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People v. Poe





Appeal from the Circuit Court of Winnebago County; the Hon. Harris Agnew, Judge, presiding.


The defendant, James R. Poe, was found guilty after a jury trial of attempt murder, rape, aggravated kidnaping and armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 11-1, 10-2, 18-2). He was sentenced to 50 years' imprisonment for attempt murder, 30 years for rape, 15 years for aggravated kidnaping and 30 years for armed robbery; said sentences to run concurrently. The defendant appeals, contending that the trial court erroneously excluded as hearsay critical alibi testimony, that withdrawal of previously entered directed verdicts on the charges of aggravated kidnaping and armed robbery impermissibly placed him in double jeopardy for those offenses and that his conviction for armed robbery was improper as a matter of law.

S.W., the victim, testified that on the evening of August 1, 1981, she went with the defendant and a group of others to a series of parties in Winnebago County, Illinois. At that time she had known the defendant for four years. S.W. departed the last of the three parties at approximately 1:45 a.m. and began walking toward her boyfriend's house. As she walked down an alley, she was accosted by the defendant, who forced her into a nearby yard and raped her. The defendant ultimately took her to a wooded area and strangled her unconscious. When she regained consciousness, she found that her throat had been cut. A doctor testified that a four- to five-inch cut had been made in her throat and that she had lost a third of her blood volume. A vaginal swab and smear were taken, which tested positive for the presence of seminal material.

Pamela Thulander testified that the defendant left the last of the parties not more than five minutes after S.W.'s departure. The defendant did not appear intoxicated at the time.

The defendant was arrested at approximately 6 a.m. on August 2. He was wearing wet, blood-stained blue jeans. S.W.'s gold watch and pocket calculator were recovered from his person, along with two knives. One of the knives contained traces of human blood. Seminal material was found on the defendant's undershorts, but none was found upon laboratory analysis of S.W.'s clothing. Both the defendant and S.W. had the same blood type.

The defendant denied his guilt of these offenses. He testified that he left the last of the parties about five or 10 minutes after S.W. He had been drinking heavily and, as he walked toward his home, he knelt and was sick near a drainage ditch. He did not see S.W. leave the party, nor did he encounter her during his walk. He arrived home and was met by his mother. He placed a telephone call to Lauri Frier, his girl friend. He spoke to her for approximately 30 to 45 minutes, ending the call at about 3:15. The defendant testified that his jeans had been clean at the time he went to the first of the parties, and he denied that at the time of the arrest they were soaked through or wet as far up the legs as the arresting officer had described. The defendant carried a sheath knife virtually everywhere he went, but did not use it for cutting. The blood found on the knife might have resulted from the defendant's cutting himself the last time he had cleaned it. The blood on his pants might have gotten there during one of the parties, when a small scrape on his elbow from a fight two weeks previously began to bleed. Further, he had had sexual intercourse "maybe a day or two" before August 1 and had worn his undershorts "probably one or two" times before that date.

Clifford Keen, a friend of the defendant's, testified that the defendant left the third party 15 or 20 minutes after S.W. The defendant's mother, Bessie Phillips, testified that the defendant returned home about 2:35 on the morning of August 2. He made a phone call, made himself a pizza and went to sleep.

• 1 The first issue is whether the trial court committed reversible error by excluding as hearsay testimony of an alibi witness that the defendant was speaking to her on the telephone shortly after the crime.

Among the witnesses called by the defense was Lauri Frier, the defendant's girl friend. When the defense counsel sought to question her concerning a telephone conversation she had during the early hours of August 2, the State objected, challenging testimony about the details of the conversation as hearsay. The court sustained those objections, and defendant attacks the correctness of those rulings on appeal.

Miss Frier testified that she arrived home at 2 a.m. on August 2. At 2:30, shortly after she went to bed, the telephone rang in her bedroom. Her sister answered the phone, but Miss Frier then spoke to the caller. Defense counsel then asked the question, "Who was on the phone, if you know?" but the court sustained the State's objection before an answer could be given. Miss Frier was then permitted, over the State's objection, to testify that she talked to the other person on the line. Defense counsel then asked whether the person on the line identified himself or herself, and the State interposed another objection. Defense counsel made an offer of proof that the witness would testify that she talked to the defendant, and the court sustained the objection. Continuing with her testimony, Miss Frier testified that the conversation lasted 45 minutes, after which she went to sleep.

Leading commentators have summarized the evidentiary rules relating to telephone conversations as follows:

"Communications by telephone do not authenticate themselves. A mere assertion by the speaker as to his identity, being hearsay, cannot be taken as a sufficient showing of his identity. Testimony that the witness was familiar with and recognized the speaker's voice is obviously sufficient * * *. The familiarity may be acquired prior to the conversation * * * or afterward * * *. Authenticating evidence may also be circumstantial, such as contents of the statement or the reply technique." (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 901.7, at 489 (3d ed. 1979).)

Thus, a telephone conversation may be authenticated either by direct or circumstantial evidence. (People v. Patten (1982), 105 Ill. App.3d 892; see Annot., 79 A.L.R.3d 79 (1977).) However, testimony as to a telephone conversation between a witness and the accused is inadmissible in the absence of a claim by the witness that he knows the accused or could identify his voice, or in the absence of other evidence or corroborative circumstances from which he might be identified as the person to whom the witness talked. People v. Metcoff (1946), 392 Ill. 418.

The instant case involves rulings by the trial court which sustained prosecution objections to two questions posed by defense counsel to an alibi witness. It is clear that Frier's testimony was ...

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