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People v. Mckendrick

OPINION FILED NOVEMBER 13, 1985.

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

v.

MICHAEL MCKENDRICK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Paul A. O'Malley, Judge, presiding. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 26, 1985.

Defendant, Michael McKendrick, was charged with three counts of rape, three counts of deviate sexual assault, 10 counts of armed violence, two counts of unlawful restraint, four counts of home invasion and one count of intimidation. All the offenses involved the same complainant and were committed on three separate dates. Following a bench trial, the trial court found defendant guilty of all charges and sentenced him to a term of 18 years on each count of rape, the sentences to run concurrently.

On appeal, defendant contends that he was not proved guilty of rape beyond a reasonable doubt; that he was denied effective assistance of counsel; that the court improperly allowed the State to amend the indictment for deviate sexual conduct at the close of its case; that defendant was improperly tried for three separate offenses simultaneously; that the court improperly found defendant guilty of more than one offense arising out of the same physical act; that defendant was not proved guilty of intimidation or home invasion; that the court improperly admitted into evidence tape recordings of certain telephone conversations; and that the sentences imposed were harsh and excessive.

Complainant testified that on August 31, 1982, at about 7 p.m. she returned from the store to her apartment in Chicago. She was grabbed from behind by defendant as she placed her shopping bag on the kitchen floor. Defendant, who was armed with a knife, was formerly complainant's boyfriend. Defendant bound and gagged her, stripped her clothes off, and struck her. Defendant then took her camera and took photographs of her for 20 to 25 minutes.

Defendant removed the tape from her mouth and forced a glass of vodka and Valium down her throat. When she attempted to scream, he struck her in the head. Defendant then committed an act of anal intercourse. He dragged her to a bed, struck her, and tied complainant's hands and feet to the bed posts in spread-eagle fashion. He then raped her. When he finished, he dressed and cut complainant's hair off while she still lay naked on the bed. When complainant cried, defendant held the scissors up and threatened to cut her face. After about six hours, he pulled out complainant's telephone cord and departed.

Complainant informed a neighbor, and the police were summoned. Complainant was taken to a hospital, where it was determined that she had suffered swelling on her right lateral skull as well as multiple contusions to her head, chest, waist, and shin. Vaginal and rectal swabs were negative for spermatozoa. Photographs of complainant depicting her hair shorn were taken and were identified by her at trial.

Complainant testified that at approximately midnight on November 29, 1982, she was leaving her apartment when she saw defendant in the hallway. Defendant, armed with a screwdriver, forced her back into the apartment and knocked her to the floor. He grabbed a kitchen knife and threatened to kill her. Defendant ripped her clothes off and raped her. He then forced complainant to commit an act of oral sex. He raped her twice more, and demanded that she drop the criminal charges against him. Defendant finally left the apartment at 5 a.m., at which time complainant called the police. The police did not take complainant to a hospital because she was due at a hospital to visit her dying mother.

Complainant further testified that on March 29, 1983, at 5 p.m., defendant forced his way into her apartment as she left to empty garbage. Defendant threatened complainant with a kitchen knife, struck her, dragged her around the apartment, removed her clothes and raped her. He blamed her for his having been in jail and for losing his job. Defendant then forced her to commit an act of oral sex. Complainant received a telephone call from her sister, who in turn called the police. Defendant put on his clothes, looked out the window, saw a squad car pull up, and fled. The police took complainant to a hospital, where it was determined that she had suffered superficial abrasions to her neck and upper lip and scrapes to her right elbow and left knee. An examination of vaginal swabs and complainant's undergarments revealed the presence of spermatozoa.

On cross-examination, complainant testified that she had dated defendant regularly before the first attack in August 1982. She had voluntarily engaged in sexual intercourse with defendant, but had terminated her relationship with him before the August 1982 assault. In March 1982, she had signed a complaint against defendant for aggravated assault with a knife, but he was not arrested. At that time defendant threatened complainant with a knife and forced her to have oral sex with him. In April 1982, they resumed their relationship including regular sexual intercourse.

After the August 1982 attack she first heard from defendant on September 4, 1982, when he telephoned her. Thereafter, defendant telephoned 10 to 20 times a day threatening her. On November 3, 1982, she observed defendant in the hall of her building and immediately called the police. After the November 1982 attack, defendant persisted in telephoning complainant until January 1983, when she agreed to meet him to get the license plate number of his automobile. She dined with him on January 7 and 8, but he was driving a different automobile. On January 9, 1983, she obtained the license number. On that evening, after they parted, defendant forced his way into her apartment and raped her. Complainant notified police of the license plate number in February. Although defendant continued to telephone her, complainant did not see him until March 1983. Complainant was under the care of a psychiatrist since 1978 because of emotional distress and depression. The illness had resulted in hospitalization and a leave of absence from her job. She was taking Valium and also attended group therapy sessions in 1981 and 1982.

Complainant's sister testified that she spoke with complainant over the telephone on August 21, 1982, and that complainant was hysterical and crying. The sister saw complainant an hour later, and she had bruises on her face, her hair was cut to the scalp, and she had knife cuts on her throat. Complainant told her sister that she had been raped. Complainant again telephoned her sister on November 29, 1982, in an upset condition and stated that "he did it again." The sister saw complainant that afternoon and observed that she had scratches and knife cuts on her throat.

The sister again spoke to complainant over the telephone on March 29, 1983. Complainant sounded upset and the witness heard struggling with the telephone and defendant's voice in the background. Complaint's sister telephoned the police.

Defendant testified and denied each and every allegation contained in the indictments against him. Defendant testified that he had vaginal, oral and anal intercourse with complainant throughout their relationship and that all the sexual acts had been performed with complainant's consent. Defendant had previously tied up complainant as part of their sexual activity.

The prosecution introduced tapes of 98 telephone conversations between defendant and complainant from February 15 to February 24, 1983. The conversations had been recorded pursuant to court order. All calls were placed by defendant and most of them terminated by complainant. Throughout the conversations, defendant asked complainant to meet with him while she repeatedly ...


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