*1 ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF JOHNSON, Defendant-Appellant. DANIEL 81-332
Third District No. 29, 1982. Opinion Rehearing July filed denied 1982. June STOUDER, J., dissenting. *2 Lilien, Agostinelli Appellate
Robert Defender’s and both of State Thomas Office, Ottawa, of appellant. for Teros, Gary Attorney, (John T. X. F. State’s Breslin and of James
Gnidovec, Commission, Attorneys counsel), of Appellate both of State’s Service People. for the opinion ALLOY of court: delivered the
JUSTICE The State complaint County filed a circuit court Rock Island of charging the Johnson, attempted rape with and deviate Daniel sexual assault. alleged 3,1980, It shoved September on the defendant Sharon ground, clothes, Fundell to ripped attempted her and to sexual perform intercourse without an her consent. He then forced her to act of trial, oral sex. Following guilty was of jury the defendant found attempted rape acquitted and later of deviate sexual assault. The court sentenced Although of five-year imprisonment. defendant to a term review, the defendant issue presents significant issuesfor the most is whether the admission error. of other crimes evidence was reversible September
On a.m. an 11 Sharon Fundell walked to appointment in A young riding bicycle approached Rock Island. man her from the rear passed. and touched her buttocks as he He rode to the returned, street corner asking questions. kept and replied, her Fundell but walking along Second as man bicycle along Avenue walked his with her. As destination, she approached her placed the man his hands on one of her breasts and placed took one her Each of hands and on his crotch. time said, Fundell shoved his away Suddenly, hands and as “No.” approached building her going, to which Fundell the man lifted was into the air bushes, and pinning her her ground threw near some down lying top frightened of but she did her. Fundell was scream, thinking it best to her assailantto release her. try convince ripped man penis her into pantyhose attempted dress and to insert vagina, her but The man get could not because failed to an erection. he stood, then escape, subdued forced her Fundell she perform sex. oral minutes,
After going signal approach- five an Fundell said she was not, he then released her when ing help. car for She could but the attacker building he thought approaching. heard someone Fundell went inside 21, 1980, the defendant police. and called On she identified October The defendant’s group photographs. as her assailant from a of six or seven identification, photograph, which made out-of-court from Fundell her arrest for two other day following was taken one earlier the defendant’s She man who had attacks. also identified the defendant in court her. introduced, objection, prosecution then defendant’s over the of the testimony of other victims two who claimed women attacks, reinforcing Fundell’s identification purpose defendant’s for that such argued as her The prosecution assailant. the defendant’s testimony establishing relevant had committed circumstantially turn that the defendant showed charged. the crimes September Harland and her mother p.m., at 2 Judith young A man walked walking along Eighth
were in Rock Island. Avenue said, nothing kept past them “Hi.” and her said Harland mother corner, As and saw the walking. Harland she turned back reached grabbed her approaching. walking, man She but the man continued ground, buttocks then neck. threw Harland to reached around her He blouse, reported her he She unsnap pants tore and tried to before fled. *3 that description the attack a of her assailant police gave and description matched Fundell’s of her assailant. (cid:127) 20,1980, by Virginia Holmquist 1 p.m., October at past her and young man on in first walked Tenth Avenue Rock Island. He said, walking. “Hey, her and continued baby.” She told him to leave alone her, young the sensed and saw She someone was behind so she turned frightened man She and criss-crossed following her. became when, he turned suddenly, She the streets. believed that she had lost man him, around, and refused talk said he did like “bitches” who and screamed, people appeared struck her some Holmquist face. When and was day the man The was arrested later fled. defendant station house by assailant at a identified Harland and their showup. no evidence. presented virtually testify did not in sentence, the alleging several errors appeals
He now his conviction and trial court. evidence admitting in trial first issue whether the court erred concerning Although disapprove of
of other crimes. the courts motive, offenses, to show this evidence is admissible extra-indictment 62 (1975), v. McDonald intent, operandi. (People or modus knowledge case, properly trial admitted 489.) In this court N.E.2d operandi. scheme or modus evidence of other crimes to show a common crimes is admissible to show Evidence of other strikingly similar design the evidence establishes “a scheme or which was Tranowski in charged to the offense the indictment.” 11, 16, 169 cert. denied Ill. 2d 364 U.S. 5 L. Ed. People v. McDonald S. Ct. 290. See also 62 Ill. 2d every in minute The other crimes do not have to be identical detail. The similarity striking need or distinctive.
In Sievers App. upheld court the use of evidence of extra-indictment offenses when Sievers, defendant was In the State robbery rape. convicted of armed produced descrip evidence that a man defendant’s corresponding to the attack, tion attacked four other In in the women. each one here, approached walking the man down a his victims on foot while sidewalk and began by fondling attempting the assault to fondle morning victim. Three and the Sunday of the attacks occurred on knife, attacker charged. Additionally, used a as was true in the offense attacker preceded robbery the attacks an armed and the with intentions, for which announced his sexual as was also true the offense Furthermore, he was on a two-week trial. these attacks occurred within span. time McDonald,
Similarly, upheld our court admission of evidence of other crimes when both the extra-indictment offense and the crime for which the defendant was charged morning occurred in early hours, the gained fashion, attacker entrance to both homes a similar method or attack on each victim was similar attacker wore same attire in each similarity instance. The court ruled that the operandi was sufficient crime. enough to admit the evidence of another See also 999. Therriault bar, In Sievers and ample support the case at provide attacks Holmquist’s testimony. admission of Harland’s and occurred All occurred span. within a nine-week time three attacks All daylight. a sidewalk walking three victims are white and each'was case, at the time of the initial contact with the In each defendant. defendant first tried to In case initiate a conversation with the victim. before us Harland, the attack on started his assault attacker *4 fondling the attacks, victims. In gave police all three substan the victims tially identical physical descriptions. Tate upon by relied does Tate require does not reiterate contrary result. Not
the law McDonald. subject, on this validity that decision reaffirms the
The circumstances of closely parallel, the case at bar are and the “degree uniqueness” here is no weaker than that found McDonald. The trial court, therefore, did not err when it admitted evidence of extra-indictment offenses.
The next issue is whether the trial court held an adequate hearing rule on defense suppress motions to Holmquist’s Harland’s and identifica tion. Harland and viewed the during defendant a one-man showup procedure police asked these witnesses to come to the —after police station to identify their attacker. The defendant suppress moved to these identifications at the close of testimony. Harland’s He contends the trial court did not hold an adequate hearing when it denied the motions to suppress. The defendant appeal First, bases his points: of this issue on two that the court failed require the State to meet its In proof. burden of essence, arguing defendant is the State failed to meet its burden. Second, hearing inadequate because the trial court failed to make findings of fact and conclusions of law. The defendant upon relies section 12(e) of the Code (Ill. of Criminal Procedure of 1963 Rev. Stat. 114— ch. par. 12(e)) support argument. his 114 — The defendant incorrectly argues that the State failed to meet its proof. burden of Both witnesses viewed the proximity close in daylight. Although the say long witnesses did not how they viewed attacker, their the recitation of their ample oppor attacks demonstrates tunities for both of them to view the defendant. Their identification of the defendant —at showup positive well as at the trial —were unwavering. The fact that precisely neither stated many how minutes they saw the unimportant. is The trial court properly could find an independent Furthermore, basis for the in-court identifications. the trial court need not findings make of fact and conclusions of law where the underlying search or seizure is (People v. Dickerson lawful. 829-30, App. 3d The defendant here does not Therefore, contend his arrest was unlawful. the trial court properly denied the suppress motion to the identifications.
The next issue is prosecutor’s whether closing and rebuttal operated comments deny the defendant a fair trial. The comments at issue repeatedly refer to the case. “uncontradicted” nature of the State’s The defendant claims these remarks amounted to a comment decision not testify, prejudicing thus his defense.
It is improper testify. to comment a defendant’s failure to (Griffin 85 S. Ct. U.S. 14 L. Ed. 2d California 1229.) Although the State may argue that its evidence uncontradicted and unrebutted —even when the refute it is the only person who could defendant —courts are arguments have not tolerated such v. Johnson calculated to draw attention to the defendant’s silence. (1981), 102 Ill. 905.) Although the defendant’s
161
comments
as a
object
failure to
be construed
improper
these
could
objection,
beyond
waiver of
note
harmless
a reasonable
we
that
were
testimony
surrounding
doubt. The
the attack
victim’s
of
events
Holm
unequivocal,
prosecutrix,
and the
testimonies of the
identification
Harland,
over
quist
positive
emphatic.
is
were
whelming
facts,
was harmless
unrebutted.
these
error
v.
beyond a
People
Evans
App.
78 Ill.
3d
reasonable doubt.
(cid:127) 6 Finally, five-year his appeals the defendant sentence for conviction of attempted rape. The trial of harm to the court listed threat serious victim a in aggravation sentencing 5—3.2(a) factor of under section 5— 38, par. of ch. (Ill. the Unified Code Stat. of Corrections Rev. 5—3.2(a)). in an The defendant contends that the use of force 1005 — attempted rape implicitly carries a of serious harm the victim. threat therefore, argues, this legislature already considered factor when it determined court attempted rape a sentence for and the may not again. now consider this fact The defendant relies reasoning v. Conover Ill. 419 84 2d N.E.2d our that a of a obtaining money court ruled result burglary “receiving was not compensation” for the offense within the meaning of section 5—3.2(a). Obtaining proceeds burglary is of 5— implicit itself, in the offense and could not be used as a factor aggravation. Relying upon People Allen App. 422 N.E.2d argues that factors when aggravating exist the risk of greater harm is than that App. inherent the offense. 38, 40.
The defendant’s analogy Conover Allen faulty. of case is this The fact that a crime has an in it necessarily element of force does not mean that serious harm threat harm of serious is inherent e.g., (See, offense. Carmack 282 (threat of serious of necessarily implicit harm not offense
armed robbery).) Similarly, harm not the threat of serious is inherent the offense rape. of There are wide in the risk of harm to variances victims rapist weapon sexual attacks. in his deadly who uses a attack, for example, is usually greater a much to his than an threat victims rapist unarmed It is who overcomes his victims or intimidation. fear illogical to argue legislature that prevent trial from intended to court recognizing accordingly. these differences imposing and from sentences The trial court here properly as an considered threat serious harm aggravating imposed factor and imprisonment sentence of supported by the record.
The judgment County of the circuit is affirmed. court of BARRY, J.,P. concurs. STOUDER, dissenting:
JUSTICE I respectfully colleagues. dissent from the I by my result reached believe the circuit court erred admitted evidence of other crimes as his circumstantially establish the defendant’s identity. Today’s ruling exceptions shows that the the rule all but eliminated the rule itself.
The criminal
strongly
receiving proof
law
disfavors
accused’s
of the
character,
crimes,
bad
including
evidence of unrelated
to demonstrate
guilt circumstantially by suggesting that he conformed to his established
propensities. Other-crimes evidence is barred not because it is not
relevant,
factually
over-persuade
jury
but because it
tends to
(People Lindgren
obvious and substantial prejudice
of the accused.
(1980), 79 Ill.
“simply
Our
distrusts
law
*6
permitting the trier of fact to draw the
that because a man has
inference
committed other crimes he is
likely
more
to have committed the current
(E.
Graham,
Cleary
crime.”
M.
Handbook of Illinois Evidence sec.
404.5,
(3d
at 134
1979).) Nevertheless,
ed.
may
other-crimes evidence
be
admitted where it is substantially relevant for some
purpose
other
than to
show a probability that
charged
accused committed the crime
because he has a criminal character. (People
v. Lehman
(1955),
5 Ill. 2d
337,
justification admitting if the criminal conduct this evidence tradecraft, then coincided with the criminal accused’s established likely accused is current crime. have committed the operandi, To constitute admissible evidence of the defendant’s modus the other also only parallel charged, they crimes must not the crime but must carry degree some uniqueness separate distinguish so as to or general accused from the criminal population. by showing This is done that the being compared crimes exhibit the accused’s criminal trademark. requirement crucial, of uniqueness is particularly for without it other- crimes evidence only propensities demonstrates the defendant’s criminal character, and bad legally question presented and thus is not relevant. The here is unique how must the admissible evidence be before becomes operandi. modus People v. Lehman Our court said operandi 337, modus Ill. 506, 509, evidence “peculiar must More and distinctive features” to be admissible. recently, unique “Although court has said: the similarities need not only present some being compared, two offenses there must be type distinctive of that features that are not common to most offenses operandi.” v. Tate 87 Ill. 2d order to demonstrate 142-43, McCormick, sec 475. See Evidence also (2d 1972) (other-crimes at 449 ed. “must be so unusual at least majority, distinctive as while signature”).) to be like a acknowledging finding that the uniqueness, requires the need for none Holmquist probative evidence of the attacks on Harland three attacks among evidence. The sum of the similarities male, was that a generally fitting description women, along walking three white who were different sidewalks, assailant during period. In each case the six-week striking. Not prior to initiate a conversation with the victim similarities, are exist there no more but also the similarities that do attack, are not entirely example themselves consistent. For in Fundell’s the assailant approached bicycle, assailant who attacked whereas the Also, Harland and Holmquist although preceded was on assailant foot. victim, each attack attempt with an up to strike conversation with the he used unique no or approach. Finally, even similar the nature of the attacks because, was not throughout consistent clearly while the assailant fondled Fundell, the record is not clear as to whether the assailant fondled Harland clearly shows that was not fondled assailant.
These nothing techniques, similarities are more than standard criminal generic most, all, similarities that are common if assaults. sexual Indeed the similarities majority convincingly that the so distinctive finds here are also found at in part least case another sexual attack relied, 880, 372 Sievers Ill. 705. Certainly the in similarities here are no more distinctive than Tate 134, 429 N.E.2d 470. There the indicted crime and compared crime were practically every respect: identical both *7 man slipped packages sausages under his coat and walk out of two being Kankakee foodstores without noticed. The - supreme court the evidence was inadmissible as ruled that operandi ground on the uniqueness. lacked sufficient The court termed the so-called technique criminal standard said that while the distinctiveness need not be so conclusive so eliminate all other offenses of the same must establish type, the accused’s criminal trademark which exclude most like offenses. will Applying us, this standard to the case before I can discern no distinctive ness in proffered other-crimes evidence which sets this defendant apart from others committing the same criminal conduct.