APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
545 N.E.2d 743, 188 Ill. App. 3d 414, 137 Ill. Dec. 90 1989.IL.1101
Date Filed: July 17, 1989; Modified on Denial of Rehearing October 10, 1989.
Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. QUINLAN and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
Defendant, Darrell C. Palmer, appeals from convictions for aggravated criminal sexual assault and unlawful restraint and a sentence of 12 years' imprisonment. He maintains that: (1) the State failed to impeach his alibi defense and rebut the evidence he presented that he did not fit the description of the offender; (2) the admission of certain hearsay statements violated his right to due process and right to confrontation; (3) he was denied due process when the jury was not instructed on the lesser-included offense of criminal sexual assault; (4) he was denied effective assistance of counsel; and (5) his sentence was improperly based on the Judge's preDisposition to severely sentence sex offenders. For the reasons that follow, we affirm the decision of the trial court.
The complainant testified at trial to the events that occurred on September 25, 1984. She was 12 years old at the time, lived at 72nd and Halsted and attended Walter Reed Elementary School located at 64th and Stewart. On the morning of September 25, she overslept and missed her 8:30 a.m. bus. She got up at approximately 9 a.m., took 20 minutes to dress and left for school, carrying her math and spelling books. She walked down Halsted Street to 64th, turned east on 64th and went under a viaduct to the north side of the street, the side on which her school was located.
As she walked under the viaduct, a young man ran up behind her on the right side, pressed something against her side and told her that it was a gun. He told her not to move or he would kill her. The object in question was black and brown, and the brown portion appeared to be made of wood. The assailant took her across the street to some bushes by the railroad tracks. When they reached the bushes, he laid her down, pulled up her skirt and pulled down her underpants. He then unzipped his pants and pulled out his penis. She could see at this time that he was wearing maroon underwear.
During this time, the complainant was crying and yelling. The assailant told her to be quiet, and then he put his penis in her mouth while she was lying down. He then took his penis out of her mouth and lay on top of her. He tried to insert his penis in her vagina but was unable to do so because she was moving around too much. The complainant told him that the penis hurt her, but he told her to be still or he would kill her and placed his hand over her mouth. The assailant then got up, pulled up his pants and zipped them.
The complainant testified that he went to see if anyone was coming and then came back for her. He offered the complainant $10 not to tell anyone what had happened, but she turned down the money. They were walking toward the school when he told her that he knew where she lived and would kill her if she told her mother or the police about the incident. The assailant told her that he had raped her because his girlfriend had been raped. When they reached an alley, the defendant ran into the alley and the complainant ran to school.
Upon her arrival at school, the complainant met her teacher in the hallway and told her that she had been raped. The assistant principal and the police were notified, and the complainant was taken to St. Bernard Hospital for examination.
The complainant testified that she had an opportunity to see the assailant. She stated that he was wearing a maroon and gold CVS jacket, gray pants, a black and gray shirt and gray shoes. He had long curly hair with gold streaks in it, had eyes that were "scrunched together" and pierced ears. She described her assailant as being 5 feet 9 inches tall, weighing 130 or 180 pounds, and appearing to be 17 or 18 years old.
Detective John McCann testified that he interviewed the complainant at the hospital. The description she gave of the assailant was similar to the one she had given to the police at the school. After she was released from the hospital, Detective McCann took the complainant back to the scene of the incident. They then went to CVS High School on 87th Street and Jeffrey Boulevard because they thought the offender may have been a student there. They chose the school because of the letters on the jacket, but learned that maroon and gold were not the school colors. The complainant was shown yearbook pictures and police photographs but did not recognize any of them as her assailant.
Detective McCann then gave a description of the assailant to the school officer at Englewood High School, which is a block and a half from Reed Elementary School and is the school a person in the area would attend. He also went to the apartment building at 6425 South Lowe, since the complainant had told him that the assailant had fled west and then south behind Lowe. The apartment complex has about 160 units and is located approximately a block and a half from the scene of the incident. Detective McCann gave a description of the assailant to the security guard and was informed that a person fitting that description had been in the building.
The complainant's mother testified that on November 22, 1984, the complainant and some of her cousins went to the Jewel food store at 62nd and Halsted. Upon returning home the complainant told her mother that she had seen the man who had attacked her at the store. The complainant's mother grabbed a knife and went to Jewel. Upon arriving there, the complainant pointed out the defendant to her mother, and the complainant's mother confronted him as he was leaving the store. The complainant's mother testified that prior to being accused of anything or even asked a question the defendant denied that he had done anything, remarking, "ou got the wrong person, you got the wrong person," and "ady, she is mistaken [ sic ] identity." However, the complainant insisted that he was the assailant. The complainant's mother flagged down a patrol car, and the officers arrested the defendant.
Officer Bernard Scott testified that on November 22, 1984, he was assigned to work at the Englewood Shopping Concourse. At approximately 1:45 p.m. he was flagged down by a woman and a child in front of a Jewel food store. The woman informed him that her daughter had been the victim of a sexual attack and identified the defendant as the assailant. Officer Scott placed the defendant in a squad car and read the defendant his Miranda rights. The defendant indicated that he understood his rights.
The defendant was then transported to the 7th District, where he was taken to the tactical office. Officer Scott overheard Officer Woullard having a conversation with the defendant. Officer Woullard was explaining the facts of the case to the defendant, and Officer Scott observed the defendant showing Officer Woullard the purple underwear he was wearing.
Officer Scott testified that later that day he had a telephone conversation with Yolanda Evans, the defendant's girlfriend, during which they discussed a maroon and gold jacket. Yolanda told him that the defendant had such a jacket, that she had seen it earlier that morning and indicated that the police could come over and get it. However, when Officers Scott and Woullard searched her apartment, they did not find the jacket.
Detective William Kelly testified that on November 22, 1984, he was assigned to follow-up investigation of an aggravated criminal sexual assault on the complainant. He and his partner, Detective Foley, spoke with the defendant in an interview room. Detective Kelly read the defendant his Miranda warnings and the defendant indicated that he was willing to answer their questions. The defendant told them that he did not own a maroon and gold CVS jacket. He stated that on the date of the incident he was working at the Holiday Inn and that Yolanda Evans could verify that fact. However, when Detective Kelly contacted Yolanda to verify the alibi, she informed him that the defendant was not working at the Holiday Inn on that day because he had been laid off. She further stated that she had seen the defendant wearing the jacket in question.
At about 3:30 p.m. Detective Kelly again spoke to the defendant in the presence of Assistant State's Attorney Susan Fleming. They advised the defendant of his rights, and he indicated a willingness to speak to them. Detective Kelly informed him that his girlfriend did not verify that he was working at the Holiday Inn at the time of the incident, at which time the defendant admitted to grabbing a small girl. He stated that he had taken her in an area with bushes where he raised her dress and pulled down her panties. He took out his penis and attempted to have intercourse with her but did not complete the act. He then walked with the girl and told her not to tell anyone. The defendant said that the gold and maroon jacket he had been wearing belonged to a friend.
Yolanda Evans, the defendant's girlfriend, testified that she had known the defendant for eight years and had lived with him for four years. She stated that she had discussed a maroon and gold CVS jacket with the police, and that two police officers had asked her permission to look for it but she did not testify to the substance of the conversation. She denied that the police had asked her if the defendant worked at the Holiday Inn on the date of the incident. Ms. Evans acknowledged that she had been sexually assaulted in May of 1983 and had discussed the incident with the defendant.
Assistant State's Attorney Susan Fleming testified that at 3:30 p.m. she had spoken with the defendant in the interview room in the presence of Detective Kelly. She told the defendant that the complainant had identified him as the individual who had sexually assaulted her by some railroad tracks. The defendant said he did not know anything about the incident and that he had been with his girlfriend at the time. Fleming informed him that Yolanda had told Detective Kelly that the defendant was not with her, at which point he admitted that he had followed a little girl and had taken her to an area by some railroad tracks where he pulled down her clothes. The girl struggled and yelled for her mother and he took out his penis in an attempt to scare her, but did not rape her. The defendant's statement was transcribed, but he refused to sign it.
Katrina Chambers testified on behalf of the defense. She stated that on September 25, 1984, she telephoned the defendant at 8:55 a.m. and spoke to him for approximately 25 minutes. She lived in the same apartment building as the defendant and on ...