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08/24/87 the People of the State of v. William Dunn

August 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM DUNN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

513 N.E.2d 113, 160 Ill. App. 3d 11, 111 Ill. Dec. 867 1987.IL.1221

Appeal from the Circuit Court of Cook County; the Hon. Frances Mahon, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a jury trial, defendant, William Dunn, was convicted of rape, armed robbery, home invasion, and burglary. Defendant was sentenced to 10 years' imprisonment for burglary and to a term of 30 years' imprisonment for armed robbery, home invasion and rape, the sentences to run concurrently. Defendant appeals from the convictions, contending that (1) the State's introduction of evidence of other crimes denied him a fair trial; (2) evidence that the defendant refused to sign a medical consent form was improperly submitted; (3) the court erred in restricting the cross-examination of an accomplice witness regarding his prior juvenile convictions; (4) testimony by the accomplice witness that defendant had confessed was improperly admitted into evidence; and (5) he was not proven guilty beyond a reasonable doubt.

At trial, the victim testified that on the night of March 8, 1979, while asleep in the bedroom of her home in Mount Prospect, Illinois, she was awakened by someone placing a pillow over her face. As the pillow was being pushed on her face, she looked out from under it and saw her son and a second man with a flashlight at the end of the bed. The man at the end of the bed was holding a red pipe in his hand. The man who pushed the pillow on her face ordered her to lie on her stomach and he then tied her hands behind her back. Although she never saw a knife, she felt something sharp pressed to her stomach. The victim twice asked her son if he was all right, to which he replied that he was. The man who had tied her up asked where her money was and she told him. He was angered by the fact that she had only $20. The man went through the drawers in the bedroom and took the victim's rings. He instructed his companion to take the victim's son out of the room. He told the victim to roll over onto her back and he forced her to engage in acts of oral copulation and sexual intercourse. The second man reentered the room and the two men proceeded to cut a lampcord and tie the victim's hands and feet and gag her with a pair of her pantyhose. The men left the home and the victim was eventually able to free her hands and run to check on her children. At a police lineup, the victim was unable to physically identify the intruders but did identify the voice of defendant as the voice of the man who raped her.

The victim's son, who was nine years old at the time of trial, corroborated much of the testimony given by his mother. His testimony followed an examination by the court that he was competent to testify. He stated that on the evening of March 8, 1979, he went to bed and later that evening went to his mother's room to sleep in the bed next to her. He was awakened by a flashlight being shined in his face. He noticed a second man standing in the doorway to the bedroom. The man with the shorter hair tied his hands behind his back and took him out of the room. The same man asked him where his sister's room was and the victim's son showed him. The man entered the sister's room and removed money from her toy bank. The sister remained asleep. The man told the victim's son to get in his bed and he tied his hands behind his back, tied his feet together and put a gag over his mouth. At the police station, from a group of photographs, the victim's son identified the defendant as the man who had stayed in the room with his mother and Michael Hollander as the man who stayed with him. The victim's son was unable to identify either man at trial.

Michael Hollander testified that he had known the defendant for approximately six months prior to March 8, 1979. Hollander stated that he was charged in this case with burglary, armed robbery and home invasion and had entered into an agreement with the State to plead guilty to all charges and receive a sentence of six years in exchange for his testimony at defendant's trial. He testified that on March 8, 1979, he met with defendant and together they went to a home in Mount Prospect. Hollander stated that defendant knew the layout of the home because he had worked there and that there was a divorced woman living in the house. Hollander and the defendant broke into the home through a side door. Hollander was carrying a flashlight and a crowbar. As they entered the home, Hollander noticed a woman and a little boy sleeping in one bedroom. They woke them up and the little boy became hysterical. Hollander and defendant began ripping out electrical cords and tied up the woman and the boy. Hollander left the room with the boy and stated that defendant told him he had raped the woman.

At the outset, we note that defendant has waived his first issue by failing to include it in his motion for a new trial and also has waived the third issue by failing both to raise an objection in the trial court and to include it in his motion for a new trial. As such, these issues are not properly before this court for review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Woith (1984), 126 Ill. App. 3d 817, 467 N.E.2d 614.) The underlying reasons for the waiver concept are to bring alleged errors to the attention of the trial Judge and allow that Judge an opportunity to correct them, to give the reviewing court the benefit of the judgment and comments of the court below, and to prevent unlimited litigation and unnecessary review of matters which could better be corrected in the court below. (People v. Harrawood (1978), 66 Ill. App. 3d 163, 383 N.E.2d 707.) These purposes were ill-served in this case. Since, however, we would find application of the waiver rule somewhat harsh in light of the facts before us, we will look beyond the defendant's waiver of these issues and examine the merits of the arguments.

The defendant first contends that the introduction of evidence of other crimes denied him a fair trial. Defendant argues that this evidence was introduced for the purpose of establishing defendant's propensity to commit crimes of this nature. At trial, two Mount Prospect police officers and Michael Hollander testified as to an attempted burglary of a home in Wilmette, Illinois, and identified defendant as one of the participants in the crime. Another witness, Phyllis Leavitt, testified that her home in Northbrook, Illinois, was invaded by two men and she was raped. Although she was unable to identify her attackers, Michael Hollander testified that he and defendant had committed the crime and provided details as to its commission. Defendant contends that this evidence was prejudicial and raises the grounds for a new trial. The State maintains that it introduced this testimony to show that the identification of defendant in the instant crime was correct in that the modus operandi was the same as in the other crimes. As in the case at bar, the other crimes occurred in the late evening to early morning hours, two men entered a bedroom where people were sleeping, a flashlight and a red pipe instrument were used, the victims were tied and gagged, the victims were robbed of money and jewels, and the women victims were forced to perform sexual acts by one of the men.

While it is true that a defendant's guilt must be established by competent evidence, uninfluenced by bias or prejudice, evidence which is relevant and otherwise admissible need not be excluded because it may also have a tendency to prejudice the defendant. (People v. Olivier (1972), 3 Ill. App. 3d 872, 279 N.E.2d 363.) Evidence of other crimes is admissible, among other things, to show modus operandi, provided its probative value does not outweigh its prejudicial effect. (People v. Lieberman (1982), 107 Ill. App. 3d 949, 438 N.E.2d 516.) While two crimes need not be identical for modus operandi purposes, they generally should share highly distinctive characteristics. (People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074.) The decision whether to admit or exclude such evidence is within the sound discretion of the trial court. (People v. Houseton (1986), 141 Ill. App. 3d 987, 480 N.E.2d 1354.) To the extent that evidence of other crimes strengthens the identification of a defendant, it is fulfilling its purpose under the principle of modus operandi. 141 Ill. App. 3d 987, 480 N.E.2d 1354.

In this case, the victim identified the defendant in a lineup by his voice and the victim's son identified the defendant from a photograph. Neither identified the defendant at trial. Under these circumstances, we believe the trial court's decision to allow evidence of other crimes was proper and within its discretion. When viewed in light of the difficulty of identifying defendant as the man who committed the crimes charged, in our judgment the modus operandi evidence of other offenses was sufficiently similar to the instant crime and was admissible for the purpose of identification.

Defendant further argues that the testimony by Michael Hollander that he was indicted for other crimes to which he pled guilty led the jury to believe defendant was also guilty of these offenses. We find this argument without merit. Our supreme court has stated that the trier of fact is entitled to be informed as to any promises of leniency that may have been made to a witness. (People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852.) Therefore, the disclosure of ...


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