People v. Woods

• Decision Date: 25 May 1973
• Docket Number: No. 71--316,71--316
• Citation: 301 N.E.2d 593,13 Ill. App. 3d 860
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger L. WOODS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 593

301 N.E.2d 593

13 Ill.App.3d 860

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Roger L. WOODS, Defendant-Appellant.

No. 71--316.

Appellate Court of Illinois, Second District.

May 25, 1973.

Supplemental Opinion on Rehearing Oct. 3, 1973.

Sheldon Schapiro, Sol Kalena, Evanston, Gerald Eisen, Chicago, for defendant-appellant.

Wm. V. Hopf, State's Atty., Ralph J. Gust, Jr., Asst. State's Atty., Wheaton, for plaintiff-appellee.

GUILD, Presiding Justice.

On May 9, 1970, the defendant was charged in a two count indictment with having committed the offense of indecent liberties with a child and attempt rape.The cause was tried by a jury and he was found not guilty of attempt rape but guilty of indecent liberties.Defendant applied for and the trial court granted probation for a period of five years, the first year to be served in the state prison farm at Vandalia, Illinois.The defendant has appealed and has alleged several grounds for reversal.

On May 23, 1970, at approximately 10:15 P.M. the defendant was arrested in Evanston, Illinois, by Evanston policeman upon a charge of rape, in which the motor vehicle of the defendant, a Buick Riviera, license #LC 9704, was involved earlier in the evening.He was taken to the Evanston police station, and his car subsequently searched.A revolver was found in the console between the two front seats and certain route cards were seized from the trunk of the car.The next day, on May 24, 1970, Marirose Brown, the complaining witness in the instant case, was driven by the Bensenville police to the Evanston police station.A lineup was had of four men including the defendant.Defendant's private counsel was present.The complaining witness identified the defendant as the man who had committed the offenses against her in Bensenville, Illinois, on May 9, 1970.

The complaining witness testified that as she was walking to the shopping center in Bensenville, the defendant drove up in a blue car with a black top and asked her where a certain road was.He drove by again and asked her if she wanted a ride.She refused, kept on walking, he drove alongside her, opened the door; she testified she thought she saw a gun, and he told her to get in the car.Defendant then drove on and she asked to be let out.He continued to drive around the Bensenville area.She testified that he drove to the rear of the stores in the shopping center and parked his car by the garbage can.Defendant locked the doors with an electric button and engaged the complaining witness in general conversation.He asked her to have intercourse or commit deviate sexual acts with him which she refused.He then grabbed her by the right breast and placed his hand between her legs in the region of her vagina.She slapped him and purportedly struggled.He allegedly placed a gun in her side, she screamed and was able to open the door and get out of the car.She then went into the shopping center where she met a girl friend and complained to her about what had happened.Shortly thereafter, her parents drove her to the Bensenville police station where she made a statement to the police which was reduced to writing.

The first contention of the defendant is that he was not proven guilty beyond a reasonable doubt.In support of that contention he alleges that the testimony of the complaining witness as to the incident in question was not clear and convincing; that she suffered no injury, her clothes were not torn and she did not lose her earrings.Defendant further points out that she was not taken to a doctor.In this regard there is no allegation that the complaining witness was injured or that any penetration had been made into her vagina.It is obvious that a doctor's examination was not necessary for any purpose.Defendant points out that as they were driving around the Bensenville area she had an opportunity to exit the car but did not do so.The defense pointed out upon cross examination of the complaining witness in her testimony at the trial, that in her statement to the police she did not mention a gun.

Among other alleged discrepancies in testimony urged by the defense was the identification of the car in question; that at the time of her complaint she stated the car was a dark blue automobile with a black top, bucket seats and a console between the two front seats.She was not able to positively identify the make of the car but thought it was a Mercury.The car the defendant was driving at the time of his arrest in Evanston was a Buick Riviera, a dark blue car with a black vinyl top, bucket seats and a console between the two front seats.Defendant states that it is unlikely that he would attempt to have sexual relations 'in a National parking lot on Saturday afternoon.'He neglects to mention the fact that the car was parked beside a garbage container at the rear of one of the buildings in the shopping area where the general public ordinarily does not park.

It is true that there are discrepancies in the complaining witness' description of the vehicle and some minor discrepancies as to her description of the defendant, but it is to be expressly noted that two weeks later at the Evanston police station lineup she immediately identified the defendant as the man who had committed the assault upon her on May 9, 1970.The lineup appears to have been properly conducted, defendant's counsel was present, and the complaining witness positively identified the defendant in the court room as the one who had committed the assault upon her in broad daylight.

The defendant next contends the complaining witness committed perjury.In her testimony at the trial in support thereof he raises the issue of the exact time of the occurrence.The original statement given to the Bensenville police stated the occurrence to have been about 2:20 P.M.After the arrest of the defendant in Evanston the complaining witness signed a statement in which the time is stated to have been at 2:00 o'clock.Defendant points out that the complaining witness in her testimony stated she noticed the time on a clock at the shopping center which read 2:45 before defendant appeared and that she exited the car between 3:00 and 3:30 P.M.On the basis that she alleged the occurrence to have been at 2:00 o'clock in her signed complaint defendant contends that this is a perjured statement.While various times are mentioned, it is to be remembered that the complaining witness was a fourteen year old girl who undoubtedly was under great stress at the time of the incident, and this court does not believe that this constituted perjury.

In People v. Strother(1972), 53 Ill.2d 95, 100--101, 290 N.E.2d 201, 204, the court stated:

'* * * Minor discrepancies in testimony taken at two different times do not establish perjury nor destroy the credibility of the witness but only go to the weight of the testimony.(Citation)'

The discrepancies in the time varying from 2:00 P.M. to 3:30 P.M. were brought out in great detail by the defense before the jury and was an issue considered by them.

The next alleged error complained of by the defendant pertains to his arrest in Evanston.There is no question but that the identification of the defendant in the Evanston police station lineup was a necessary element of proof.Many conferences were held in chambers in which the trial judge assiduously admonished counel that the reason for the arrest in Evanston was to be kept from the jury.Examination of the record discloses that this was accomplished even though at one time it was necessary for the court to admonish defense counsel that he was indirectly putting this into evidence.There is no argument that it is highly improper and prejudicial to introduce evidence of a similar or prior crime.That is not the case before us.The identification of defendant by the complaining witness in Evanston, the description of the car and the gun found by the Evanston police, were of probative value for the instant offense.At no time was the jury apprised that the defendant was arrested by the Evanston police, no reference was made to 'arrest' or 'custody.'There is a distinct difference between evidence of prior unrelated offenses being presented to the jury and the situation in the case before us.

The defendant alleges that the gun in question and certain route cards found in the automobile were improperly admitted into evidence.Prior to trial, a motion to suppress these items was heard by the trial court and denied.The defendant contends the search of his car was illegal.An examination of the record does not substantiate this allegation.The police officers testified that they wanted to search his car, that he gave them the keys and agreed.Upon direct examination, defendant denied that he had a gun in the car on May 9, 1970, and the following colloquy took place.

'Q And did you have the gun in the Buick Riviera on May 24th when the police officers stopped you in Evanston?

A Yes.It was still in the car.

Q And at that time did they request to search your car?

A Yes.

Q And you let them, did you not?

A Yes, I did.

Q And were certain cards also seized?

A In the trunk of my car, Yes.'

In this court's opinion such a statement by the defendant is consent.In People v. Ledferd(1968), 38 Ill.2d 607, 610, 232 N.E.2d 684, 686, the court said:

'One who consents to a search waives his constitutional protection against unreasonable search.(Citations)Whether consent has been given is a question of fact to be determined initially in the trial court, and where the evidence on the issue is in conflict this court will uphold the trial court's finding unless it is clearly unreasonable.(Citations)Here, the trial judge found that the defendant consented to the search.It is not within the province of a court of review to assess the credibility of witnesses and a study of the evidence presented at the hearing on the motion to suppress does not lead us to conclude that the court...