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06/04/87 the People of the State of v. Malcolm Bernard Elam

June 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MALCOLM BERNARD ELAM, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

509 N.E.2d 698, 156 Ill. App. 3d 685, 109 Ill. Dec. 37 1987.IL.756

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On September 11, 1986, following a jury trial in the circuit court of Champaign County, defendant, Malcolm Elam, was convicted of residential burglary and attempt (aggravated criminal sexual assault). (Ill. Rev. Stat. 1985, ch. 38, pars. 19-3, 8-4.) He was subsequently sentenced to concurrent terms of 10 years' imprisonment. On appeal, defendant contends (1) he was denied effective assistance of counsel; (2) the trial court erred in denying defendant's motion to proceed pro se at closing argument; and (3) the trial court considered improper aggravating factors in sentencing. We affirm.

The complainant, an 83-year-old woman, testified at trial (1) on April 17, 1986, she was awakened by the noise of a man entering her bedroom through a window; (2) the man disrobed and got into bed with her; (3) she attempted to escape but was held down and sexually molested by the man; (4) the man eventually got out of bed and took a bottle of liquor from the bedroom closet, drank some liquor, and returned the bottle to the closet; (5) she was then able to reach and push her "lifeline" button, a small remote control device which had been installed so that she could use it in medical emergencies to contact a hospital; (6) the telephone began to ring in response to the "lifeline" call; and (7) the man released the victim and fled. The complainant testified that she was unable to identify the man, because she had removed her hearing aid and glasses prior to going to bed. She also stated that the incident on April 17 was the third such incident, and she believed the same man was in her home on all three occasions. She indicated that on prior occasions the intruder caressed her. She said the man never hit or threatened her, but she was, nevertheless, too frightened to tell anyone about the prior incidents. She said that she did not consent to any of the activities which occurred, but she did not tell the man he could not come in the house or that he could not touch her. The parties stipulated that the fingerprints obtained from the liquor bottle matched defendant's.

Defendant testified in his own behalf. He stated (1) he lived across the street from complainant and had been at her house several times beginning in the late summer of 1985; (2) he and the complainant were having an affair, and the complainant voluntarily participated in the sexual relationship; (3) she always, initially, resisted his advances before becoming a copartner; and (4) she left money in her purse to compensate defendant for his services.

The Supreme Court has determined that, in order to establish ineffective assistance of counsel so as to require reversal of a conviction, the defendant must show (1) counsel's performance was deficient in that he made errors so serious that counsel was not functioning as "counsel" guaranteed by the sixth amendment, and (2) that the deficient performance prejudiced the defense and deprived defendant of a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) The court further said that the defendant must show that counsel's representation fell below an objective standard of reasonableness.

Defendant argues he was denied the effective assistance of counsel because of statements his trial attorney made during closing argument and counsel's failure to argue the defense of consent. The testimony elicited by the defense at trial from both the complainant, on cross-examination, and the defendant related to the issue of consent. However, defense counsel did not offer a jury instruction defining consent and argued in closing only that defendant did not possess the requisite intent to commit the alleged offenses. Counsel stated:

"The State has to prove beyond a reasonable doubt that when he entered this building, he did so with the intent to commit that crime. By this account and his perception it wasn't a crime . . . he was going in to do. Unless you totally believe that he's making all this up, his perception was that this was a part of their relationship that he was going in . . . to provide her with company in exchange for this money that she had been leaving for him in the purse.

Now, that doesn't mean that that is the objective reality of it, and I'm not arguing that to you at all. She is probably the best witness as to what the cold hard facts of the whole thing of that stands.

There is no question about the acts he did and the things that he did. The question that you're going to be wrestling with is what was his intent? You will see that all through the issues instructions, and the definitions, is a question of intent, and what were his intentions? Because with the second point they have to prove with regard to the charge of intent, was that the defendant did so, that is did the acts, with the intent to commit the offense of aggravated criminal sexual assault. That those were his intentions."

Finally, counsel argued that defendant was not guilty of a crime, but that he had a "distorted perception of reality." ...


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