People v. McColler

842 N.E.2d 193, 363 Ill. App. 3d 81, 299 Ill. Dec. 454, 2005 Ill. App. LEXIS 1275
CourtAppellate Court of Illinois
DecidedDecember 21, 2005
Docket1-04-1660
StatusPublished
Cited by9 cases

This text of 842 N.E.2d 193 (People v. McColler) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McColler, 842 N.E.2d 193, 363 Ill. App. 3d 81, 299 Ill. Dec. 454, 2005 Ill. App. LEXIS 1275 (Ill. Ct. App. 2005).

Opinion

JUSTICE ERICKSON

delivered the opinion of the court:

Defendant Lawrence McColler was convicted following a bench trial of one count of home invasion, two counts of aggravated criminal sexual abuse, and two counts of attempted aggravated criminal sexual assault. Defendant received a 45-year extended-term sentence for home invasion, a 7-year sentence for each aggravated criminal sexual abuse conviction, and a 15-year sentence for each attempted aggravated criminal sexual assault conviction, to be served concurrently.

Defendant contends on appeal that: (1) the State failed to prove him guilty beyond a reasonable doubt of home invasion because the evidence was insufficient to prove he knew one or more persons were in the home; (2) the State failed to prove him guilty beyond a reasonable doubt of home invasion, aggravated criminal sexual abuse and attempted aggravated criminal sexual assault because the evidence was insufficient to prove the knife he used constituted a “dangerous weapon”; (3) one of his attempted aggravated criminal sexual assault convictions must be vacated where there was only one act of attempted penetration; (4) his conviction for home invasion must be vacated because it is a lesser-included offense of attempted aggravated criminal sexual assault based on home invasion; (5) his convictions must be reversed and the cause remanded for a fitness hearing because a bona fide doubt as to his fitness was raised; and (6) the cause must be remanded for proper admonishments pursuant to Supreme Court Rule 605(a) (210 Ill. 2d R. 605(a)).

BACKGROUND

Defendant’s convictions arose after he attempted to assault the 13-year-old victim, S.S., while she was alone at her foster mother’s home on October 30, 1999. Defendant was charged with six offenses: two counts of home invasion, two counts of aggravated criminal sexual abuse, and two counts of attempted aggravated criminal sexual assault. The State nol-prossed the second count of home invasion (alleging defendant entered S.S.’s dwelling place, when he “had reason to know that one or more persons were present therein”) and tried defendant on the first count of home invasion (alleging defendant entered S.S.’s dwelling place, when he “knew that one or more persons were present therein”) as well as the remaining offenses mentioned above. (Emphasis added.)

Prior to trial, on November 13, 2000, defendant, who was represented by the public defender’s office, moved for a behavioral clinical examination (BCX), which came back indicating he was fit to stand trial with medication. A fitness hearing was later held on February 6, 2001, and the parties stipulated that Dr. Stafford Henry would testify that defendant was fit to stand trial with certain medications. The trial court found defendant fit with medication.

On March 13, 2002, defense counsel advised the court that defendant had a “misfortune” over the weekend and that he had to “go to [the] psychiatric ward.” The trial court again ordered a BCX to determine defendant’s fitness to stand trial and continued the matter. Defendant’s dissatisfaction with appointed counsel dominated the next several court proceedings. At the April 19, 2002, proceeding, defense counsel indicated that defendant has “previously had [two] examinations for fitness both of which found *** him fit for trial with medication,” that “[h]e appears to be taking his medication,” and that he wanted an attorney other than the public defender. No further mention of the second BCX was made.

Defendant, represented by private counsel, was tried on August 22, 2003. The victim testified that on October 30, 1999, at approximately 7:45 p.m., she was blow-drying her hair in her rear bedroom while alone at her foster mother’s apartment. The victim’s father had been visiting and reminded her to lock the door after him when he left. The door, however, remained unlocked, and 10 minutes after her father left, the victim heard the door slam. The victim went to investigate and saw defendant.

Defendant approached the victim in the living room and told her that he would not hurt her. Defendant then grabbed the victim, and she hit him in the face with an iron. Defendant then threw her down and started to choke her. Defendant ripped off her pants, lifted up her shirt and removed a “gun-knife” from his pocket. Defendant licked the victim’s breast, touched her vagina with his hands, and removed his penis from his pants. At that moment, the victim’s sister, Sarah S., and her foster mother returned from the grocery store. Sarah S. threw a bag of eggs at defendant and defendant left. The victim’s foster mother called the police, and later that night, the victim identified defendant as the offender from the back of a squad car two blocks away from her home.

The victim initially thought defendant, who was standing next to the front door when she first saw him, was her father returning because “it was so dark” in the apartment. The victim testified that the lighting in the apartment consisted of (1) a light in the kitchen, and (2) a light in the hallway. The hallway, which was between the front door and a basement door, was small, and the light was “very dim.” The victim testified that “[i]f you’re not standing there you can’t see anything.” Although it was dim, the victim was able to see defendant’s face while he was in the living room.

The victim also testified that the knife defendant possessed, which she called a “gun-knife” because its handle was the shape of a gun, was “tiny with a little knife extended right off it.” The knife, which “could be” a novelty, had a blade four to five inches “at the most.” It was not sharp and did not scare the victim. The victim stopped moving when defendant pulled out the knife, and she was afraid of defendant choking her.

The victim additionally testified that she had seen defendant one time before in the neighborhood but that she did not know him and never talked to him. She also stated that she did not invite defendant into her home.

Sarah S. testified that at about 7:45 p.m. on October 30, 1999, she returned home from the grocery store and was carrying a bag containing eggs. When she entered her home from the front door, she saw defendant, whom she had seen once before, with his pants down. She testified that the hallway and kitchen lights were on, and that the living and dining room lights were off. Sarah S. tried to grab defendant and threw the bag at him. The next day, Sarah S. identified defendant from a police lineup.

Chicago police officer Haywood, who arrived at the victim’s house at approximately 7:55 p.m., testified that he obtained a description of the offender from the victim, who was upset. Officer Haywood then broadcast that description over his police radio. The officer also observed defendant’s knife, which he described as a pocket knife with a pistol handle and a two-inch-long blade. Although Haywood testified he inventoried the knife, it was neither introduced at trial nor admitted into evidence.

Chicago police officer Montes received a “flash message” containing the description of the offender. At 9:30 or 10 p.m., Montes saw defendant, who fit the description, walking alone about four blocks away from the victim’s home. Montes detained defendant and the victim identified him while the defendant was seated in the back of Montes’ squad car.

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Cite This Page — Counsel Stack

Bluebook (online)
842 N.E.2d 193, 363 Ill. App. 3d 81, 299 Ill. Dec. 454, 2005 Ill. App. LEXIS 1275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccoller-illappct-2005.