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12/23/96 PEOPLE STATE ILLINOIS v. JAMES BARNWELL

December 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES BARNWELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Bertina Lampkin, Judge Presiding.

Released for Publication February 13, 1997. As Corrected March 4, 1997.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

The defendant, James Barnwell, was indicted by grand jury for the abduction, robbery and rape of M.K. Included in the indictment were 18 counts of aggravated criminal sexual assault, three counts of criminal sexual assault, six counts of aggravated kidnapping, two counts of kidnapping, and one count each of robbery, aggravated possession of a stolen motor vehicle, burglary and aggravated criminal sexual abuse. Following a jury trial, defendant was found guilty of aggravated criminal sexual assault, kidnapping and robbery, and was sentenced under the Habitual Criminal Act (720 ILCS 5/33B-1 (West 1994)) to natural life in prison with no possibility of parole. Defendant filed various post-trial motions for a new trial, *fn1 which the trial court denied, and defendant now appeals his conviction pursuant to Illinois Supreme Court Rule 603 (155 Ill. 2d R. 603).

At trial, the State presented the testimony of M.K., the complaining witness; Karen Grover, M.K.'s friend; Barbara Gebbia, the emergency room nurse who treated M.K. after the incident; and Chicago Police Officers Anthony Gvozdenovic and Kent Baker, the arresting officers. By way of stipulation, the State also presented the testimony of Christine Braun and of Robert Berk, technicians in the Chicago Police Department crime lab.

On direct examination, M.K., 29 years old, testified that on the date she was attacked, Friday January 17, 1992, she returned home from her job as an operations analyst for CNA. Once home, she received a telephone call from her friend, Karen Grover, who was upset because she had lost out on a job opportunity. M.K. agreed to accompany Grover to the Pump Room at the Ambassador East Hotel for a drink. Grover picked M.K. up at home in her 1989 yellow Honda Prelude, drove to the Ambassador East, and parked on a street one block northeast of the hotel. At approximately 11:00 p.m., Grover began feeling sick because she was very upset, was drinking, and had not eaten anything. She and M.K. therefore agreed to leave the bar, and Grover gave M.K. her keys so that M.K. could drive her home. Grover required the assistance of one of the bartenders to reach the exit door. Once outside, Grover leaned against a flower pot near the hotel for support, and M.K. told her to wait there while she retrieved Grover's car and returned to pick her up.

M.K. further testified that she proceeded alone to Grover's car, unlocked the door, sat in the driver's seat, and closed the door. Because she had never driven Grover's car before, M.K. was compelled to open the door again in order to illuminate the overhead light and to find the ignition. Before she could close the door again, it was "swung wide open" by the defendant, who then "slammed" M.K. down face-first into the passenger seat of the car. Defendant said "get down, shut up or I will kill you. I have a gun." The defendant then sat down in the driver's seat and began to drive the car, while he continued to hold M.K. facedown in the passenger seat. M.K. did not attempt to escape because she "was terrified for her life and [she] wanted to get out of there alive." After approximately fifteen minutes, defendant parked the car and told M.K. that he was not going to hurt her but that he needed money for drugs. Defendant still held her face-down in the passenger seat so that she was unable to see where they were. Defendant then took M.K.'s purse from her shoulder and she heard defendant open the wallet inside the purse and take money which he "crumbled and stuffed" into his pocket. Defendant then threw the purse into the back seat of the car, removed M.K.'s glasses, threw them into the back seat, and told her "I need you to do one more thing for me, I need you to make love to me."

At that point, defendant demanded that she take off her clothes. When she did not respond, he "started going up her coat and skirt with his hands and removed her panty-hose, underpants and shoes." M.K. then heard defendant's zipper and belt buckle being undone, and she "felt the force of his penis penetrating [her] anus." Defendant said "I need to get you excited," and then rolled M.K. over and forced his tongue into her vagina. After a few minutes, defendant got on top of M.K. and "forced his tongue into [her] mouth." This was the first time she was face to face with defendant. Defendant then covered M.K.'s eyes and "forced his penis into her vagina," after which he again forced his tongue into her vagina, then again into her mouth, and then again attempted to force his penis into her vagina.

M.K. further testified that she heard defendant say "police," after which he jumped off of her and drove the car "very fast and recklessly" until he crashed. He immediately tried to get out of the car but could not because the driver's side door would not fully open. M.K. then heard police officers saying "come out, you're under arrest," and she started screaming, "help me, help me, I've been raped." The officers arrested the defendant and helped M.K. out of the car and into their squad car. Once in the squad car, at M.K.'s request, the police officers went back to Grover's car and retrieved M.K.'s purse, glasses, panty-hose, underwear, and shoes where she had left them. M.K. also looked in her purse and confirmed that the defendant had taken $28.00 to $30.00 from her wallet. Before leaving the scene, M.K. identified the defendant as her attacker. She was then transported to Grant hospital.

During extensive cross-examination, M.K. stated that prior to the night of the attack, she had been a passenger in her friend Karen Grover's yellow Honda Prelude on a few occasions. The night before the attack, M.K. had dinner with Grover at Shaw's Crab House during which she and Grover discussed Grover's employment situation. M.K. also testified that in between the driver and passenger seats of Grover's car were an automatic gear shift and a cellular telephone mounted on the console separating the two seats, and that the defendant shoved her over those objects when he entered Grover's car. M.K. did not know whether defendant used a condom during her attack. She further stated that defendant had turned the engine off during the attack, and that he turned it back on when he shouted "police." M.K. denied ever saying "I can't get caught with you" to the defendant, and denied hitting the gas pedal when the police first arrived. M.K. further testified on cross-examination that when she arrived at Grant Hospital approximately 15 minutes after the attack, she told an emergency room nurse everything that had happened and that the nurse wrote the events down. On redirect examination, M.K. testified that she had never seen the defendant before the night of the attack.

Karen Grover was then called to testify by the State. On direct examination, she gave substantially the same testimony regarding the events earlier that evening leading up to M.K.'s departure from the hotel to retrieve Grover's car. Grover additionally testified that she waited outside of the hotel for a "fairly long time" for M.K. to get the car to drive her home. Eventually, Grover walked into a nearby building where the doorman assisted her in hailing a taxi cab which took her to her apartment. A 24-hour doorman at her building let her into her apartment because she had given her keys to M.K. Once home, Grover called M.K. at home and left a message on her answering machine. Shortly after she hung up the telephone, police officers arrived and advised her of what had happened to M.K. Grover accompanied the police to Grant Hospital to see M.K. She stated that at the hospital, M.K. looked very distraught, like she was in shock, and was shaking and crying.

On cross-examination, Grover initially stated that prior to the date of the attack, she had not talked to M.K. for several days, but later remembered that she had dinner with M.K. at Shaw's Crabhouse on the night before the attack, and that she had used a "2-for-1" coupon to pay for that dinner. On re-cross examination, Grover testified that she had informed the police on the evening of the attack that she had eaten dinner with M.K. at Shaw's the previous evening.

Barbara Gebbia, a registered nurse at Grant Hospital who had treated M.K. on the night of the attack and who had previously treated 40 to 50 sexual assault victims during her 23 years as a nurse, testified as an expert witness regarding M.K.'s condition and treatment while in the Grant Hospital emergency room. On direct examination, Gebbia testified that she interviewed M.K. about the attack, and found it unusual that M.K. was able to actually quote to her segments of what the offender had said. Gebbia further stated that M.K. was crying and shaking, and that a full body examination revealed no outward signs of physical injury. Gebbia performed routine fingernail scrapings, pubic and head hair combings, and rectal smears and swabs. Gebbia also stated that she did not take swabs from M.K.'s mouth because M.K. never indicated that she had been forced to perform oral sex on the defendant in addition to the other forced sexual acts which she described to Gebbia. Gebbia further testified that although she found no signs of ...


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