People v. Barksdale

• Decision Date: 28 September 1976
• Docket Number: No. 61020,61020
• Citation: 3 Ill.Dec. 465,358 N.E.2d 1150,44 Ill.App.3d 770
• Parties: , 3 Ill.Dec. 465 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BARKSDALE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1150

358 N.E.2d 1150

44 Ill.App.3d 770, 3 Ill.Dec. 465

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BARKSDALE, Defendant-Appellant.

No. 61020.

Appellate Court of Illinois, First District, Second Division.

Sept. 28, 1976.

Rehearing Denied Jan. 31. 1977.

Paul Bradley, First Deputy State Appellate Defender, Lynn Sara Frackman, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Laurence J. Bolon, Asst. State's Atty., Michael J. Polelle, Sp. Asst. State's Atty., for plaintiff-appellee.

JIGANTI, Justice.

Defendant James Barksdale was found guilty in a jury trial of rape and of deviate sexual assault. He was sentenced to consecutive terms of 75 to 150 years for rape and 4 to 14 years for deviate sexual assault.

On appeal defendant contends:

I. That the evidence is insufficient to establish defendant's guilt beyond a reasonable doubt,

II. that the trial court erred in prohibiting defendant from directly questioning jurors on voir dire examination,

III. that the court erred in not granting defendant a continuance when the court-appointed public defender assumed the defense function midway through the trial; and

IV. that the sentences imposed were excessive in that

(a) they were based on improper evidence of prior alleged incidents, and in that (b) the consecutive sentences were in violation of Section 5--8--4(c) of the Unified Code of Corrections.

The facts will be related as they pertain to each of the issues presented for review.

I

On appeal defendant first contends that the evidence is insufficient to establish beyond a reasonable doubt that defendant engaged in sexual intercourse or in any act of deviate sexual assault with complainant by use of force and against her will.

The following is complainant's testimony regarding the occurrences of Saturday, March 18, 1972.

Complainant, a young white woman, arrived at the Greyhound Bus Depot on Randolph Street in downtown Chicago at about 3:00 p.m., from Michigan City, Indiana, where she had been visiting friends. She was on her way home to Fond du Lac, Wisconsin, but the bus she was to catch was not scheduled to leave until 6:30 p.m. During the waiting period she placed a long distance phone call to her sister in Fond du Lac.

During this call she was interrupted by defendant, a black male, who attempted to engage her in conversation. She told him to keep quiet because she was making a long distance phone call. Defendant continued to stand next to complainant. When she finished her phone call she walked to a row of chairs about 15 feet away and sat down. Defendant followed, sat next to her, and again attempted to strike up a conversation with her. Defendant did all the talking. He told her he was a social worker who worked with runaway young people and repeatedly invited her to come with him to his office in Old Town to meet the people with whom he worked.

After about 15 minutes complainant got up and walked to the soda foundain which is located on an upper level of the depot. The defendant again followed complainant and repeated his requests that she come with him to visit his office. Complainant finally agreed to walk two blocks with him because she thought that was the only way to 'get rid of' defendant. He stated that after two blocks if she did not want to go any further she could turn around and come back. They left the depot together. Defendant did not threaten or touch complainant at that time.

After they had walked two blocks, defendant led complainant down a flight of stairs to Lower Wacker Drive as a route which defendant described as a 'short cut' to the agency where he worked. Although it was light on the street above, it was dark on the lower level. The sidewalk was 75 feet from the highway and there were no people walking down there. They continued to walk for half a block and then defendant tried to pull complainant into a room containing trash cans and other refuse. Complainant screamed and endeavored to flee. She fought with defendant, pulled off his glasses and threw them to the ground. She cried and begged him to let her go, but defendant hit complainant and forcibly dragged her into the darkened room where he forced her to perform an act of oral intercourse. When she tried to refuse, defendant hit her on both sides of the head and on the chest and threatened to kill her. Defendant told her he had two razor blades, but complainant never saw them. He then ordered her to take off her clothes and lie down. When she refused, he again struck her on the head and chest and threatened to kill her if she did not comply. Defendant then pushed her down and forced her to submit to sexual intercourse with him. The complainant then put her clothes back on.

Thereafter, complainant begged him to take her back to the bus station. Defendant cautioned complainant not to cut herself on a nail on which he had just cut his hand. He agreed to take her back to the depot. On the way back complainant did not cry out or seek assistance from passers-by. Her intention was to summon police assistance as soon as she got back to the bus station. When they arrived there, the defendant permitted her to go to the washroom. Once inside the ladies' room, she told the matron in attendance that the man outside had beaten and raped her and asked the matron to call the police. Complainant was crying and hysterical.

Complainant's behavior and conduct after entering the ladies' room was confirmed by the testimony of Rose Dameron, a matron employed by the Greyhound Bus Terminal, who testified that at about 6:00 p.m., on the day in question, complainant entered the washroom and screamed that a man outside was going to kill her. The matron left and returned with two security guards. Complainant identified defendant as her attacker.

Melvin Kaiser, a security guard for Greyhound, was on duty at the time. He testified that after receiving an emergency call he and his partner went toward the ladies' washroom and noticed defendant leaning against the wall near the washroom. As Kaiser approached, defendant started to walk away. Kaiser asked where he was going in such a hurry and defendant answered that he had to catch a bus. However, when asked, defendant was unable to produce a ticket and said that he must have lost it. Kaiser noticed that defendant's pants were 'wrinkled' at the time and that defendant's coat sleeves were 'all dusty and dirty.'

Chicago Police Officer, John Jakubosky, testified that, at about 6:00 p.m., he and his partner received a call to proceed to the Greyhound terminal. Upon arrival he saw the two Greyhound security guards, the defendant, and the complainant whose face and chest were red. Scratches were evident on her chest. Jakubosky also noticed that the complainant's sweater and bra were torn.

Investigator Leo Doriak of the Chicago Police Department testified that, when he saw the complainant at police headquarters on that evening, she had bruises about the face and chest as well as scratches on her chest. The front of her sweater was ripped. Both sides of her face were bruised and swollen at the cheekbone level. The defendant, after he had been advised of his rights at police headquarters, told Dorociak that he had never left the bus station and had never had sexual intercourse with the complainant.

At trial it was stipulated that the complainant's bra was torn and that a vaginal smear taken from complainant at Mercy Hospital that evening showed the presence of human spermatozoa. The complainant testified that she was bleeding from the vagina at the time the smear was taken.

Defendant argues that, although he did not testify, complainant's own testimony is sufficient to cast doubt on the State's allegations that the sexual acts were by force and against her will. Complainant testified that she voluntarily walked with defendant to Lower Wacker Drive; that, although defendant threatened her with razor blades, she saw no weapon; that after the acts of intercourse, defendant cautioned her not to cut herself on an exposed nail on which he had just injured his hand; that she returned with him to the bus depot without crying out or seeking assistance from passersby; that defendant waited for her outside the ladies' washroom after returning her to the bus station; and that complainant declined to confront defendant after she had identified him to security guards.

Defendant argues that all of this conduct is inconsistent with complainant's allegation of forcible rape, but rather supports defendant's contention that the complainant voluntarily engaged in acts of intercourse with him which she afterward regretted.

However, defendant does not explain or take into consideration the corroborated testimony of complainant's crying and hysterical behavior after the incident, her torn sweater and bra, the bruised and scratched condition of her head and chest as noticed by the security guards and police officers, and her testimony of vaginal bleeding which militate against defendant's consent argument. Nor does he explain how his statement to Investigator Dorociak that he had never left the bus station with, nor had any sexual relations with, the complainant is consistent with his contention of consent.

In a conviction for rape, while the evidence must prove the act was against the will of complainant, there is no definite standard for determining the amount of resistance required. Such a determination must be made from the facts and circumstances of each case. (People v. Montgomery 1974), 19 Ill.App.3d 206, 311 N.E.2d 361.) The issue of whether the acts of intercourse were forcible or consensual is ultimately one of credibility. In this regard, it is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the...