People v. McCoy

509 N.E.2d 567, 156 Ill. App. 3d 194, 108 Ill. Dec. 871, 1987 Ill. App. LEXIS 2553
Appellate Court of Illinois·Decided May 22, 1987·No. 85-1758·Published·Cited by 9 cases

Opinion

JUSTICE LORENZ

delivered the opinion of the court:

Defendant was charged with one count of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, pars. 12-14(b)(1), 12-16(c)(1)). Following a jury trial he was found guilty on both counts and sentenced to six years’ imprisonment on the aggravated criminal sexual assault charge.

Defendant appeals urging the following. First, the voir dire was inadequate by failing to question defendant’s interracial relationship with his girlfriend. Second, the trial court erred in denying defendant’s motion in limine to preclude the prosecution from interjecting any evidence of his 12-year old forgery conviction. Third, he was prejudiced and denied a fair trial by prosecutorial comments during closing arguments which were not proper inferences based on evidence deduced at trial. Fourth, the evidence was insufficient to support his convictions for aggravated criminal sexual assault and aggravated criminal sexual abuse.

We affirm.

Before jury selection commenced, defendant filed 27 proposed jury questions of which two were denied by the trial court. Thereafter, defendant excused the court reporter during the voir dire. He also filed a motion in limine to exclude reference to his 1973 forgery conviction for which he had been sentenced to three years in prison and had been released in 1976 after serving his term. The court ruled that the introduction of the conviction for forgery would be allowed in the event defendant chose to testify at trial.

The following pertinent testimony was adduced at trial. On August 11, 1984, at 9 p.m., N.M., a minor female, and her mother, D.M., were in their second-floor apartment at 217 South Fifth Avenue, May-wood. Defendant, 31 years of age, lived upstairs in another apartment with his girlfriend, Elizabeth Graham. Defendant and Graham were friends of D.M. and N.M. After a short visit, all four of them decided to take a ride in Graham’s car. Defendant and Graham sat in the front seats while N.M. and D.M. sat in the backseat. An armrest separated the two seats in the front of the car. Defendant was driving.

Defendant drove to a restaurant for hamburgers. D.M. laid her sleeping daughter on the backseat lying on her stomach and "crunched up.” D.M. went into the restaurant along with Graham to buy some hamburgers. Defendant remained in the car with the child.

N.M. testified that while she was sleeping she “felt something funny” hurting her. The pain she felt was in her “behind” and hurt her so much that she woke up. When she awoke, she saw defendant leaning over the armrest, sticking his finger in her “behind.” She was wearing a skirt and blouse and her panties had been pulled down to her knees. The child tried to slap the defendant’s hand and he pulled his finger out of her anus. The victim testified that she was in pain. After defendant pulled his finger out of her anus, he put his finger under his nose and moved it across his face. N.M., meanwhile, pulled her panties up and began crying as she hugged her teddy bear. She moved over to the passenger side of the rear seat in the corner of the car, away from the defendant. She testified that she was afraid.

While she remained in the backseat, defendant got out of the car. Before he got out of the car, defendant said to her, “Turn your head, I have to pee.”

Soon thereafter, N.M.’s mother returned to the car and asked her what was wrong. N.M. said “Nothing.” N.M. testified that it was after she told her mother “nothing was wrong” six or seven times that she whispered to her mother that defendant had stuck his finger in her behind. D.M. immediately told the defendant to let her out of the car and defendant refused.

When they arrived home, D.M. jumped out of the car, grabbed her daughter by the arm and went upstairs to her apartment. She took two knives from the apartment, went downstairs, and began arguing with defendant. Eventually, she returned to her apartment and called the police.

N.M. testified that she went with her mother to the police station at Grand and Central Avenues in Chicago that evening and again the following day. D.M. and N.M. filled out a report, and N.M. was interviewed outside the presence of her mother by youth officer Walter King.

Defendant’s testimony generally contradicted that of N.M. Defendant testified that he heard a thump and saw that N.M. had fallen to the floor. He stated that he reached between the seats and put his hand “under her butt” so as to lift her back to her seat. However, he did testify that he did get out of the car to relieve himself in the parking lot.

Defendant was convicted of aggravated criminal sexual assault and aggravated criminal sexual abuse and was sentenced on the aggravated criminal sexual assault conviction to a six-year term of imprisonment, the aggravated criminal sexual abuse conviction merging.

Opinion

Defendant initially contends that the voir dire was inadequate to disclose jurors’ potential biases and prejudices. In Illinois, it is well established that the accused has the responsibility for preserving the record of the voir dire examination and, if he fails to do so, the reviewing court will not consider his contention that prospective jurors should have been excused for cause. (People v. Johnson (1976), 43 Ill. App. 3d 649, 357 N.E.2d 151.) Defense counsel excused the court reporter from transcribing the voir dire. We cannot consider defendant’s contention without an adequate record. We must, however, note that the trial judge voiced no objection to another question which appropriately addressed potential racial prejudice and thus the jury was apparently questioned on this subject.

Next, defendant contends that the trial court abused its discretion in denying defendant’s motion in limine to preclude the prosecution from interjecting any evidence of defendant’s 12-year-old forgery conviction. In denying defendant’s motion in limine, the trial judge stated, “We are talking about forgery which involves the question of truthfulness and because of the 1973, I can’t see where it would be any great prejudice to the defendant. Yet it does go to his credibility as a witness.” Thus, the court ruled that defendant’s prior forgery conviction could be used in the event defendant testified. Defendant chose to testify and also chose to admit his prior conviction for forgery on direct examination.

The Illinois Supreme Court has adopted Rule 609 of the Federal Rules of Evidence concerning the use of a prior conviction to impeach a witness. (People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695.) The rule provides, in part:

“Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. McCoy, 509 N.E.2d 567, 156 Ill. App. 3d 194, 108 Ill. Dec. 871, 1987 Ill. App. LEXIS 2553 (Ill. Ct. App. 1987).

509 N.E.2d 567 (People v. McCoy) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Cage
42 M.J. 139 (Court of Appeals for the Armed Forces, 1995)
People v. Williams
601 N.E.2d 1070 (Appellate Court of Illinois, 1992)
People v. Torres
556 N.E.2d 741 (Appellate Court of Illinois, 1990)
People v. Helton
552 N.E.2d 398 (Appellate Court of Illinois, 1990)
People v. Harris
543 N.E.2d 859 (Appellate Court of Illinois, 1989)
People v. Barfield
543 N.E.2d 157 (Appellate Court of Illinois, 1989)
People v. Courtney
542 N.E.2d 116 (Appellate Court of Illinois, 1989)
Deerhake v. DuQuoin State Fair Ass'n
541 N.E.2d 719 (Appellate Court of Illinois, 1989)
People v. Cregar
526 N.E.2d 1376 (Appellate Court of Illinois, 1988)