People v. Dery
| Citation | 219 N.E.2d 536,74 Ill.App.2d 112 |
| Decision Date | 02 August 1966 |
| Docket Number | Gen. No. 65--108 |
| Parties | PEOPLE of the State of Illinois, Appellee, v. David Frank DERY, Appellant. |
| Court | United States Appellate Court of Illinois |
Robert P. O'Meara, Waukegan, for appellant.
Bruno W. Stanczak, State's Atty., Jack Hoogasian, Asst. State's Atty., Waukegan, for appellee.
This is an appeal from the Circuit Court of Lake County. The defendant, David Frank Dery, in a single count was indicted for the offense of rape. Upon a plea of not guilty he was tried before a jury which found him guilty and was sentenced to from 25 to 45 years in the penitentiary.
The alleged offense occurred shortly after midnight on the morning of September 19, 1964. The evidence discloses that Valerie Orhn, the victim, was a single woman approximately 20 years of age; that she lived in the City of Waukegan in an apartment with a friend, Diana Kalla. Valerie had known the defendant for over a year and had on occasion dated him. Defendant lived in the same building as Valerie in the apartment upstairs from hers. On September 18, 1964, defendant called on Valerie at her apartment at about 9:30 P.M. The evidence discloses that from that time until about midnight the two drank together, both at Valerie's apartment and at other places in the Waukegan area. Shortly before midnight Dery started to drive Valerie home and when a few blocks from her apartment his car broke down. In walking to Valerie's apartment, they entered Powell Park at a point approximately 1 1/2 to 2 blocks from her home. Valerie testified that while in the park, defendant struck her from behind, rendering her unconscious. She further testified that when she regained consciousness she was lying supine on the ground, the defendant on top of her. When she attempted to resist his attack, he struck her on the jaw and on the side of the chest. Diana Kalla, Valerie's roommate, testified that somewhere between 12:30 and 1:30 she heard Valerie outside the apartment crying for help. She found Valerie attempting to crawl to the apartment. Valerie's jacket and slacks were torn, her clothes, shoes and purse were covered with mud. Her jaw and mouth were crooked and a tooth was missing. She was bleeding and hysterical. Diana asked Valerie what had happened and Valerie replied, 'Dade raped me.' Her physical condition at the time was substantiated by other evidence and witnesses. When defendant was arrested later in the morning of September 19, 1964, his right hand was swollen and bruised. The defendant did not testify in his own behalf, but through cross examination of the State's witnesses and direct examination of defense witnesses, sought to show that Valerie had, when in the hospital, stated to one of the defense witnesses that Dery had not raped her. The defense also tried to show that an intimate relationship existed between Valerie and the defendant and that Valerie frequently became intoxicated. While the defendant was awaiting trial, he escaped from the Lake County jail on January 1, 1965. He was apprehended in Florida on January 13, 1965, re-escaped and was again apprehended on January 15, 1965. Thereafter he was returned to Waukegan and the trial commenced on January 26, 1965.
One of the issues presented for review is whether the trial court erred in denying defendant's motion for a change of place of trial, filed pursuant to Code of Criminal Procedure, Ill.Rev.Stat., Chap. 38, Para. 114--6 (1965). The affidavit in support of the motion sets forth that a jail break involving three men occurred, the defendant being one of those involved. That as a result of this occurrence defendant received wide publicity from the press, radio and television. The affidavit concludes that this publicity characterized the defendant as a rapist, jail breaker, brutal and reckless, and a criminal type; and there exists such prejudice on the part of the inhabitants of the County that the defendant cannot receive a fair trial. The Sheriff of Lake County filed a counter-affidavit to the effect that various persons that he contacted were unaware of the defendant's participation in the escape. The defendant's affidavit did not set out what was published nor were any facts included which tended to show a prejudice on the part of the inhabitants of the County. The foregoing encompasses all of the information furnished to the trial judge to decide the motion. A portion of the voir dire examination of several veniremen appears in the abstract and it indicates that all or some of the members of the panel were aware of the jail break from the publicity. However, from the answers given it does not appear that prejudice existed from the mere knowledge gained from the news media. There is no direct evidence of prejudice nor were any copies of publications denouncing the defendant offered. The inquiry of the court on such a motion is directed to a question of fact whether there is reasonable grounds for fear that prejudice actually exists and that the defendant will not receive a fair and impartial trial. The mere fact that the news media gave publicity to the escape does not in itself establish that there existed a prejudice against the defendant by the inhabitants of the County. There is nothing contained in the record which could substantiate such an assumption. The trial court did not err in denying the motion. People v. Allen, 413 Ill. 69, 74, 75, 107 N.E.2d 826.
Defendant next complains that the court abused its discretion in not granting defendant's motion for a continuance. Defendant argues (1) because of his absence from the State from January 1 to January 18, 1965, the period of his freedom as an escapee, his counsel, who was engaged in other trials on his return, did not have adequate time to prepare his defense, and (2) defendant was entitled to a continuance because the People served him with a list of additional witnesses on the eve of the trial. In determining whether the granting or refusal of a continuance is a reasonable exercise of discretion, the situation must be viewed as it was presented to the trial judge at the time. People v. Poland, 22 Ill.2d 175, 178, 174 N.E.2d 804. Here, any inability of the defendant's counsel to properly prepare...
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People v. Olejniczak
...... This contention is without merit. Even if she had been there, that fact would have no probative value on whether she consented at the time of the incident. See People v. Dery (1966), 74 Ill.App.2d 112, 219 N.E.2d 536. . Defendant also argues that a question asked by the State of Detective Labus on redirect examination deprived him of a fair trial. On direct [73 Ill.App.3d 125] examination, Detective Labus testified he arrested defendant on the morning ......
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State v. Kalamarski, 3349-III-0
......1976); Hunt v. State, 44 Ala.App. 479, 213 So.2d 664 (1968), others have held it is not always relevant to a defense of consent. People v. Dery, 74 Ill.App.2d 112, 219 N.E.2d 536 (1966); Milenkovic v. State, 86 Wis.2d 272, 272 N.W.2d 320 (1978). Page 790. Here, there ......