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October 27, 1995



Rehearing Denied December 12, 1995. Released for Publication December 21, 1995. Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendant Abiodun Sowewimo was convicted in a bench trial of two counts of aggravated sexual assault, aggravated unlawful restraint, stalking, aggravated stalking, attempted first degree murder, and aggravated discharge of a weapon. On appeal, defendant alleges (1) he was denied his constitutional right to testify in his own behalf when the court and his trial lawyer pressured him to forego his testimony; (2) the offense of aggravated discharge of a firearm is a lesser included offense of attempted murder resulting from the same course of conduct; (3) Illinois' stalking statutes are unconstitutional; (4) the evidence was insufficient to support his convictions for attempted murder, stalking, or aggravated stalking; (5) he was denied effective assistance of counsel; (6) he was denied his right to cross-examine and present crucial evidence; and (7) his sentence was illegal, excessive, and unconstitutional.

We affirm in part and vacate in part.

P.S. testified that she began a relationship with the defendant in December of 1991. On August 7, 1992, P.S. let the defendant haveher car to go replace a key for the car door which defendant had previously lost. After work, P.S. went to the defendant's home to get her car. Defendant claimed that a friend was going to get the car, and he refused to let P.S. leave his bedroom for 30 minutes, running to the door when she tried to leave. P.S. then told the defendant, "Jude, I'd rather be dead than be with you." The defendant then picked a switchblade knife up off a table and put it to her throat saying, "What did you say? You would rather be what than be with me?" The defendant forced her to remain for five more hours, and at midnight, defendant gave P.S. money to take a cab home.

At 5 a.m. that morning, the defendant came to P.S.'s apartment and kept ringing her doorbell. P.S. let him in, and the defendant appeared drunk and passed out a few minutes later. P.S. went through his pockets and found her car keys, and she went outside and located her car on the street. She drove around for a few hours and called up her apartment at 9 a.m., telling the defendant she wanted him to leave. When she returned, he was on her bed naked. She told him he was disrespecting her and that she did not want to have anything to do with him. He grabbed her arm, but she swung away and left the apartment.

After leaving, P.S. called her sister to warn her that the defendant would probably go to the sister's home to look for P.S. P.S. asked her sister to meet at P.S.'s apartment. P.S. went back to her apartment, which the defendant had left by this time. She met her sister there and they soon left to run errands. P.S. and her sister went to her sister's home around 4 p.m. on August 8, 1992. The defendant made repeated calls there which were answered by others in the house. Eventually P.S. picked up one of the defendant's calls, and the defendant told her, "You better come back or I'm going to fuck you up." The defendant called from 30 to 50 times, of which five times P.S. spoke with the defendant. P.S. called the police, and she filed a report about the threatening phone calls when they arrived at 6 p.m. that day.

P.S. returned to her apartment at 10:30 p.m. that evening to find that her back door had been broken into. No valuables were missing, but pictures of P.S. with her friends had been ripped, her answering machine was smashed, and some of her clothes were burnt in her closet. She also had a personal file taken which contained her birth certificate and bills. P.S. called the police, who came and wrote out a report.

After the police left, P.S. discovered later that night that her tires had been slashed. The next morning, August 9, 1992, P.S.'s sister also discovered her car's tires were slashed and a headlightwas smashed. The two sisters again called the police and filed a report. They also had their locks changed.

The defendant called P.S. three or four times at her workplace, Banner Personnel (Banner), the morning of August 11, 1992. The defendant made threats towards her family and friends, telling her that they better get a bodyguard and that they were not going to see their lives in front of them. At noon that day the defendant came to Banner and asked to see P.S. P.S. did not want to see him, so a manager went out to meet him. Police officers later arrived and arrested the defendant based on P.S.'s complaint.

The defendant continued to call P.S. at work every day, and P.S. filed an additional police report on August 13, 1991. On August 21, 1992, P.S. appeared with the defendant in court regarding her complaint, and the defendant was given probation with a verbal warning from the judge not to call P.S. and to stay away from her, her family, and her workplace. The defendant continued to call P.S. at work every day through September 24, 1992, calling up to 400 times a day.

On the night of September 24, 1992, the defendant had called P.S. at her apartment at night before she had returned at 10 p.m. and had left several messages. Then the defendant called and spoke to P.S. personally. He asked P.S. where she had been that night and accused her of lying to him and playing games with him. He told her, "I'm going to fuck you and your family up."

On September 25, 1992, P.S. had an office meeting at 8:30 a.m. in the lunchroom at Banner. The defendant then walked into the lunchroom and pulled out a gun, and everybody in the lunchroom ran out. The defendant grabbed P.S. by the hair and said "I told you, P., if you don't come back to me, I was going to come and get you."

At this point Uri Armon walked into the room and told the defendant to calm down. P.S. was screaming and crying, and the defendant told her to shut up. The defendant's gun had been pointing down, and he raised it up and shot once at Mr. Armon, who turned and ran from the room. Armon left the room very quickly. P.S. thought Mr. Armon had been struck by the bullet. The defendant then closed and barricaded both doors to the room.

The defendant threw P.S. on the couch and told her, "This is the last time we're going to make love before you and I die." The defendant took off her panty hose and ripped off her underwear and had sexual intercourse with her. He finished and got dressed, and P.S. put her nylons back on. He then told her, "We're going to be on CNN, baby, A Current Affair, I told you. You didn't believe me. We're going to be on CNN, Current Affair." He kept his gun in his hand throughout the entire time.

The police arrived and began talking to the defendant through the barricaded door. The defendant told the police, "Don't play any games with me. I just shot a man. I killed a man. We're going to die before I go to prison. I'm not going to jail. We're going to die." The police attempted to convince the defendant that Mr. Armon was unharmed, and eventually they slipped under the door a picture taken of Mr. Armon with a police officer. The defendant then went to a sink and placed bullets from his gun and from his coat pocket down the sink. P.S. got on the phone and said the defendant was ready to surrender. P.S.'s underwear was still lying on the floor, and the defendant ripped it further with a kitchen knife and his teeth before putting it down the sink. The defendant then surrendered, about four hours after first confining P.S.

During cross-examination of P.S., the following colloquy ensued:

"MR. SMEETON [Defense Counsel]: How long were you in the room with him before he sexually assaulted you?

P.S.: Five minutes.

MR. SMEETON: During the next -- approximately how long did that last?

P.S.: Maybe 15, 20 --

MR. SMEETON: 15, 20 minutes?

P.S.: 15, 20

MR. SMEETON: At the time -- first encounter, how would you describe his behavior?

P.S.: What do you mean the first encounter with him? In that room that day?

MR. SMEETON: Was he -- was he acting rational?

MR. RIECK [The State]: Objection.

THE COURT: Sustained.

MR. SMEETON: Could you describe how he acted on that particular day, his personality?

MR. RIECK: Objection.

THE COURT: Sustained."

Immediately after sustaining the objections, defense counsel was allowed to ask about the defendant's sobriety and use of drugs on the day of the incident.

Ann Johnson, vice-president of corporate operations at Banner, was in charge of receptionists at Banner. She testified that during August and September of 1992, the receptionists at Banner received an inordinate amount of phone calls for P.S., some of them abusive, which required adjusting the switchboard operators to shorter work sessions to relieve their pressures. Over three or four days Ms. Johnson personally handled 40 or 50 calls from a man with the same voice. On one day they recorded over 400 phone calls from this man. She identified the voice as the defendant's from seeing and hearing him at Banner on September 25, 1992.

Uri Armon testified that he was at Banner at 8:30 a.m. on September 25, 1991, when he heard a crash and Ann Johnson screaming his name. He ran past Ms. Johnson and into the lunchroom to see the defendant holding a gun and grabbing P.S. by her hair as she crouched down. Mr. Armon said, "Please leave her alone. Let her go. This isn't the way to do this. Please." The defendant then raised his arm and pointed the gun directly at Mr. Armon and said, "Who the fuck are you?" Mr. Armon did not answer. The defendant said, "What the fuck do you want?" Mr. Armon again did not answer. The defendant said, "Get the fuck away from me." Armon did not move. In the same motion, the defendant turned towards P.S. and fired a shot in Armon's direction. The shot passed directly to Armon's right by his hip, and he believed it did not hit him ...

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