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12/19/88 the People of the State of v. Dan Uzelac

December 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAN UZELAC, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

534 N.E.2d 1250, 179 Ill. App. 3d 395, 128 Ill. Dec. 645 1988.IL.1829

Appeal from the Circuit Court of Cook County; the Hon. Frank W. Meekins, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant, Dan Uzelac, Jr., was tried by a jury on charges of rape, deviate sexual assault, and armed robbery in the circuit court of Cook County. The jury returned a verdict of guilty on all three counts and judgment was entered on that verdict. The trial Judge subsequently sentenced the defendant to a 12-year term on the armed robbery count, a 25-year term on the rape count, and a 25-year term on the deviate sexual assault count; all sentences were ordered to run concurrently. The defendant has now appealed his convictions and sentences.

On June 23, 1983, at approximately 9 p.m., 18-year-old Linda Jellema and her eight-year-old sister, Beth, were at an ice cream shop two blocks from their home. Linda saw the defendant, who was on a racing-type bicycle, ride past the shop three times. When Linda and her sister left the shop, they cut through a parking lot and went down an alley to get to their home. In the alley, Linda again saw the defendant, who was about 10 feet from her, at that time. Although it was nearly dark, she recognized him as the man she had seen on the bicycle because there was a streetlight about 90 feet away. The defendant then confronted Linda and demanded her money. When she did not comply, he pulled out a six-inch hunting knife, took Linda and her sister Beth to an area between two garages and told Beth to crouch down near the front of the garages. He held the knife to Linda's neck, and directed her to remove her pants. She refused. At that point the defendant demanded that she let him look at her and feel her, and threatened to hurt Beth if she resisted further. Defendant then forcibly removed Linda's pants and shirt, pulled his own pants down, and made her commit an act of oral copulation. When she struggled, he pushed her down and forced her to perform sexual intercourse with him. When Linda screamed, the defendant again threatened to hurt Beth if she continued. Shortly thereafter, the defendant left.

Linda identified her attacker to the investigating officers as a white male, 5 feet 10 inches to 6 feet tall, overweight, with dark, curly, shoulder-length hair, wearing blue jeans, a T-shirt, and a button-down shirt. Following the attack, Linda was taken to a local hospital where she was examined. The doctor who examined her, Dr. Herscovitch, later testified at trial that Linda was bruised on her back and buttocks, that her vaginal area was red, and although her hymen was intact, that vaginal entry could still have occurred since whether the hymen breaks depends upon the extent and force of penetration. A forensic scientist, Judy Welch, also testified at trial to her examination of vaginal, anal, and mouth swabs taken from Linda as well as her examination of Linda's underpants and the pubic hair samples taken from her underpants.

Later as a result of an investigation of similar attacks in Lansing, Illinois, the Lansing police department, on June 30, 1983, issued a warrant for defendant's arrest. But, because the defendant lived in Portage, Indiana, it was necessary to institute extradition proceedings, which were concluded on January 20, 1984, when the defendant waived extradition.

The Lansing police had shown Linda six photos of different men on June 28, 1983, including a nine-year-old picture of the defendant in which he had short, light-colored hair. Linda did not identify the defendant as her attacker at that time, but reiterated that her attacker had shoulder-length, dark-colored hair. Subsequently, on January 20, 1984, Linda viewed a lineup in which the defendant had been placed with four other men of the same approximate height and weight. All of the other men in the lineup were Lansing police officers, but this was not known to Linda. Linda identified the defendant at the lineup.

Shortly thereafter, defendant was indicted, and the case was set for a jury trial on charges of rape, deviate sexual assault, and armed robbery. The trial court denied defendant's pretrial motions, determined that Linda's lineup identification at the police station was admissible, and further found that evidence of prior crimes could be admitted under a modus operandi theory.

At trial, Linda testified and again identified the defendant in court. Ms. Welch, the forensic scientist who also testified at trial, stated that the blood fluid-typing tests she had performed resulted in a finding that the defendant could not be excluded as a source of the semen found in the examination of Linda. However, she noted that the potential source group constituted 80% to 90% of the Caucasian population. The testing of the pubic hairs found in Linda's underpants, she said, was inconclusive.

The evidence of a prior attack committed by the defendant was admitted on the basis that it was part of the modus operandi of the defendant. The evidence was introduced through the testimony of the victim in the prior attack, Joanne Veenstra, and an eyewitness to the prior attack, Jacqueline O'Connell. Joanne Veenstra testified that on May 23, 1983, at about 10 p.m., she entered an alley near her home in Lansing to park her car. As she got out of her car, she saw an overweight man ride by on a 10-speed bicycle, whom she said she saw clearly since the alley was lighted by a light on her garage. As she exited the garage, the man grabbed her from behind, held a six-inch knife to her throat, and demanded her money. He told her to pull down her pants and threatened to kill her. She complied, and when he moved around in front of her, they struggled over the knife. At that time, Joanne said she realized the man was wearing a long, dark, curly-haired wig, and had blondish-brown hair underneath.

At about this time, Joanne's neighbor, Jacqueline O'Connell, said that she heard a bike making a clicking sound near the back of her house. An hour earlier, she had been getting out of a car on the street in front of her house and said she noticed a large "ugly" man on a 10-speed bike ride by. She saw his face, which was illuminated by a streetlight, as he rode past her in the street about eight feet from where she stood. After she went into her house, she again saw him on the bicycle, circling in front of her house. When she heard the clicking sound of a bicycle coming from the direction of her backyard, she looked out of her back window and saw two persons next to a van in the neighbors' yard. At that point, she called the police and, thereafter, turned on an outdoor floodlight when she heard a scream. When she turned on the ...


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