People v. McGee

410 N.E.2d 641, 88 Ill. App. 3d 447, 43 Ill. Dec. 641, 1980 Ill. App. LEXIS 3611
CourtAppellate Court of Illinois
DecidedSeptember 17, 1980
Docket79-285
StatusPublished
Cited by12 cases

This text of 410 N.E.2d 641 (People v. McGee) 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. McGee, 410 N.E.2d 641, 88 Ill. App. 3d 447, 43 Ill. Dec. 641, 1980 Ill. App. LEXIS 3611 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE NASH

delivered the opinion of the court:

Following a jury trial, Anthony McGee was found guilty of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11—1) and sentenced to a term of six years’ imprisonment. Defendant appeals, asserting that the trial court erred in three respects: First, that he was not proved guilty beyond a reasonable doubt. Second, thát prejudicial error occurred when the prosecution was permitted to cross-examine defense witnesses as to their belief as to the veracity of certain of the State’s witnesses. Third, that the trial court abused its discretion in excluding expert testimony concerning an absorption inhibition test performed upon vaginal aspirate removed from the victim, which purported to show that defendant could not have been the assailant.

The testimony adduced at trial disclosed that between 3:05 p.m. and 3:25 p.m. on May 19, 1978, the 17-year-old victim was raped inside the Knights of St. John Hall in Waukegan. At about 3:20 p.m. that day, Diane Lopez and another friend arrived at the hall according to a pre-arranged agreement with the victim. Upon approaching the hall, Lopez noticed that the door was slightly ajar, saw the victim’s bicycle inside and papers strewn about the floor. She called the victim’s name and walked further into the hall, where she saw the victim and a man behind the bar in a back room. The victim screamed and yelled for López to call the police. Lopez saw the man from the waist up for about one minute. Shortly thereafter the victim had gotten away from the man, who was in the comer dressing. The two women then ran from the hall and called the police.

The descriptions given by both women of the assailant are similar, but did differ in some respects. Both had told various officers that the man was a Negro, about 21 years old, but they each gave descriptions of his height as being between 5 feet 7 inches and 6 feet and each woman gave a different description of his height at some point during the investigation. They said that the man wore dark pants, either blue or black and a flowered shirt; although they gave descriptions of the colors of the shirt at different times as blue or brown flowered, blue or brown flowers on a white background, or white flowers on a blue background. The victim said that the man had a beard and mustache which surrounded his mouth and continued to a point about one inch from his sideburns. She also testified that the man she identified later in photographs, at a lineup and the defendant as he appeared at trial, all appeared to have less facial hair than her attacker. Lopez, however, did not notice much facial hair but she did remember a mustache, although she could not describe it. The victim said her attacker wore blue or blue tinted glasses, but Lopez said, she never saw any glasses either on the man or at the scene.. Lopez also noticed a silver bracelet on his wrist which was partially covered by his sleeve. The victim did not recall any bracelet.

On May 22, 1978, the victim was shown six photographs and identified William Terry, a friend of the defendant’s, as her attacker. On May 23, 1978, she was shown the same six photographs along with an additional photograph of defendant and this time she identified defendant. Lopez, independently of the victim, selected the same photograph. Both women were again shown the same group of photographs on June 2,1978, shortly before they independently identified defendant from a six-man lineup. None of the men depicted in the photographs, other than defendant, participated in the lineup.

Defendant’s barber of eight years, his mother, a local school principal who had known defendant for 10 years, and William Terry, defendant’s friend of seven years, all testified that defendant had never worn his facial hair in the manner described by the women. Each of these witnesses also testified that defendant enjoyed a good reputation for being a peaceful and law-abiding person.

William Terry testified that he was with the defendant until about 4 p.m. on May 19, 1978, one half hour after the rape occurred, and then drove defendant home which was one mile from the scene. He also testified that papers found at the scene with Terry’s name on them had been in his car that day during the period defendant and other persons had been riding with him and that the car also had been parked on the street, which defendant asserts presented an opportunity for others to obtain the papers. Defendant’s testimony was substantially the same as Terry’s, and he denied committing the offense.

During cross-examination of Terry the State, over defense objection, was permitted to ask him whether a police officer was lying or mistaken when he testified that Terry had told him that defendant was the only person who had access to the papers in Terry’s car. The same question, over defense objection, was asked Terry concerning testimony of the officer that Terry had told him defendant was not always with him during the afternoon of May 19, 1978. Similar questions, again over defense objection, were posed to the defendant concerning the testimony of the victim and Lopez.

Irwin Havland, a senior technician with the Northern Illinois Police Crime Laboratory, examined vaginal aspirate which had been taken from the victim on May 19,1978, and testified that semen was present. He also testified that the vaginal aspirate had been kept in a small vial and refrigerated prior to conducting his tests in early June 1978. He further testified that the vial needed to be refrigerated to prevent bacterial contamination, which could begin after 8 to 10 hours at room temperature. As a part of his test, he had opened the vial for 10 minutes and diluted the contents with sterile water; the vial was resealed but it was not refrigerated after his tests were completed.

The State sought to exclude testimony of an expert witness who had examined the vaginal aspirate at the request of defendant. At the hearing of the State’s motion in limine evidence was introduced that in November 1978 Emmett Harmon, a clinical chemist at Oak Park Hospital and a director of the Glen Ellyn Laboratory, conducted an absorption inhibition test on the vaginal aspirate contained in the vial; it is a serological test which can detect the presence of antigens in blood, saliva, semen and other bodily fluids and determine blood type. Approximately 80 percent of the population secrete antigens in their saliva or semen and, if a person is a secretor, the antigens which indicate blood type will normally be present in the saliva or semen tested. Prior to conducting his test, Harmon ascertained that defendant had type B blood and that he was a secretor of type B antigens in his saliva and semen. He testified that when he examined the vaginal aspirate he looked only for the presence of type B antigens and found none; he did not look for the presence of any other type of antigen in the material tested.

Leslie Dean, a chemist at the Northern Illinois Police Crime Laboratory, testified in the limine hearing that although the absorption inhibition test has been used for several years, it is subject to inaccurate results which can be caused by mistakes in procedure, bacterial contamination, and the nature of the substance tested.

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Cite This Page — Counsel Stack

Bluebook (online)
410 N.E.2d 641, 88 Ill. App. 3d 447, 43 Ill. Dec. 641, 1980 Ill. App. LEXIS 3611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcgee-illappct-1980.