People v. Koch

• Decision Date: 15 June 1993
• Docket Number: No. 1-92-1649,1-92-1649
• Parties: , 188 Ill.Dec. 77 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Zygmunt KOCH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 647

618 N.E.2d 647

248 Ill.App.3d 584, 188 Ill.Dec. 77

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Zygmunt KOCH, Defendant-Appellant.

No. 1-92-1649.

Appellate Court of Illinois First District, Second Division.

June 15, 1993.

John M. Carey, Jr., Chicago, for defendant-appellant.

Jack O'Malley, State's Atty., of Cook County, Chicago (Renee Goldfarb, Donald T. Lyman, Robin M. Mitchell, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant Zygmunt Koch was charged by information with nine counts of aggravated criminal sexual assault (Ill.Rev.Stat.1991, ch. 38, pars. 12-14(a)(1), (a)(3) & (a)(4)), three counts of criminal sexual assault (Ill.Rev.Stat.1991, ch. 38, par. 12-13(a)(1)), two counts of kidnapping (Ill.Rev.Stat.1991, ch. 38, pars. 10-1(a)(1), (a)(2)), and one count of aggravated unlawful restraint. (Ill.Rev.Stat.1991, ch. 38, par. 10-3.1(a).) Prior to trial, the State nolle prossed the two kidnapping counts and, after choosing to be tried by the court sitting without a jury on the remaining counts, defendant was found guilty of three counts of aggravated criminal sexual assault and was sentenced to eight years in the custody of the Illinois Department of Corrections.

The following evidence was adduced at defendant's trial. On July 21, 1991, at approximately 11 p.m., the victim, A.K., was watching television when she heard her dog bark. Upon looking out her window, she observed defendant, whom she had previously met at a party hosted by a mutual friend, standing just outside the window. At the party, A.K., a part-time salesperson for a cosmetic company, had informed defendant of the line of cosmetics available for men, and on a later date he had gone to her home to place an order with her. When she saw him again on July 21, she inquired why he was there, and he responded that he had come to retrieve his cosmetics order. A.K. did not indicate whether or not she had previously asked defendant to pick up his order or even that defendant's cosmetics were, in fact, available on the night in question.

After A.K. invited defendant into her home, the two conversed while sitting on the couch in her living room, and after a while, he closed the distance on the couch which had separated them. Soon he embraced her, whereupon she asked him to stop and leave her home. Rather than complying with her plea, defendant kissed her cheek, and when she again rebuffed his advances, he withdrew a gun from his pocket, removed its clip and showed her that it contained live bullets in order to convince her that it was not a toy, and advised her that the safety was disengaged. He ordered her to stop crying and to "kiss him like she kisses her boyfriend." He then led her into the bedroom, instructed her to disrobe and to lie down on the bed. While keeping the gun aimed at her, he removed his clothing, and after fondling her, he had sexual intercourse with her. Thereafter, he performed cunnilingus and forced her to perform fellatio.

After a short respite, he again forced her to engage in vaginal and oral intercourse, and after finishing, he instructed her to lie next to him while he rested. Thereafter, he arose and told her that he would be leaving. He threatened to kill her if she registered a complaint with the police or told anyone else of the incident, reminding her that he had a gun, and that in the event that he were arrested, he had friends who would kill her. He left her home around five o'clock on the morning of July 22.

She testified that she did not immediately call the police because she feared for her life and because she was not sure she would be able to describe the incident in even somewhat comprehensible English. She further testified that the first person whom she told of the assault was her boyfriend, John Mikrut, and that this conversation did not occur until much later that night. It was he who called the police, and with his help, she recounted the events of the evening, but all she could give them was defendant's first name. On cross-examination, she conceded that she spoke and understood some English and that after she learned defendant's last name, she was interviewed by a Chicago police detective without the benefit of an interpreter.

The State next called John Mikrut, who testified that he had been in a relationship with A.K. for about one year prior to the incident, and that on July 22, 1991, soon after his return from Wisconsin, he went to A.K.'s home. When he arrived, A.K. had visitors whom he also knew. He noticed that she was shaking and smoking heavily, and that she was inordinately nervous. After their friend left with her young son, he inquired as to what was troubling her and, in response, she divulged the events of the night before.

After learning defendant's full name from A.K., detective Robert Collins of the Chicago police department, who had been assigned to investigate her sexual assault complaint, obtained his address and went to his home in an attempt to speak with him. Defendant answered Collins' knock on the door by opening an upstairs window and leaning out. The detective advised him who he was, and requested an opportunity to speak with him. Defendant indicated that he would be down and closed the window. A short time later, a woman answered the door and the officer gave her his card, requesting her to ask defendant to contact the police as they wanted to discuss with him an alleged sexual assault. He then went around to the back of the home and observed a rear entrance, but did not see defendant. Collins returned to the house once again that evening, but was informed that defendant was not there. He made repeated telephone calls to the home, and left messages with his name and phone number, requesting that defendant phone him. On August 1, 1991, in the presence of his attorney, defendant surrendered himself to the police and was arrested. At the close of the State's case, the parties stipulated to the results of a serology test which concluded that a vaginal smear taken from the victim disclosed the presence of sperm, and that a sample taken from her robe also contained sperm.

Defendant offered the testimony of Celina Kubicka who recalled that on July 22, 1991, at approximately 7 A.M., she received a call from A.K. asking her for the last name of defendant and his address, telling her that he had just raped her. A.K. told her that defendant had come to her home the previous night and that he had a gun. She also related how she feared for her life because she believed defendant would kill her. Kubicka refused to give A.K. defendant's name or address because she did not think poorly of him. It was later stipulated that telephone company records showed that on the date and at the time in question, there was a call from A.K.'s phone to the number assigned to Ms. Kubicka's residence.

Defendant also took the stand and testified with the assistance of a Polish-speaking, court-appointed interpreter. He remembered that the first time he met A.K. was at a party held by Ms. Kubicka. The two exchanged names and addresses and defendant lent her some compact discs. A few days later, he visited A.K. at her residence where the two engaged in consensual sexual relations and they again had sexual intercourse when he returned to her home a week later. He testified that during his relationship with A.K., she had asked to borrow a total of $1,200 from him, explaining that she had no money and needed the funds in order to subsist. He gave her the funds because he was contemplating moving in with her, although at that time he lived with another woman.

On the evening of July 21, 1991, he notified A.K. that he would be visiting her in her home and he arrived there around midnight. A.K. answered the door wearing only a robe and offered him a drink which he thought contained alcohol. The two then engaged in consensual sexual intercourse for approximately two hours. After they finished, defendant requested another drink, which A.K. agreed to provide. When she did not return within five minutes, defendant arose from the bed and saw A.K. holding his pants. He went to her and checked his wallet which he found to be missing $300. He accused A.K. of stealing his money, and when she denied it, he berated her and threatened to beat her and inform her friends that she was a prostitute. In response, she threatened to call the police and accuse him of raping her.

When asked, he estimated that he had had some form of consensual sex with A.K. on four or five separate occasions. He denied carrying a gun on the night of the incident and stated that while he had threatened her that night, it was not to prevent her from calling the police, but to frighten her into repaying the money she had stolen.

He remembered that a few days after his money was stolen, a police officer came to his home, flashed a badge, and said something in English which he could not understand. He ordered his girl friend to answer the door and tell the officer that he was not home and then he left through the back door in order to retrieve someone who would translate for him and also because he did not want his housemate to know what had transpired with A.K. He voluntarily surrendered himself to police on August 1, 1991, after retaining an attorney explaining that the delay was due to his need to gather the funds to pay the lawyer.

After the parties rested but before summations, the State informed the court that one of the appointed interpreters had mistranslated a part of defendant's response to a question asked in cross-examination and she corrected her translation for the record. The parties then proceeded with closing arguments, after which the court found defendant guilty of three counts of aggravated criminal sexual assault and sentenced him to an eight-year term of incarceration. Defendant filed a timely notice of appeal.

I.

De...