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People v. Mcnutt

OPINION FILED JULY 18, 1986.

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

v.

ROBERT MCNUTT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, after findings of guilt, defendant was sentenced to concurrent terms of 25 years for attempted murder, and armed violence and 3 years for unlawful restraint. On appeal, it is contended that (1) he was denied a fair trial by the admission of irrelevant and prejudicial evidence; (2) he was not proved guilty beyond a reasonable doubt; (3) he did not receive effective assistance of counsel; (4) the jury was improperly instructed; and (5) his convictions for armed violence and unlawful restraint should be vacated as arising from the same conduct as was his conviction for attempted murder.

At trial, 16-year-old Detarie Harris testified that she was walking to her mother's house at about 8 a.m. on September 25, 1983, when Montique Kennedy, a local pimp she had known for 1 1/2 years, called to her by her nickname — "Dee Dee" — from across the street. As she continued walking, Kennedy drove up beside her in a blue Cadillac. He and three other men jumped out, forced her inside and then took her to Kennedy's apartment where defendant's sister, Linda McNutt ("Little Bit") and a woman named Michelle ("Micky"), both of whom worked as prostitutes for Kennedy, were also staying. She remained there for nearly three weeks during which time defendant made daily visits to see Kennedy.

Toward the end of the second week, she deliberately took an overdose of pills she found in the apartment, hoping that she would be hospitalized and thereby escape from him; but when he took her to the emergency room, he told hospital personnel that he was her legal guardian and, after treating her, they released her to his care.

On or about October 6, Kennedy took her out in his Cadillac — to which he had affixed the names "Little Bit," "Micky," and "Dee Dee" — to solicit men in cars for prostitution. As instructed by him, she flagged down one such car, but when she got in, she asked the man to take her to the Congress "L" station from which she ran to her mother's house. After learning what had occurred, her mother telephoned her father and the police and later signed a complaint against Kennedy.

On November 2, two of her friends, whom she had told of her abduction by Kennedy, beat him up at the funeral of a mutual acquaintance. Later that night, as she was walking home alone, he came up to her and said, "Come on, let's take a walk and talk." When she began to cry and back away, he grabbed her by the neck but, after a struggle, she broke free and ran. At that point, Kennedy, Linda and defendant each drew a gun and Kennedy threatened that she would be shot if she did not stop. He then grabbed her and took her to his apartment, repeatedly questioning her as to why she had caused a warrant to be issued for his arrest. When they arrived at his apartment, he instructed Linda to telephone her (Harris') father and tell him to pick her up. He then told her, "I'm not going to let no 16-year old young bitch send me to the penitentiary," to which defendant assented, telling her that he could not let her send "his man" to jail. About 20 minutes later, Linda returned and said that her father had agreed to meet them in the park. They left Kennedy's apartment, but instead of going to the park, they forcibly led her to an abandoned building where Kennedy then asked her to have sex with him. When she refused, he ordered her to go upstairs whereupon he threw a knife at her and then ordered her to pick it up and "go for what you know." She retrieved the knife and came toward Kennedy with it but before she reached him, defendant came up behind her and pinned her arms against her chest while Kennedy put something — which felt like some type of rope or cord — around her neck and began choking her. He then pushed her up against the wall causing her to fall and drop the knife. As she was lying on the floor, defendant sat on her ankles and began stabbing her in the legs while Kennedy and Linda repeatedly hit her about the face and chest. Kennedy then ordered Linda to give him the knife she had dropped and, as defendant continued to hold her down and stab her in the legs, Kennedy and Linda began stabbing her face, neck and arms. A short time later, they heard the voice of a man calling out from the stairway, "Who is that? What's going on?" whereupon Kennedy, Linda and defendant ran out of the building. Although she could not recall the details, the stranger whose voice they heard came into the apartment where she was lying and somehow took her downstairs, after which the police and an ambulance were summoned.

She underwent surgery that morning and then again two weeks later for injuries caused by the multiple stab wounds. At the time of trial, in June 1984, she was still receiving treatment for the scars and swelling resulting from the stab wounds and was deaf in one ear. She identified various exhibits, including the knife Kennedy used to stab her, a whip she had seen in his apartment, the clothes she wore that night and several photographs of the abandoned building.

Officer Schulz testified that when he arrived at the building, he heard someone calling for help and saw a shabbily dressed man standing over Harris, who was lying in a pool of blood from numerous cuts on her face, arms and legs. She was semi-conscious and, from her moaning, appeared to be in considerable pain. Due to her condition, she was able to give only short answers to his questions. When he asked her who was responsible for her injuries, she said "Que" — Kennedy's nickname — and "Little Bit" — referring to Linda. At that point, the ambulance arrived and transported her to the hospital. Upon inspecting the upstairs apartment, he found an electrical cord, a pipe, a whip and a knife and saw that there was blood "all over the floor." Although he briefly interviewed Harris at the hospital later that morning, the focus of his questions was on learning her identity rather than on gathering additional information about her assailants.

On defense, Jerome McNutt, defendant's brother, testified that on the night of November 2, he, defendant and two friends were sitting on his front porch drinking beer. At about 11 p.m., when he and his friends decided to take a walk, defendant went inside. He (Jerome) returned home at about 2:30 and saw defendant asleep in the room they shared. On cross-examination, Jerome acknowledged that he did not tell the police that defendant was at home that night and, in fact, had refused to speak with a sheriff's officer who came to the house after defendant's arrest to talk to him about the case.

Rosemary McNutt, defendant's mother, also testified that defendant came in the house at about 11 p.m. and that at 3 a.m. and again at 4:30 a.m., when she arose to check on her young grandson, he (defendant) was asleep in his bed. She next saw defendant at 5:30 a.m. when she left for work. On cross-examination, Mrs. McNutt stated that she did not tell the police that defendant was at home on the night in question because they did not ask her.

Following closing argument, defendant was found guilty and sentenced on all charges. His post-trial motion for a new trial was denied, and this appeal followed.

OPINION

Defendant first contends that he was denied a fair trial by the admission of evidence relating to various crimes committed by others prior to the occurrence of the crimes at issue. Specifically, he argues that the testimony of Harris that she was abducted by and forced to engage in prostitution for Kennedy, as well as that concerning her attempted, and eventually successful, escape from him, the warrant issued for his arrest and the beating inflicted upon him by her friends, was not only irrelevant but so prejudicial that its admission constituted reversible error. The State's primary responsive argument is that defendant has waived review of this issue by failing to object to the evidence at trial.

• 1 The general rule is that the failure of trial counsel to make a timely objection to the introduction of evidence operates as a waiver of the right to have the propriety of that evidence reviewed on appeal. People v. Lucas (1981), 88 Ill.2d 245, 430 N.E.2d 1091; People v. Jackson (1981), 84 Ill.2d ...


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