People v. Brown

Decision Date23 August 1976
Docket NumberNo. 61669,61669
Citation354 N.E.2d 602,41 Ill.App.3d 641
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Milton BROWN, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender, Cook County, Chicago (James L. Rhodes and Suzanne M. Xinos, Asst. Public Defenders, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Cook County, Chicago (Laurence J. Bolon and Mary Ellen Dienes, Asst. State's Attys., of counsel), for plaintiff-appellee.

O'CONNOR, Justice.

Defendant, Milton Brown, was found guilty by a jury in the circuit court of Cook County of the offenses of rape and deviate sexual assault and sentenced to four to twelve years in the penitentiary. Defendant appeals, asserting (1) he was denied effective assistance of counsel, (2) he was not proved guilty beyond a reasonable doubt, (3) the trial court erred in allowing the State to introduce rebuttal testimony concerning a prior arrest of defendant, (4) the trial court erred in refusing to allow a State's witness to be called as a defense witness and in denying defendant a continuance to present a witness and (5) his convictions for both rape and deviate sexual assault were improper.

The complainant testified that at 7 p.m. on January 25, 1973, she was walking along a street in the city of Chicago with her three-year-old daughter. A man walked past them from the opposite direction, turned and came up behind complainant. He put a knife to her throat, told her not to make any noise and to turn around and start walking the other way. The man led her and her daughter to the enclosed gangway of an apartment building, where he unscrewed two light bulbs which were illuminating the area, shook a set of brass knuckles at complainant and asked if she knew what they were. He took complainant and her daughter into a small room off the gangway, forced her to lie down and remove one leg from her pants, committed an act of cunnilingus and then had sexual intercourse with her. Defendant testified that he was home at the time.

Defendant argues that he was denied effective assistance of counsel because his privately retained attorney asked him on direct examination about a prior arrest.

The standards applicable to a claim of trial counsel's incompetence are stated in People v. Torres (1973), 54 Ill.2d 384, 391--392, 297 N.E.2d 142, 146--147:

'* * * The defendant's trial attorney was not appointed by the court but entered his appearance on behalf of the defendant. In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham. People v. Redmond, 50 Ill.2d 313, 278 N.E.2d 766; People v. Stanley, 50 Ill.2d 320, 278 N.E.2d 792; People v. Green, 36 Ill.2d 349, 223 N.E.2d 101; People v. Williams, 26 Ill.2d 190, 186 N.E.2d 353.

'* * * Errors in strategy and of judgment on the part of counsel do not render the representation incompetent. (People v. Somerville, 42 Ill.2d 1, 11, 245 N.E.2d 461; People v. Washington, 41 Ill.2d 16, 21, 241 N.E.2d 425.) * * *.'

and in People v. Gill (1973), 54 Ill.2d 357, 367, 297 N.E.2d 135, 141:

'* * * (I)n order to warrant the reversal of a conviction on grounds of inadequacy of representation the defendant must demonstrate the actual incompetence of counsel in carrying out his duties and, in addition, it must appear that 'substantial prejudice results therefrom, without which the outcome would probably have been different.' (People v. Harper, 43 Ill.2d 368, 374, 253 N.E.2d 451, 454.) * * *.'

Defense counsel's opening remarks to the jury demonstrate that part of his strategy was to 'show that the defendant here is not the type of individual to get involved in this kind of sexual activity, that he never has been involved in this type of sexual activity.' This strategy is also apparent at the beginning of defendant's presentation of evidence. The first witness called for the defense was defendant's fiances. After a few brief preliminary questions, defense counsel asked:

'Q. Since you have known Mr. Brown, have you ever heard of him being convicted for any sex crimes?

'A. No.

'Q. Have you ever heard of him being involved in any problems with sex in general?

'A. No.

'Q. In other words, you never heard of any complaint lodged against him concerning his sexual behavior from anyone?

'A. No, I haven't.'

Defendant's fiancee repeated these denials during cross-examination. Contrary to these denials, defendant had, in fact, been arrested two years prior to this case for the offense of taking indecent liberties with a child. The child was his fiancee's daughter and his fiancee was the one who had signed the complaint.

Defendant was the next witness called to the stand. He was questioned at length, but not about the prior charge until after an overnight recess. When the trial resumed, defense counsel asked defendant about the prior arrest. While there is no indication before this point in the trial that defense counsel knew of the prior arrest, his questioning of defendant on the second day shows that he was aware of it at this time:

'Q. Were you ever arrested for a sex crime?

'A. Yes, I was arrested.

'Q. Was that a crime for indecent liberties with a child?

'A. Yes, it was.'

We can only assume that defense counsel was not told by defendant of the prior arrest before trial. It is inconceivable that he would have questioned defendant's fiancee about prior arrests had he known of the indecent liberties charge because his theory that defendant was not the type of person to be involved in this type of activity and had never been so involved was directly contradicted by the fact that defendant had once been arrested for taking indecent liberties with a child. We must assume that he learned of the earlier complaint only after defendant's fiancee gave her false testimony. Upon learning of the facts, defense counsel was forced to change tactics. To lessen the impact of inevitable impeachment on rebuttal by the State, he must have felt that it was best to have defendant bring out the prior arrest and have him try to explain it away.

Defendant testified that the charge was unfounded because the girl had hurt herself by riding her bike without a seat on it and that the charge was dropped the morning after he was arrested. On rebuttal, the State introduced testimony that the earlier case was not disposed of until two and one-half months after defendant's arrest when his fiancee decided against testifying.

Whatever prejudice, if any, resulted to defendant because of the questioning about the prior arrest was precipitated by defendant himself. Defense counsel's strategy to portray defendant as a person with an unblemished record should have been apparent to defendant at least from his own attorney's opening remarks and certainly from the questioning of defendant's fiancee. If the strategy was based on an incorrect characterization of defendant, he knew it and it was his responsibility to correct it by informing his own lawyer of the facts. See People v. Colon (1974), 20 Ill.App.3d 858, 866, 314 N.E.2d 664, 670.

Other than the claim regarding the questions about the prior arrest, no other alleged acts of incompetency by defense counsel are cited nor, in our view, could they be. Defense counsel filed and argued lengthy written pretrial motions to quash the arrest and suppress the line-up evidence and post trial motions for a new trial and in arrest of judgment. His conduct during all phases of the trial itself was also above criticism. As our discussion of the next contention of defendant will show, 'considering the entire record here, even if one would assume serious deficiencies in the representation, it cannot be said that the outcome without them 'would probably have been different.' People v. Harper, 43 Ill.2d 368, 374, 253 N.E.2d 451.' People v. Gill (1973), 54 Ill.2d 357, 367--368, 297 N.E.2d 135, 141.

Defendant contends that the State failed to prove beyond a reasonable doubt that he had sexual intercourse and engaged in deviate sexual conduct with complainant by force and against her will. Ignoring the record as a whole, defendant has singled out certain facts which he believes show that the complainant willingly submitted to his advances. We find his contentions on this issue to be totally without merit. Typical of his argument is the assertion that complainant should have picked her three-year-old child up and run. He also points out that complainant did not scream, or kick a door, or knock on a window, even though the crime took place in an occupied apartment building which was located next to a fire station. Defendant further maintains that because he did not display a weapon simultaneously with the acts of cunnilingus and intercourse, complainant must have willingly submitted to his actions.

The degree of force and the amount of resistance which must be shown before it can be said with certainty that the acts were forcible and against the will of the complainant depend on the totality of the facts of each case. (People v. Taylor, (1971), 48 Ill.2d 91, 98, 268 N.E.2d 865, 868.) As to the assertion that complainant should have run away, we only need to point out that, considering the disparity in size and strength of the parties (People v. Sims (1972), 5 Ill.App.3d 727, 729, 283 N.E.2d 906, 908), it would be futile for a woman carrying a three-year-old child to try to run from a man who is five feet eleven inches tall, weighs 197 pounds and is unencumbered by anything but a knife and a set of brass knuckles. Useless and foolhardy resistance such as this is not required of a victim of a rape attack in order that she may avoid the charge that she was a willing participant. (People v. Faulisi (1962), 25 Ill.2d 457, 461, 185 N.E.2d 211, 213; People v. Appleby (1968), 104...

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