APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION 1987.IL.1795
519 N.E.2d 921, 166 Ill. App. 3d 289, 116 Ill. Dec. 706
Appeal from the Circuit Court of Cook County; the Hon. Robert Sklodowski, Judge, presiding
Rehearing denied March 18, 1988; No. 84-2717, Rehearing denied March 1, 1988
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
Defendants James Sims and Sylvester Henderson were charged with rape and deviate sexual assault. Simultaneous jury trials were conducted. Sims was found guilty of rape and not guilty of deviate sexual assault. Henderson was found guilty of both offenses. Both defendants were sentenced to natural life terms. Each defendant has appealed separately. Each is represented by an attorney. Each has also filed lengthy pro se briefs. The appeals have been consolidated for decision.
The attorneys for both defendants contend that the State failed to prove an essential element of rape, i.e., penetration, and that the Habitual Criminal Statute (Ill. Rev. Stat. 1981, ch. 38, par. 338-1 et seq.) is unconstitutional.
Defendant Sims' attorney also contends: the State failed to prove venue; Sims was denied his right to counsel when, after conviction and prior to sentencing and without notice to his attorney, his finger-prints were taken for the purpose of testing; and the natural life sentence was improper because the State failed to prove two prior convictions which contain the elements of a Class X felony.
Henderson's attorney also contends: Henderson is entitled to a new trial because the State improperly sought to link complainant's blood to stains found on pants taken from defendant's apartment; the State failed to tender potentially exculpatory physical evidence specifically sought by defendant's discovery request; and the prosecutor made an improper rebuttal argument.
Sims pro se also contends: his indictment is invalid; the evidence was insufficient as to rape, because he was found not guilty of deviate sexual assault, the verdicts being legally inconsistent; his motion to suppress and quash arrest was improperly denied; there was not probable cause for his arrest; his stop violated Terry v. Ohio; there was an unreasonable search and seizure in violation of the fourth amendment; the suppression of evidence denied him due process and equal protection; the State failed to list exculpatory material in response to his discovery request; the jury was improperly instructed; the State was improperly allowed to introduce evidence of other crimes; admission into evidence of the complainant's Red Cross blood donor's card was error; the admission into evidence of photocopies of his and Henderson's driver's licenses was error; the prosecutor made improper and inflammatory remarks to the jury; there was improper use of peremptory challenges by the State; it was error to refuse to excuse one juror for cause; defendant was deprived in many ways of his sixth amendment right to counsel by destruction of, or failure to preserve, exculpatory evidence and by suppression of exculpatory evidence; a police officer testified falsely; it was error to admit into evidence bloody pants and testimony regarding the blood type of the complainant; his right to obtain the complainant's sexual history was unduly restricted; he was improperly denied his right to represent himself; the simultaneous trials denied him due process and equal protection; and plain error was committed when the arresting officer was allowed to testify that he gave defendant his Miranda rights.
Henderson pro se also contends: the trial court improperly denied his motion to quash his arrest and suppress evidence; his fifth, sixth and fourteenth amendment rights were violated; he was not found guilty beyond a reasonable doubt; the acquittal of his co-defendant on the charge of deviate sexual assault raises a question of reasonable doubt as to his guilt on the same charge; and his constitutional rights were violated by the admission of improper evidence.
Complainant testified that in the early evening of September 21, 1983, she left her apartment on the north side of Chicago intending to walk to a bar on Clark Street to meet friends. She was abducted at knife point by Sims and forced into a car after a struggle, during which Sims threatened to slit her throat and struck her face four or five times against the pavement. Her finger was cut during the struggle. In the car another man was present. She identified that man as defendant Henderson.
She testified that she was initially placed in the front seat of the automobile between Henderson and Sims. Her cut finger bled on Henderson's pants.
Complainant testified in detail to her assault by the two offenders over the next several hours. She stated that after driving around for a time the offenders learned that she enjoyed wine and beer. They stopped and Sims went to purchase wine and beer which, complainant stated, was paid for by Henderson. Henderson stayed in the backseat with her. She asked Henderson, "lease take me home . . . don't hurt me, just take me home . . . I won't say anything," Henderson told her, "I can promise you won't be hurt, but that doesn't mean you won't be fucked." Sims returned with beer and wine. After again driving around for some time the car was parked. Sims took complainant into the backseat and tried to force some wine down her throat. He started pulling down her pants and undergarments. She asked to be taken home and not harmed. Sims told her she "would be lucky if she saw the next day." Sims forced her to undress and performed cunnilingus on her and then forced her to perform fellatio on him.
Henderson then came into the backseat while Sims returned to the front seat. Henderson forced her into acts of cunnilingus and fellatio. She testified that the man "raped" her and tried unsuccessfully to penetrate her anus. After a short drive he returned to the front seat. Sims came to the backseat and repeated the deviate sexual activity. Complainant testified that she was raped by Sims. Henderson was driving and at one point stopped and there was a girl who had come up to the car and said something like, "re you looking for a date?" She looked in the backseat and just laughed and walked away. Henderson continued driving. He and Sims asked her "if they were driving North on Lake Shore Drive what exit would they take to get to her home?" She told them either North or Fullerton. They did not get off at either exit.
The offenders drove into a parking garage and Henderson got out of the car. Sims again got on top of her. He started talking to her, asking why she screamed and saying "ou shouldn't have screamed, if anyone ever tries to attack you again don't scream, it only makes things worse." She said nothing. Complainant then heard a commotion, heard someone yell "et out of the car" and then saw a policeman pulling Sims out of the driver's side of the car. Sims was on top of her when she heard the noise and saw the police. Someone on the passenger side told her to get up and she got out of the car. When she got out, the first thing she saw was a policeman. She saw him, grabbed him and said, "Don't let them hurt me, they just raped me." The police took her to Weiss Hospital. She estimated that the time from when Sims grabbed her off the street to when the police came was four to five hours.
After she was treated at Weiss Hospital she went to the police station and talked to Detective Stone. She gave him a description of the second offender and also told him she had gotten blood on the right pant leg of his pants.
Over objection, she testified that her blood type was AB. Over additional objections a Red Cross blood donor card showing her blood type as AB was admitted into evidence. She testified that she identified defendant Henderson in a photo array presented to her on September 23 by police officer Stone. She stated that her left cheekbone was fractured. She needed four sutures in her cut finger and had cuts and bruises on both her arms and face.
Upon cross-examination she stated that it was dark outside at the time of her abduction. There were working streetlights. Henderson's name was not mentioned in the car. There were no lights on in the car except when the doors were open. Henderson looked different in a photo she viewed while she was in the hospital because in that photo he was not wearing a goatee. She also viewed his driver's license photo, in which he had a goatee. In that photo the defendant appeared as he did during the incident.
Officer Lucas testified that about 2 a.m. on September 22, 1983, he responded to a radio call with his partner Officer Dorsch. They went to a parking garage near 4500 Clarendon. They observed a burgundy Buick and saw a male black jumping over a wall into an alley. Dorsch followed the man while Lucas turned his attention to the Buick. He looked in the car and saw a black male with his pants around his ankles lying on top of a white female in the backseat. At this time Officer Dorsch was returning from attempting to catch the man that fled the scene. Officer Janka also arrived on the scene.
Officer Lucas tapped on the window and told the man to pull his pants up and get out of the car. He made an in-court identification of Sims as the man in the car. Defendant Sims exited the car on the driver's side. While Officers Dorsch and Janka stayed on the driver's side, Officer Lucas walked around to the passenger side. The complainant got out of the car and grabbed the officer saying, "Please, don't let them hurt me any more." When he asked her what had happened, she told him she had been raped. Officer Lucas said her face was beaten up with cuts and bruises on it. One eye was closed. He took her back to the squad car and she grabbed his arm again and said, "Don't let him hurt me anymore." Sims was handcuffed and advised of his rights and the victim was taken to the hospital by Officer Lucas, who then returned to the scene to drive the Buick to the police station.
Officer Janka testified that he arrived at 4500 Clarendon shortly after Officers Lucas and Dorsch arrived. He observed Sims on top of complainant in the back of the Buick. He searched the Buick and found the driver's licenses of Sims and Henderson. The officer learned that the vehicle was registered to Henderson. A knife blade and a razor knife were found in the backseat. The police also determined that a Chevrolet belonging to a building resident had been jacked up and one of the tires had been removed and placed in the trunk of Henderson's car, which was only five feet away.
On cross-examination Officer Janka stated that he noted used beer cans and clothing in the car when he conducted his search. A flash message with the name and description of Henderson was put out about 15 minutes after Janka arrived on the scene. On redirect examination the witness noted that a Wild Irish Rose wine bottle and Old Style beer cans could be seen in a photograph of the backseat of the Buick.
Chicago police detective Fred Stone testified about the investigation of the offense. When Stone arrested Henderson he did not have a goatee. Stone stated that he recovered a pair of blue jeans with a bloodstain from Henderson's apartment. On cross-examination Stone revealed that he did not specifically ask the evidence technician to test the wine bottles and beer cans for fingerprints.
Officer DeVogelear testified that in the early morning of September 22, 1983, he monitored a radio call concerning a description of the second offender. Continuing routine patrol, the officer kept his "eye out for a male black in dark clothing." At a bus stop on Sheridan Road, Montrose and Broadway, the officer saw a man he identified as Henderson. The man stated that he had been visiting friends on the north side and was waiting for a southbound bus to go to 6400 South Kenwood, where he lived. As the individual was taking out his wallet to show his identification card, the officer responded to another call without making any further investigation. Later he saw Henderson in an interview room of the police station. On cross-examination the officer stated that the man he encountered at the bus stop was "cool and calm" and acted "perfectly normal."
Officer Zefeldt, assigned to the microanalysis section of the crime laboratory, testified that after testing the evidence in the case, in his opinion sperm was present on a smear taken from the vagina of the complainant and type AB blood was on the sweatshirt recovered from Henderson's car. The pink towel, also found in Henderson's car, had AB type blood on it and the blood on the blue jeans recovered from Henderson's bedroom also tested positive for AB type blood activity. This activity was consistent with blood type AB. He said only 3% of the general population has blood type AB. He did not test the blood of the complainant or the defendant.
Jossie Wells, a co-worker of Henderson's at the American Bar Association, testified that Henderson had a small goatee when she saw him at work on September 21, 1983.
Defendant Sims testified in his own behalf and as a witness for Henderson. He admitted to being a "hustler." He tried to have sex with complainant, but claimed that her participation was consensual. He acted alone. While in the car, he and complainant drank alcohol and smoked marijuana together. They stopped at a motel at 79th and Stoney Island where Sims' brother Jerome lived. Sims wanted to use his brother's room but was unable to. He then took her back north and he talked and tried to convince her to become a lady of the street. Sims testified that he wanted her to be a lady "that caters to men like me. I'm a hustler." She said that she didn't want to engage in that type of
work. Later he drove into a parking lot and Sims and complainant got into the backseat of the car. As he was fondling and kissing the complainant the police arrived on the scene and he was arrested. At the police station he was roughed up and told to admit that Sylvester Henderson was with him during his encounter with complainant.
Sims stated that he borrowed Henderson's car on September 21 at about 8:15 p.m. because he was having car problems with his own car. Upon cross-examination Sims was impeached with numerous prior convictions.
He testified that he did not see that the complainant's eye was bruised and swollen to the point that it was closed and that it was not bruised when the police arrived. He stated that he did not do anything to her. He admitted that he talked to Henderson about this incident, but denied that Henderson was with him when he was with the complainant.
Defendant Sims denied having a knife, having sex with the complainant, putting his penis in her mouth, seeing a pink towel with blood on it in the car or seeing the complainant's cut finger.
He further testified that two driver's licenses were not found in a shirt pocket in the car; his license was in his pocket. He had no idea where Henderson's license was. He never saw a knife blade or razor knife on the floor of the car when he was in the backseat, and he never had a knife. He was only in the backseat with the complainant for 15 to 20 minutes. From the time he met complainant to the time he was arrested they were the only two people in the car.
He did not see a car jacked up near his car in the lot and he did not jack the car up. He did not know that a stolen tire was in Henderson's trunk and he only got out of the car to urinate. While in the garage he never saw another man other than the police and the security guard. His pants were not down during the evening and he was not on top of the complainant with his pants down when he was arrested.
He also testified that on September 21, 1983, he met the complainant when he picked her up while he was driving Henderson's car on the north side. He was in the car and complainant was walking on the sidewalk. He asked her if she wanted to have a drink and she replied she was going to have a drink with somebody else. He asked what she drank and she said wine and beer. He told her he could get some wine and beer and she could have a drink with him. She stopped, approached the car, looked in and then got in the car.
Sims testified that he asked her name and she told him. She also told him she was engaged to a boyfriend in Scandinavia. Sims drove to a Mini-Mart to buy a fifth of Wild Irish Rose and two six-packs of Old Style. While he bought the liquor she sat in the car. They began to drink, and she did not like the wine because it was too sweet.
He asked where she would like to go and she said her apartment. She told him where it was, but he could not remember the address. They did not go to the apartment because they were drinking and smoking marijuana. She told him she was in Chicago visiting her brother and was staying with him, but later she said she worked here.
Sims then drove around trying to find a parking spot so they could sit, talk and finish drinking. Sims testified that he had smoked marijuana twice that night, once before he met the complainant and again when he came out of the Mini-Mart, because she told him that she does get high.
Sims further testified that he picked up the complainant at 11:30 or 12 p.m. and that she told him that if he couldn't find any place she couldn't be out too late. He then inquired as to whether she would like to engage in sex with him. Sims testified that she "didn't say yes, didn't say no, she said she just wanted to go home because it was getting late."
Veronica Henderson, defendant's wife, testified that at about 8:15 p.m. on September 21, 1983, Henderson allowed Sims to use his car. Sims drove away in the automobile. The rest of the evening was uneventful. Henderson put their three children to bed. He did not leave the house that evening. At 11 a.m. the following morning he was arrested in their apartment. Mrs. Henderson also testified that Henderson shaved about once a week. He did not have a goatee on September 21.
Antoinette Morgan, a co-worker of Henderson's at the American Bar Association, testified that she saw him at 5 p.m. on September 21, 1983. He was to give her a ride home. Sims was present, asking to borrow Henderson's car. ...