People v. Tipton

• Decision Date: 19 December 1990
• Docket Number: No. 1-87-2629,1-87-2629
• Citation: 207 Ill.App.3d 688,566 N.E.2d 352
• Parties: , 152 Ill.Dec. 665 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darnell TIPTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 352

566 N.E.2d 352

207 Ill.App.3d 688, 152 Ill.Dec. 665

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darnell TIPTON, Defendant-Appellant.

No. 1-87-2629.

Appellate Court of Illinois,

First District, Third Division.

Dec. 19, 1990.

Rehearing Denied Jan. 25, 1991.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Patricia Unsinn, Asst. Appellate Defender, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Renee Goldfarb, Joseph Brent and David Stabrawa, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice FREEMAN ^* delivered the opinion of the court:

Following a jury trial in the Circuit Court of Cook County, defendant, Darnell Tipton was convicted of aggravated criminal sexual assault and armed robbery. (Ill.Rev.Stat.1987, ch. 38, pars. 12-14(a)(1), 18-2(a).) Defendant was sentenced to an extended term of 60 years for aggravated criminal sexual assault and 30 years for armed robbery, the sentences to run consecutively. Defendant appeals, contending that: (1) the admission of past crimes evidence denied him a fair trial; (2) the prosecution distorted the burden of proof; (3) the trial court erred in imposing an extended term sentence; and (4) the trial court incorrectly considered evidence in determining an appropriate sentence. We affirm.

Prior to trial, the State motioned the court to permit the admission of other crimes evidence. At the hearing on the motion the State argued that "based on the similarity of the cases involving the offender with the [complainant] and [another woman], * * *, that these cases [went] to show motive, intent, [and] particularly identification." After hearing argument the court found that there were "an enormous amount of similarities." The court stated that it could see where both of the instances were so close in proximity in time and place, and in method of operation, as to show modus operandi and to prove identification. Accordingly, over defendant's objection, the court granted the State's motion to allow the evidence.

At trial complainant testified that, on September 27, 1986, at about 11 p.m., she was walking westbound on Cornelia toward the Ravenswood "el". A man, whom complainant later identified as defendant, ran up behind her, and with a meat cleaver raised in his hand, said "[d]on't say anything or I'll cut your head off." Complainant first saw defendant when he was about three feet away. In response to complainant's inquiry as to what he wanted, defendant grabbed her arm and said that she was going to help him get away from the police. Defendant stated that he had just killed a man and that if the man had cooperated he would not have killed him.

Holding the meat cleaver to complainant's neck, defendant walked her southbound, across Cornelia, to an empty lot. Complainant described that defendant was walking behind her and somewhat to the side. She made several attempts to see his face, which was about a foot away from hers.

After the two arrived at the empty lot, defendant had complainant sit on the ground and asked her for her purse. Complainant gave defendant the purse, he looked through it, but was unable to find any money. Defendant told complainant that he did not believe that she did not have any money. Complainant then remembered that she had $5 in her pocket and gave it to him.

Defendant then grabbed complainant by the belt of her pants, put the meat cleaver to her neck, and told her to get up. The two walked southbound, down an alley, where defendant attempted to open a hole in a corrugated metal fence. Defendant and complainant continued to walk until they arrived at another alley. They walked down the alley to an opening between two garages.

Once at the garages, complainant, at defendant's order, removed all of her clothing and performed fellatio on him. After about one minute, defendant told complainant to stand up and to face the garage. Complainant complied, at which time, defendant, while standing behind her, had vaginal intercourse with her. The intercourse lasted about one minute. During that time, complainant noticed that defendant had his hands on her midsection, and therefore, she reasoned, he did not have the meat cleaver in his hand. When defendant ordered her to turn around and perform fellatio again, she grabbed his testicles, pulled them, and ran screaming from the alley down Cornelia.

Complainant encountered Ray Mizushima in front of his home at 1214 West Cornelia. After informing Mizushima that she had been raped, Miszushima took complainant into his home and gave her clothing. Complainant then telephoned the Chicago police.

Once the police arrived, complainant described to them her assailant. She stated that defendant wore either a blue jacket and brown pants or a brown jacket and blue pants. She also stated that defendant had a couple days growth of beard. She then led them to the scene of the incident, where they discovered her clothes and purse. The police, accompanied by complainant, unsuccessfully toured the vicinity where the incident had occurred. They then returned to the scene of the incident, retrieved complainant's clothing, and transported her to Illinois Masonic Hospital, where she underwent a gynecological examination.

On cross-examination, complainant testified that she glanced at defendant five or six times as he walked her toward the garages. When defendant noticed that she was looking, he told her not to look at him.

On September 29, 1986, complainant identified defendant as her assailant in a police lineup. In addition to the physical identification, complainant, after hearing defendant say "don't say anything or I will cut your throat," made a voice identification.

Anne Penman was permitted to testify concerning another offense involving defendant. According to her, on September 27, 1986, between 11:30 and 11:45 p.m., she was in the vestibule of her apartment at 737 West Cornelia. She went to her door and as she was about to let herself in, she heard a voice from behind say "give me your purse or I'll cut your head off." Penman turned and saw a man, whom she later identified as defendant, standing three or four feet away from her. She tossed him her purse. She further testified that defendant was carrying a meat cleaver with a large blade and a wooden handle. Defendant left but immediately returned and asked her if she had anything in her pockets. Defendant then left and Penman called for assistance.

Penman testified that the vestibule was well lighted. She described her assailant to police as neatly dressed, wearing a light colored shirt, approximately five feet, ten inches tall and weighing approximately 160 pounds. She stated that she could not recall whether defendant was clean shaven. On September 29, 1986, Penman positively identified defendant in a police lineup.

Detective Robert Labbe of the Chicago police department testified that on September 26, 1987, he and his partner responded to a call for help from a woman on Cornelia. When they arrived at the scene, Mizushima told them that he had a rape victim in his home. The officers went inside, spoke to complainant, then broadcasted a flash message over the police radio describing the assailant. The assailant was described as a man wanted for rape; a male black approximately 29 to 31 years old; five feet seven inches in height and slender; short black hair, a dark complexion; wearing a jacket and dark trousers, armed with a meat cleaver. Labbe testified that he did not write down the description. After giving the flash message, the officers took complainant and went to the scene of the incident.

Detective Edward Roberts of the Chicago police testified that on September 27, 1986, he was working as a beat officer in the area which includes West Cornelia. He heard the flash message. On the following day, Roberts and his partner were investigating a stabbing. They went down an alley at the 600 block of Wellington and discovered defendant hiding under an automobile. Defendant was crouched down in front of the car by the hood. When the officers saw him, he crawled under the car. The officers ordered defendant to stand, performed a pat-down search, and found a meat cleaver in his waistband. Defendant met the physical description of the suspect in the flash message. The officers arrested him and inventoried the meat cleaver.

Defendant's first contention on appeal is that the trial court erred in permitting the evidence of the separate, unrelated armed robbery of Penman. He points out that the jury was instructed that this evidence was received solely on the issue of his identification, presence or design and should be considered by them only for the limited purpose for which it was received. Defendant argues, however, that since the evidence was not probative of these issues a new trial is warranted.

Evidence of crimes for which a defendant is not on trial is inadmissible if relevant simply to establish his propensity to commit crime. (People v. Lindgren (1980), 79 Ill.2d 129, 137, 37 Ill.Dec. 348, 402 N.E.2d 238; People v. Holm (1989), 188 Ill.App.3d 908, 136 Ill.Dec. 462, 544 N.E.2d 1237.) It is believed that such evidence overpersuades the jury, and creates the risk that the jury might convict the defendant only because it feels he is a bad person deserving punishment. (Lindgren, 79 Ill.2d at 137, 37 Ill.Dec. 348, 402 N.E.2d 238.) However, this evidence is admissible if relevant for any purpose, such as modus operandi, intent, identification, motive, presence, design or absence of mistake. People v. McKibbins (1985), 96 Ill.2d 176, 182, 70 Ill.Dec. 474, 449 N.E.2d 821, cert. denied, 464 U.S. 844, 104 S.Ct. 145, 78 L.Ed.2d 136; People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489.

Defendant first argues that the trial court incorrectly believed that the Penman armed robbery was proof of modus operandi. Further, he...