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People v. Kleba





Appeal from the Circuit Court of Cook County; the Hon. Robert L. Massey, Judge, presiding.


Following a bench trial, defendant was convicted of attempted deviate sexual assault, attempted rape, aggravated kidnaping and robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 10-2 and 18-1), for which the trial court sentenced defendant to concurrent extended terms of 15 years, 14 years, 20 years and 14 years, respectively. On appeal, defendant contends that: (1) the evidence is insufficient on all charges to sustain a finding of guilty; (2) the trial court erred when it denied a motion for new trial founded upon a new witness; (3) defendant was denied his sixth amendment right to counsel when forced to proceed with counsel not of his own choosing; (4) defendant was subjected to double jeopardy when, after defendant waived his right to a jury trial, the court sought to impanel a jury; (5) the indictment count for aggravated kidnaping fails to state a cause of action; (6) the extended-term provisions of section 5-5-3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(1)) are unconstitutional; (7) imposition of separate sentences for attempted rape, attempted deviate sexual assault, robbery and aggravated kidnaping is improper; and (8) the court violated Illinois statutory law when, over defendant's objection, it ordered the refund of defendant's bail deposit to his attorney of record. For the reasons that follow we affirm in part and reverse in part.

The pertinent facts disclose that in August 1979, defendant was indicted for attempted rape, attempted deviate sexual assault, unlawful restraint, *fn1 robbery and aggravated kidnaping. (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 8-4, 10-3, 18-1 and 10-2, respectively.) Defendant retained Samuel Wexler as his private counsel and, by agreement of the parties, trial was set for December 12, 1979. Between December 12, 1979, and October 27, 1980, trial was continued seven times. The record reveals that six of the seven continuances were at defendant's request and five of those six were requested because of Wexler's unavailability due to illness. Because of Wexler's continued illness, in June 1980 Bernard Brody filed his appearance as co-counsel for defendant.

On October 27, 1980, Brody appeared without Wexler and moved that the trial be continued once again due to Wexler's illness. Brody further informed the court that a continuance was necessary because defendant insisted that Wexler, not Brody, represent him at trial. The State objected to defendant's motion, citing the numerous continuances already granted defendant and the resulting inordinate delay. At this point in the proceedings, defendant attempted to formally discharge Brody as his counsel. The court, however, disallowed the discharge and accused defendant of indulging in dilatory tactics. Thereafter, the court ordered commencement of the jury selection, at which time defendant stated that he chose to waive his right to a jury trial. The court recognized defendant's right to waive trial by jury, but indicated that it would proceed, nonetheless, to impanel a jury for advisory purposes only. The court explained that it would not be required to follow the jury's verdict, rather, it would merely consider the jury's verdict in making the final determination. Upon defendant's vehement objection to use of the jury in an advisory capacity, the court recessed the proceeding to review relevant case law. Subsequently, citing the complexity of the advisory jury question, the court granted defendant's prior motion for a continuance and set the trial date for December 3, 1980. In setting the new date, the court advised defendant that if he was not satisfied with his present counsel, he should retain substitute counsel and be prepared to commence with the trial on the next date.

On December 3, Brody appeared on defendant's behalf and the trial commenced. The first witness to testify was Dr. Christopher Rose, who resided in a second-floor apartment at the corner of Wellington and Seminary in Chicago. Dr. Rose stated that on August 3, 1979, approximately 12:45 a.m., he heard what appeared to be a muffled female scream coming from below his open window which faced Seminary. He immediately looked out and saw a human form lying face down between two parked cars and a bicycle lying nearby. Upon running outside, he saw that a male was actually lying on top of another person. At that time he could not distinguish the sex of the person on the bottom and he could not see the face of the person on top.

Dr. Rose then testified that while he was upstairs calling the police, he watched the man get up and lead the other person, who he could then discern to be a female, south on Seminary and then west down the alley between Oakdale and Wellington. The man had his right arm around the woman and was carrying what appeared to be a metal object in his left hand, held near the base of the woman's throat. When the police arrived, Dr. Rose directed them toward the alley.

Complainant was next to testify and stated that on August 3, 1979, approximately 12:45 a.m., she arrived home from work and was standing in front of her apartment building in the 2900 block of Seminary looking for her keys when she was suddenly punched on the side of the face and knocked face down on the ground between two parked cars. Her assailant then jumped on top of her and threatened to kill her if she moved or screamed. After several minutes, the assailant put one arm around complainant's neck and the other arm around her back, yanked her to her feet, and forced her toward the alley which was a couple of feet away. Complainant then stated that while they were walking down Seminary toward the alley, she saw a woman with two dogs, but was unable to scream for help because of the armlock the assailant had around her throat. When they entered the alley, the assailant forced her toward a dimly lit gangway, then through a gate leading into a dark yard area where the assailant held her against the side of a garage, ordered her to pull down her jeans and underwear, bend over and clasp her ankles. While she was in that position, he began fondling her vagina with one hand while he kept the other hand pressed down on her neck. Complainant further testified that she heard the assailant start to pull down a zipper and she also heard "something rustle like, material like or something." Complainant also stated that at one point assailant momentarily stopped fondling her and moved his hand down her left arm to loosen her watch. When the watch fell to the ground, he picked it up and put it into his pocket. The assailant then yanked her head up and started pushing her toward a gate between two gangways that led to Oakdale, ordering her to jump over the gate or he would kill her. When a spotlight from a car going west on Oakdale flashed down the gangway, assailant pushed complainant to the ground and fled north toward Wellington. At no time did complainant see her assailant's face. She did, however, see the back of his hand, and, thus, could positively identify her assailant as a male Caucasian. In addition, complainant testified that her attacker had liquor on his breath and appeared to be a couple of inches taller than she.

Next, Investigator Clarence Oleskiewicz of the Chicago police department testified as to the following. On the morning of August 3, 1979, Oleskiewicz, a plainclothes policeman, was on duty with his partner, Investigator Poli. About 1 a.m. on that date, Oleskiewicz and Poli, in response to a simulcast, headed toward the 1100 block of Wellington. Upon arriving at the scene of the attack, Dr. Rose directed the officers to the alley between Oakdale and Wellington. The officers then drove west down the alley, looking through open gates for a Caucasian male and female. They did not see anyone. They then drove east down Wellington to Seminary, turned right on Seminary to Oakdale and proceeded west on Oakdale, shining their car spotlight down the gangways as they drove along until Oleskiewicz finally saw a Caucasian male apparently choking a Caucasian female in the alley behind 1140 W. Oakdale. He then began chasing the male on foot, through the yards, north toward Wellington. Shortly thereafter, another officer arrived and undertook a lateral pursuit. Finally, in the yard area of 1107 W. Wellington, the assailant ran into a locked gate and was tackled by the pursuing officers. Oleskiewicz testified that he never lost sight of the assailant from the time he first saw him to the actual arrest. At trial, Oleskiewicz identified defendant as the assailant.

Oleskiewicz further testified that when he searched defendant, he found a woman's watch in defendant's front pocket, which he then marked with his initials and inventoried at the police station. At trial, complainant identified the watch as hers and both arresting officers identified it as the watch found on defendant at the time of arrest.

Next to testify was Officer Bruce Stefan of the Chicago police department who stated that on August 3, 1979, approximately 1 a.m., he and his partner, Willard Streff, monitored a simulcast after which they proceeded to the 1100 block of W. Wellington. While driving west in the alley between Oakdale and Wellington, Stefan saw a Caucasian male running across the alley with another Caucasian male running about 10 feet behind the first. At trial, Stefan identified defendant as the first male and Oleskiewicz as the man chasing him. Stefan undertook a lateral pursuit of defendant on foot through the adjacent gangway. During the chase, defendant jumped the fence into the yard Stefan was in and proceeded northbound through that building's gangway toward the front yard where he ran into the front gate, bounced off it, turned, and was wrestled to the ground by the pursuing officers.

Finally, defendant testified that on the evening of August 2, 1979, approximately 9:30 p.m., after completing calls on potential remodeling customers, he stopped in a restaurant at Clark/Broadway/Diversey in Chicago. While in the restaurant, he met a young woman named "Candy" who invited him to her apartment in the 1100 block of W. Wellington. Defendant testified that he had one beer at Candy's apartment, engaged in sexual intercourse, then left at approximately 1 a.m. He then stated that while he was walking west on the south side of Wellington toward his car, a man ran out of the gangway, almost knocking him down. When he turned to see where the man was going, two other people jumped him from behind, knocked him to the ground and started punching him until he lost consciousness.

Defendant claims that when he regained consciousness, he was on a table in a hospital emergency room and had no recollection as to how he got there. Lastly, defendant denied all charges, denied that the watch was found on him, and claimed that the arresting officers had not read him his rights.

For purposes of impeachment, the State then moved to introduce defendant's record of prior convictions for rape and robbery into evidence. The court weighed the probative value of the evidence against the unfair prejudice resulting to defendant and concluded that, because the crime of robbery involved dishonesty and reflected on a person's likelihood to tell the truth, the record of robbery convictions would be admissible. However, because the rape convictions did not prove or disprove defendant's likelihood to tell the truth, the record of rape convictions was not admissible.

Immediately following closing arguments, the court rendered its decision and, thereafter, granted the State's motion to revoke defendant's bond. Post-trial motions were then set, and a presentence investigation was ordered. On December 23, 1980, defendant's motion to substitute counsel was granted. Shortly thereafter, defendant filed motions for new trial and arrest of judgment which were denied. Defendant's timely appeal followed.



Without admitting that the evidence proves beyond a reasonable doubt that he was the assailant, defendant contends that the convictions for attempted rape, attempted deviate sexual assault, robbery and aggravated kidnaping must be reversed because the State failed to present sufficient evidence at trial to establish the essential elements of each offense.


Attempted Rape/Presumptions

First, defendant argues that the State failed to prove beyond a reasonable doubt that he had the specific intent to rape complainant, or that he committed an act which constituted a substantial step toward raping her.

Pursuant to the Criminal Code of 1961, the offense of attempt is committed when "with intent to commit a specific offense * * * [a person] does any act which constitutes a substantial step toward the commission of that offense." (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a).) In the pending case, the specific offense charged is rape, defined by the Criminal Code as occurring when "[a] male person of the age of 14 years and upwards * * * has sexual intercourse with a female, not his wife, by force and against her will * * *." Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a).

Defendant relies on People v. Cieslak (1925), 319 Ill. 221, 149 N.E. 815, for his contention that proof of only an intent to commit a sexual assault is not sufficient to support a conviction for attempted rape. We find Cieslak factually inapposite to the case at bar, and, thus, unpersuasive. In Cieslak, defendant and complainant, an unmarried male and female, were visiting the apartment of friends. When the friends left to go on an errand, defendant and complainant remained at the apartment. When the friends returned, they found complainant sitting on the stair landing, her face badly bruised. Defendant had left. Complainant alleged that defendant threw her on the bed and beat her when she refused to have sexual intercourse with him. Defendant, on the other hand, claimed that complainant encouraged his advances and they fought only when she grabbed money from his pocket in payment for her sexual services. At trial, defendant attempted to introduce evidence of complainant's unchaste character. In disallowing the testimony, the court made some highly prejudicial remarks which were grounds for reversal on appeal. The Cieslak court never addressed the issue of whether an intent to commit a sexual assault was sufficient to support a conviction for attempted rape.

As an alternative argument, defendant relies on the recent Illinois Supreme Court decision, People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151, as support for its position that "one cannot presume from a given fact to another fact essential to sustain a conviction unless the presumed fact is more likely than not to flow from the proved fact." Defendant asserts that application of Housby to the pending case requires reversal of the attempted rape conviction because proof beyond a reasonable doubt of defendant's specific intent to have vaginal intercourse does not flow from the proved fact that an assault was committed.

It is our opinion that Housby has no application whatsoever to the facts of the instant case. The Housby court unequivocally confines its analysis of presumptions to those situations in which a defendant in exclusive possession of stolen property with no reasonable explanation for having the property is presumed to be guilty of burglary. *fn2 The court held that the unexplained possession of recently stolen property may support an inference of guilt of the crime of burglary only if (1) there is a rational connection between the possession and the participation in the burglary; (2) the guilt of burglary is more likely than not to flow from the possession of the burglary proceeds; and (3) there is corroborating evidence of guilt. Defendant's statement that "Housby is not limited to the presumption there considered, i.e., presumption of burglary from recent possession" is clearly not supported by Housby or its progeny. *fn3 Furthermore, application of defendant's interpretation of Housby to the case at bar would obfuscate the statutory definition of "attempt" and be tantamount to judicial usurpation of the legislature's amendatory functions.

In its argument, the State relies on People v. Almond (1975), 31 Ill. App.3d 374, 333 N.E.2d 236, as dispositive of the attempted rape charge. The Almond court held that the specific intent needed to convict the defendant of attempted rape could be inferred from circumstances of the assault itself. In Almond, the defendant attacked the victim from behind on a public street and knocked her to the ground. He then put one arm tightly around her neck and attempted to drag her into a nearby alley, threatening to kill her. At one point, the defendant held the victim against a car and tried to unbutton her clothing. He was interrupted by squealing tires and fled. In upholding the defendant's conviction for attempted rape, the Almond court stated:

"We feel that the defendant's choking the prosecutrix and pulling her in the direction of an alley, coupled with his attempt to disrobe her constituted a substantial step toward the commission of the crime of rape. Moreover, a trial court could infer from these circumstances, in spite of the fact the assailant never vocalized his intent, that he intended to rape the prosecutrix. Consequently, we hold that the acts of defendant in this case were in furtherance of the substantive crime of rape and constituted a substantial step toward the commission of the offense from which the trier of fact could infer the specific intent needed to convict the defendant of the offense charged." 31 Ill. App.3d 374, 377-78.

• 1 In the case at bar, defendant knocked complainant to the ground, repeatedly threatened to kill her, held her neck in an immobilizing armlock and dragged her into an alley where he forcefully held her next to a garage, ordered her to remove her jeans and underwear, then bend over and clasp her ankles. He then began fondling her vagina. After sexually assaulting her for several minutes, defendant ordered complainant to jump a fence into yet a more secluded area. It was at this point that the police interceded and defendant fled. Based on the striking similarities between the pending case and Almond, we hold that the acts of defendant in this case were in furtherance of the substantive crime of rape and constituted a substantial step toward the commission of the offense from which the trial court could infer the specific intent needed to convict the defendant of attempted rape.


Attempted Deviate Sexual Assault

Defendant further contends that the evidence fails to establish the offense of attempted deviate sexual assault. The statutory definition of attempt is given in section "A" herein. The relevant specific offense of deviate sexual assault is defined by the Criminal Code, in pertinent part, as occurring when "[a]ny person of the age of 14 years and upwards * * * by force or threat of force, compels any other person to ...

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