People v. Dick, 83-2989

• Citation: 505 N.E.2d 1157,153 Ill.App.3d 670
• Decision Date: 27 February 1987
• Docket Number: No. 83-2989,83-2989
• Parties: , 106 Ill.Dec. 366 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond DICK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1157

505 N.E.2d 1157

153 Ill.App.3d 670, 106 Ill.Dec. 366

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond DICK, Defendant-Appellant.

No. 83-2989.

Appellate Court of Illinois,

First District, Fifth Division.

Feb. 27, 1987.

Steven Clark, Deputy Defender, Office of the State Appellate Defender (Jeffry S. Spears, Winston & Strawn, Chicago, of counsel), for plaintiff-appellee.

Richard M. Daley, State's Atty., of Cook County, Richard J. Daley Center, Chicago (Joan S. Cherry, Peter D. Fischer, Roger L. Kemp, Asst. State's Attys., of counsel), for defendant-appellant.

Justice LORENZ delivered the opinion of the court:

In a bench trial defendant was convicted of aggravated kidnapping and rape, receiving concurrent twelve-year sentences for those offenses. On appeal he contends: (1) his guilt was not established beyond a reasonable doubt, and (2) the trial court erred in refusing to admit into evidence an allegedly corroborating statement made by the defendant.

We affirm.

At the bench trial the following pertinent evidence was presented.

Linda L. testified that on February 8, 1982 she attended a meeting organized by her employer, an advertising agency, at the Westin Hotel in Chicago. At 6:00 p.m. she and other employees went to a nearby bar. Linda L. left the bar with a friend from work at about 10:30 p.m. She testified that she was "under the influence of alcohol." She got in a cab but then decided to take a bus. Although Linda L. could not recall who was driving this cab, other evidence at trial, including admissions made by the defendant, established that defendant was the driver.

After waiting five minutes for a bus, Linda L. hailed a cab, again driven by the defendant. When they arrived at her apartment building she discovered she had no money for the fare. Defendant refused to allow her to get the money from her roommate. He initially agreed to accept a check, saying his name was John M. Anderson. But when Linda L. gave him the check and tried to leave, the door handle would not open. Defendant drove off with Linda L. still in the cab. She attempted to exit through the window but he grabbed her and would not let her leave.

[106 Ill.Dec. 368] He told her he would drive to the police station and she agreed. But when he drove away from the direction of the station she asked where they were going. Defendant said if she could not pay with cash she would pay with her body.

Linda L. decided to feign illness so that defendant would not harm her. She slumped back in the seat, rolled her eyes up into her head, and hyperventilated as if suffering an epileptic fit. Defendant drove for about 20 minutes and then stopped on a deserted street. Defendant told her this was a Puerto Rican neighborhood and she should not bother to run. This statement and the tone of his voice made her believe it would be dangerous to flee. She continued to feign illness.

The defendant opened Linda L.'s door, grabbed her by the shoulder and arm, and pulled her out of the car. He carried her into a building and placed her on a bare mattress, where he slapped her. He took all her clothes off as well as his own. He then began to have intercourse with her. Linda L. lost consciousness. When she came to, the defendant was still on top of her, trying to kiss her. He slapped her again and got dressed. She was shivering and he placed a space heater by her and then put her clothes back on except for her bra and hose.

Defendant next dragged Linda L. out of the building by her arms and shoulders and put her back into the cab. Because she was still feigning illness she fell to the cab floor, where defendant left her. He drove back to her building, pulled her out of the cab by her arms and shoulders, and left her in the snow where she fell. As he drove off she saw that his license number was 914.

When the cab turned down another street, Linda L. ran screaming into her apartment building. Her roommate buzzed her up and she ran to their door, screaming that she had been raped. In the apartment she wrote down the number of the cab.

Linda L. telephoned a doctor friend for help. While on the phone three police officers walked in. She told them she had been raped, gave them the cab number, and described her assailant. She was then taken to the hospital. A tampon she wore because of a vaginal discharge was removed by a doctor, apparently because it had become lodged posteriorly. Linda L. testified that at the hospital her vaginal area was tender.

Linda L. was next taken to the police station where she identified the defendant in a lineup. She was also taken to defendant's cab. She sat in it and still could not open the back door from the inside.

Linda L.'s roommate corroborated her account of her rape outcry. She testified that after being buzzed in Linda L. came screaming down the hall. Her face was very red, her coat was wet and very dirty, and she was carrying her bra and panty hose in her hand. She was hysterical and distraught, saying that she was raped and repeating the number 914 over and over. She also wrote that number on a calendar. The roommate placed a call for Linda L. to a doctor friend. While Linda L. was on the phone the police arrived. The roommate later learned that one of the other tenants had called the police.

It was stipulated that Officer Dennis Vales would testify that at 1:40 a.m. he responded to a report of a woman screaming at Linda L.'s address. He found her to be initially hysterical, but when she calmed down she described her assailant and gave the police the cab number. According to Vales, Linda L. had been drinking.

Other stipulated testimony established that semen was found in vaginal swabs taken from Linda L. She was determined to be a type O nonsecretor whereas defendant was a type B secretor. The vaginal swabs taken from Linda L. contained material from a type B secretor.

It was also stipulated that if a Detective Davis were called he would testify that at about 2:00 a.m. on the morning in question he approached defendant's cab at gunpoint and asked if anyone had gotten out of the cab. Defendant said he had had no passengers for several hours. It was stipulated that Detective Gerald Mahon would testify that he observed Linda L. identify the defendant When first interviewed by Mahon, the defendant said he was not involved in any rape incident. A second interview was then conducted by Mahon and Assistant State's Attorney Michael Leviton. It was stipulated that Leviton would testify that defendant told them the following. A man flagged him down at Michigan and Delaware. The man placed in the cab a girl who wanted the man to come home with her. The girl had her legs wrapped around the man and the man was stroking her face and body. The girl left the cab and defendant took another fare two blocks and then returned to the first location where the same girl got in the cab. She played with defendant's hair, pulled on his ear, and tried to kiss him. This almost caused an accident and defendant told her to stop. She put her feet over the front seat with her legs spread wide apart. She asked him if he thought she was sexy and told him to look at her. He turned around and she was holding her bra and panty hose, with her blouse unbuttoned, her breasts out, and her skirt up. She told him her mother was a hillbilly and they knew how to make good love. She climbed in the front seat, tried to kiss him and also tried to give him an erection by rubbing him through his pants. She asked if he wanted a "blow job." Defendant told the investigators that he did not know what that was, his mother raised him better than that, so he just took her home. He did not have sex with her. She had no money so he did not get the fare. He would not take her checks because they were not in his name. The girl wanted anybody to go to bed with her. Finally defendant said that he did not know how long he was with her.

[106 Ill.Dec. 369] in a lineup. Mahon inspected the defendant's cab and found that the driver's side rear door would not open. The "passenger rear door" was very hard to open apparently because ice and snow packed in the frame obstructed the door's movement. Mahon's stipulated testimony also indicated that Linda L. told him the defendant had slapped her a number of times to revive her.

Defendant presented the stipulated testimony of Major Ragland, a Yellow Cab mechanic. He inspected defendant's cab the morning after the incident and found all four doors to be working properly.

It was also stipulated that the act of intercourse described by Linda L. took place in a store front at 4435 West Fullerton in Chicago. It was stipulated that defendant's wife would testify that defendant ran a dog training school called "Love Enforcers" at that location. Finally, it was stipulated that Joseph Mahr, a private investigator, would testify that the most direct route between Linda L.'s home and the store front had 33 stop lights and two stop signs. The defendant did not testify and he was barred from presenting a statement about the incident made by him to a Yellow Cab insurance representative.

The trial court found the defendant guilty of rape, aggravated kidnapping, and unlawful restraint. However the latter charge was found to merge into the aggravated kidnapping conviction and judgment was entered only on the offenses of rape and aggravated kidnapping.

OPINION

The main issue before this court is whether the evidence presented at trial was sufficient to remove all reasonable doubt of defendant's guilt and establish with certainty that he was guilty of the crime of rape.

The basis of defendant's argument in seeking reversal of his conviction for rape is that (a) the record on appeal fails to show either forcible intercourse or that the victim offered sufficient resistance; and (b) complainant's testimony was not clear and convincing and lacked adequate corroboration.

We first turn to whether the act of intercourse was...