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05/24/89 the People of the State of v. Lawrence A. Whaley

May 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LAWRENCE A. WHALEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

540 N.E.2d 421, 184 Ill. App. 3d 459, 132 Ill. Dec. 681 1989.IL.782

Appeal from the Circuit Court of Cook County; the Hon. Jack Arnold Welfeld, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. White, J., concurs.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant Lawrence A. Whaley, was convicted of aggravated criminal sexual assault, home invasion and residential burglary after a jury trial in the circuit court of Cook County. The trial court sentenced defendant to 12 years' imprisonment. He appeals.

At trial, complainant testified that she was watching television in her apartment on December 21, 1986, when there was a knock at her door. When she unlocked the door, defendant, her next door neighbor's boyfriend, asked if he could borrow a cup of flour. At the time, defendant was wearing a gray shirt and pants, work boots and a raw-hide coat. After complainant gave defendant the flour, she locked the door behind him. Complainant noticed that defendant smelled of body and liquor odors. She also noticed that when defendant left, he walked in the direction opposite his girlfriend's apartment. When complainant turned off the lights to watch defendant, she observed him watching her. Eventually, complainant heard defendant knock on the door of his girlfriend's apartment and say, "Yes, it's me."

Complainant then turned the lights back on and resumed watching television. Later, there was a second knock at her door. When complainant opened the door, defendant returned her cup, thanked her and left. Approximately five minutes later, there was a third knock on complainant's door. She turned the light on and answered the door. When complainant opened the door, defendant, who was wearing the same clothes as before with the addition of a brown ski mask, put his left hand over complainant's mouth and his right hand behind her head. Complainant noticed that defendant had flour on his pants and the same body and liquor odors she had noticed before. Defendant then pushed complainant into her living room and knocked her to the floor. At that time, complainant noticed that defendant had a knife in his hand. Defendant told complainant, "Don't worry, I'm not going to kill you. All I want you to do is suck me."

Defendant then pulled complainant up from the floor by her hair into her kitchen and locked the door. Complainant slid down on the floor in a corner, and defendant dropped his pants and said, "All I want you to do is suck me." After complainant pleaded for her life, defendant pulled his pants up and took complainant into the bedroom, where he lay on the bed with complainant at his side. Defendant then pulled complainant down and forced her to perform fellatio upon him for approximately 15 minutes. During this time, complainant was able to see defendant's eyes and mouth through the mask. Also during this time, defendant laid the knife down and put his hands behind his head. Complainant then grabbed the knife and stabbed defendant in the abdominal area.

After she stabbed defendant, complainant ran for the door but defendant grabbed her from behind and started choking her. Defendant then told complainant, "I'm not going to stab you. Why did you have to stab me? I told you I wasn't going to kill you. Now I have to kill you." Defendant then stopped choking complainant, and she pleaded for her life and asked defendant to leave her apartment. Defendant asked for the knife and a towel, complainant told him again to leave, and defendant said he would not leave until he got the towel. After complainant gave defendant a towel, he put it on his pants and wiped up the blood. He also told complainant to get the knife. When defendant told complainant to wipe up the blood, she told him that she would do so and asked defendant to leave her house. Defendant responded that he would wipe up the blood because if he did not, he would be arrested and would have to kill complainant. Complainant poured Sparkle on the floor after defendant asked her if she had any Spic & Span. Defendant then wiped up the blood and told complainant to get the knife because he did not want to leave any evidence behind.

Complainant retrieved the knife from the bedroom and noted that the blade, which was about two inches long, was bent at a 90-degree angle. Defendant told complainant that he would not leave until he received $20 for stitches and the knife from complainant. Complainant took $20 from her purse and placed the money on her stove. Defendant then grabbed the money. When defendant stepped out of complainant's front door, she threw the knife onto the driveway next to her apartment, per his instructions. After watching defendant pick the knife up, complainant called her brother and the police. When the police arrived, she told them she had been raped by her next door neighbor's boyfriend.

Upon responding to complainant's call, the police found a pile of flour approximately 13 feet from complainant's door. They also found dry stains on complainant's kitchen floor of a reddish brown color that appeared to have been wiped or smeared with a liquid. Finally, complainant picked defendant's photo out of a photo array on the night of the offense and identified him out of a lineup after he turned himself into the police on December 22.

Opinion

On appeal, defendant contends that the lack of evidence of stab wounds on his person the day after the offense and of any blood samples linking him to the crime raised a reasonable doubt of guilt.

The day after the offense, Dr. Harry C. Swanstrom examined defendant at the request of the police for any evidence of stab wounds or cuts. The doctor examined defendant's extremities, hands, chest, trunk, and groin area. The doctor found a few superficial abrasions on defendant's hands which were already healing and which, in his opinion, could not have been inflicted less than 24 hours before the examination. Dr. Swanstrom found no other evidence of stab wounds or cuts to defendant nor did defendant appear to have lost a substantial amount of blood. On cross-examination, Dr. Swanstrom admitted that the type of cuts on defendant's hands, which the prosecutor characterized as "paper cuts," tended to bleed profusely for a short time and heal quickly. The doctor also admitted that he did not examine defendant's inner thigh behind the scrotum and that he could have had a cut beneath his pubic hair. Finally, Dr. Swanstrom admitted that he had no way of knowing to what extent a particular wound would bleed without seeing it at the time of injury.

We do not agree that the doctor's testimony alone or coupled with the failure to introduce blood samples, from the scene of the crime, raised a reasonable doubt of guilt. Complainant positively identified defendant as her attacker. She had ample opportunity to observe defendant before the attack. Despite the fact that he wore a ski mask, complainant had ample opportunity to observe her attacker during and after the attack and, thus, to identify defendant as her attacker. As defendant concedes, the testimony of a single witness who had ample opportunity to observe is sufficient to support a conviction. (People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866.) Moreover, the determination of guilt or innocence, i.e., the determination whether the State has proven guilt beyond a reasonable doubt, is, in the first instance, for the jury, and its determination will be disturbed only if an examination of the evidence leaves a serious and well-founded doubt of guilt. See People v. Sledge (1962), 25 Ill. 2d 403, 407, 185 N.E.2d 262.

Complainant positively identified defendant after having ample opportunity to observe him before, during and after the attack. There were other circumstances corroborating defendant's guilt as the perpetrator in this case which we will not recount here. As such, the doctor's failure to find stab wounds or cuts on defendant's body, especially in view of his admission that he did not examine the area beneath the scrotum or pubic hair, does not leave us with an abiding doubt of defendant's guilt. Finally, we will not substitute our judgment for the jury's by concluding that blood samples from the victim's apartment connecting defendant to the crime were necessary to convict him of the offenses at issue.

Defendant also contends that he established a prima facie case of discrimination in the State's use of peremptory challenges to exclude two black venirepersons from the jury and that the trial court erred in not requiring the State to articulate race-neutral reasons for its actions. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The State asserts that defendant waived the issue by, inter alia, failing to adequately object at trial.

Under Batson, to establish a prima facie case of a discriminatory use of peremptory challenges by the State, a defendant must show that he is a member of a cognizable racial group and that the State used peremptory challenges to remove members of his race from the jury panel. The defendant must show that these facts and any other relevant circumstances raise an inference of discrimination in the use of peremptory challenges. Where a defendant makes a prima facie showing, the State must provide a neutral explanation for its use of peremptory challenges. (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) Moreover, the initial determination whether a prima facie case of discrimination is established is for the trial court, it being in a superior position to a court of review to make that determination. People v. Evans (1988), 125 Ill. 2d 50, 66-67, 530 N.E.2d 1360.

Two things are abundantly clear from the colloquies between the trial court, defense counsel and the prosecutor during the voir dire after the State exercised peremptory challenges against venirepersons Irving and Ray, which we set out in an appendix hereto. First, contrary to the State's waiver argument, defendant adequately objected to the exercise of peremptory challenges against Irving and Ray. In this regard, we do not believe that defense counsel is required to use any particular or pro forma language to bring a Batson claim to a trial court's attention. The fact that the trial court is made aware of the claim, not the manner in which the claim is made, is dispositive. Any other result would exalt form over substance. Secondly, as the Appellate Court, Second District, recently held in remanding a case for a full Batson hearing:

"It is clear from the record that the trial court was not entirely familiar with Batson and did not proceed in a manner consistent with the dictates of that case. The court did not first decide whether the facts established, prima facie, purposeful discrimination. . . . Consequently, the record . . . is insufficient to provide us with an adequate basis to review the Batson issue. Furthermore, because the trial court was unfamiliar with the standards set forth in Batson, it did not properly inject its own observations and judicial experience into the determination of whether the assistant State's Attorney used the peremptory challenge . . . in a discriminatory fashion." People v. Jones (1988), 177 Ill. App. 3d 663, 667, 532 N.E.2d 543.

Therefore, like the Jones court, we remand this case with directions that defendant be allowed to present evidence pursuant to Batson that the State engaged in purposeful racial discrimination in exercising its peremptory challenges against venirepersons Irving and Ray. In that hearing, the court must expressly determine whether defendant has made a prima facie showing of purposeful discrimination. If he does, the trial court must then determine whether any explanations offered by the State are racially neutral. If the court determines that they are, the judgment and sentence against defendant are affirmed. If not, the judgment and sentence are vacated and a new trial is ordered. See People v. McNeal (1987), 160 Ill. App. 3d 796, 806, 513 N.E.2d 897.

Finally, we reject the State's contention that defendant waived the Batson issue by also failing to raise it in his written post-trial motion. The State cites People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), U.S. , 102 L. Ed. 2d 263, 109 S. Ct. 274, and People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, in support of its waiver argument.

In Enoch , the supreme court reaffirmed the rules that "[ both ] a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial" and that the failure to specify grounds for a new trial in a written motion therefor constitutes waiver of the issue on review in the absence of plain error. (Emphasis in original.) People v. Enoch (1988), 122 Ill. 2d 176, 186, 187, 522 N.E.2d 1124, cert. denied (1988), U.S. , 102 L. Ed. 2d 263, 109 S. Ct. 274.

In Evans, the supreme court held that the defendant had waived any right to assert in the exclusion of a black venireperson from the jury, stating:

" Batson requires that the defendant make a timely objection to the prosecutor's peremptory challenge. [Citation.] The peremptory challenge of Mary Patton was never objected to by the defense, either at trial or in post-trial motions. We do not believe that an objection occurring after the jury is sworn can be deemed timely. Therefore, as the defense has objected to the challenge against Mary Patton for the first time on appeal, that particular objection has been waived." People v. Evans (1988), 125 Ill. 2d 50, 61-62, 530 N.E.2d 1360.

We cannot agree with the State that, even in light of Enoch, Evans must be construed as requiring a defendant to raise a Batson claim both before the jury is sworn and in a ...


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