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People v. Carter





Appeal from the Circuit Court of Cook County; the Hon. Donald P. Joyce, Judge, presiding.


Rehearing denied January 24, 1985.

Following a jury trial the defendant was convicted of rape, deviate sexual assault and attempted armed robbery, receiving concurrent 40-year sentences for those crimes, to be served consecutive to prior concurrent 40-year sentences he had received on unrelated charges. On appeal defendant contends: (1) he was denied a fair trial by the prosecution's introduction of evidence that he was a gang member, had been arrested for other crimes, and had committed an unrelated offense just prior to his arrest; (2) improper prosecutorial comments in final argument to the jury denied him a fair trial; (3) the extended-term sentence for attempted armed robbery was improper where that offense was of a lesser class than the other two offenses; (4) the sentences must be vacated because the trial court failed to state on the record that it had found the factors necessary to permit extended terms and consecutive sentences; (5) those sentences must be vacated because the extended terms and the consecutive sentences were impermissibly based on the same conduct; (6) the trial court abused its discretion in sentencing the defendant to such lengthy terms.

We affirm defendant's convictions, reduce his sentence for attempted armed robbery to 15 years, and affirm his sentences in all other respects.

The prosecution's evidence at trial established the following: On April 27, 1981, Karen D., accompanied by her one-year-old daughter, walked to the 16-story housing project building where her mother resided on the ninth floor. As she waited outside the building for the elevator she observed a man approaching her. It was a sunny, clear day and the man stood about seven feet from her. She identified him in court as the defendant. She and her daughter got on the elevator, followed by the defendant. As the elevator began to rise, the defendant pushed the emergency stop button, pointed a knife with a 12-inch blade at Karen's stomach, and demanded her money and jewelry. When Karen said she did not have any the defendant forced her at knifepoint to turn her back to him and remove all her clothes, telling her he would make her pay for "being stupid." With Karen's daughter crying in the corner behind the defendant, Karen was made to get down on her knees, at which point defendant placed his penis in her mouth. He then made her lie down on her back as she pleaded with him not to harm her or her daughter and had sexual intercourse with her as he held the knife to her neck. After two or three minutes the defendant got up. Karen's daughter had crawled beside her mother and was crying. The defendant told her to "shut that bitch up" before he "cut her head off." Defendant then released the emergency button and left the elevator at the fifth floor, telling Karen not to dress for 15 minutes, not to leave for 30 minutes, and not to call the police because he would come back. Karen immediately went to her mother's apartment, where she called the police. When they arrived she described the defendant to them as five feet eight or nine inches tall, 145 pounds, dark complected, with long hair parted in the middle, a hairnet, dimples, a red eye, and a thick gold chain double-wrapped around his neck.

Karen was taken to the hospital, where a medical examination and tests revealed the presence of sperm in her vagina and evidence of recent trauma to her cervix, causing vaginal bleeding.

That evening at the police station, Karen examined three books of photographs and identified a picture of the defendant as the man who had attacked her. At about one a.m. on April 29, Karen was sleeping at her mother's apartment when a group of people brought the defendant into the apartment. Karen identified him as the man who had raped her. The defendant struck one individual and tried to run but was subdued by the people there. The police were then summoned.

The defense rested without presenting evidence.


• 1 We first consider defendant's contention that the State improperly introduced evidence of his gang affiliation, of his having been arrested before, and of his commission of a crime immediately prior to his arrest.

The alleged gang affiliation evidence consisted of testimony that the defendant had a tattoo stating "El Rukin" above his left nipple. The first testimony concerning this came from Officer Dennis Bolda, who was asked if he observed anything unusual about the defendant when he was taken to the hospital after his arrest. In addition to stating that the defendant was badly bruised and was wearing a double gold chain, the officer stated that defendant had the tattoo above his left nipple. No objection was offered to this testimony. Later another police officer, Katherine O'Brien, was asked by the prosecution to describe what she observed about the defendant at the hospital. She described his bruises, his chain, and the tattoo. A defense objection to this response was overruled. Defense counsel failed to specify the nature of his objection, and indeed, on cross-examination of Officer O'Brien, he elicited more details from her concerning the tattoo.

We do not find that the defendant was improperly prejudiced by this evidence. Although not included in the record on appeal, it is apparent that a photograph of the defendant which was taken at the hospital and was introduced into evidence depicted him with his shirt open or off and revealed the tattoo. Defense counsel had previously impeached Karen with her failure to include in her detailed description of the defendant the fact that he had a mole on his face and pierced ears. The prosecution may well have anticipated that defendant would argue to the jury that Karen's omission of any mention of the tattoo also impeached her testimony. Thus the prosecution elicited from Karen the fact that defendant left his shirt on in the elevator and they elicited from the police the information that the tattoo was not visible when the defendant had on his shirt. Given this proper purpose for the introduction of the evidence concerning the tattoo the fact that it might have also tended to prejudice the defendant was not a sufficient basis to exclude it. People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.

• 2 Defendant also contends that he was prejudiced when the prosection adduced evidence that Karen had identified his photograph from an array of photographs contained in several books shown to her at the police station. No objection was made to the admission into evidence of the book of photographs, nor has that book been included in the record on appeal so as to establish whether the photographs bore such incriminating information as the name of a police department or dates antedating the date of the current offenses at issue. (See People v. Wheeler (1979), 71 Ill. App.3d 91, 388 N.E.2d 1284.) Indeed, the record establishes that a jury request to examine this book was denied by the trial court. Defendant correctly notes that at one point a police officer testified that the photographs were of persons "arrested in the CHA," but defendant's objection to this was sustained, and the jury was instructed to disregard any reference to arrests. We do not find that this evidence was such as to unduly prejudice the defendant in the context of the very strong evidence of guilt presented by the prosecution, and consequently we find no ground for reversal on this basis. People v. Wheeler (1979), 71 Ill. App.3d 91, 388 N.E.2d 1284.

• 3 Defendant next contends that he was prejudiced when the prosecution adduced evidence of his commission of another crime — striking a member of the group holding him as he attempted to flee after Karen identified him in her mother's apartment. Clearly this evidence was admissible as evidence of flight, tending to show ...

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