People v. Robinson

• Decision Date: 26 September 1977
• Docket Number: No. 14063,14063
• Citation: 52 Ill.App.3d 658,10 Ill.Dec. 425,367 N.E.2d 1034
• Parties: , 10 Ill.Dec. 425 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie ROBINSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1034

367 N.E.2d 1034

52 Ill.App.3d 658, 10 Ill.Dec. 425

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie ROBINSON, Defendant-Appellant.

No. 14063.

Appellate Court of Illinois, Fourth District.

Sept. 26, 1977.

Ronald L. Carpel, Alan D. Bourey, Decatur, for defendant-appellant.

William J. Scott, Springfield, Gerri Papushkewych, Asst. Atty. Gen., for plaintiff-appellee.

GREEN, Justice:

After a trial by jury in the circuit court of Macon County, defendant Jackie Robinson was found guilty of rape, two counts of deviate sexual assault, armed robbery, and robbery. The judgment on the simple robbery charge was set aside. Four concurrent sentences of 30 to 50 years were imposed. Defendant appeals the convictions and sentences contending that (1) the evidence was insufficient to prove beyond a reasonable doubt his guilt to any charge, (2) he was substantially prejudiced by the admission of hearsay evidence to which no objection was made at trial, (3) the jury was improperly instructed, (4) his counsel was incompetent, and (5) his sentences were excessive.

Most of the proof of defendant's guilt is based upon the testimony of the prosecutrix. She stated that on the evening of November 4, 1975, she met three girlfriends at a Decatur nightclub and remained with them throughout the evening until about 1 a.m. the next morning. About 12:30 a.m. she noticed a male Negro sitting at her table, who appeared to be staring at her. The prosecutrix testified that after she left the nightclub, she drove to her apartment. She noticed a light yellow car following her but when she pulled into an alley next to her apartment, the car seemed to go on to the next intersection. She then turned into the driveway, got out of her car, opened the garage doors and drove in. As she was getting out of her car, a black man appeared, pushed her against the open car door, put his hand over her mouth, put something to her throat and told her that he would kill her if she said anything. She stated that she did not see the object pressed to her throat but believed it to be a fingernail clipper or a small pocket knife. The object did not cause any bleeding, but she stated that she thought it was pressed hard enough that it could have done so.

The prosecutrix further testified that the assailant then took her to the back of the car, shut the garage doors and started taking off her clothes. He said, "You are not going to tell Chris, are you?" She stated that he then forced her to have oral sex with him involving both fellatio and cunnilingus and then had intercourse with her. The prosecutrix was unable to state the length of time between the oral sex and the intercourse but said that the sexual acts lasted for a total of about one hour and forty-five minutes. She made no attempt to escape and did not blow the car horn or take other acts to summon assistance. She stated that before leaving, the assailant took a $20 bill from her purse and threatened her if she tried to contact the police. She stated that she was very scared and remained in the car until about 6:30 a.m. when the sun came up and then went into her apartment. She stated that the light was sufficient so that she could recognize the defendant and she identified him as the black man who had sat at her table that night. She testified that later at the police station, she identified defendant's picture from a group of five pictures as that of her assailant and then identified him from a lineup. At trial, she pointed to the defendant as the assailant.

The State presented evidence that at about 6:30 a.m. and 7 a.m., the prosecutrix phoned her sister and the Decatur Police Department respectively. In response to those phone calls her sister, her brother-in-law and a police officer came to the prosecutrix's apartment. The sister and the police officer testified, without objection by the defendant, that the prosecutrix had told them that she had been raped and forced to submit to deviate sexual conduct and that the Negro who sat with her and her girlfriends at the nightclub on the previous evening was her assailant. The State, also without objection, introduced the testimony of one police officer that the prosecutrix identified defendant from the separate photographs he had shown her and the testimony of another police officer that prosecutrix made an identification of her assailant at the lineup. That officer did not say who she identified. The testimony described in this paragraph is the hearsay which defendant maintains deprived him of a fair trial.

Four witnesses testified that the prosecutrix was with them at the nightclub on the night in question and that a black man sat with them at their table. Two were unable to identify the defendant as that black man. The other two persons did identify defendant as that man. One, named Christina, said that she knew defendant, that he came to the table and talked to her and that defendant left the nightclub about four or five minutes after the prosecutrix. Sergeant Hunk of the Decatur police testified that he interviewed defendant at the police station about 10:30 p.m. on November 5, 1975, the evening after the occurrence. He stated that defendant told him that he had been at the nightclub until about 1 a.m. that morning and then drove his white vinyl over yellow automobile to the house of his girlfriend, arriving there about 1:10 to 1:15 a.m. Hunk testified that he overheard defendant then tell someone in a telephone conversation to get over to his girlfriend's house and "hunt clothing." A black sock with a fingernail clipper inside was seized from under the front seat of defendant's car. A matching black sock and a beige and burnt-orange striped sweater were seized from the girlfriend's home. At trial, that sweater was identified by the prosecutrix as having been worn by the black person who sat at their table at the nightclub and the person who later assaulted her.

The defense evidence was meager. One witness testified that he saw defendant at the nightclub and that he wore a leather coat at the time. A female friend testified that defendant was at her home from 10 p. m. to about 11:30 on the evening of November 4, 1975, and then returned between 11:45 p. m. and midnight and did not leave before 12:30 a. m. The girlfriend testified that she was with defendant early in the evening and that he later returned to her house about 1:15 a. m. and did not leave at any time later that night.

Defendant's contention that the evidence was not strong enough to prove the offenses of rape and deviate assault is based upon the argument that the prosecutrix did not offer enough resistance to the assailant's advances. The failure of a victim to attempt "useless or foolhardy" acts of resistance does not prevent an assailant's conduct from constituting rape. (People v. DeFrates (1965), 33 Ill.2d 190, 194, 210 N.E.2d 467, 469.) The same rule would logically be applicable to the offense of deviate sexual assault. The instant acts took place late at night in a garage. Although the area was reasonably well populated, no one who could have given aid was shown to be nearby. The assailant was obviously stronger than the prosecutrix and had placed a metal object to her neck. He made several threats to kill her. Any attempt by her to resist would appear to have been "useless or foolhardy." The proof of the rape and the deviate sexual assaults fully supported the verdicts.

The contention that the proof of armed robbery was too weak is based upon the argument that there was no showing that the assailant was armed with a dangerous weapon at the time he stole the $20. The jury, however, could have determined that the metal object held to the prosecutrix's neck was the nail clipper found in defendant's sock and that defendant held the open lever mechanism to her neck. An instrument not dangerous per se may be found to be a dangerous weapon by the manner in which it was used (People v. Carter (1951), 410 Ill. 462, 102 N.E.2d 312). The instrument used did cause a scratch or slight laceration on prosecutrix's neck. If that instrument was the open nail clippers and sufficient pressure had been applied, an artery or vein in her neck could have been gouged. The proof of the armed robbery was also sufficient.

The principal issue in the case concerns the admission, without objection, of the hearsay testimony of statements made by the prosecutrix accusing or identifying the defendant. The State maintains that her statements to her sister and a police officer that her assailant was the black man who earlier sat at her table, were admissible as prompt complaint by a rape victim or spontaneous declarations. Because of the opportunity that the prosecutrix had to reflect from the time that the assailant left her presence until talking to her sister and the police officer, the statements were not spontaneous. People v. Damen (1963), 28 Ill.2d 464, 193 N.E.2d 25.

The requirements for the admissibility of a complaint by a rape victim were outlined in Damen. Prosecutrix's statements meet the requirements that they be...