People v. Shivers

• Decision Date: 19 June 1975
• Docket Number: No. 12825,12825
• Citation: 29 Ill.App.3d 359,330 N.E.2d 288
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy SHIVERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 288

330 N.E.2d 288

29 Ill.App.3d 359

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Roy SHIVERS, Defendant-Appellant.

No. 12825.

Appellate Court of Illinois, Fourth District.

June 19, 1975.

Richard J. Wilson, Deputy Defender, Richard E. Cunningham, Asst. Defender, Springfield, for defendant-appellant.

James R. Burgess, Jr., State's Atty., Champaign County, Urbana, for plaintiff-appellee; Robert James Steigmann, Asst. State's Atty., Joy Fisher, Law Student, of counsel.

SIMKINS, Presiding Justice:

Defendant-appellantRoy Shivers was tried before a jury in the circuit court of Champaign County, and convicted of the crime of rape.He was sentenced to a term of 5 to 15 years in the penitentiary.He contends that his guilt was not established beyond a reasonable doubt.The victim's roommate was in a room adjoining, with the door closed.She heard the struggle, heard the victim shout for help and promptly called the police.She subsequently heard the victim yelling 'Stop it.You're choking me. * * * I can't breath * * * Don't rape me'.The police arrived while the crime was in progress, the defendant being on top of his victim.Defendant claims that the victim's testimony with reference to penetration was impeached and that this is the flaw in the State's case.Penetration is a necessary element of the crime of forcible rape.People v. Perez, 412 Ill. 425, 107 N.E.2d 749;People v. Oatis, 74 Ill.App.2d 103, 220 N.E.2d 71.Whether or not the testimony of the victim was convincing is a matter for the jury.A seemingly prior inconsistent statement given by the victim relating to this issue was clearly explained by her, and the jury found her testimony credible.There was sufficient evidence to support the jury's verdict.

Defendant also urges that the closing arguments of the prosecutor were so prejudicial and inflammatory as to deprive him of a fair trial.We first note that much of the matter complained of was not objected to during the course of the argument.Defense counsel stated to the jury:

'When you get to the jury room I am sure that some of you will think of things that I didn't say that I should have said.I'll have to ask also of each of you that you think of the replies that I would make to whatever Mr. Steigmann may say in his portion.'

In rebuttal the prosecutor noted that defense counsel had completely failed to respond to the State's contention that the defendant's version of the incident was incredible and added:

'* * * It's a very neat trick, ladies and gentlemen, because of course he has no explanation, and...