnapping announced by the trial judge.

There is no dispute that defendant had sexual relations with the complainant on the night in question. The issues to be decided by the jury were whether the complainant consented to the activities, and, if not, how many offenses occurred.

The complainant, a 19-year-old student at the time of trial, testified that at 10:30 or 11 p.m. on January 13, 1979, she started to walk home from a friend's house. The weather conditions were blizzard-like, and she lived about 10 blocks from her friend's house. As she was walking, she observed a dark brown van, and as the van passed her, the driver waved to her and stopped in front of her. She was not hitchhiking, but she did approach and open the passenger door of the van. Defendant was the driver of the van, and she told him that she lived only a few blocks away. He offered her a ride, which she accepted. When they arrived at an intersection located one block from complainant's home, she told him she wanted to be let out of the van because the street was not plowed. However, defendant proceeded one-half block down the street. Then defendant told her that the van was stuck in the snow and that he was going to get a shovel from the back of the van. Defendant went into the back of the van, but five or 10 seconds later, he returned with a knife, which complainant described as 20 inches long with a long blade. He pointed the knife at her throat and told her to get into the back of the van. Then he pulled her by the arm into the back of the van and ordered her to lie face down on the floor of the van. When she did so, he tied her wrists tightly behind her back with her scarf. He also tied her ankles together, and tied a piece of cloth around her mouth and head. Then defendant got back into the driver's seat and drove for about 15 or 20 minutes.

Defendant then turned off the engine and entered the back of the van. He told her that she had better do as she was told, and subsequently untied her wrists, ankles, and the gag in her mouth. At this time she did not know where the knife was. Then he ordered her to remove her pants and undergarments, which she did. He proceeded to have intercourse with her, despite her protests that she did not want to do it and that she was only 17 years old, when, in fact, she was 18 at the time. Her attempts to push him away were unsuccessful. Afterward, defendant told her to sit on a bunk in the back of the van. She covered herself with a blanket, and she and defendant had a conversation for 15 or 20 minutes. During this conversation, defendant was drinking beer and wine. Although defendant offered her some wine, she merely held the bottle to her lips and drank little, if any, of it.

Toward the end of this conversation, complainant observed the knife lying on the floor beneath the passenger seat of the van. After the conversation, defendant told the complainant to remove the remainder of her clothing and to lie on the bunk. Defendant then performed cunnilingus on her despite her attempts to push him away. When he finished, he proceeded to have intercourse with her a second time despite her protests.

After this second act of intercourse, defendant and complainant dressed and returned to the driver's and passenger's seats in the front of the van. They conversed, and when defendant pressed her for her telephone number, she wrote on a piece of paper her name and the number of a Dunkin Donuts store where she worked.

Then, defendant told her that he wanted to have intercourse a third time. He pulled her out of her seat into the back of the van and ordered her to disrobe, which she did. He then proceeded to perform cunnilingus on her a second time over her protests, and when this was completed, he forced her to perform fellatio on him. After this, defendant had intercourse with complainant a third time despite her protests that she did not want to do it and her attempts to push him away. Subsequently, defendant permitted complainant to dress, which she did. She then took the knife from the floor and ran out the passenger's side door of the van.

Complainant ran to the nearest busy street, where she observed a snow plow driving toward her. She informed the driver of the snow plow that she had been raped, and he made a call on a radio. She then entered the vehicle with the driver and another man. They drove to the street where the van was, and as the van drove toward them, it collided with the plow. She saw defendant when the police took him from the van. Afterwards, complainant was taken to the Rosemont police station and to the emergency room of Resurrection Hospital.

There is no need to discuss the other evidence presented at trial in detail. Complainant's testimony as to her escape from the van and the collision was corroborated by Anthony Fontana, who was employed by the Village of Rosemont and was plowing snow in a jeep with one Vito Corriero on the night in question. He testified in part that at approximately 2:30 a.m., they stopped their jeep for a girl who said she had been raped and who was crying and shivering. The girl showed them the knife which she claimed she had taken from the van. He also testified that about 30 seconds after the collision, the police arrived and pulled defendant out of the van. Officer George Albergo of the Rosemont police department testified that at 2:30 a.m. on January 14, 1979, he responded to a communication received over police radio. Upon arriving at the scene, he apprehended a black man whom he identified as the defendant and placed him under arrest. He also recovered the knife from a snowbank. Laura Schultz, a registered nurse at Resurrection Hospital, testified that she was working at approximately 3:55 a.m. on January 14, 1979, when the police arrived with the complainant, who was crying. She and a doctor examined the complainant. Schultz observed red, raw areas on the insides of both of the complainant's wrists and a small cut on her left arm. Officer Lee Mayer of the Rosemont police department testified to a statement made by defendant to him on January 14, 1979, in which defendant stated, in part, that complainant had agreed to have sex with him. The State and defendant stipulated that vaginal specimens taken from complainant showed the presence of semen containing spermatozoa; that there was blood on the complainant's panties; that hair fragments of negroid origin were removed from the panties and scarf; and that defendant was 25 years old at the time of trial.

The only defense witness was defendant. Although there are discrepancies between his testimony and that of complainant, we need not summarize his description of the events in question, except to state that according to his testimony, the sexual relations he had with the complainant were consensual.

I

Defendant's first argument is that various prosecutorial errors deprived him of a fair trial. The first alleged error is that the prosecution improperly cross-examined defendant as to the veracity of two prosecution witnesses, Officer Mayer and Officer Albergo. Specifically, defendant was asked if the officers were "wrong" or "incorrect" as to certain portions of their testimonies.

• 1 Illinois case law provides that "it is improper to attempt to force a defendant to judge the veracity of a witness against him since that represents an invasion of the province of the jury." (People v. Puente (1981), 98 Ill. App.3d 936, 946, 424 N.E.2d 775; People v. Hastings (1979), 72 Ill. App.3d 816, 823, 390 N.E.2d 1273; People v. Hicks (1971), 133 Ill. App.2d 424, 434, 273 N.E.2d 450.) The cross-examination complained of clearly violated this principle. The State responds that defendant waived this issue by failing to raise it in his written motion for a new trial. (See People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.) However, even assuming that this issue had not been waived, we conclude that the error committed did not contribute to defendant's conviction and was, therefore, harmless. Significantly, neither witness who was the subject of this questioning testified to the critical issue of consent or gave testimony relevant to the question of how many offenses were committed. While we do not condone this type of questioning, we cannot conclude that this error warrants the granting of a new trial in this case. People v. Puente (1981), 98 Ill. App.3d 936, 947.

Secondly, defendant argues that it was improper for the State, in the presence of the jury, to object to defendant's handling the knife allegedly utilized to commit the offense, while he was testifying as a witness. The record shows that defense counsel asked defendant to identify the knife, which had been marked as an exhibit of the State. At this point, the prosecution objected to defendant holding the exhibit, and the court instructed defense counsel to hold the exhibit and show it to him, but not to hand it to him. Defendant then identified the knife as belonging to him. Relying on People v. Collins (1980), 85 Ill. App.3d 1056, 407 N.E.2d 871, defendant contends that this objection stripped him of the presumption of innocence by making it appear to the jury that defendant was a dangerous man.

It cannot be doubted that a trial court, in the exercise of its duty to ensure orderly proceedings, may take reasonable safety precautions. (People v. Collins (1980), 85 Ill. App.3d 1056, 1059; see People v. Boose (1977), 66 Ill.2d 261, 266, 362 N.E.2d 303.) But the trial court may provide for such measures only when and to the extent justified by the danger of a significant interference with the orderly progress of the trial, and a hearing should be had outside the presence of the jury to determine the need for and propriety of any special ...


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