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12/18/95 PEOPLE STATE ILLINOIS v. TYSHUN LLOYD

December 18, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TYSHUN LLOYD, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS P. DURKIN, JUDGE PRESIDING.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a bench trial, defendant, Tyshun Lloyd was convicted of four counts of aggravated criminal sexual assault and sentenced to an aggregate term of 42-years imprisonment. On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly admitted the statement of the complainant through the testimony of her boyfriend; (3) the trial court relied upon the inadmissible hearsay testimony of two co-offenders; (4) his convictions should be reduced to criminal sexual assault; and (5) his sentence is excessive. For the following reasons, we affirm.

The record reveals the following relevant facts. On September 15, 1991, at approximately 3 a.m., the complainant, J.J., was sexually assaulted by five young men in an abandoned building located at 1358 South Throop Street. *fn1 On September 19, 1991, at 2 a.m., police arrested defendant at his home.

Prior to trial, the trial court denied defendant's motion to suppress his statement, finding that he voluntarily waived his Miranda rights.

At trial, Chicago police detective William Wright testified that he interviewed J.J. at the police station on September 19, 1991 at 3:45 a.m. At 7:15 a.m., Detective Wright interviewed defendant, in the presence of an assistant state's attorney. Defendant made a statement, which was reduced to writing. Defendant read the statement aloud, then signed the statement. Although defendant was 15 years old at the time of his arrest, Detective Wright thought that defendant was 16 years old. Defendant's statement shows that he is 16 years old.

Defendant's statement indicates that he is a member of the Black Gangster Disciple street gang, and that co-offender "Mac" is a member of the Vice Lord street gang. Defendant's statement also implicates co-offenders Christopher Gavin a.k.a, "Fatman"; and defendant's brother, Michael Lloyd.

Defendant stated that on September 15, 1991, at approximately 3 a.m., he and Mac saw J.J. walking down the street. They grabbed her and brought her to an abandoned building at 1358 South Throop. Christopher Gavin, Michael Lloyd and two other individuals followed them. Once upstairs, Mac forced J.J. to suck his penis, as did Gavin, defendant, Michael Lloyd, and the other two men. Then, everyone except defendant had vaginal intercourse with J.J.

Afterward, everyone left and Mac, Michael Lloyd and J.J. got into a red and white Chevrolet and drove to a nearby vacant lot where J.J. was again forced to have oral sex with Mac. At this time, defendant stated he was sitting at 1360 Throop when Mac drove up with J.J. and Michael Lloyd. They told defendant to go to J.J.'s house so they could take her television, video cassette recorder, and other things. Defendant followed them. Once at J.J.'s building, Mac looped a belt around J.J.'s neck, tightened the belt, and took her in the elevator to her third floor apartment. Defendant stated that there were at least four other young men with them. Mac held onto J.J. with the belt, while the others walked behind J.J. J.J. knocked on the door and a man answered so Mac tried to pull J.J. to the ground. Michael Lloyd then hit J.J. with a broken wine bottle in her face. J.J. called out to her boyfriend, and defendant and the others ran. Defendant ran to 1360 Throop and sat on the porch. Mac and Michael Lloyd drove to 1360 Throop and then left.

Cook County Hospital Emergency Room Nurse Katherine Buckley testified that she treated J.J. at approximately 5 p.m. on September 15, 1991. J.J. stated that she had been sexually assaulted and hit by five men at 2 a.m. that day. Nurse Buckley observed that J.J. sustained a superficial laceration to the side of her head, and that her clothes were untidy. Nurse Buckley did not notice that J.J. had any redness on her neck, but did observe some swelling above the cut at her eye area.

Jerome Streeter testified that he is J.J.'s boyfriend. At the time of the incident, Streeter resided with J.J. and their two children in an apartment located in the Ida B. Wells housing project at 1341 West 15th Street. On September 14, 1991, Streeter was "panhandling" until approximately midnight. J.J. was at home when he returned, then left the apartment at 2 a.m. to get beer from a 24-hour store. Streeter fell asleep.

At approximately 3 a.m., Streeter awakened to the sound of voices in the hallway. Streeter heard J.J. shout out his name, and he jumped up and ran toward the door. Streeter then heard a bottle crack. When he opened the door, he saw J.J., with a belt tied around her neck. A man stood behind J.J. holding the belt, and ran toward the north corridor when he saw Streeter. J.J. was bleeding from her head.

Streeter ran down the north corridor after the man, and saw him exit the building and enter into the passenger side of a dark automobile with a white-top. Streeter observed several individuals in the back seat of the automobile, in addition to the driver.

When he returned to the apartment, he noticed J.J.'s hair standing on end, and the belt still around her neck. J.J. removed the belt, and was crying. Streeter asked J.J. what happened, and she responded that she had been raped. Streeter noticed that J.J.'s clothes were dirty, and that she had mud on her knees. Streeter looked at the belt and noticed that it was a mans' size 34.

Streeter stated that J.J. sat "dazed" at the kitchen table for hours. Streeter asked J.J. to call the police five or six times. Streeter left the apartment at 7:30 a.m.

On cross-examination, Streeter admitted that he did not call the police nor an ambulance for J.J. Streeter stated that he went to bed at approximately 5 a.m., prior to leaving the apartment at 7:30 a.m. Streeter did not chase after the individuals in the car he saw outside.

Streeter returned to the apartment between 3 and 4 p.m., where he encountered the police. He gave his name to the police, but did not give the officers any information, nor did he accompany J.J. to the hospital or to the police station.

Chicago police officer Alan Mercado testified that on September 15, 1991, at 4 p.m., he and his partner Officer Maldonado interviewed J.J at her apartment. Officer Mercado noticed broken glass in the courtway en route to J.J.'s apartment. Once inside, the officer noticed that J.J.'s clothing was a little soiled, and that she had a fresh cut on the left side of her face. J.J. stated that she had been raped, and the officers drove her to the scene of the offense, an abandoned apartment building located at 1358 South Throop. The officers accompanied J.J. to an apartment house next door, and gleaned information from three female witnesses. The officers then transported J.J. to the Cook County Hospital. After J.J. was treated, the officers returned J.J. to her apartment.

Christopher Gavin testified that he is 16 years old and has known the defendant for the duration of his life. Gavin stated that he pled guilty in juvenile court to the offense of criminal sexual assault upon J.J., was convicted, received probation.

Gavin stated that he had no recollection of the events occurring at 2 a.m. on September 15, 1991, nor of the incident of his arrest on September 19, 1991. Nevertheless, Gavin recognized his own signed statement, given on September 19, 1991. He admitted that his nickname is "Fatman."

Gavin's statement was presented as evidence. Therein, Gavin stated that he saw defendant approach J.J. and bring her to a vacant rowhouse at 1358 South Troop. Gavin further stated that defendant had sexual intercourse with J.J. Gavin stated that he did not have sexual intercourse with J.J., but that he was present when the others had sexual intercourse with J.J., and that he acted as a lookout. Gavin also stated that defendant placed J.J. in a red and white car, and then told Michael Lloyd and Gavin to follow them to J.J.'s apartment. Once there, Gavin heard defendant tell Michael, "Give me the glass." Gavin then heard the bottle break.

Michael Lloyd, defendant's younger brother, then testified that he is 16 years-old. He admitted that he knows Gavin. In 1989, Michael was convicted for possession of a stolen motor vehicle in juvenile court and released. Michael admitted that he currently has a burglary case pending against him in juvenile court. Michael denied any knowledge of the events occurring on September 15, 1991, and the subsequent criminal proceedings against him. Michael further failed to identify as his own, a signature on a statement dated September 19, 1991, and denied talking to police. However, he admitted to pleading guilty to the criminal sexual assault of J.J. and to receiving a sentence of probation.

Michael's statement was presented as evidence. Therein, Michael stated that he was 14 years old at the time of the incident. Michael also stated that he saw defendant approach J.J., and then bring her to the vacant rowhouse. Michael stated that defendant had sexual intercourse with J.J., while he awaited his turn. Afterward, defendant and Mac took ...


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