People v. Burch
| Decision Date | 25 September 1974 |
| Docket Number | No. 73--101,73--101 |
| Citation | 22 Ill.App.3d 950,317 N.E.2d 136 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert C. BURCH, Jr., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Frank V. Ariano, Elgin, for defendant-appellant.
Gerry Dondanville, State's Atty., Geneva, Clarence F. Wittenstrom, Jr., Asst. State's Atty., Elgin, for plaintiff-appellee.
Defendant was convicted in a jury trial of the offenses of rape, conspiracy and aggravated battery. He was sentenced to 4--15 years for rape, 1--5 years for aggravated battery, and 1--5 years for conspiracy, all to run concurrently.
He appeals, contending that he was not proven guilty beyond a reasonable doubt; that various errors in the admission of testimony, in closing argument and in the giving of an Allen type instruction prevented a fair trial; and that he may not be convicted of both rape and the conspiracy to commit that rape.
We have recently reviewed the case of an indicted co-defendant, William Casner, who was separately tried. (See People v. Casner (1974), 20 Ill.App.3d 107, 312 N.E.2d 709.) The testimony of the prosecutrix and corroborating witnesses at this trial is essentially the same as in the Casner record and as stated in our opinion in Casner and we will not repeat it here. In the trial below this defendant testified that he did not have intercourse with the prosecutrix; that only Casner got into the back seat with her, and that while Casner may have had sexual intercourse based on what the defendant heard in the car, no forcible intercourse even by Casner took place.
From our review of this record we conclude that the evidence is sufficient to sustain the conviction. The prosecutrix's testimony was clear and convincing and was maintained in all substantial aspects under vigorous cross-examination. The forcible rape was corroborated by the testimony of a physician, photographic evidence and the testimony of the baby sitter who saw the victim immediately after the alleged offenses. Defendant's explanation at trial to explain the prosecutrix's injuries was inherently unbelievable and inadequate. On the whole record there was ample evidence to support the jury's finding of guilt beyond a reasonable doubt.
We next consider defendant's argument that trial errors were prejudicial.
Defendant contends first that reversible error was committed because the court on its own motion did not prohibit testimony that co-defendant Casner was convicted in a separate trial for the same offenses. Defendant claims that the prejudice of such testimony was accentuated by the prosecutor's reference to Casner's conviction in closing argument. Defendant argues that a judgment of conviction of a co-defendant in a severed trial is not competent proof on the issue of guilt in his own trial. The State responds that while the statement of the rule is generally true, it does not apply to a case in which there are accountability and conspiracy issues as here.
While defendant was testifying on his own behalf he was asked by his counsel if he knew where Casner was at the time of defendant's trial, to which the defendant replied:
'A. Yes, I do. He is in the State Penitentiary.
Q. For what?
A. For exactly what he did.
Q. To (the prosecutrix)?
A. Yes.'
In closing argument the State's Attorney referred to this questioning and asked whether it did not prove that the complaining witness's story had been proven out if the co-defendant was in jail. The prosecutor also told the jury that they would receive an instruction involving accountability for another's acts and that the jury should find defendant accountable even if some of the jury happened to believe that defendant did not have intercourse with the prosecutrix.
In closing argument defense counsel told the jury that there was no question in his mind but what the complaining witness was seriously harmed,
The prosecutor objected to this statement on the ground that there was nothing in the evidence to show anything different about the evidence presented in the two cases. The court then instructed the jury to try the case on the evidence they had heard in the court room at defendant's trial.
Part of defendant's trial strategy was to shift the blame on Casner. Defendant testified that Casner hit the prosecutrix and that he told Casner to stop it; that Casner was intoxicated somewhat; that it was only Casner who had intercourse with the prosecutrix; that defendant was in the front seat minding his own business; that it was Casner who threatened defendant when defendant said he was going to the police; and that it was Casner who fled. Faced with strong evidence that the prosecutrix was forcibly raped in the presence of Casner and defendant, shifting the blame to Casner, while not persuasive, was one of the few courses open to defendant's counsel in an attempt to make a defense.
Under the modern cases, and in view of broadened accountability statutes, it is error to admit into evidence the conviction of a co-indictee, co-conspirator, co-defendant, or accomplice who was separately tried or who pleaded guilty. See Anno. 48 A.L.R.2d 1016. The rule, however, has little application in the particular circumstances of this case. The prosecutor did not introduce into trial the reference to Casner's conviction; it was elicited on direct examination of defendant by his own counsel as part of defense counsel's trial strategy, and thereafter argued by defense counsel to the jury to concede that the prosecutrix had been seriously harmed and that Casner was in the penitentiary for having so harmed her. The prosecutor's response therefore was invited, and defendant's contention is without merit. People v. Burage (1961), 23 Ill.2d 280, 282--283, 178 N.E.2d 389.
Defendant also claims that it was prejudicial error for the trial judge to call Ivan A. Wemhoff as the court's witness without a specific request by the prosecutor and over defendant's objection; and that the error was compounded by limitation of the right of cross-examination by defense counsel.
Wemhoff was a polygraph expert who was hired by the defendant and listed as a defense witness. He was not called by the defense but was subpoenaed by the State as a rebuttal witness, apparently after he had refused to testify as a witness for the State without a subpoena. In a hearing before the judge, it was disclosed to the court that the witness was expected to prove an impeaching statement nade after a polygraph examination by the defendant admitting that defendant had sexual intercourse with the prosecutrix, but claiming that the intercourse was voluntary. Defense counsel moved that the witness be precluded from so testifying on the ground that the Miranda warnings had not been given prior to the polygraph examination, and the court denied the motion. Defense counsel made no objection to Wemhoff being called as a court's witness. The court asked a limited number of questions and tendered the witness for cross-examination by both parties. Under these circumstances the case of People v. Moriarity (1966), 33 Ill.2d 606, 615, 213 N.E.2d 516, cited by defendant does not support his position, and the failure specifically to object to Wemhoff testifying as a court's witness waived the objection so that it cannot be urged on appeal. People v. Headrick (1965) 65 Ill.App.2d 169, 173, 212 N.E.2d 102.
Defendant's contention that his counsel was unduly restricted in cross-examining the court's witness Wemhoff likewise is without merit. Defense counsel sought to explain the circumstances of defendant's impeaching statement by attempting to elicit from Wemhoff that the lie detector results would show that the defendant had intercourse with the prosecutrix but that it was voluntary. Apparently defense counsel wanted to show that defendant, in order to comport his story with the examiner's opinion, falsely told Wemhoof he had voluntary intercourse with the prosecutrix. Alternatively it appears that it was believed that the polygraph results would show defendant's innocence. The facts sought to be elicited by defense counsel were in direct conflict with defendant's own testimony that he did not have intercourse with the prosecutrix and that he did not tell Wemhoff that he did. And the claim of voluntary intercourse could only be established by reference to polygraph results which defense counsel considered favorable on the issue but which were themselves inadmissible. See People v. Nicholls (1969), 42 Ill.2d 91, 97, 245 N.E.2d 771; People v. Zazzetta (1963), 27 Ill.2d 302, 189 N.E.2d 260.
Nor are we persuaded that defendant was improperly restricted in the examination of Wemhoff when defense counsel sought to inquire whether the prosecutrix had made impeaching statements to the polygraph examiner. As the State has pointed out, no foundation for such impeachment was ever laid during defendant's extensive cross-examination of the prosecutrix. See People v. Rainford (1965), 58 Ill.App.2d 312, 317--318, 208 N.E.2d 314.
Defendant makes the further contention, however, that the State in fact brought out the results of the polygraph tests and that this amounted to reversible error. In laying a foundation for the impeaching statement made by defendant to Wemhoff, the prosecutor asked defendant in cross-examination whether defendant had ever told anybody that he had had intercourse with the complaining witness. The defendant replied:
'A No, I did not.
He told me that this is--this is what he got out of the test, that he did not think that I had forceably (sic) had sex with (the prosecutrix). And I told him that I had been told to come in there and tell the truth and that is exactly what I did and if I was telling the truth and it showed that I was lying there was nothing more I could say.
Q So he said...
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