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12/28/88 the People of the State of v. James Larry Terry

December 28, 1988





532 N.E.2d 568, 177 Ill. App. 3d 185, 126 Ill. Dec. 883 1988.IL.1901

Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.


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


On October 15, 1987, following a jury trial in the circuit court of Champaign County, defendant James Larry Terry was found guilty of the offenses of aggravated criminal sexual assault and unlawful use of weapons by a felon in violation of sections 12-14(a)(1) and 24-1.1, respectively, of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 12-14(a)(1), 24-1.1). On December 22, 1987, defendant was sentenced to a term of natural life imprisonment for the assault offense, and 10 years for the weapons offense. Defendant appeals. We affirm.

On October 14, 1987, the morning of trial, defendant appeared before the court and asked for a continuance to obtain his own counsel. He indicated he believed the public defender was competent, but that due to the case load, defendant believed counsel could not give 100% to his case. Defendant further stated that while he personally could not afford to retain counsel, his parents told him the day before that they could help him in this matter.

The court observed that defendant was arraigned on June 23, when counsel was appointed for him, and during that interim, he had never complained about counsel. The court also noted the jury had been called, and the State had all of its witnesses, including one from Washington, D.C., present to testify. Accordingly, the court denied the request, and the case proceeded to jury selection. Defendant then decided he did not wish to be present for the trial, asserting that the court and the system were biased against him. The court, noting that the question of the identification of the assailant was critical to the case, denied this request. Defendant repeated this request on the second day of trial, which was again denied.

The State's evidence established that on June 17, 1987, at approximately 10:30 p.m., D.G., a University of Illinois coed, was walking from the campus to her apartment. As she was unlocking her apartment door, a black man approached her from behind armed with a knife. He forced his way into her apartment and forced her to engage in sexual intercourse with him. D.G. called the police.

The next day, she went to the police station to develop a composite sketch of her assailant. She was shown a group of photographs, which included an older picture of defendant, but could not pick anyone out.

On June 20, 1987, at approximately 7 p.m., H.K., a University coed, was walking back to her apartment. As she approached her door, a black man approached her from behind with a knife. She screamed.

Steve Taylor was visiting H.K.'s neighbor at that time. He is employed as a special investigator with the Illinois Central Gulf Railroad Police. He heard the scream and, looking out the door, observed the man with the knife. He opened the door, kicked the knife out of the assailant's hand, and then chased the assailant. He was unable to apprehend the attacker, but did recover the knife. H.K. and Taylor were separately shown the composite D.G. created. They both believed the assailant looked very similar to the composite.

Just prior to this assault, Diane Ersepke, another of H.K.'s neighbors, was driving home. She observed a black man who appeared to be following H.K. Once Ersepke got to her apartment, she was able to observe this man from her apartment window. She watched him enter the courtyard to H.K.'s apartment, and then she heard a scream. She immediately called the police. She also looked at the composite and believed it looked like the man she saw.

On June 22, Ersepke was walking on the campus when the man she had observed walked by her. She called the police. The police picked defendant up about six blocks from where Ersepke saw him. Ersepke viewed him through a one-way window at the police station and identified defendant as the man who followed H.K.

Defendant was interviewed and gave his girlfriend and her family as alibi witnesses for June 20. However, he could not remember what he had done on June 19. Defendant explained he was on campus looking for work, but he could not remember with what establishments he had checked. When informed that a knife had been recovered and there was a possibility that fingerprints would be found on it, defendant stated either they would not find his prints on the knife, or they would get no prints off the knife.

On June 23, defendant participated in a lineup. At the time the lineup was arranged, defendant's hair hung down between his shoulders and chin. This matched the description given by the witnesses. Fifteen minutes later, when it came time for the viewing, defendant's hair was in braids. D.G. picked defendant out of the lineup, stating she was 98% to 99% sure he was the assailant. Her hesitancy was due to the fact defendant's hair was in braids, and the assailant's hair was long. Taylor was 100% certain defendant was the man who assaulted H.K.

On June 30, the police took hair, blood, and saliva samples from defendant. They could not get a pubic hair sample because defendant had shaved that area of his body. ...

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