People v. Lilly

Decision Date21 December 1972
Docket NumberNo. 71--168,71--168
Citation9 Ill.App.3d 46,291 N.E.2d 207
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. James LILLY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Rehearing Denied Jan. 11, 1973.

James Geis, Illinois Defender Project, Ottawa, for defendant-appellant.

Roland Litterst, Asst. State's Atty. Peoria County, Peoria, for plaintiff-appellee.

DIXON, Justice.

The defendant, James Lilly, was found guilty of Rape and Indecent Liberties after a jury trial in the Circuit Court of Peoria County. He was sentenced to the Illinois State Penitentiary for not less than 15 years nor more than 25 years on the Rape charge only and this appeal is taken from that judgment.

The first issue raised by defendant is that the prosecution failed to prove him guilty beyond a reasonable doubt.

The victim, Cynthia Smiles testified that on the night of Dec. 16, 1970, between 8:30 and 9:00 she was 15 years old, that she had gone to Jane Brown's house earlier, that she left Jane's house at about 8:30 accompanied by her friends who walked with her part of the way but left her a few blocks from her home. Shortly thereafter a black man approached her, put his arm around her and held what she thought was a knife to her throat. She did not then see the knife but felt it in her neck. He put her in the front seat of his car and drove 8 or 9 miles to a dead end road. She kept asking him to take her home. He told her that if she was not quiet she would never see home again. After stopping the car he asked her to take off her blouse, she said no, and then she noticed the knife in his hand. It was 6 inches long. He said, 'If you don't take your blouse off I'm going to stab you in the stomach and leave you out in the snow.' She then took off her blouse, then for fear of being stabbed, the rest of her clothes, after being commanded to do so. After the act of intercourse there was some conversation which continued as he drove her back into the city and dropped her off about one block from her home. When she got home only her little sister was there. The little sister said Jane Brown had called and was worried so she called her. She then called her father and told him to come home. When her dad got home she told him what happened. He wrote it down and called the police. Officer Gamble came. She gave him a name. On the passenger side of the abducter's car there was a sticker with the name James Lilly on it. When he had pulled on to Knoxville Avenue she could see the sticker as the street lights shown through the paper. She could see the face of her abductor the whole time, for nearly an hour.

The evidence that the defendant was the attacker is overwhelming. Within two hours, at the hospital, she viewed pictures of 5 or 6 black males and pointed out James Lilly as her attacker. The next day at a line-up she positively identified James Lilly. At the trial she positively identified the defendant. After leaving the hospital from the physical examination she led the police to the scene of the attack. There the police took photographs of tire treads in the snow. One rear tire had snow treads and the other had regular treads. Meanwhile, but after James Lilly was identified by the photographs, he was arrested by the Peoria Police Department in a dark Chevrolet convertible (described by the victim) which bore an 'applied for' sticker on right front windshield as described by her. The car bore one rear snow tire and one rear regular tire. Experts testified at the trial that a comparison of the photographs of the impressions in the snow and the tires taken from the rear of James Lilly's car were similar in design and wear.

The victim was examined within two hours of the attack by Dr. Burnett who testified that she had had recent intercourse, that there was male sperm present and there were abrasions in and about the vagina which could have been caused by lack of lubrication.

Expert testimony established seminal fluid in her clothing and in the defendant's clothing as well as on the car seat.

Jane Brown testified that she had tried to call Cynthia three times. When Cynthia called her Cynthia was hysterical and said that she had been raped and that she had to call her father because he wasn't home.

Lisa Smiles, age 12, testified that Cynthia came home about 10:15, her shirt was inside out and she was crying, she called Jane Brown, then called her father.

Edward Smiles, the father, testified that Cynthia called him and asked him to come home immediately. That when he got home she told him the story of what had happened. He made a few notes about the make of the car, the description she gave him and the name she saw on the license application. He gave the notes to Officer Gamble. (More of this later.)

The defendant did not testify but offered alibi witnesses.

The testimony of one credible witness identifying the accused as the person who committed the offense, if positive, is sufficient to sustain a conviction for rape, and if such evidence is corroborated by other evidence it is clearly adequate to justify a conviction. (People v. Wilson, 1 Ill.2d 178, 115 N.E.2d 250; People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675; People v. Murphy, 124 Ill.App.2d 71, 260 N.E.2d 386) and here even her uncontradicted testimony was corroborated, (People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Jackson, 24 Ill.2d 226, 181 N.E.2d 66.)

Defendant argues that the victim had several opportunities to escape and that she did not struggle. On cross-examination the victim testified that she was in fear. An outcry by the prosecutrix where it is useless or where she is restrained by fear of violence is not required. (People v. Silva, 405 Ill. 158, 89 N.E.2d 800; People v. Smith, 32 Ill.2d 88, 203 N.E.2d 879; People v. Griggs, 1970, 131 Ill.App.2d 257, 266 N.E.2d 398.)

The real issue here was one of credibility of witness, and was therefore a jury question. (People v. Boatman, 3 Ill.App.3d 652, 279 N.E.2d 425; People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317; People v. Fort, 14 Ill.2d 491, 499, 153 N.E.2d 26.)

During the direct examination of the prosecutrix the following occurred:

'Q. Now tell the jury what happened as you drove back to town.

A. He made me sit next to him and he told me about how he had got a divorce from his wife and he talked about, he had raped another girl and she had gone home * * *

Defense Attorney: Objection.

The Court: Overruled.

Q. Did he give any reason for what he had done?

A. Well, he said he was trying to get back at white people for what they had done to him.

Q. Did he elaborate on that?

A. He said that they had sent him to jail.'

Defendant contends that the admission of this testimony was prejudicial error. 'The statement (of the defendant) was a part of the general conversation. It was admissible both as a part of the res gestae and also as an incriminating admission that force had been used * * *.' (The People v. Kestian, 335 Ill. 596, 601, 167 N.E. 786, 789.)

The Supreme Court has stated that 'evidence of other offenses is admissible when it forms part of the res gestae or shows or tends to show a particular intent or motive in the defendant's connection with the crime, provided the time which has elapsed between the crime charged and the offense concerning which the testimony is offered is not too remote.' (I.L.P. Criminal Law, § 293). The rule has been applied in prosecutions for rape (People v. Ardelean, 368 Ill. 274, 280, 13 N.E.2d 976, 979), where the court said, '* * * merely because a full disclosure of the facts in this case shows Ardelean guilty of other crimes does not limit the scope of the investigation if they are all part of one continuous narrative.'

The jury was tendered only three forms of verdict; guilty of rape, guilty of indecent liberties, and not guilty. Defendant now contends that it was the duty of the trial court to give a not guilty form of verdict for each charge.

We cannot entertain this claim because there was no request by the defendant that the form of verdict now suggested be given. The Supreme Court has remarked: '(W)e have repeatedly announced the rule that the court is under no duty to give instructions not requested by counsel.' (People v. Springs, 51 Ill.2d 418, 283 N.E.2d 225.)

On direct examination the victim's father testified that when his daughter related the facts to him he took notes. On cross-examination he said he wrote down on a slip of paper the make of the car and the description of it she gave him and the name she saw on the license application. He gave the notes to Officer Gamble. On motion of defense counsel the trial judge ordered production. Officer Gamble remembered the paper but could not recall what was done with it. None of the other officers connected with the case could recall the notes, the State's Attorney was unable to locate them and believed they were no longer in existence.

The defense has cited (People v. Howze, 1 Ill.App.3d 253, 273 N.E.2d 733 and People v. Allen, 47 Ill.2d 57, 264 N.E.2d 184.) There is no question but that the notes were subject to discovery If in existence, the general rule being that 'the prosecution is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by a State's witness which have been established to exist and which are the witnesses' own words or substantially verbatim' (People v. Neiman, 30 Ill.2d 393, 397, 197 N.E.2d 8, 10.)

Here the court did not deny the defendant access to any available statements. Prior to trial the defendant filed a discovery motion which was allowed and there is no claim that there was not a good faith compliance with that order. The note here was to be used for impeachment. As was said in People v. Howze supra, 'Compliance with Allen requires the production of this statement if it is in existence.' In both Howze and in Allen the trial court had denied efforts by the defense to...

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13 cases
  • People v. Clelland
    • United States
    • United States Appellate Court of Illinois
    • June 29, 1973
    ...has not received extensive discussion and the applicable rule has usually depended on dispositional phraseology. See, People v. Lilly, 9 Ill.App.2d 46, 291 N.E.2d 207 (leave to appeal granted). Where the trial court's action regarding multiple offenses arising from the same act or conduct h......
  • People v. Porter
    • United States
    • United States Appellate Court of Illinois
    • August 24, 1973
    ...of guilty of one of the two crimes charged and not guilty of the other. This court recently considered this issue in People v. Lilly, 9 Ill.App.3d 46, 291 N.E.2d 207. In that case, defendant was tried for rape and indecent liberties. The jury received three verdict forms, 'guilty of rape', ......
  • People v. Brown
    • United States
    • United States Appellate Court of Illinois
    • August 23, 1976
    ... ... In fact, repeatedly telling complainant to keep quiet was practically all he said to her. Any scream she might have made would have unnecessarily endangered the safety of her and her child. Any outcry is not necessary where the victim is restrained by fear of violence. (People v. Lilly (1973), 9 Ill.App.3d 46, 49, 291 N.E.2d 207, 209.) As to the display of weapons, defendant would have us assume, which we will not do, that after he put the knife to complainant's neck and after he shook a a set of brass knuckles at her he threw the weapons away; that complainant was somehow to ... ...
  • People v. Lilly
    • United States
    • Illinois Supreme Court
    • March 20, 1974
    ...years and not more than 25 years was imposed. The appellate court affirmed as to both the rape and indecent liberties offenses (9 Ill.App.3d 46, 291 N.E.2d 207) and we granted leave to appeal. The defendant is correct in his first contention, which is that the trial court erred in entering ......
  • Request a trial to view additional results

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