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People v. Shelby

OPINION FILED MARCH 30, 1984.

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

v.

DAN SHELBY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Cornelius J. Houtsma, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT: Following a jury trial in the circuit court of Cook County, defendant was convicted of home invasion, attempt rape, residential burglary and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11, 8-4(a), 19-3, 10-3, respectively), and was sentenced to terms of 20 years for home invasion, 12 years for attempt rape, and 12 years for residential burglary. He was not sentenced for unlawful restraint. On appeal, he contends that: (1) the trial court erred in denying his motion in arrest of judgment because count III of the information failed to state an offense; (2) his identification was not established beyond a reasonable doubt; and (3) he was not proved guilty of the offenses beyond a reasonable doubt. For the following reasons, we affirm the judgment of the circuit court.

The record discloses that between 10:30 and 11 p.m. on September 13, 1982, the complainant, who lived in a house in Dixmoor with her mother and niece, went to bed. She was wearing a short nightgown. Shortly after midnight, she was awakened by pressure on her bed that felt like someone was getting into bed with her. At the time, she was lying half on her back and half on her side. When she opened her eyes, she noticed that her bedroom window, which she had closed before going to bed, was now open. She then turned to look behind her and saw a hand coming down over her face covering her mouth and heard a voice say, "shish." She screamed and started kicking and swinging at the hand. The person in bed with her was swinging at her in an effort to grab her hands. The struggle lasted between 1 1/2 and 2 minutes, after which the person got out of bed and leaped out the window.

The complainant testified that she saw the side of the intruder's face as he leaped out of the bedroom window which was illuminated by a street light. She described the intruder as a black man, approximately five feet six inches tall with no facial hair, a muscular build, and wearing dark clothes. She later identified defendant as the intruder. Complainant then got out of bed and went to her niece who was in the living room. Her niece tried to shut the bedroom window, but was unable to do so. Complainant then telephoned the police.

Further testifying, complainant stated that after the police took her statement and left, Reginald Fitzgerald, a neighbor, told her that the man he saw running away from her house was Dan Shelby. She went to the police station the next day, viewed a lineup and identified defendant on the basis of his height, hair and arm muscles. She further stated that she knew defendant before the incident and that he lived within four blocks of her house. Complainant was unmarried and never gave defendant permission to enter her house or her bedroom.

On cross-examination, complainant acknowledged that when she was interviewed by the police prior to the lineup, she did not tell them that Dan Shelby was the person who had entered her bedroom. Further, she did not immediately tell her niece that the person in her room was Dan Shelby.

Antoinette Kimmons, complainant's niece, stated that she had been watching Monday Night Football and fell asleep on the couch in the living room. She was awakened by complainant's screams in the hallway outside her bedroom. She further stated that complainant told her that someone was in her room and that she sounded frightened at the time she made the statement. Kimmons walked to complainant's bedroom and tried to close the window, but it would not close.

Reginald Fitzgerald then testified that on the night of September 13, he was sitting in his automobile, in front of his house, smoking a cigarette and listening to the radio with the windows rolled down when he heard noises coming from complainant's house, followed by screams. He got out of his car and walked toward the front of complainant's house. When he got to the front walkway, where there was an opening in the hedge, he stopped, and while standing there, he saw a male peek over the hedge to his left. The man was about 15 feet from where Fitzgerald was standing. Fitzgerald was able to view the man's face for approximately four seconds and recognized him as defendant. Fitzgerald further testified that defendant was wearing a dark colored T-shirt and dark colored pants. Defendant then ran in a northerly direction on the other side of the hedge from where Fitzgerald was standing and Fitzgerald ran after him.

At trial, Fitzgerald identified defendant as the person he saw that night. He further stated that after defendant ran past complainant's house, he lost sight of him. However, he thought that defendant had run down the gangway next to a house north of complainant's house. While searching for defendant, Fitzgerald saw Janice Ratliff standing with a group of people on the corner of 142nd and Marshfield. He knew that Ratliff was acquainted with defendant, but did not inform her as to the name of the person he was chasing.

Further testifying, Fitzgerald stated that he was acquainted with defendant and knew where he lived in Dixmoor. In addition, he stated that he had heard certain things about defendant from people in the neighborhood. After losing sight of defendant, Fitzgerald returned the complainant's house and saw Irene Riley and Hoover Darden walking up the driveway.

On cross-examination, Fitzgerald stated that he recognized defendant when he first looked at him, but the first person he told that night that the person he chased was defendant was a police officer.

Irene Riley, complainant's mother, testified that approximately midnight, she was standing across the street from her house talking to Hoover Darden, a neighbor, when she saw two boys running down the street. She recognized the second person as Fitzgerald, but did not recognize the first person who she described as five feet tall, with a muscular build, medium afro, and wearing dark clothing. Irene saw the first person run between the two houses just north of her residence. Fitzgerald later returned, crossed the street, and told her to check on complainant because she was screaming. Irene and Darden then went to Irene's house and saw complainant sitting on the couch, screaming.

Hoover Darden's testimony was substantially similar to that of Irene. However, he did not give a description of the first man he had seen running except to say that he was a black man.

Albert Romito, a police officer with the sheriff of Cook County, testified as an expert witness based on his experience as an evidence technician. Romito stated that he was contacted by the Dixmoor police and went to the Dixmoor police department where he dusted a pane of glass for fingerprints and lifted four latent prints.

Joseph Mortimer testified as an expert print examiner and stated that he received the four latent prints and three of them were not suitable for comparison, and the one suitable print had not been made by defendant. Mortimer further testified that this latent print was identical to a print of complainant.

Against this evidence, the defense first presented Mildred Shelby, defendant's mother. She testified that on September 13, 1982, at 11:45 p.m., she was at her house in Chicago Heights when her son, Daniel Shelby, Jr., arrived and entered the kitchen. He then stayed at the Chicago Heights home. He was wearing a beige shirt, blue jeans and blue gym shoes. Approximately 12:30 a.m., she received a telephone call from her son David who was at their other home in Dixmoor. He wanted to talk to his father, thus Mrs. Shelby woke her husband. After speaking to David, her husband called the Dixmoor police station. Approximately 3 a.m., her husband and Daniel left the house.

On cross-examination, Mrs. Shelby stated that the Dixmoor police did not call her house that night and that her son Daniel did not own a dark shirt. Further, she testified that all of Daniel's clothes were purchased by her and ...


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