People v. Cukojevic, 80-2258

• Citation: 59 Ill.Dec. 397,431 N.E.2d 1154,103 Ill.App.3d 711
• Decision Date: 29 December 1981
• Docket Number: No. 80-2258,80-2258
• Parties: , 59 Ill.Dec. 397 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adam CUKOJEVIC, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1154

431 N.E.2d 1154

103 Ill.App.3d 711, 59 Ill.Dec. 397

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adam CUKOJEVIC, Defendant-Appellant.

No. 80-2258.

Appellate Court of Illinois, First District, Second Division.

Dec. 29, 1981.

Michael D. Monico, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Ruth Stern Geis and John M. Steed, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant, Adam Cukojevic, was charged with one count of armed robbery and one count of deviate sexual assault. (Ill.Rev.Stat.1977, ch. 38, pars. 18-2 and 11-3.) After a jury trial, defendant was found guilty as charged. The court entered judgment on each verdict and sentenced defendant to eight years in the Illinois Department of Corrections.

On appeal defendant contends that: (1) the State did not prove beyond a reasonable doubt defendant's guilt of armed robbery and deviate sexual assault; (2) the trial court erred in denying defendant's motion to suppress statements which he purportedly made while in police custody; and (3) comments made by the prosecutor and the trial court during closing argument were so prejudicial as to deny defendant his due process right to a fair trial.

For the reasons set forth herein, we affirm the convictions of defendant.

At trial the victim testified to the events that occurred on Sunday, October 28, 1979. The victim stated that at approximately 5:30 p. m. on the day in question she was standing in a laundromat located on the corner of Montrose and Wolcott in Chicago, Illinois. She was 20 years old at the time and resided in an apartment at 4313 North Wolcott, approximately one-half block from the laundromat.

The victim noticed that there was a man sitting in a car parked on Wolcott, directly outside the laundromat, watching her. She left the laundromat after making a phone call and began walking south on Wolcott toward her apartment. She noticed that the same man who had been watching her earlier was now beckoning to her from his car. This man was later identified by her as defendant.

Defendant motioned to the victim to walk over to his car. She approached the car but remained on the sidewalk. Defendant remained in his car. He asked her if she would like to "have a drink with him," but she declined. He then asked her if she wanted a ride home and she again declined.

When the victim turned to walk away, defendant suddenly walked up behind her and "grabbed" her arm. Holding a broken bottle in one hand, he forced her into his car. She tried to pull away, but defendant's grip on her was too strong. Although she was "very scared," she did not scream because she saw that there was no one else on the street.

Once inside the car, defendant told the victim "not to try anything stupid or scream." She reached for the door handle on the passenger side of the car and discovered that it was locked. Defendant again warned her, "don't try to get out of the car, don't be stupid."

Defendant drove toward the lakefront. While in the car, the victim looked for a "police car or someone who would definitely help her." She did not see any police officers. Defendant repeatedly warned her not to scream or attempt to escape.

Near the lakefront on Wilson Drive defendant drove toward a bridge. Several men were standing on the other side of the bridge and when defendant saw these men he made a "U-turn" in his car and drove into a parking lot on Marine Drive. The area was well lit. Approximately a minute later defendant drove out of the parking lot. Throughout this time defendant was holding the broken bottle.

Defendant drove west and pulled into another parking lot. This lot was dark and secluded, and he parked there. Defendant then put his right arm around the victim's shoulder. He held the broken bottle in his right hand "right next" to the victim's throat and tried to kiss her. She resisted and tried to push him away, but he increased the pressure of the bottle against her throat. She did not suffer any scratches or bruises.

The victim was shaking. Defendant warned her not to scream. She begged him to take the bottle away from her throat, and he put the bottle in his left hand. He then began to caress her and ordered her to undress. He told her to touch his penis. When she refused his command, he grabbed her hand and placed it there. She told him she could not have intercourse with him because she was menstruating. Defendant said he "didn't care."

Defendant then ordered the victim to "suck him." She resisted and he forced her to perform fellatio upon him. Throughout this incident defendant held the broken bottle in his left hand.

At this point another person drove into the alley behind the parking lot. Defendant told the victim to "leave her purse" and "get out of his car." She told him that she needed her identification and her keys. He told her to "give him (her) money and to get out of his car." She gave him $17.

The victim then exited defendant's car, and as he was driving away she observed his license plate number. (At trial defendant admitted to owning the plate number that the victim had observed.) The victim then ran to a man who was parking his car nearby. When she requested help from him, he took her into a building in which the desk clerk phoned the police.

Officer Russell Mueller, a Chicago police officer assigned to the 20th District, responded to the call reporting the robbery and assault. After arriving at the scene, Mueller conversed with the victim. At trial Mueller testified that he believed that at the time of their initial conversation the victim made a statement to the effect that defendant had produced a broken bottle and ordered her into his car. The victim also told Mueller that she was the victim of a deviate sexual assault and a robbery.

Defendant testified to the following: On October 28, 1979, at approximately 5 p. m., he was alone in his car driving eastbound on Montrose Avenue toward Lake Michigan. At that time he noticed the complainant standing near a laundromat. He "slowed down" and he and the complainant exchanged glances. They had a brief conversation during which she inquired about purchasing marijuana. Defendant agreed to drive the complainant to the lakefront where they could purchase the drug. While driving to the lakefront, they talked, and the complainant told defendant that she had a boyfriend who was a musician.

When they reached the lakefront, the complainant purchased from a group of male Latinos four marijuana cigarettes. They smoked several of the cigarettes and then drove to a parking lot near the lakefront where they continued smoking. While parked in defendant's car, defendant and the complainant began kissing and fondling each other. They then had oral sex.

Shortly thereafter defendant told complainant that he had recently moved from his parents' home and that he had no money. The complainant became angry, swore at defendant and "threw" money at him. She then exited defendant's car, "slammed" the door and left the scene.

Defendant was arrested on January 13, 1980. Assistant State's Attorney Ira Raphaelson testified that while in police custody following his arrest, defendant admitted that he had robbed the complainant.

The jury found defendant guilty of one count of armed robbery and one count of deviate sexual assault.

I.

Defendant contends that he was not proved guilty beyond a reasonable doubt because the victim's testimony was rendered incredible by her failure to attempt an escape or to cry out for help, and by the fact that she did not suffer any cuts or bruises. Defendant argues that the victim had the opportunity to attempt an escape or to cry out for help when defendant had to stop at several busy intersections on the way to the lakefront. Defendant also asserts that the absence of physical injury to the victim underscores the defendant's testimony that no act of armed robbery or deviate sexual assault was perpetrated by force and against the will of the victim.

The State maintains that the clear and convincing testimony of the victim, corroborated by defendant's admission that he robbed her, clearly establishes that defendant was proved guilty of armed robbery and deviate sexual assault.

It is the province of the jury to weigh the evidence, judge the credibility of the witnesses and determine the facts. A court of review "will not set aside a jury's verdict of guilty unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused." People v. Sumner (1969), 43 Ill.2d 228, 232, 252 N.E.2d 534; People v Payton (1980), 84 Ill.App.3d 181, 184, 39 Ill.Dec. 570, 405 N.E.2d 18.

A material element of the offense of deviate sexual assault (Ill.Rev.Stat.1977, ch. 38, par. 11-3) is force or the threat of force. The nature of the force or threat of force which must be proved in a deviate sexual assault case is the same as that for rape. (People v. Anderson (1979), 20 Ill.App.3d 840, 314 N.E.2d 651; People v. Taylor (1971), 48 Ill.2d 91, 268 N.E.2d 865.) In rape cases "(t)here is no definite standard fixing the amount of force required and each case must be considered on its own facts." (Emphasis ours.) (People v. Smith (1965), 32 Ill.2d 88, 92, 203 N.E.2d 879.) Likewise, in determining the degree of resistance required of a victim of deviate sexual assault, each case must be considered on its own facts. (People v. Bendig (1968), 91 Ill.App.2d 337, 235 N.E.2d 284.) Useless or foolhardy resistance is not necessary. (People v. Green (1976), 38 Ill.App.3d 289, 347 N.E.2d 224; People v. Robinson (1977), 52 Ill.App.3d 658, 662, 10 Ill.Dec. 425, 367 N.E.2d 1034, aff'd (1978), 73 Ill.2d 192, 22 Ill.Dec. 688, 383 N.E.2d 164.) There is no duty to cry out for aid where the defendant has a deadly weapon. People v. Garriot (1974), 20...