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People v. Green





Appeal from the Circuit Court of St. Clair County; the Hon. John J. Hoban, Judge, presiding.


A St. Clair County jury found defendant Kevin Green guilty of rape and deviate sexual assault. The court sentenced defendant to concurrent terms of six years of imprisonment. Defendant appeals contending that he was not proved guilty beyond a reasonable doubt.

We refer to the victims as Shirley and Helen. Shirley testified on direct examination as follows: She first met defendant through her ex-boyfriend, Paul Graham, about two years prior to June 3, 1983, the date in question, when Graham was "staying" with her at another address. Defendant had been to her present residence once before. On that occasion she saw defendant at "Jupiter's"; she told him about "problems" she was having with her neighbors; he trailed her to her house; he was there half an hour, during which he met Shirley's landlord and "told my neighbor that he would be by there to check on me, which I hadn't seen him in two weeks before that night." On June 3, 1983, the night in question, at about 4 a.m., she was in bed; her friend Helen was also there. Someone knocked at the entrance door. At first he had his head down and she did not recognize who it was. It was defendant. She told him "don't you know all people are in bed at this time in the morning," but she let him in: "Because we were going as play brothers and sisters, and you know he would come by, if I have problems or something. Trusting him." In her bedroom ("I don't really go in my living room for anything"), she sat on the bed, he in a chair, talking about his meeting with Graham earlier that night, until defendant began to nod off. She showed him to the living room couch, then went for a bedspread. When she returned, defendant was in the living room doorway, gun in hand; he knocked the spread from her hand. She "leaped on him" and wrestled for the gun. "[W]e wound from the living room into the bedroom where Helen was at." Helen got out of bed; "that's when he started slinging me up against the wall," bruising her right leg. He cocked the gun, ordered them into the living room, and told them to undress. Then he ordered them into Shirley's bedroom and forced Shirley to perform oral sex on him and forced Helen to perform oral sex on Shirley. He told Helen to go back to bed. Shirley put her pajamas on. He and Shirley talked in Shirley's bedroom while Shirley wiped blood from her leg; "he said, `Don't you remember when me, you, and Paul went over in St. Louis to Sally's house?' I say, `Yes.' He say, `Remember when Paul had accused me of trying to talk to you?' I say, `Yes.' Like that. He say, `have I ever touched you?' I said, `No.' He said, `Have I ever tried to touch you?' I said, `No.' He said, `I'm tired of people accusing me of something I know I haven't did.'" The gun was in his hand as they spoke. Minutes later, he told her to strip, and he performed oral sex on her and raped her at gunpoint. She saw Helen trying to get downstairs, so "I said would you ask Helen to come in here with me," because she did not want to be alone with defendant. Helen came into the bedroom. Defendant, still lying on Shirley, told Helen to sit on the bed. He held the gun to Helen's head and told Shirley, "you better act like you like it." Then he ordered Helen to undress and perform oral sex on him. He raped Shirley again, then made Helen perform oral sex, first on him, then on Shirley. He offered to let Shirley shoot him, though it does not appear from her description whether he relinquished control over the weapon. He told them to lie on their stomachs; he asked if they had any vaseline; Shirley said no. He got on top of Helen and "stuck the gun somewhere near her behind." Helen started to cry. Defendant made Shirley perform oral sex on him again. Soon thereafter he fell asleep, but first he threatened to kill her if she went to the police. Shirley and Helen ran downstairs. Helen ran back up and retrieved their clothes. A man across the street took them to a telephone, where they called the police. Shirley denied ever having sex with defendant before the night in question.

Shirley testified on cross-examination: She had been in defendant's company four times altogether, including the once at her present residence, though she had seen him other times. He had visited her other residences, but always with Paul Graham, with whom she was staying then. Asked to explain "play brothers and sisters," she stated: "We'd started that on 11th and Bond [her former residence], since him and Paul were real close, and he's the one that said we were play brothers and sisters. Let's go as play brothers and sisters." She let him in: "Because he said he was coming by to check on me, and I thought I had knew him." Asked what he was checking on, she replied: "Checking to see if I was all right, if I was having any more troubles out of my neighbors." She knew he was a security guard. She replied affirmatively when asked whether defendant had intercourse with Helen. She denied telling an officer that she thought defendant was a man named Gary.

Helen testified on direct examination: On the date in question, she heard Shirley answer the door and ask "what are you doing coming over at this time and hour." Later, she heard "arguing or something." Suddenly they were in her room; defendant had a gun. Helen had never seen him before. Defendant ordered them to disrobe. Then he told Helen to put her clothes back on and go back to bed. He and Shirley went into Shirley's bedroom, the door nearly closed. Helen was sneaking down the stairs when Shirley hollered, "Helen, don't try nothing." Helen climbed the stairs. On Shirley's request, defendant told Helen to come in. She did. He was lying on Shirley. After a few minutes, he told Helen to take her clothes off. She told him she was menstruating. He said he did not care. He ordered Helen to perform oral sex on Shirley, then on him, at gunpoint. He made both of them lie on their stomachs, "but he didn't do nothing you know, but he did kind of put that gun up in my behind a little bit." He made Helen perform oral sex on him again, then fell asleep. Helen and Shirley ran downstairs, but Helen returned to retrieve Shirley's clothes. A man across the street took them to a telephone.

Asked on cross-examination whether she had left anything out on direct, Helen testified that "he just made me get on top of him, you know, he put his penis in me, but it wasn't for long, didn't last no time." She admitted that she must not have told Detective Boone, who took her statement," because it ain't in my statement, but he did do that, you know." She explained: "By everything has happened, you know, it kind of slipped my mind, you know." She was almost at the foot of the stairs when Shirley called her back; "that startled me, because I didn't know whether that man was going to come to the stairs and start shooting or what." She estimated that the entire sequence of events lasted 3 1/2 hours.

Alma Ray, an emergency room nurse at St. Mary's hospital, testified for the State that she was on duty when Shirley and Helen arrived accompanied by a police officer. According to Ray, Shirley had abrasions on her right knee and right lower leg; she had no other injuries; Shirley was calm when she arrived, but when Ray took her to a private room, Shirley became very upset, crying at intervals as she related the story. Ray testified that in her experience it was quite common to find no physical injuries in a rape case.

On cross-examination, Ray testified that Vitullo evidence kits were used on Shirley and Helen; however, Ray had treated only Shirley.

Helen Sandkuhl, also a registered nurse, testified for the State that she treated Helen in the emergency room: Helen stated that she had been raped and forced to commit oral sex; she had no injuries. Sandkuhl testified that in most rape cases she had treated there was no external trauma. According to Sandkuhl, the Vitullo evidence kit tests would indicate the presence of semen in the vagina after a rape, or in the mouth after oral sex, unless the man did not ejaculate. Sandkuhl testified that tests for presence of semen in the mouth could be defeated if the person drank something or swallowed many times since the act.

James Jarrett, an East St. Louis police officer, testified for the State that at 7:55 on the morning in question, he was dispatched to Shirley's address; he and Officer Rodell Andrews accompanied Shirley and Helen upstairs; defendant was lying on a bed; a loaded gun was underneath him; he was clad in only a shirt. According to Jarrett, the women were "terribly upset"; he noticed an injury to Shirley's right knee; Shirley told him that when she first let defendant in she thought he was an old friend named Gary.

On cross-examination by defense counsel, Jarrett testified that Shirley told him defendant did what he did because he had had an argument with Graham, and that defendant was getting back at Graham.

Defendant testified in his own behalf as follows: He worked as a security guard; he had never "really seen" Helen prior to the instant trial; he had known Shirley five years; they "had a few relationships, like girlfriend, boyfriend"; he had intercourse with Shirley "quite a few times." About a month before the date in question, defendant told Shirley that he and his wife had separated. "I was tired of being by myself, since we had been messing around * * * we was going to be together." Two days before the date in question, he and Shirley spoke to Shirley's landlord, Marvin Faulkner, about defendant renting an apartment downstairs from Shirley's "so we could be close." On the date in question, defendant and Shirley talked about defendant's relationship with his wife: Shirley had seen defendant with his wife "and I explained to her we were talking about getting back together because I really had not made any promises to her. She was the mother of my children." Shirley did not like that: "She stated that if I didn't stay there she would — [Question intervenes.] She would never send me back with my wife." He did not have intercourse with Shirley that night. He arrived at her home at 4 a.m.; his car had had a flat tire in the rain; she let him in; he went upstairs and slept. Shirley knew he carried a weapon as part of his job; he placed it under his pillow.

On cross-examination, defendant testified that he had been out drinking that night with Paul Graham. Defendant testified on redirect that Faulkner, the landlord, had probably seen him at Shirley's apartment several times "because he was outside working."

Michael Brown, a forensic scientist employed by the Illinois Department of Law Enforcement, testified for defendant as follows: Tests of oral and rectal swabs from both victims for the presence of seminal material had negative results. There was seminal material present in Shirley's vaginal swab, but only a small amount. "If there is ejaculation given that there isn't circumstance which would quickly clean the seminal material out, you would expect to find more than just a trace within several hours." In his opinion this finding would be consistent with (1) the woman having had intercourse 24 hours before the ...

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