People v. Cihlar

• Decision Date: 18 May 1982
• Docket Number: No. 80-2374,80-2374
• Citation: 106 Ill.App.3d 824,62 Ill.Dec. 739,436 N.E.2d 1041
• Court: United States Appellate Court of Illinois
• Parties: , 62 Ill.Dec. 739 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Douglas CIHLAR, Defendant-Appellant.

Page 1041

436 N.E.2d 1041

106 Ill.App.3d 824, 62 Ill.Dec. 739

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Douglas CIHLAR, Defendant-Appellant.

No. 80-2374.

Appellate Court of Illinois, First District, Second Division.

May 18, 1982.

Steven Clark, Deputy Defender and Phillip Zisook, Asst. Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat, Lester M. Joseph and Larry J. Crown, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

HARTMAN, Justice:

Defendant was found guilty by a jury of rape, burglary and home invasion and not guilty of armed robbery. He was sentenced to a 6 year term. He raises as issues for review whether: (1) he was proved guilty beyond a reasonable doubt; (2) he was prejudiced by the State's failure to provide his attorney with a statement of a State's witness; (3) the court erred in allowing into evidence inadmissible hearsay testimony; and (4) the court erred in refusing to give an instruction as to prior inconsistent statements.

The victim testified that on June 24, 1979, she returned to her Lyons, Illinois apartment from work with her boyfriend, who left there at 2:30 a. m. She went to bed and was awakened by the "feeling" of someone watching her, saw a man standing at the foot of her bed, and screamed. The man jumped on her bed, put his hands over her mouth and throat, and told her to shut up or he would kill her. The man was wearing a pair of women's panties around the outside of his face. His entire face was visible to her. She identified defendant as the man in her bedroom. Defendant told her he had a knife and asked her if she had any money; she said she did not. Defendant had sexual intercourse with her against her will. Thereafter, he said to her, "Al told me you were a good piece of ass and he was right." He then walked into the living room. When she thought he was gone, the victim went into the kitchen. There was a light on in the living room and she saw defendant there and again saw his face. The man ordered her back into the bedroom, pushed her back in the bed, and then left her apartment. She went to her neighbor, Marcia Londo, and banged on the door of her apartment. This occurred at approximately 4 a. m. The victim testified further that she had initially described the rapist to the police as 6 feet tall weighing 200 pounds; however, later in the police station she saw an individual of that size and told the police her assailant was smaller. Her assailant had very high cheekbones, a squared jaw, dark curly brown hair and a blemish problem.

Richard Kluk, a Lyons police officer who arrived at the scene with his partner, Officer Stanley Augustyniak, also testified that the victim described her assailant thus; however, neither this description, nor the assailant's height and weight appeared in her written statement to the police. Kluk also testified that the victim never stated she could not see the offender's face; however, the police report indicated that she stated the panties covered her assailant's facial features. Kluk did not recall the victim relating this information to him, but noted that his partner spoke to her alone.

Officer Augustyniak testified that the statement in the police report that the panties covered the offender's facial features was his interpretation of the victim's description; however, she did not tell him what part of the offender's head was covered nor that she was unable to see her assailant's face. She had described the offender to Officer Kluk. The victim also testified she had not told Augustyniak that the panties covered the offender's facial features. After she gave her initial statement to the police, it was discovered the $8 the victim had in her purse in the kitchen was missing.

Londo testified that when the victim appeared at her door, she was hysterical and incoherent. She had to "smack" the victim because she "couldn't get anything out of her." The victim told her, "I have been raped." Londo called the police. She did "not know what was said between * * * (the victim) and the police * * *," and "did not really hear what was said between * * * (the victim) and the police."

On October 9, 1979, the victim identified defendant as her assailant in both visual and vocal lineups.

Defendant presented alibi witnesses who testified that he was in Syracuse, Indiana the day preceding and the day of the rape where defendant was on vacation with his father. Three witnesses testified they saw defendant at 10:30 p. m. on June 23, 1979, at 11 a. m. on June 24, 1979, and in the afternoon of June 24, 1979. Defendant's father, Edward Cihlar, testified he saw defendant asleep in their trailer in Syracuse at 6 a. m. on June 24, 1979. Syracuse is a 31/2 hour automobile drive from Berwyn, Illinois, where the Cihlars live. He further testified defendant did not have keys to his car and he was not allowed to drive because he had been involved in two accidents.

The jury found defendant guilty and he was sentenced as first above noted.

In a motion for a new trial, defense counsel alleged that the State failed to produce in discovery statements favorable to the defense, namely, that State witness Marcia Londo had asked assistant state's attorney Thomas Tucker, prior to trial, how anyone could make a positive identification of a person whose face was completely covered. Attached to the motion was a sworn statement by Londo that: she was present when the victim gave her statement to the police; she did not know whether the victim told the police she could not positively identify the offender and could not swear to it; prior to trial Londo asked the assistant state's attorney how anyone could make a positive identification of the attacker if underwear was covering his face; she told the assistant state's attorney that the victim had said the assailant's face was covered by underwear; the assistant ignored her statement and replied that the underwear was worn on the head like a hairnet, with the legholes in the back; and, when two people from the state's attorney's office interviewed Londo after trial, she told them the victim had told the police the attacker's face and features were fully covered.

During the hearing on the motion, Londo testified that, with police present, the victim told her the attacker's face was covered with underwear. In her sworn statement, Londo asserted the victim reported to police that "her attacker was fully masked in a pair of woman's panties, and that his facial features were completely covered * * *," although at trial she had testified that she was unable to hear the conversation that took place between the victim and the police. Following argument, the court denied the motion.

I.

Defendant first argues he was not proved guilty beyond a reasonable doubt, relying upon: evidence that defendant was in Syracuse, Indiana on June 23, 1980 and June 24, 1980 and he was not allowed to use the family car; the contradiction of the victim's testimony that she could identify her assailant by the police report which stated his features were covered by the underwear; the police officer who showed the victim photographs of suspects in July, 1979 testified that the victim described her assailant as sounding uneducated and as having a slurred voice, whereas she testified at trial there was nothing unusual about her assailant's voice; the victim's denial that the assailant knew her boyfriend, whereas she told the officer she thought her assailant had known her boyfriend; and that the lineup occurred four months after the rape. He cites People v. Raker (1979), 75 Ill.App.3d 975, 31 Ill.Dec. 650, 394 N.E.2d 852 and People v. Reese (1973), 14 Ill.App.3d 1049, 303 N.E.2d 814, in both of which defendants' convictions for rape were reversed where evidence was presented at trial that defendants were elsewhere when the crimes occurred. Both cases are inapposite. In Raker, the victim could not immediately identify the defendant, and in Reese the victim viewed her assailant's face for only a few seconds.

The record demonstrates that defendant was proved guilty beyond a reasonable doubt. The jury could have believed that the victim observed defendant at close range, in her bedroom, and under conditions of adequate lighting. She gave two descriptions to the police which were essentially in harmony and identified defendant at pretrial visual and vocal lineups as well as in court. Both People v. Thomas (1979), 72 Ill.App.3d 186, 27 Ill.Dec. 922, 389 N.E.2d 1330, and People v. Patterson (1980), 90 Ill.App.3d 775, 46 Ill.Dec. 258, 413 N.E.2d 1371 are instructive in this regard. In Thomas, the victim's positive identification of her assailant at trial, coupled with the fact that she had observed him over a period of time under good lighting, was sufficient evidence to support a conviction. In Patterson, the victim's in-court identification of defendant, along with her opportunity to observe her assailant, supported defendant's conviction, even though she had merely identified defendant during a lineup as the one who "looked the closest" to her assailant. Further, the jury could have disbelieved certain of defendant's alibi evidence because of inferable discrepancies. From the foregoing, we cannot say that defendant's guilt was not proved beyond a reasonable doubt.

II.

Defendant next argues he was denied due process of law when the prosecution failed to advise his attorney of Londo's question to prosecution attorneys, which was discoverable as favorable to the defense, namely, how anyone could make a positive identification of an individual if his face was completely covered. Defendant contends he should have been informed of this favorable query, since it implies that Londo had been previously told no identification could be made. Defendant cites authority for the principle that...