*1 If there no sole cause proximate injury, no instruction regarding proximate sole cause given. herein, of our view decision that we discuss
other issues Sterling. raised Graves and the First National Bank of above, judgment
For reasons stated circuit court trial. County Whiteside is reversed and the cause remanded a new Reversed and remanded.
ALLOY, STOUDER, P. J.,.and J., concur. ILLINOIS,
THE PEOPLE Plaintiff-Appellee, OF THE STATE OF SIEVERS, Defendant-Appellant. TERRY LEE Fourth District Nos. 14196 cons.
Opinion February filed *2 CRAVEN, J., dissenting. Green, Richard Appellate Wilson and Edward R. of State Defender’s J.
Office, Springfield, appellant. Difanis, Attorney, (Robert Perry, Thomas C. State’s of Urbana of Illinois J. Association, Attorneys counsel), State’s People. for the Mr. PRESIDING opinion MILLS court: delivered JUSTICE prime issues: and identification. operandi they permit Do evidence of other offenses committed defendant?
We hold the affirmative. 21,1975, Terry charged by Sievers was the September information with rape of Terri Lee Scott in Champaign, by jury He was Illinois. convicted and sentenced years’ 5 to 15 imprisonment. serve
Under Sievers was with subsequent information 30,1975, of Marcia Elble. armed and armed violence trial, years After to 5 to 15 jury another he was convicted and sentenced sentence. prison robbery, consecutively prior rape to run to his armed as (On opinion consolidated for our own motion these cases have been 14097, respectively.) our cases numbered 14196 and trial, (age 16) testified RAPE CASE. At the first Terri Lee Scott 21, 1975, visiting she was friends Sunday morning September On grocery of a store. several Champaign walking and was out search following her. As she Chevy occasions she noticed a blue Nova store, in the store’s park IGA she observed the Nova approached the the car then recognized A man she as the driver of parking lot. arm, her, pulled her her drew a knife and approached grabbed grassy In a area adjoining cornfield. away from the street toward down, sat her and held the field the street he threw her between ripped The man off hand over her mouth to muffle screams. forcibly had and crotch. The man clothes and fondled her breasts got up He then for about seconds. prosecutrix intercourse the IGA. north towards told her to walk south while he walked the IGA when turned and headed toward Miss Scott started south but store, made a police, called the man’s car At the she heard the leave. scanning group her attacker. While complaint, gave description *3 station, she identified police the photos during trip her second raped Sievers as the man who her. Elble, University of Illinois ROBBERY CASE. Marcia
ARMED Sunday, student, trial that she was attacked on testified at the second a.m., Weston 30,1975, walking between shortly after 11 while her, grabbed up A man came behind Hall and Gamer Hall dormitories. back, holdup. arm, her it was a in her and told sharp object her stuck a the and faced Gamer cafeteria doors up against She then backed the was *9, the pushed him Elble giving her ribs. After man as he held a knife to again, once said grabbed man her get away. The man and tried skirt, cooperated if she up his hand and told body, put wanted her ran the again him and toward pushed Elble not be so hard. would the by taken attack and was reported she the building. intramural There of her attacker. she drew a sketch station where police police the concerning attacks on testimony cases the trial court the on for consideration expressly Illinois students University other asserts design. Sievers identification and issue of defendant’s of these the character admitted because erroneously testimony against complainants the to the offense sufficiently similar assaults was not operandi. modus generally offenses evidence of extra-indictment Although
883 intent, motive, admissible, goes to show other crimes which evidence of operandi exception. (People McDonald identity or is an 448, 343 265 v. Palmer Ill. 2d N.E.2d In McDonald our 627.) supreme N.E.2d court found there experienced admitting witness’ prosecution complainant. Similarities attack similar to the one encountered time, McDonald included early morning two attacks on an gained by standing entrance screen and removing window victim, basket, overturned refuse the manner of attack a female and shoes, and apparel gym pants, gloves. intruder’s khaki us, rape In all four attacks allowed into evidence case before tall, young long approached assailant was a thin man blonde hair. He with the young they walking female victim on foot while were down a began by fondling attempting sidewalk and the sexual assault to fondle girl victim. Similarities between the attack on the Scott and two of the other attacks are that the attacks occurred on a and the Sunday morning attacker used a knife. attacks, all addition to similarities shared four the attack our robbery
armed case and the into all two other attacks allowed assault, announcing involved a preceding a sexual an attacker intent, and occurring University campus during attacks on span. two-week Similarities between the attack on Miss Elble and one of the two jacket, other attacks are that the wore a blue down-filled attacker knife, the attacker used a Sunday morning. attack occurred Since and distinctive features” are common attacks, admitting court did abuse its discretion design. v. Therriault issue of identification and Ill. App. 3d testimony was also People Dewey proper view of the holding v. Cole 501, 194 that evidence of other if any purpose offenses admissible relevant for other than show a propensity to commit a crime.
Sievers’ alibi identity rape defense both cases raised the In the issue. case Sievers in Champaign morning contended that he was not September 21 hunting Hugo because he had been near his wife and Vail raped. Dennis and Carla at the time Miss Scott was Defendant’s story wife, Dianne, was corroborated at the trial Dennis Carla Vail. *4 robbery
At the armed trial Sievers claimed he was on the hunting also day of the gone attack. His wife testified that she had him, hunting with in left and mother stated was bed when she at 9 home a.m. and that she him At got saw when home at noon. trial, extensively second questioned defense counsel hazel or between Sievers’ concerning discrepancy another witness reported their attacker that the witnesses eyes eyes brown and the blue issue, in evidence of other identity Since the defendant’s police. unique combination yielded characteristics a distinct crimes —whose and viewed in toto —was introduced properly together when considered to establish this element. into evidence of to the introduction objected
Sievers’ counsel also People his arrest. in at the time of possession the knife that was Sievers’ on other 499, overruled 520, 221 N.E.2d v. Ostrand (1966), 35 Ill. 2d 685, 283 N.E.2d People Brocey in v. (1972), 51 Ill. 2d grounds that an accused indicating there is evidence ruled that where offense, weapon found a similar weapon at the time of possessed him. An may against be admitted at time of arrest possession actually used the commission as the one weapon identification of Longstreet v. Likewise, People the court unnecessary. the offense is pistol admitted an automatic 23 Ill. 3d 320 N.E.2d App. small the snub-nosed blue-steel large addition to bore revolver Therefore, robbery weapon. as the by the victim bore revolver identified was different that the knife used victims stated though present even testimony affects only possession than found in Sievers’ the one into weapon the similar admissibility of and not the probative value evidence. erred in the armed the trial court
Defendant next claims smuggle attempted to that Dianne Sievers allowing case indicates, record jail. he was her husband while hacksaw blades to interest on however, show bias and admitted to that this may that a witness seem clear It would part witness. interest the outcome showing bias or in a criminal case impeached (People credibility of that witness. to the pertinent of the trial because v. Henson 689; 268 N.E.2d Sawyer clearly reflects record 264.) Since the 32 Ill. 3d 336 N.E.2d App. here, there was admitted reason that precise this was the was no error. its court abused trial the claims that in the second further
Sievers prior he had because sentences imposing consecutive discretion all, imposition that the law it is hornbook criminal First of record. discretion. the trial court’s is within sentences consecutive Sykes 236 N.E.2d App. Ledferd properly trial court And a 10 Ill. and circumstances if the nature sentence a consecutive impose such the defendant —warrants character of history offense —and conduct further criminal from public protect sentence to reaching 8—4(b).) par. ch. (Ill. Stat. Rev. 1005 — defendant.
885 necessary his decision to protect that consecutive sentence was public, judge statutory obviously the trial below discussed factors and considered the facts his victim at case. Sievers robbed knifepoint daytime demonstrated word action sexual rape intentions. He had been convicted of committed similar circumstances months approximately two before the armed robbery offense. Since there is substantial basis the record supporting judgment court’s that a consecutive sentence was the public’s protection, we find abuse no of discretion.
Sievers next contends that
must
his convictions
be reversed
charged by
right
because he was not
indictment and did not waive his
to
charged.
be so
argument
unpersuasive
This
has
since a defendant
right
information,
be charged by
indictment rather than
as we held
310,
v.
People
(1977),
Tibbs
46 Ill. App. 3d
Defendant’s final claim is also without merit. He contends section 2(a) of Criminal (Ill. Procedure 1963 Rev. Code 111 — 1975, 38, Stat. ch. par. 2(a)) is unconstitutional since it fails to set 111 — forth intelligible standards to guide application legislative authority. in People Vaughn court 49 (1977), App. 363 N.E.2d 879 — which we cited approval People Ferguson 54 Ill. App. 3d N.E.2d 170 — noted that the powers exercised state’s attorney are powers. executive Consequently, there is no invalid delegation of legislative authority permitting attorney state’s to select the vehicle of prosecution. reasons,
For these we affirm the lower cases. court Affirmed.
TRAPP, J., concurs. CRAVEN, Mr. dissenting: JUSTICE It was prejudicial to permit evidence of to be other crimes introduced for the apparent proving purpose guilt offense. Such procedure deprived the defendant of a fair trial and I would reverse and remand for a new trial. Scott,
In cause No. involving alleged rape of Terri Lee permitted trial the testimony of three other victims wherein alleged contends, they testified to attacks I made them. The defendant agree, proof highly of other crimes was irrelevant and prejudicial, notwithstanding proper limiting instruction.
It tended to show an defendant’s to commit crimes of rule, course, of other general Of as a evidence nature. aggressive, Gregory 601, 177 22 Ill. 2d is inadmissible. crimes 448, 343 v. McDonald People N.E.2d 120; (1975), 62 Ill. 2d N.E.2d serves to However, this rule exists where evidence exception place, aids or establishes to the time and place proximity v. Romero or intent. prove design, motive identity, or tends 704, 334 (1975), 31 Ill. affirmed 11, 169 v. Tranowski 288; 262, 81 cert. denied 368 U.S. L. S. Ct. 364 U.S. Ed. 2d S. Ct. 484. 7 L. Ed. 2d mechanically whenever applied exception Yet to be establish one of prove crimes serves of other responsibility the court’s categorical to the rule. exceptions *6 in the of an issue sufficiently probative is determine whether the evidence this disclosing effect of present outweigh prejudicial case to the obvious (Romero.) required engage order jury. evidence act, evidence must consider other discretionary balancing court of admitting prejudicial evidence case in to assess the need for order in State Court by Washington Supreme As stated other crimes. evidence, Goebel class of “[Tjhis Wash. 2d 218 P.2d case, should not of the state’s not essential to the establishment where admitted, recognized exceptions falling generally within the though even exclusion, that its effect is convinced when the trial court to the rule of * * * where diffusing light, of generate be to heat instead would dirty hung linen entirely obscured relevancy will be peg minute of 367, 379, 306. 218 P.2d upon it.” 36 Wash. 2d subject this thinking on Washington I court’s concur entirely here, there that unlike in the case where emphasize victim, it by the positive or no identification circumstantial evidence of in three victims parade the State to not have been would prosecuted. been yet has not assaults for which defendant other procedure given, which was limiting instruction Notwithstanding still rather trial four offenses placing of defendant has the effect hears the defendant jury which the the more offenses Naturally, than one. present him of the committed, will be to convict likely they more has instructions, defendant’s limiting any charge. Despite proof than of of focus rather the issue to become commit crime threatens at trial. in the case guilt separate, three of the evidence
Here, show they could that theory assaults on unconnected Clearly, identification design. or common the defendant identification as a an alibi presented because in issue here of the defendant as a defense raises alibi a defendant any time this mean that Does defense. may produce identify State can as the witnesses who similar perpetrator present prior subsequent crimes to or to the either charge? I interpretation would such a oppose broad identification Butler exception subscribing expressed to the views Butler, 31 Ill. appellate 3d 334 N.E.2d As court said i.e., identity, where the falls exceptions, evidence into one of the case, ample there is eyewitness in the instant recapitulate to allow prior witnesses to the details defendant’s criminal acts in prove identity. order girls three other here did establish a common operandi. or view,
design evidence Under Professor McCormick’s of other prove crimes is admissible if the device used is design common “so unusual and a signature.” (McCormick, distinctive as to be like §190(3), (2d Evidence 1972).) nothing at ed. While it is clear that about these four attacks “signature” was so as to amount to a distinctive test, the McCormick cases indicate Illinois courts have taken less restrictive approach towards of such evidence. admission Romero said that order to be admissible on the issue of common “[i]n design the another offense must requirement come within the of being substantially similar and have common with the offense features Tranowski, Lehman, (People v. charged. 20 Ill. 5 Ill. 2d 2d 337; Wigmore Evidence, (3d added.) 1940).)” (Emphasis (31 ed. §304 704, 709, Tranowski Ill. App. reading After Lehman, I agree do not those cases stand for such nonrestrictive such evidence. Lehman requirements on the use of speaks distinctive (5 features common to” Tranowski 509), while spoke of “a or design strikingly scheme which was 11, 16, 169 (20 similar” 349). that the evidence seems *7 of another “strikingly crime must be similar” or and distinctive” order be admissible merely finding under the substantial exception; similarity or common will here example, features not suffice. For victim and the three other witnesses were all who attacked indicated the attacker began by fondling their attempting assault to fondle feature, genital breasts or areas. this far from While is a common is being distinctive in crimes nature.
Upon comparison, accounts four attackers stalked, dissimilarities. consideration here contain glaring Terri Scott was others, foot like the a man but who followed until automobile he reached a Here Miss suitable location to assault her. raped Scott was from the edge Champaign, west miles several University Illinois took campus area which the other three attacks place. only preceded two the four incidents was attack only robbery while a knife. With three of four did attacker use mind, these factors design exception the common has not been met. evidence, highly prejudicial view of the nature of such we believe that its admission here was argued reversible error. can be that the defendant offense, four, with one tried of and convicted to commit sex offenses.
Further, I believe there was error in the found in admission knife defendant’s possession. police The victim told the that the knife was not assailant, even similar to the one used and I know of rule that permits weapon specifically described as unlike one used totally commission of offense to be at the time that offense.
While this dissent has focused the issues cause No. error with reference purported cumulative continuing criminal propensity repeated 14097. These cause No. cases should be reversed and remanded for a trial free of the new prejudicial error. al., Plaintiffs,
PEGGY LYNN FREDERICK et v. ZEIGLER COAL COMPANY al., et (PEGGY FREDERICK, Plaintiff-Appellant; LYNN STATE Defendants. — al., BANK OF ARTHUR et Lynn Guardians of the Estates of Melissa Frederick al., Minors, Plaintiffs-Appellees.)
et
Fourth District No. 13919 Opinion February filed