People v. Utinans
| Decision Date | 16 November 1977 |
| Docket Number | No. 76-66,76-66 |
| Parties | , 13 Ill.Dec. 53 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Guntis UTINANS (Impleaded), Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael G. Cheronis, Chicago, for defendant-appellant.
Bernard Carey, State's Atty., Laurence J. Bolon, Joan S. Cherry, Neil H. Cohen, Chicago, for plaintiff-appellee.
The defendant, Guntis Utinans, was indicted by the Cook County Grand Jury on January 3, 1972. The indictment charged that Utinans, along with Michael Briseno (hereinafter Michael), Paul DiMartino, and Richard Briseno (hereinafter Richard), committed the offenses of rape, aggravated kidnapping, deviated sexual assault (oral copulation), indecent liberties with a child (two counts oral copulation and sexual intercourse), and contributing to the sexual delinquency of a child (two counts oral copulation and sexual intercourse). Ill.Rev.Stat., 1969, ch. 38, pars. 11-1, 10-2(a)(3), 11-3, 11-4(a)(1), (2), 11-5(a)(1), (2).
Pursuant to pleas of guilty, co-defendants Michael and Richard were sentenced by the trial court to the Department of Corrections. Michael received 7 to 20 years for the rape count, 7 to 20 years for the aggravated kidnapping count, 7 to 14 years for the deviate sexual assault count, 7 to 20 years for each of the indecent liberties counts, and one year for each of the contributing to the sexual delinquency counts. Richard received 5 to 15 years for the rape count, 5 to 15 years for the aggravated kidnapping count, 5 to 14 years for the deviate sexual assault count, 5 to 15 years for each of the indecent liberties counts, and one year for each of the contributing to the sexual delinquency counts. The foregoing sentences were entered to run concurrently. During the pendency of the charges, co-defendant Paul DiMartino died.
Utinans entered a plea of not guilty to all charges of the indictment. Two days before the trial began, the State withdrew prosecution of the contributing to the sexual delinquency counts. Following several days of trial jury verdicts were returned against the defendant on each of the remaining charges on September 17, 1975. Judgment was entered on each of the verdicts. On November 25, 1975, after a presentence investigation and a hearing in aggravation and mitigation, the court indicated that the rape and indecent liberties counts were merged. The defendant was sentenced to the custody of the Department of Corrections to serve 15 to 30 years in the penitentiary on the rape count, 15 to 30 years on the aggravated kidnapping count, and 15 to 30 years on the deviate sexual assault count, all sentences to run concurrently. Upon the denial of a motion for a new trial the instant appeal was perfected, alleging numerous errors entitling the defendant to a reversal of his convictions, a reversal and remand for a new trial, or a reduction of sentences.
The offenses charged in the indictment all occurred during the late evening and early morning hours of October 16 and 17, 1971, within the City of Chicago. At approximately 9:00 p. m., October 16, the complaining victim, a 15-year-old high school student, alighted from a bus returning from her job at a candy store. The victim, carrying a purse, three books and a transistor radio, was on her way to meet her boyfriend at a neighborhood park. Walking toward the park in an easterly direction the victim was approached by a man, later identified as Michael. This man inquired of her as to where she was going, but she ignored him and continued walking. Michael then grabbed her around the waist and, despite her screams and struggle, he succeeded in carrying the victim to a nearby blue, four-door automobile driven by a man later identified as DiMartino.
Michael forced the victim to lie face down on the back seat of the car while he sat on top of her. While she was still struggling, Michael informed the victim that he had a knife and that she would be hurt if she did not keep quiet. After driving for about 30 to 35 minutes, the car came to a halt in front of a garage. Michael got out of the car and the victim noticed that she was in a well-lit location and she saw a red and white sign. At this time the driver pushed her head back down. After Michael returned, DiMartino drove the vehicle into the garage.
Michael then blindfolded the victim with a white rag, bound her hands together, and led her to a pile of burlap bags on the floor of the garage. As the victim was forced to lie on the burlap, Michael untied her hands and removed her clothing. The victim testified that the blindfold was not tied very tightly and that she was able to see both above and below it. She testified that the garage was long and narrow, that it had a skylight, and that she could see clearly the taillights of the car which her assailants had parked approximately five feet from her. This car was discovered during the police investigation and it was registered to DiMartino at the time of the offenses.
The victim's testimony indicates that Michael was first to sexually attack her. During this first act of forced sexual intercourse the loose blindfold permitted the victim to observe clearly her assailant's face. Next DiMartino, after first tightening the blindfold, forced the girl to have sexual intercourse with him. While this second assault was in progress, the victim heard the door slam and heard other voices; DiMartino informed her that more people had arrived. Michael again approached the victim and this time forced her to perform oral copulation and another act of sexual intercourse. Then a third individual, identified by the victim as Richard, proceeded to force the victim to have sexual intercourse with him. By the time Richard had completed his assault the blindfold was again loose and had fallen almost completely away from the victim's eyes. The defendant, Utinans, then approached the victim.
According to her testimony, the victim observed clearly the defendant as he took off his pants. He then forced her to have sexual intercourse with him. Utinans asked her how old she was and if she was a virgin. The victim replied that she was 15 years old and had been a virgin until that night. After the defendant finished his first attack upon the girl, DiMartino returned and forced her on her stomach in order to perform anal intercourse upon her. The victim screamed as if in pain and the other men cautioned DiMartino to "take it easy" with her.
Utinans returned to the victim, sat down beside her and attempted to console her. When the defendant then tried to engage in anal intercourse with the victim she screamed and he yielded. Positioning himself along side the victim, and about seven or eight inches from her, Utinans once again attempted to comfort her. She testified that he said that "they (the assailants) were the ones who were bad and it wasn't me (the victim) . . . ." While speaking to the girl, Utinans was observed by her to be drinking from a wine bottle and smoking a marijuana cigarette. The defendant next placed his penis by the victim's mouth, touched it to her mouth, and forced her to perform oral copulation.
Following the defendant's second round of sexual assaults upon the victim, she was forced to submit to two more acts of sexual intercourse with Michael and another with DiMartino. The girl's testimony indicates that there may have been a fifth person present in the garage during the attacks; however, this individual was never adequately described nor identified. At the conclusion of about four or four and one-half hours in the garage, during which time the victim was subjected to 12 acts of sexual assault, she was instructed by her assailants to get dressed.
Utinans then led the victim into the rear seat of DiMartino's car. She testified that during the ride her blindfold was loose enough to permit her to observe the defendant seated to her left, Michael to her right, Richard in the front passenger seat, and DiMartino driving. During the drive back to the victim's neighborhood the co-defendants "evaluated" her "performance." They referred to each other by the use of the names "Joe" (Michael), "Tom" (DiMartino) and "Pasquale" (Richard). They did not use any alias in referring to the defendant Utinans.
Some time between 2:00 a. m. and 3:00 a. m., October 17, the victim was set free about a block and a half from her home. According to her testimony, she recalled that she left part of the contents of her purse in the car. She called to the occupants to stop. Michael stepped out of the car to return her possessions. At this time the interior light of the vehicle was on and she saw all of the persons in the car, including Utinans.
The victim then went directly home and shortly thereafter informed her parents of what had happened to her. Following a shower, she was taken promptly to a local hospital for examination and treatment. Police officers, informed of the girl's complaints to her parents, arranged to meet the victim and her parents at the hospital. Because the local hospital would not examine victims of sexual assaults, the police arranged for the victim's transfer to the Cook County Hospital. At the time of trial the State and the defendant stipulated that the examination at Cook County Hospital disclosed the presence of sperm within the victim's vaginal cavity and trauma in the vagina area.
From the hospital the girl was taken to a police station where she was interviewed by several police officers. The interview was recorded on a cassette tape by Officer James Sesso and the content of the recording was summarized the following day in a typewritten report. The victim was finally taken home at about 7:30 a. m., Sunday, October 17.
Three days later the complaining witness was asked to go to the police station to view a lineup. From eight individuals she picked Michael,...
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