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06/30/95 PEOPLE STATE ILLINOIS v. ALEXANDER

June 30, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALEXANDER FLEWELLEN, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN J. MANNION, JUDGE PRESIDING.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

After a jury trial, defendant was found guilty of home invasion, attempted aggravated criminal sexual assault, armed robbery, and attempted first-degree murder. The trial court sentenced him to concurrent terms of 20 years for attempted murder, armed robbery, and home invasion, and 10 years for attempted aggravated criminal sexual assault.

On appeal, defendant contends that his counsel was ineffective; that he was not proved guilty of home invasion or attempted murder beyond a reasonable doubt; that he was improperly impeached with a prior conviction; that the prosecutor improperly cross-examined him; that the trial court improperly ordered that his genitalia be photographed and allowed the jury to be informed of his refusal to be so photographed; that the prosecutor's closing argument was improper; and that the trial court erred in refusing to appoint new counsel for the post-trial hearing.

The pertinent facts are as follows. Prior to trial, the trial court conducted a hearing on defendant's motion to suppress his lineup identification. The court ruled that the lineup was not impermissibly suggestive and denied defendant's motion. Defendant does not challenge that ruling, and it is not necessary to recite the testimony adduced at that hearing.

At trial, the victim testified that on September 3, 1991, she was alone in her home in Chicago. At 8:30 p.m., she heard a knock on the door. She looked out and saw a man on the porch, whom she later identified as defendant. The victim recognized the defendant from the community. She did not know him by name. Ten years previously, defendant had fixed her stereo and had recently come to inquire how the stereo was working.

When the victim answered defendant's knock, he was holding a puppy. He asked the victim if she wanted to buy the puppy. She replied that her husband would have to make that decision and that he would not be home for a couple of hours. Defendant then asked for a match, and after the victim handed him a match through the burglar gate, defendant asked to use her bathroom.

The victim remained in the living room while defendant used the bathroom. When he came out, he asked for a glass of water and followed the victim into the kitchen. After getting the water, defendant grabbed the victim so hard that he knocked her to the floor. As she struggled to get up, defendant grabbed a knife from the kitchen counter.

Defendant dragged the victim to the living room while holding the knife to her throat. He then pushed her down on the sofa. With the knife still in his hand, defendant pulled his pants down and ordered the victim to suck his penis. When the victim drew back, defendant struck her with the back of the knife.

Defendant ordered the victim to get up and dragged her to the television set. As defendant bent over to unplug the VCR, the victim tried to escape by crawling toward the bathroom. Defendant grabbed her and smashed her head and nose to the floor. Defendant got on top of the victim and choked her. She lost consciousness. When she regained consciousness, she slid along the wall and tried to remove the wallet from her purse. Defendant grabbed the wallet, removed some money, and fled.

When defendant fled, the victim ran across the street to her mother's home. The police were called, and she was taken to a hospital where she was treated for her injuries, including a fractured nose.

Six days later, the victim saw a group of men standing in front of a nearby store. Wondering if her assailant was in the group, she walked over to the store. Her assailant was not there but she told the men what had happened to her. One of the men gave her some information which she relayed to the police.

Later that day, the victim went to the police station where she viewed a lineup. She identified defendant, who was in the lineup, as her assailant. After she identified defendant, Officer Thomas Ptak asked her if defendant had any unusual marks or tattoos. The victim told the officer that she remembered defendant's testicles and that they were unusually small. Ptak ordered defendant to remove his pants, and the victim identified defendant's testicles.

Officer Ptak testified and corroborated the victim's testimony regarding the lineup. He also stated that the victim expressed no hesitancy or uncertainty in her identification of defendant.

Officer Massey testified for the State that he responded to the victim's call on September 3. The victim was very upset, and she had blood on her face. Massey followed the victim to the hospital where she described her assailant as being 5 feet 6 inches tall and weighing 150 pounds. She remembered defendant's face as he had once repaired her stereo.

Officer Gregory Mitros testified that he visited the victim on September 9 to take the information that she had. The victim told him an anonymous informer, who refused to identify himself, gave her the first name of her assailant, Alex, and a street address. Mitros, whose testimony will be set down in detail later in this decision, went to 5918 South Hermitage and spoke to a woman. She said that she had a son named Alexander. He was not home. Mitros wrote up his report and asked another police officer to follow up.

Officer Philip Burton testified that he went to defendant's home and arrested him. In his report, Burton set down defendant's height and weight as 6 feet 2 inches and 180 pounds.

Linda Flewellen, defendant's sister, testified on his behalf that on September 3, 1991, she and defendant visited a friend. They arrived at 6 p.m. and stayed until 8 or 8:30 p.m. As they walked home, defendant saw his friend, Prince Oliver, and went with him to a store. About 15 minutes later, she saw defendant and Prince sitting on the front porch. She joined them, and they sat drinking wine for a couple of hours.

Linda stated that her mother's dog had recently given birth to 11 puppies. Her brother Brian was selling the puppies, but she did not know if defendant was.

Defendant testified that on September 3, 1991, he arrived at his mother's home from work at 8:10 p.m. He and Linda then went to a liquor store to buy wine. Defendant and Linda then visited a ...


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