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03/10/89 the People of the State of v. John M. Phillips

March 10, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN M. PHILLIPS, DEFENDANT-APPELLANT

DEFENDANT, JOHN M. PHILLIPS, WAS CONVICTED OF AGGRAVATED KIDNAPING (ILL. REV. STAT. 1985, CH. 38, PAR. 10-2) AND AGGRAVATED CRIMINAL SEXUAL ASSAULT (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 12-14) FOLLOWING A BENCH TRIAL AND WAS SENTENCED TO CONCURRENT PRISON TERMS OF SIX AND FOUR YEARS, RESPECTIVELY. FOR REASONS SET FORTH BELOW, WE AFFIRM.



Before reviewing Jackson v. Virginia, however, it is noteworthy that People v. Lewis (1981), 88 Ill. 2d 129, appears to be the first Illinois authority expressing that the evidence on review is to be "viewed in a light most favorable to the Government." (88 Ill. 2d at 151.) Lewis was convicted by a jury of armed robbery, aggravated kidnapping and murder and sentenced to death. The testimony of an accomplice and other evidence were overwhelming of Lewis' guilt. Nevertheless, one of Lewis' contentions for reversal was that the evidence failed to prove his guilt beyond a reasonable doubt. In ruling adversely to the defendant's claim, the supreme court initially noted that "it will not disturb the jury's verdict of guilty unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." (88 Ill. 2d at 151.) The supreme court then held:

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

536 N.E.2d 1242, 181 Ill. App. 3d 144, 130 Ill. Dec. 31 1989.IL.305

Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

The following facts are undisputed. In the evening of June 23, 1985, Phillips met the complainant, M.B., and her friend, J.C., in Bootleggers, a singles' bar located near State and Division Streets in Chicago. After spending some time with Phillips, the two women accepted an invitation to go to his parked car for the purpose of indulging in illegal narcotics. M.B. got into the front passenger seat and J.C. got into the back seat behind Phillips. After lighting a marijuana cigarette, Phillips moved the car to a deserted area a short distance away.

Conflicting testimony as to subsequent events, as adduced at trial and pertinent to our Disposition, is summarized below.

M.B. testified that Phillips parked the car, opened the glove box, and retrieved a mirror and knife. When she asked the purpose of the knife, Phillips related that it was "to cut up some cocaine." At that point, J.C. asked Phillips to take them back to their car. M.B. stated Phillips refused, but said he would "in five minutes." M.B. stated that Phillips then put the knife to her left side. M.B. stated J.C. again asked Phillips to take them back to their car but he again refused. However, Phillips let J.C. out of the car. M.B. testified she attempted to grab hold of the knife but Phillips held both of her hands to her side. She stated Phillips still held the knife to her side and she was afraid.

M.B. stated that when J.C. came around to the passenger side of the car, M.B. told her to get back into the car. At that point, M.B. stated, Phillips pushed the knife farther into her side and told J.C. to go away from the car so that he could "make out" with M.B. M.B. testified she was still afraid.

M.B. stated that when J.C. walked away, Phillips started the car and sped off. M.B. stated she begged Phillips to go back and get J.C. Phillips said they would go back and get her shortly.

Phillips pulled the car into an alley. M.B. stated that he pointed the knife at her and told her, "As soon as you f--- me and make me come, we will go back and get your girl friend." M.B. stated that Phillips removed her clothes, removed his own clothing, and forced her to submit to vaginal intercourse. During the act, she attempted to move her purse, which she was sitting on, because it was hurting her. M.B. stated Phillips again pulled out the knife and said, "I will f--- you with this knife if I have to. What are you doing? What are you going to get in your purse?" She testified that Phillips also forced her to orally copulate with him.

M.B. stated that when, at one point, she had to urinate, Phillips allowed her to do so at the side of the car, but kept his hand on her head to restrain her from leaving. When they got back in the car and Phillips tried to force M.B. to orally copulate with him again, she opened the car door and ran, naked, down the alley. M.B. stated that at the mouth of the alley she saw a car with headlights on and motioned the driver to stop. The car was a marked police squad car. M.B. pointed out defendant's car to the officers and got into the squad car. M.B. stated defendant started his car and sped out of the alley. The police gave chase and eventually captured Phillips.

On cross-examination, M.B. admitted that she and J.C. willingly accepted Phillips' initial invitation to go to his car to smoke marijuana. She also admitted that later, when Phillips put the knife to her side, she did not tell him to take it away, but asked only what the knife was for. M.B. stated that Phillips "must have been" holding both of her hands with one of his hands while he restrained her because he kept the knife at her side. M.B. also stated that she recalled seeing the knife in Phillips' hand when he was removing her clothing.

On redirect examination, M.B. clarified that when J.C. got out of the car, M.B. reached her right hand over to get hold of the knife, but Phillips grabbed both of her hands.

J.C. testified on direct examination to the same facts leading up to her exit from Phillips' car. J.C. stated she eventually found her own car and, after unsuccessfully attempting to locate Phillips' car, she returned to Evanston where the women were staying.

On cross-examination, J.C. admitted that she was aided by a police officer in locating her car, but she did not express to him any concern for M.B.

Phillips testified to a substantially different scenario. Phillips stated that after the women got into his car, which was parked on Rush Street approximately four blocks away from the intersection of State and Division Streets, he lit a marijuana cigarette and drove to a location under elevated train tracks near Wells Street. Phillips stated that, there, he began to "chop up" cocaine on a mirror with the knife. All three partook of the cocaine. Phillips stated that J.C. asked to get out of the car to be "socially tactful" because she saw him and M.B. "making out" in the front seat. Phillips stated that he did not restrain M.B. by holding her hands or by holding a knife to her side.

Phillips testified he then moved the car to an alley located approximately five minutes away near Ashland Avenue and Augusta Boulevard. During the drive M.B. did not ask him to let her out of the car, but did express concern for J.C. While in the car in the alley, he and M.B. engaged in consensual foreplay and oral sex. Phillips stated they were in the alley for approximately 20 minutes. He stated that, there, M.B. again voiced concern for J.C. Phillips testified a car came down the alley and they could see lights. At that point, M.B. quickly exited the car. Phillips stated that when M.B. ran out of the car he panicked and drove down the alley. Although he noticed that it was a police squad car following him, he did not stop. He was eventually arrested after fleeing on foot.

Chicago police officer Wally Velez testified that at approximately 4 a.m. on the morning in question, he and his partner, Paul Brugger, were in a squad car on patrol, travelling eastbound on Augusta Boulevard. Velez testified that he observed M.B., naked, running toward the police car. The officers immediately pulled over to the side of the street and gave assistance. M.B. said she had been raped. Velez stated she was hysterical. When the officers heard the sound of screeching tires, and M.B. identified defendant's car as it came into view, the officers gave chase. The car stopped at a fence. Phillips, naked, exited, fleeing on foot. Velez found Phillips hiding under a porch a short distance away and arrested him. Velez testified that when he searched the car a short time later he found the knife in an open position.

Opinion

On appeal, Phillips contends that the State failed to prove him guilty beyond a reasonable doubt. Phillips argues, generally, that M.B.'s testimony was not sufficient to prove that her activity with Phillips was not consensual and that all of the circumstances preceding the sexual activity were consistent with a finding of consent.

It is the function of the trier of fact to weigh the evidence, resolve any apparent conflicts therein, and evaluate the credibility of the witnesses. (People v. Nally (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373.) In a criminal bench trial, these determinations are within the province of the trial Judge. (People v. Clemons (1988), 175 Ill. App. 3d 7, 529 N.E.2d 577; People v. Givens (1977), 46 Ill. App. 3d 1035, 361 N.E.2d 671.) Furthermore, determination of the credibility and sufficiency of the evidence will not be reversed unless the evidence was so improbable as to create a reasonable doubt of guilt. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) Thus, as the Illinois Supreme Court has noted, once the defendant has been found guilty in a criminal bench trial, the applicable standard of review is "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis added.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Further, as in other criminal appeals, when reviewing a conviction for sexual assault, the testimony of a single witness, if it is positive and the witness credible, is sufficient to support the conviction, even though that testimony is contradicted by the accused. See People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.

The trial Judge below, in the exercise of proper duty, heard all of the witnesses and observed the evidence presented. The complainant testified that although she initially consented to enter Phillips' automobile, she was later restrained by Phillips against her will from leaving his car, was driven to an alley some distance away, and was there forced by Phillips to engage in sexual acts to which she did not consent. M.B.'s initial consent to enter Phillips' car cannot reasonably extend to every subsequent event. Further, Phillips does not deny that he and complainant engaged in a sex act, but testified that complainant consented. At best, that evidence is merely conflicting. Resolution of the conflict was properly determined by the trial Judge below. Reweighing of that evidence is outside the province of this court. Because the evidence here was only conflicting, and was otherwise sufficient to support the elements of the charges against Phillips, there exists no legally justifiable basis to disturb the trial court's judgment.

Phillips also contends his conviction for aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded for resentencing, because the State failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon, or with an object M.B. reasonably believed to be a dangerous weapon, based on the character of the knife.

The offense of aggravated criminal sexual assault is committed when, during commission of a sexual assault, the accused " displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 12-14.) In determining whether a particular instrument constitutes a dangerous weapon, the supreme court has held:

"'Where the weapon in question and the manner of its use are of such character as to admit of but one Conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.'" (People v. Robinson (1978), 73 Ill. 2d 192, 202, 383 N.E.2d 164, 169, quoting People v. Dwyer (1927), 324 Ill. 363, 365, 155 N.E. 316, 317.)

For example, in Robinson the court concluded that a fingernail clipper containing a sharp, pointed fingernail file may constitute a dangerous weapon where testimony supports its use as such. Robinson, 73 Ill. 2d at 202, 383 N.E.2d at 169-70.

The knife that M.B. testified the defendant used in the sexual assault was admitted into evidence and was made a part of the record on appeal. It consists of two pieces: a two-inch sharpened metal blade with pointed tip attached to a plastic folding handle of the same approximate length, and a rectangular plastic piece into which the knife and handle, when folded together, conveniently fit.

M.B. testified that when Phillips initially displayed the knife, ostensibly to "cut up" cocaine, she expressed concern and asked what the knife was for. She also testified that Phillips later held the knife to her side, exerting, at one point, additional pressure, to keep her from exiting his automobile. She testified that she was afraid. She also testified that defendant brandished the knife immediately preceding the act of vaginal intercourse and threatened her with it. He again displayed and threatened her with the knife when she reached for her purse during the assault. Although Phillips denies that he used the knife in such a manner, he does not dispute that he, indeed, displayed the knife.

Even if the court accepted defendant's argument that the knife's characteristics do not classify it as a dangerous weapon per se, no basis exists to reduce defendant's conviction given the trial record, containing M.B.'s testimony concerning the use of the instrument in the instant case. Again, the trial Judge had before him the same physical evidence and was in the position to assess both M.B.'s and Phillips' testimony on the basis of credibility regarding the use of the knife. After observing the knife and hearing the above testimony, the trial Judge concluded that sufficient evidence existed to sustain a conviction for aggravated criminal sexual assault. M.B.'s testimony alone provides a legally sufficient basis to support that Conclusion and, therefore, in light of the proper scope of review to be exercised by the court on appeal, there exists no compelling reason to reduce defendant's conviction from aggravated criminal sexual assault to criminal sexual assault.

Lastly, in his opening brief Phillips challenges the constitutionality of the statute under which he was convicted of aggravated criminal sexual assault. Phillips also contends he was deprived of a fair trial through introduction into evidence of a pair of handcuffs recovered from his car and related comments made by the State during closing argument at the Conclusion of trial. Phillips, however, failed to raise either issue in his written post-trial motion for a new trial and, consequently, has waived those issues for consideration on review. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. I PREFACE

In reversing the conviction in People v. Phipps (1930), 338 Ill. 373, 380, almost 60 years ago, our supreme court held:

"It was long ago stated by Lord Hale in regard to the charge of rape, 'that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused though never so innocent.' This statement has been approved by this court." (Emphasis added.)

This admonitory truism by Lord Hale approved by our supreme court is just as accurate and viable today as it was when it was first uttered by Lord Hale.1 The case at bar is an irrefutable example of Lord Hale's axiom. There was no rape in this case.

The evidence convincingly establishes that Mary Berg engaged in consensual sexual activity with the defendant John M. Phillips, Jr. In this case, rape was an accusation easily made, hard to be proved, " and harder to be defended by the party accused though never so innocent." (Emphasis added.) 338 Ill. at 380.

There was no rape in this case. In this case, police officers came upon Mary Berg in a disgraceful and humiliating position, naked, engaging in voluntary sexual acts with her naked, newly met paramour, whom she knew by name, John M. Phillips, Jr., in his car, with his license plate with the letters, JMP JR, and which were his initials, affixed thereto, parked in an alley behind an occupied apartment building. In her frantic effort to avoid disgrace and regain her self-abandoned and forsaken honor, Mary Berg resorted to the ancient perfidious charges of rape and kidnapping, totaling 40 counts.

False rape accusations, instigated because of embarrassment, humiliation, remorse, fear, anger, disgrace and revenge continue to denigrate womanhood, victimize unwary males and plague the criminal Justice system. (People v. Taylor (1971), 48 Ill. 2d 91; People v. DeFrates (1965), 33 Ill. 2d 190; People v. Jackson (1989), 178 Ill. App. 3d 785; People v. Dick (1987), 153 Ill. App. 3d 670, 511 N.E.2d 432 (Pincham, J., Dissenting); People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261; People v. Warren (1983), 113 Ill. App. 3d 1, 446 N.E.2d 591; People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273; People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 276; People v. Taylor (1970), 121 Ill. App. 2d 403, 257 N.E.2d 524; People v. Kepler (1966), 76 Ill. App. 2d 135, 221 N.E.2d 801.) The judiciary should not succumb or become another prey to such odious and baseless charges. To condone and uphold such fabrications does not provide the community, and more particularly, does not afford honest women their much needed protection from bona fide thugs and criminals who prey upon them.

There was no rape in this case. The evidence utterly fails to establish beyond a reasonable doubt that there was a rape in this case. Quite the contrary! The evidence affirmatively establishes beyond a reasonable doubt that there was no rape in this case. The law mandates that a trial court or jury's guilty finding which is not based upon or established by proof beyond a reasonable doubt is not permanently or indelibly chiseled in granite. The law holds it to be our solemn duty to set aside such a finding on review. The Supreme Court aptly pointed out in Jackson v. Virginia (1979), 443 U.S. 307, 317, 61 L. Ed. 2d 560, 572, 99 S. Ct. 2781, 2788, that a "properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial Judge sitting as a jury." (Emphasis added.) Moreover, the Supreme Court held in In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, for the first time, that the due process clause of the fourteenth amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. "Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand." Jackson v. Virginia (1979), 443 U.S. 307, 317-18, 61 L. Ed. 2d 560, 572-73, 99 S. Ct. 2788.

An obviously innocent 33-year-old young man, who has no prior criminal record -- not even an arrest -- is the victim of a grave inJustice in the Justice system and languishes in jail because of an extremely indiscreet, but not illegal, sexual frolic in which he and his false accuser mutually agreed and participated. The law demands that we not close our eyes and blindly approve such an inJustice. There was no rape in this case! II THE LEGAL SCOPE OF REVIEW

Throughout the history of this State, even before Phipps, and to the present, our supreme court has repeatedly, consistently, without deviation or variation, held "the rule in charges of rape" to be:

"[While] in some cases the uncorroborated testimony of the prosecutrix may justify a conviction for rape, in order to do so the testimony must be most clear and convincing." People v. Phipps (1930), 338 Ill. 373, 380, citing People v. Freeman (1910), 244 Ill. 590.

The United States Supreme Court pointed out in Jackson v. Virginia (1979), 443 U.S. 307, 321, 61 L. Ed. 2d 560, 575, 99 S. Ct. 2781, 2790, that review "courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact."

Our supreme court has repeatedly, consistently, and without deviation held that the scope of review in a rape case, as expressed by it in People v. Qualls (1961), 21 Ill. 2d 252, 257-58, 171 N.E.2d 612, in reversing the rape conviction, to be as follows:

"Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. (People v. Kazmierczyk, 357 Ill. 592.) It is the further duty of a reviewing court, where a verdict is returned by a jury in a criminal case, not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Abbate, 349 Ill. 147.

We are constrained to say, after a careful reading of the entire record, that the testimony of the prosecuting witness lacks verisimilitude." (Emphasis added.)

In reversing the rape conviction in People v. Faulisi (1962), 25 Ill. 2d 457, 461, the supreme court held the scope of review to be:

"Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, (People v. Qualls, 21 Ill. 2d 252; People v. Kazmierczyk, 357 Ill. 592), and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Qualls, 21 Ill. 2d 252; People v. Abbate, 349 Ill. 147."

The scope of review of a defendant's rape conviction following his bench trial was stated in People v. Anderson (1974), 20 Ill. App. 3d 840, 847, 314 N.E.2d 651, 656, to be:

"Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. Moreover, in such cases it is the duty of the reviewing court not only to carefully review the evidence, but to reverse the judgment if that evidence does not remove all reasonable doubt and create an abiding conviction that the defendant is guilty of the crime alleged. (People v. Faulisi (1962), 25 Ill. 2d 457, 185 N.E.2d 211; People v. Barfield (1969), 113 Ill. App. 2d 390, 251 N.E.2d 923.)"

The court concluded in Anderson : "After the careful scrutiny of the State's evidence which is required of a reviewing court, we hold that evidence insufficient to remove all reasonable doubt and to create an abiding conviction" (20 Ill. App. 3d at 850) that there was a rape in the case, and reversed the conviction.

The supreme court reversed the rape conviction in People v. Taylor (1971), 48 Ill. 2d 91, and held the scope of review to be:

"[Reviewing] courts are especially charged with the duty of carefully examining the evidence in rape cases, and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty of the crime charged." 48 Ill. 2d at 98.

The trial court found the defendant guilty of rape in People v. Reese (1973), 14 Ill. App. 3d 1049, 1055, 303 N.E.2d 814, 819. This court reversed, and without remanding for a new trial, held:

"It is true that in a bench trial, it is the responsibility of the trial Judge to determine the credibility of the witnesses and the weight to be given their testimony and, unless the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant's guilt, the finding of the trial Judge will not be disturbed. [Citations.]

However, where the evidence of guilt is doubtful and uncertain, as we believe it to be here, and the explanation offered by defendant is positive . . ., it then becomes our duty to reverse the conviction, as we do here. [Citation.]" (Emphasis added.)

This court just recently held in People v. Allman (1989), 180 Ill. App. 3d 396, 401:

" In those cases involving sex offenses, the reviewing court has a special duty to scrutinize the evidence closely." (Emphasis added.)

In spite of the foregoing unequivocal and unchallenged authorities governing the scope of appellate review, extending over a period exceeding a half century, in the case at bar the majority states:

" [Once] the defendant has been found guilty in a criminal bench trial, the applicable standard of review is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Emphasis added.) People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789." 181 Ill. App. 3d at 149.

My research does not reveal that our supreme court in Collins or in any other case expressly or by inference overruled the decades of uninterrupted and unchallenged authorities governing the scope of appellate review, as previously set forth, of a rape conviction, particularly where consent is the defense, and convincing evidence of consent is presented by both the prosecutor and the defendant. Compliance with the requirement of Collins of viewing the evidence in a light most favorable to the prosecution is not inconsistent or incompatible with a simultaneous compliance with the requirements that

"reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and . . . not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that the defendant is guilty of the crime charged" (Taylor, 48 Ill. 2d at 98)

as mandated in Freeman, Phipps, Qualls, Abbate, Kazmierczyk, Faulisi, Taylor, Reese, Allman and a multitude of other authorities, likewise so holding. When such compliance is done, the Conclusion is inescapable that there was no rape in this case.

The majority in the instant case relies on and cites Collins, which in turn relies on and cites Jackson v. Virginia as authority for the proposition that the applicable standard of review by a State appellate court of the rape conviction in this case is to view all the evidence in the light most favorable to the prosecution. A mere cursory examination, however, of Jackson v. Virginia clearly reveals that it does not so hold. Collins was not a rape or sex case or a criminal bench trial. It is apparent from an analysis of Jackson v. Virginia, Collins and Collins ' progeny that our supreme court did not intend in Collins and Collins ' progeny to overrule the decades of the foregoing unchallenged, Illinois law governing the scope of appellate review in rape and other sex cases. If our supreme court had intended to do so, seemingly it would have so stated.

"The United States Supreme Court has stated that the standard for reversing a jury's verdict on the ground of insufficient evidence is identical to the test of whether to submit the prosecution's case to the jury:

'The prevailing rule has long been that a district Judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution woul warrant the jury's finding the defendant guilty beyond a reasonable doubt. . . . Obviously a federal appellate court applies no higher a standard [in determining whether the evidence was insufficient to sustain guilt, i.e., whether the prosecution failed to prove guilt beyond a reasonable doubt]; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision.' Burks v. United States (1978), 437 U.S. 1, 16-17, 57 L. Ed. 2d 1, 13, 98 S. Ct. 2141, 2150." (Emphasis added.) 88 Ill. 2d at 151.

It is worthy of note, in my judgment, that in determining whether the evidence is insufficient to sustain a guilty finding, Lewis required that the verdict be sustained "if there is substantial evidence viewed in the light most favorable to the Government, to uphold the jury's decision." (Emphasis added.) (88 Ill. 2d at 151.) It appears to me that such a requirement is appreciably different than is the requirement to uphold the guilty finding simply if "after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements and the crime beyond a reasonable doubt," as pronounced in Collins and Jackson v. Virginia. (Collins, 106 Ill. 2d at 261; Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) An analysis of Jackson v. Virginia reveals why.

Jackson v. Virginia involved an appreciably different proceeding and issue than the direct appellate review in a State court of a claim of deficiency of evidence to sustain a guilty finding in a State court of the commission of a State criminal offense. In Jackson v. Virginia, the Supreme Court opinion, authored by Justice Stewart, preliminarily states:

" The question in this case is what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence." (Emphasis added.) Jackson, 443 U.S. at 309, 61 L. Ed. 2d at 567, 99 S. Ct. at 2783.

The Supreme Court's foregoing statement of the question presented in Jackson v. Virginia is more than adequate persuasion that the Supreme Court did not, indeed the Supreme Court could not, except for minimum Federal constitutional standards, prescribe the scope of appellate review in the State criminal proceedings. Jackson v. Virginia prescribed the standard of review to be applied in a Federal court in a habeas corpus proceeding in which a State-convicted defendant claims that the evidence is insufficient to sustain his conviction. But because the manner in which the scope of Federal habeas corpus review of an evidence deficiency claim of a State court conviction, adopted in Jackson v. Virginia, conversely parallels the scope of appellate review in Collins, further Discussion of Jackson v. Virginia is enlightening and guiding.

In Jackson v. Virginia, unlike in Collins, the Supreme Court pointed out that the issue in the case was the standard to be applied in a Federal habeas corpus proceeding to review the sufficiency of the evidence in a State conviction. Conversely, as again hereinafter pointed out, our supreme court in Collins did not state that the scope of appellate review, or a change or an alteration thereof, was an issue on appeal for the court's determination.

In Jackson v. Virginia, the trial Judge found the defendant guilty of first degree murder. The defendant admitted the killing, but contended that because he was intoxicated and because he shot the deceased in self-defense, the requisite premeditation was absent, which precluded a first degree murder guilty finding under Virginia law. There was no appeal as of right from a criminal conviction in Virginia (Saunders v. Reynolds (1974), 214 Va. 697, 204 S.E.2d 421), and the defendant's petition for a writ of error, under Virginia Code, section 19.2 -- 317, on the ground that the evidence was insufficient to support a finding of premeditation and first degree murder, was reviewed on the merits by the Virginia Supreme Court, which denied the petition, the effect of which was to affirm the conviction on the merits. Thereupon, the defendant contested the validity of his Virginia conviction in a habeas corpus proceeding in the Federal court. Applying the "no evidence" criteria of Thompson v. Louisville (1960), 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624, the district court found the record devoid of evidence of premeditation and granted the writ. The court of appeals reversed, holding that from the evidence of the defendant's reloading of his gun after firing warning shots, that he had had time to do so, that the victim was then shot not once but twice and the defendant's state of intoxication, there was some evidence from which the trial court could find premeditation. The Supreme Court stated that it granted certiorari in Jackson v. Virginia to consider the defendant's claim that "a federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt." (Emphasis added.) (Jackson, 443 U.S. at 312-13, 61 L. Ed. 2d at 569, 99 S. Ct. at 2785.) The Supreme Court concluded that in a Federal habeas corpus proceeding to review the sufficiency of the evidence to sustain a State conviction under Federal constitutional due process:

"[The] critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . . . to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . . [Citation.] . . . [The] relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal Conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

. . . A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law.

. . . Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inference must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first-degree under Virginia law.

For these reasons, the judgment of the Court of Appeals is affirmed." (Emphasis added.) 443 U.S. at 318-19, 324, 326, 61 L. Ed. 2d at 573, 577, 578, 99 S. Ct. at 2789, 2792, 2793.

If it is not clear from the foregoing statements of and quotes from Jackson v. Virginia that the Supreme Court of the United States did not therein alter or prescribe, or attempt to alter or prescribe, the scope of State appellate review of State criminal convictions to require State courts to "view the evidence in the light most favorable to the prosecution," any remaining doubt is completely resolved by the opinion of Justice Stevens, with whom Chief Justice Burger and Justice Rehnquist joined, Concurring in the judgment in Jackson v. Virginia. Justice Stevens aptly and eloquently pointed out:

"Today the Court creates a new rule of law -- one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person -- including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial Judge, and one or more levels of state appellate Judges -- except upon proof sufficient to convince a federal Judge that a 'rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Ante, at 319, 61 L. Ed. 2d at 573.

The adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. . . . [Its] precipitous adoption will adversely affect the quality of Justice administered by federal Judges. . . .

It is, of course, part of this Court's tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic -- indeed, for any -- constitutional lawmaking efforts unless (1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law." (Emphasis in original.) 443 U.S. at 326-27, 61 L. Ed. 2d at 578-79, 99 S. Ct. at 2793 (Stevens, J., Concurring, joined by Burger, C.J., and Rehnquist, J.).

Thus, the new constitutional rule announced in Jackson v. Virginia is that in a Federal habeas corpus proceeding in assessing a defendant's claim that the evidence in his State conviction was insufficient to sustain the guilty finding, the Federal Judge is to view the evidence in a light most favorable to the prosecution. Jackson v. Virginia does not require a State court of review, when assessing a defendant's claim of insufficiency of the evidence to sustain a guilty finding of the commission of a State criminal offense, to view the evidence in a light most favorable to the prosecution.

In Collins, which, as stated, cites and relies on Jackson v. Virginia as its authority, the jury found the two defendants guilty of three brutal murders, and the defendants were sentenced to death. On appeal before the supreme court of Illinois, the defendants contended, inter alia, that the evidence did not establish their guilt beyond a reasonable doubt. Realistically, however, the evidence of their guilt was literally overwhelming. An accomplice testified that he accompanied the defendants with the bound murder victims from an apartment to the location a short distance away, where the three bound murder victims were repeatedly shot in their backs, the back of their necks and heads and in their faces and chests with shotgun blasts and pistols fired by the defendants. Other witnesses observed the defendants taking their bound victims from the apartment to the car in which the defendants transported them to the murder scene. Still other lay and expert witnesses put the murder weapons in the defendants' possession, as well as the rope with which the victims were bound. One defendant had three prior felony convictions, one for robbery and two for armed robbery, one of which was committed while he was on parole from the penitentiary, while the other defendant had 10 previous armed robbery convictions. That their defenses, presented by witnesses who were drug users and convicted felons, were permeated with fabrication and perjury was clearly established by the prosecutor's cross-examination. With this factual background, it is beneficial to set forth our supreme court's complete Discussion in Collins, in which it rejected the defendants' contention that the evidence failed to establish their guilt beyond a reasonable doubt and announced the principle of "viewing the evidence in the light most favorable to the prosecution." Collins, 106 Ill. 2d at 261.

The supreme court's complete Discussion in Collins on the issue is as follows:

"A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. [Citations.] Although the testimony of an accomplice is viewed with suspicion [citations], we have repeatedly held that it is sufficient to sustain a conviction if it satisfies the jury of the defendant's guilt beyond a reasonable doubt [citations]. When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, ' the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' The court went on to note that, '[once] a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal Conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' . . . [Citation.]

In view of these principles, we conclude that there is sufficient evidence to support the jury's verdict. Stated simply, the resolution of the defendants' guilt or innocence depended on the credibility of the witnesses and the weight given their testimony. It is well settled that these determinations are exclusively within the province of the jury. [Citations.] Similarly, it is for the jury to resolve any conflicts in the evidence. [Citations.] Here the jury was fully cognizant of the infirmities in [the accomplice] Nellum's testimony and was instructed that his testimony was to be viewed with suspicion. Nevertheless, the jury chose to believe Nellum over the defense witnesses, and after reviewing the record, we are not prepared to say that their Conclusion was unreasonable." (Emphasis added.) People v. Collins (1985), 106 Ill. 2d 237, 261-62.

Again, it is worthy of note that our supreme court was obviously cognizant of its citation of, reliance on and quote in Lewis, the language of the United States Supreme Court in Burks v. United States (1978), 437 U.S. 1, 16-17, 57 L. Ed. 2d 1, 13, 98 S. Ct. 2141, 2150, that on direct appeal of a criminal conviction "a federal appellate court . . . must sustain the verdict if there is substantial evidence viewed in the light most favorable to the Government, to uphold the jury's decision." (Emphasis added.) (People v. Lewis (1981), 88 Ill. 2d 129, 151.) Our supreme court in Collins did not apply or adopt the aforestated Lewis direct appeal review criteria. Instead, our supreme court in Collins adopted the indirect Federal habeas corpus appellate review of a deficiency of evidence claim of a State conviction criterion, pronounced in Jackson v. Virginia, i.e., "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Collins, 106 Ill. 2d at 261.) Having recognized this distinction between Lewis-Burks and Jackson v. Virginia, and having adopted the former in Collins, it appears to me that had our supreme court also intended to overrule the foregoing authorities governing the scope of review in alleged rape-consent and other sex cases, it would have said so. Obviously, our supreme court, in Collins, was cognizant of its prior decisions on the scope of appellate review in alleged rape-consent and other sex cases. Apparently the court concluded that such scope was compatible and consistent with its newly announced mandate in appellate review to consider the evidence in a light most favorable to the prosecution, as pronounced in Collins.

After Collins, the supreme court of Illinois decided People v. Linscott (1986), 114 Ill. 2d 340, in which the defendant was charged with murder and rape but the jury found him guilty only of the murder and not guilty of the rape. The sole issue presented on review was whether the evidence proved the defendant guilty of murder beyond a reasonable doubt. The supreme court cited Collins and the aforestated quote from Jackson v. Virginia, "the verdict will not be disturbed unless the evidence, viewed in the light most favorable to the prosecution" (114 Ill. 2d at 348), and affirmed. Justices Clark and Simon Dissented in Linscott, the former stating, "In my opinion the majority commits two errors. It applies the wrong standard of review, and it finds the evidence sufficient to sustain a conviction based on a mere suspicion of guilt. First, the majority fails to distinguish between appellate review of convictions based upon direct evidence and appellate review of convictions resting wholly upon circumstantial evidence. . . . Second, using the proper standard, the evidence adduced here does not exclude a reasonable hypothesis of innocence." (People v. Linscott (1986), 114 Ill. 2d 340, 349, 356 (Clark, J., Dissenting).) The supreme court in Linscott again did not overrule its foregoing series of authorities governing the scope of appellate review in sex cases.

People v. Byron (1987), 116 Ill. 2d 81, is another conviction for murder, armed robbery and home invasion in which the evidence of the defendant's guilt was literally overwhelming. Nevertheless, the defendant argued that the evidence failed to establish his guilt beyond a reasonable doubt, which argument the supreme court rejected, citing Collins and quoting the exact language herein from Collins. Again, in Byron the supreme court made no mention of its multitude of prior decisions and holdings that in cases involving sex offenses the reviewing court has a special duty to scrutinize the evidence closely and to reverse the ...


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