People v. Brown

• Citation: 99 Ill.App.2d 281,241 N.E.2d 653
• Decision Date: 10 July 1968
• Docket Number: Gen. No. 51820
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ellsworth BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 653

241 N.E.2d 653

99 Ill.App.2d 281

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ellsworth BROWN, Defendant-Appellant.

Gen. No. 51820.

Appellate Court of Illinois, First District, Fourth Division.

July 10, 1968.

Supplemental Opinion on Denial of Rehearing Oct. 9, 1968.

Chester A. Lizak, Chicago, for defendant-appellant

John J. Stamos, State's Atty., Chicago, for plaintiff-appellee; Elmer C. Kissane, Ronald Sandler, Asst. State's Attys., James Truschke, Chicago, of counsel.

ENGLISH, Justice.

CRIME CHARGED

Rape.

JUDGMENT

There was a preliminary competency hearing at which a jury found defendant to be sane. After a bench trial, defendant was found guilty of rape and sentenced to a term of 15 to 30 years.

CONTENTIONS ON APPEAL

(1) The evidence was insufficient to establish guilt.

(2) At the pre-trial hearing a verict of incompetency should have been directed by the court.

(3) The competency hearing was not fair.

(4) The sentence was excessive.

EVIDENCE AT THE TRIAL

Billie Jean Richardson, for the State.

She was married on June 10, 1960, and at the time of her testimony in December, 1965, had three children aged 5, 4 and 1, the youngest born by Caesarian section on December 8, 1964. The last time she had lived with her husband was in 1962, having lived since then with her mother and sister. ¹ She 'really wasn't divorced,' although she remembered testifying before the grand jury that she was divorced.

She had not known defendant before January 9, 1965, ² when, at 2:30 A.M., she was walking alone down a well-lighted street. Three men (one of whom she identified as defendant) came up and started beating her. One man threw something at her face which exploded and got in her eyes. They dragged her into a gangway and beat her on the face and head. All three had knives. Further,

I told Ellsworth Brown that I just had a Caesarian operation. The other two men then left. Brown walked me down the street to a courtway building. I did not try to escape, because he had a knife. * * * When he got me down to this gangway, he snatched the bandages off of my stomach. ³ I was fully dressed; coat, skirt, blouse and sweater. I also was wearing a slip, bra and panties. Before he raped me, he showed me a white business card. I saw the letters 'G, L, U' and the word 'Clinic' on it. * * * In the courtway building, he had a knife against my neck and he had me against the wall in a dark space. A cab driver came back and asked if anyone called a cab. We didn't say anything.

The cab driver hollered up the stairway, but nobody answered so he went back. All the time the cab driver was present, defendant was holding her with one hand and was holding a knife to her neck with the other. He also had the knife against her neck when he took out his wallet. The business card to which she referred was sticking out of the wallet. Continuing,

I guess he (the cab driver)--from the way it seemed to me, we were just standing there talking, I guess. (Defendant) told me to turn around and face the wall. He kind of tore my slip and skirt. He didn't unzip my clothes or anything, all he After the other two men had left, she was with defendant about 25 minutes. After he raped her she stayed there a few minutes, then went home and told her mother and sister of the incident. They reported her story to the police. Later that evening, she described to the police what had happened and was taken to Mount Sinai Hospital where a Dr. Janabi examined her, took a smear test, and treated her eyes. ⁴ She didn't know what happened to the underclothing she was wearing at the time of the incident. The police didn't take them. The sweater and skirt were at her home. She next saw defendant on January 15 when she identified him in a 'show-up' at the police station. She also identified the card defendant had shown her on January 6, and it was introduced into evidence.

did was pull them up from behind and told me to bend over slightly. * * * He had intercourse with me, while my panties were on. * * * Mr. Brown had intercourse with me by pulling the panties aside.

She was positive that she had never stated to the police that all three men had raped her. 'If the officer were to testify to that, he would be lying.'

Patrick King, for the State.

He was the police officer who talked to Billie Jean Richardson on January 6, 1965, at about 10:00 A.M. She appeared tired and sleepy.

On January 15, 1965, he arrested defendant. Defendant carried a wallet and card similar to the ones Billie Jean had described, and she identified defendant at a police line-up. She also made a statement which he typed as she dictated.

At the police station he asked defendant what he had to say about the case. Defendant stated that on his way home he saw two men attacking a woman; that he crossed the street to help the woman as the two men ran off. Billie Jean was the woman, and she accepted defendant's offer to accompany her from the location of the attack. Defendant walked her to a courtway building where he showed her a 'Dr. Gluckman's Clinic' card. Defendant told her he worked at the clinic and that she could get in touch with him there. At that time a cab driver came into the courtway inquiring if anyone had called for a cab. Defendant answered, 'no,' and walked out of the courtway with the cab driver, 'halfway down the street.' Defendant denied having raped Billie Jean.

Sharon Loeb, for the State.

On January 6, 1965, she was employed by Mount Sinai Hospital as a registered nurse. She was present when Dr. Janabi administered the smear test to Billie Jean.

John Cioe, for the defense.

He was a police detective. On January 6, 1965, he took a statement from Billie Jean Richardson in the Mount Sinai Hospital emergency room. Since he had no independent recollection of the conversation, the defense introduced into evidence a copy of the report he had filed concerning the interview. The report read in part: 'She was forced into the gangway where all three had sexual intercourse with her, by force and against her will. * * *' ⁵ Ellsworth Brown, defendant.

He had been convicted of robbery in Virginia in 1961. He testified to the following:

On the morning of January 6, 1965, while on my way home, I saw two men attacking Miss Billie Jean Richardson. * * * I crossed the street but I didn't see Miss Billie J. Richardson. I am afraid of dogs and I thought she was a dog crawling out of the gangway. But at the time I approached her there was a cab driver coming, he was looking for someone. So he and I walked her down the street and that is when she told me, you know, and him, in his presence that the other two guys tried to do something to her, and she told us about some sort of operation. I, in turn gave her my address and showed her a card of the place where I was working and told her that's where she can find me up to 12:00 o'clock in the afternoon. * * * The Yellow Cab driver was present when I walked her home. * * * She didn't say anything about rape until we were standing in front of her house.

Defendant testified that he did not report the assault to the police. Also, he repeatedly denied raping Billie Jean.

OPINION

Because of the nature of the crime, reviewing courts are charged with an extraordinarily high standard of care in examining the evidence in a rape case. People v. Perez, 412 Ill. 425, 107 N.E.2d 749; People v. Kazmierczyk, 357 Ill. 592, 192 N.E. 657. When the charge is denied and the conviction depends upon the testimony of the complaining witness, it must be corroborated by evidence of other facts and circumstances unless her testimony is clear and convincing. People v. White, 26 Ill.App.2d 199, 186 N.E.2d 351; People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154; People v. Reaves, 24 Ill.2d 380, ⁶ 183 N.E.2d 169. In the case on appeal, Billie Jean's testimony is the only evidence offered to prove certain essential elements of the offense. While this situation is by no means unusual, application of the principles set forth above requires that the evidence be subjected to close scrutiny. People v. Fitzgibbons, 343 Ill. 69, 174 N.E. 848.

In so doing, we conclude that her testimony was not clear and convincing. She was impeached, in part, at least, by her own inconsistent statements. At the trial she changed her account of when her bandages were torn off by defendant. When she did decide on the correct sequence of events, this version was at variance with the signed statement she had given the police shortly after the incident. Then, she testified positively that defendant was the only person who had intercourse with her on the morning of the attack by the three men. This testimony was impeached by her statement taken at the hospital in which she asserted that all three men had had sexual intercourse with her. Even in the traumatic setting of a rape, it defies explanation as to how a woman, fully conscious throughout the episode, would be mistaken under oath or would forget whether she had been forcibly subjected to intercourse by one man or by three men. It also cannot be explained how she would not have been sufficiently impressed by the incident to have remembered at what point in the basic sequence of these terrible events the Caesarian surgical bandages had been ripped from her body, or how this could have been accomplished, she being fully clothed at the time. Further the marked inconsistency between Billie Jean's testimonial descriptions of her marital status at the trial and before the grand jury has a strong tendency to impeach her credibility under oath. To be sure, these variances are not material as bearing directly on proof of the elements of the crime charged, but they are not minor or unimportant on the question of her credibility when viewed in the light of the evidence as a whole. See People v. Webb, supra.

In a prosecution for rape, 'where evidence is offered substantially impeaching the truth of her statements and the defendant denies the...