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People v. Burba





Appeal from the Circuit Court of Cook County; the Hon. Lawrence I. Genesen, Judge, presiding. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 16, 1985.

Defendant, Joseph Burba, was charged by information with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2)); attempted rape (Ill. Rev. Stat. 1981, ch. 38, par. 8-4); and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3). Defendant raised the affirmative defense of voluntary intoxication (Ill. Rev. Stat. 1981, ch. 38, par. 6-3). Following a jury trial, defendant was convicted of attempted rape and deviate sexual assault and was found not guilty of home invasion. He was sentenced to extended terms of 35 years for deviate sexual assault and 20 years for attempted rape, to be served concurrently.

Defendant appeals, presenting the following issues for review: (1) whether the trial court erred in denying defendant's motion for a continuance on the basis that his expert witness was unavailable; (2) whether the trial court erred in allowing into evidence for impeachment purposes defendant's prior burglary convictions; (3) whether certain remarks of the prosecutor in closing argument constituted reversible error; (4) whether defendant was proved guilty beyond a reasonable doubt; (5) whether the trial court failed to order a "timely" presentence report; (6) whether the trial court failed to consider factors in mitigation in sentencing defendant; and (7) whether the trial court erred in imposing extended-term sentences.

Defendant was arrested on November 26, 1982; his case was on the trial court's call for two years before coming to trial. Prior to trial defendant had been granted two continuances: one on March 13, 1984, for unspecified reasons; a second on April 13, 1984, because defendant's expert witness, Dr. Sellers, was not available to testify. On April 23, 1984, the date set for trial, after the voir dire of jurors had begun, defendant again sought a continuance because Dr. Sellers was unavailable. The trial court denied the motion for a continuance. Defense counsel stated that he had contacted the Alcohol Treatment Center at Ingalls Hospital and had been told that a doctor would be available to testify as an expert for defendant, but that he had not yet spoken with that doctor.

The court then stated:

"Well, all right, we will let the State know as soon as possible. If I feel that they need time, reasonable time to get them an expert, I will give them additional time, but I expect both sides to be as diligent as possible. We do have a jury in the box. I can see giving this a one day delay, if necessary, or whatever else is close to that. If either side has difficulty with their witnesses, but be diligent please."

The next day, April 24, 1984, the court allowed defendant to amend his discovery answer to add the name of Dr. Shumak of Ingalls Hospital as defendant's expert witness. The defense did not request additional time to prepare that witness. When trial resumed on April 25, 1984, the defense called, not Dr. Shumak, but Dr. Abrams of Northwestern University Hospital as its expert witness. The defense did not request additional time to prepare Dr. Abrams for trial.

On April 24, 1984, the defense moved to bar the introduction into evidence of defendant's prior burglary convictions on the basis of inadequate notice to the defense as well as prejudice to the defendant. The court denied the motion.

At trial, the complaining witness (AC) testified: She was 64 years of age at the time of the offense and lived alone on Springfield Street in Chicago. On November 26, 1982, she left her home shortly after 9:30 p.m. to look for her dog. As she stood "in the alley behind an apartment building," the defendant approached her and began a conversation. He continued to walk with her down the alley. He did not slur his words, stumble or lean on her for support. When she reached her home, she told the defendant not to come into her yard, but "to remain outside of her gate." However, after she unlocked her door, defendant forced his way into her house. Defendant dragged her into the kitchen, where she picked up the telephone receiver. Defendant replaced the telephone and told her that if she resisted him he would break her arms. He dragged her into the bedroom and threw her onto her bed with her head hanging over the footboard. Defendant removed her dentures and placed his penis into her mouth. While holding her down with one arm, he removed her slacks and began to remove her pantyhose with the other. There was a knock at the door, and the victim was able to twist her head away from defendant's penis. Defendant began to leave the house.

On cross-examination, AC testified that when she met defendant in the alley, he told her that he was returning from a tavern; she did not remember stating at a preliminary hearing on November 29, 1982, that defendant told her "he drank a lot" or that when she encountered defendant he "appeared to be intoxicated."

AC's neighbor, Marie, testified: She lived next door to AC. On November 26, 1982, she "heard loud noises" at about 10:30 p.m. She looked in AC's kitchen window and saw defendant attacking AC. She then telephoned the police.

Brian Burke testified that he is a Chicago police officer. On November 26, 1982, he responded to a call of "home invasion in progress" at AC's address. When he and his partner reached the house, defendant ran out the side door. Defendant's pants were open, and he appeared "calm." When Burke's partner grabbed defendant, defendant stated, "Everybody is all right." When Burke entered the house, AC told him, "I have been attacked." On cross-examination, Burke stated that when they placed him under arrest, defendant began to struggle with the police officers.

Defendant testified as follows: In 1981 he had pleaded guilty to three "garage burglaries." Over the past several years he had "used alcoholic beverages" as well as "PCP, cocaine, valium, and heroin." He had used alcohol since his junior year in high school. He had begun using other drugs while in the army. He believed he was "in need of" a drug abuse program.

On November 26, 1982, he had gone to visit his mother at about 11:30 a.m. He drank a quart of beer en route to his mother's house. He ate while at his mother's. At approximately 3:30 p.m. he left for a tavern called "T.R.'s Pub." He had "about ten beers and eight to ten mixed drinks" at the tavern. He also ingested "ten to fifteen cents worth" of the drug PCP while at the tavern. He ate no food after leaving his mother's home. The last thing he remembered before waking up in a jail cell the next day was playing "the baseball machine" at the tavern.

On cross-examination, the defendant testified: Although he had been using drugs for nine years, he had never before sought help for his problem. On other occasions when he used PCP, he had "sometimes been unable to recall what happened." He did not remember ever seeing AC before trial. He did not recall attacking her.

It was stipulated that defendant was 28 years of age on the date of the offense and that at 1:30 a.m. on November 27, 1982, at Little Company of Mary Hospital, defendant's blood was analyzed and found to contain "one hundred eighty-six milligrams per deciliter of ethanol." His blood was negative for "amphetamines, barbiturates, benzothiadiazines, cocaine, methadone, opiates, propoxyphene, and phenothiazines."

Dr. Richard Abrams testified as an expert witness for defendant as follows: Based on the stipulated "blood level" of the defendant at 1:30 a.m., he estimated that defendant's "blood level" at approximately 10 p.m. the night before would have been "two hundred sixty-five." In Dr. Abrams' professional opinion, the defendant "was not ...

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