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09/30/87 the People of the State of v. Kevin Whitecotton

September 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KEVIN WHITECOTTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

514 N.E.2d 1160, 162 Ill. App. 3d 173, 113 Ill. Dec. 149 1987.IL.1472

Appeal from the Circuit Court of Williamson County; the Hon. Robert H. Howerton, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., concurs. JUSTICE HARRISON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, Kevin Whitecotton, was found guilty of criminal sexual assault after a jury trial held on December 4 to 6, 1986, in the circuit court of Williamson County and was sentenced to imprisonment for a term of four years. Defendant has perfected the instant appeal in which he raises the following issues: (1) whether the trial court erred in denying his motion to suppress his confession; (2) whether the trial court erred in denying his motion that it take judicial notice of other charges complainant previously had made; (3) whether he was proved guilty beyond a reasonable doubt; (4) whether the prosecutor's closing argument deprived him of due process; and (5) whether the jury's verdict was brought about by compromise and coercion and was therefore not unanimous. We affirm.

Complainant, who was 16 at the time of the incident, testified as follows: On June 24, 1985, at approximately 9:30 p.m., she was walking near her house in Herrin, Illinois, when defendant, then age 24, and her cousin, Bobby Tolbert, then age 16 or 17, drove up behind her and asked if she wanted a ride. Complainant replied affirmatively and got in the car between Tolbert and defendant, who was driving his own car. Defendant had lived upstairs from complainant for two years. Defendant told complainant "he was going to take [her] someplace and what all he was going to do and everything," and "he was just going to take [her] out and show [her] what a good time was."

Complainant asked to be let out of the car and tried to get out at a stop sign, but Tolbert would not let her. Defendant then drove away at a high rate of speed.

Defendant drove to a dirt road alongside some railroad tracks. No one was around. Tolbert opened the door and pulled complainant out of the car while defendant released her hands from the steering wheel. Defendant then held her arms and both men undressed her. During this time, complainant was kicking at Tolbert. She was yelling until they covered her mouth.

After they had undressed her, defendant told Tolbert to go down the road. Tolbert took her clothes and defendant pushed her into the backseat of the car, unzipped his pants and held her down while he stuck his penis into her vagina. Complainant testified that she kept trying to get defendant off of her and that she did not consent to his advances.

After defendant had finished he called Tolbert back to the car. Defendant and Tolbert got in the front seat and Tolbert threw her clothes to her in the backseat. They subsequently let complainant out near Tolbert's house and drove away.

Complainant was going to tell Tolbert's mother of the incident, but changed her mind. Instead, she went into the Tolbert residence to use the bathroom and she asked to use the phone. She tried to call a friend but the line was busy. Tolbert and defendant then came in; however, they did not speak to her. Instead they went back outside. Complainant called her friend again, but the line was still busy. When complainant went outside, defendant and Tolbert were there, so she ran home.

Complainant testified she did not tell Tolbert's parents (her aunt and uncle) about the attack, because she initially was not going to tell anyone. She was scared, very upset, and ashamed of what had happened. Defendant and Tolbert had originally told her that she could tell the police about the assault if she wanted to because it was her word against theirs.

When complainant got home, her mother had visitors so she changed her clothes and went outside until they left. After the visitors had gone, she told her mother about the attack and indicated who was involved. The police were called, and they interviewed her and escorted her and her mother to the Herrin Hospital, where she was examined by a doctor.

On cross-examination, complainant testified that defendant moved out of the apartment above hers the same night of the incident. She testified that when she left home she was on her way to town to see some friends. She was wearing blue shorts with pink stripes, black panties, a pink T-shirt and sandals. She stated that she had ridden to town with defendant and Tolbert on previous occasions. Complainant denied that she was supposed to meet Victor Shade that night.

Complainant also testified that defendant and Tolbert were laughing when defendant stopped the car near the railroad tracks. She was "kind of scared because [she] didn't know what they were going to do." She couldn't get away. She admitted that her clothes were taken off without being torn. She explained that defendant held her against the car while he opened the back door, and then he pushed her in. She stated that she had her back to the car and fell into the car onto her back. Defendant told her that "if [she] didn't do what he wanted [her] to do . . . he'd leave [her] there and they'd take [her] clothes with them." Complainant admitted that she was not bleeding as a result of the incident, she was not cut or torn and she did not have any bruises. She also admitted that the police were not notified until about 1 a.m.

Complainant's mother testified that complainant came home at approximately 10:30 p.m. on June 24, 1985, and was visibly upset. After their visitors had left, complainant told her mother she had been raped and indicated who the perpetrators were. She was crying. Her mother called the police.

Officer Donald Jennings of the Herrin police department testified that police received a call at approximately 1:09 a.m. He interviewed complainant's mother at her residence on the night of the incident. Officer Jennings attempted to speak with complainant; however, she indicated that she wanted her mother to speak for her at that time. She became upset and started crying when her mother started to explain in detail what had taken place. Jennings told complainant to go to Herrin Hospital to be examined and treated. Afterwards, he interviewed her at the police station. She was still visibly upset during the interview.

Dr. Frank Bleyer was serving as the emergency room physician at Herrin Hospital in the early morning hours of June 25, 1985. He examined the complainant on that date. Dr. Bleyer said it was at first difficult talking with the complainant because she was quite upset and was crying. Dr. Bleyer testified that complainant was not bleeding and she did not look like she had been struck. However, the doctor did a cervical examination and found the vaginal area to be very tender to the touch. Dr. Bleyer stated his opinion that "the pain was more than what someone would have had with consented intercourse."

Prior to calling Dennis Smith as a witness, the State moved in limine to prohibit questioning "as to whether or not Dennis Smith issued Miranda rights to [defendant]" before he was interviewed. Defense counsel moved to suppress admissions defendant made to Smith. After a voir dire conducted outside the presence of the jury, the trial court ruled that defendant had not been in custody when interviewed. Smith was then permitted to testify as to defendant's admissions and defense counsel was allowed to examine him regarding the giving of Miranda rights to defendant.

Smith, an employee at the Southern Illinois Forensic Laboratory in Carbondale, testified that he interviewed defendant at his office on June 28, 1985. Defendant was not under arrest, was free to leave if he wanted to, and was told he could terminate the interview at any time. Smith testified that defendant described to him the events of June 24, 1985. Defendant told Smith that Tolbert told complainant that they were going to rape her. When the three of them arrived at a secluded area, defendant and Tolbert began fondling her breasts. Defendant told Smith that complainant was "pretending" to get away, so they held her down while they removed her clothes. Defendant told Smith that although complainant was struggling, she was not fighting as far as hitting, scratching or kicking. At that time defendant maintained that the act of sexual intercourse was voluntary on complainant's part.

However, Smith testified that defendant gave a second statement at that time. Defendant told Smith that defendant "had told [complainant] that either way, she was going to be plugged." Smith testified: "[He] stated at first that he couldn't tell whether or not she wanted her clothes taken off or not; but, that as he thought about it more he realized that she did not want her clothes to be removed." Smith also testified: "[In] his [defendant's] opinion, he felt he had raped her."

On cross-examination, Smith admitted that he had not advised defendant of his Miranda rights before asking him any questions.

Bobby Tolbert was complainant's cousin and had known her all his life. He testified as follows: Complainant at first refused their offer of a ride but then said, "Come back. I need a ride uptown." At first she was upset with her mother but later she was laughing. When they stopped to let her out she stayed in the car. Complainant was supposed to meet Victor Shade at a lounge. They drove to the area near the railroad tracks. Defendant told her he wanted to have sexual intercourse. Tolbert testified "she said that she would let him, but not me," because they were cousins. He testified that he thought she was willing to have sexual intercourse because "she was goin' to meet the guy that she had been goin' with and he wasn't there."

Tolbert testified that complainant was "bein' kind of girlish" when they took her clothes off, "kind of shyin' away," but then she told defendant she would have sex with him. When defendant told him to take a walk, Tolbert threw her clothes in the front seat and walked down the road. He stated he saw complainant get in the car of her own free will, without the use of force. Tolbert testified that complainant was always free to go and she didn't scream.

Tolbert testified further that, after dropping complainant off in or near town, they saw her again at his home. He stated that he saw her on the phone and that she was laughing. He heard complainant say on the phone, "I'm not afraid. I can walk home."

On cross-examination, Tolbert testified he had known defendant for nine years. Tolbert denied telling complainant that she was going to get raped, and he denied telling complainant that it would be her word against theirs. He admitted that there was a case pending against him for this same incident.

Defendant testified that he had taken Bobby Tolbert to look at a car. As they were driving through Herrin, they offered complainant a ride but she refused. However, Tolbert heard her yell that she wanted a ride, and they backed up and she got in. Defendant testified that complainant said she was supposed to meet Victor Shade at a lounge. However, defendant assumed he was not going to be there because complainant asked to be taken to town. When asked if she wanted to get out of the car, she said no and asked to be taken to the lounge. It was then that "we told her that she was ...


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