People v. Sanders

400 N.E.2d 468, 80 Ill. App. 3d 809, 36 Ill. Dec. 48, 1980 Ill. App. LEXIS 2264
CourtAppellate Court of Illinois
DecidedJanuary 11, 1980
Docket78-529
StatusPublished
Cited by13 cases

This text of 400 N.E.2d 468 (People v. Sanders) 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. Sanders, 400 N.E.2d 468, 80 Ill. App. 3d 809, 36 Ill. Dec. 48, 1980 Ill. App. LEXIS 2264 (Ill. Ct. App. 1980).

Opinion

Mme JUSTICE SPOMER

delivered the opinion of the court:

This appeal arises from a retrial of the defendant, Andrew Sanders. He was charged in the circuit court of Randolph County with rape, aggravated kidnapping, deviate sexual assault, and aggravated assault. Following a jury trial, defendant was found guilty as charged. On appeal, this court found that defendant was deprived of a fair trial, reversed the judgment, and remanded the cause for a new trial. (People v. Sanders (1978), 59 Ill. App. 3d 650, 375 N.E.2d 921.) Upon retrial, defendant was again found guilty as charged, and sentenced to 6 to 18 years each for his convictions for rape, aggravated kidnapping, and deviate sexual assault and 364 days for aggravated assault, all sentences to run concurrently. From the judgment of conviction, defendant again appeals.

The issues raised on appeal require a recitation of the evidence presented at the second trial. The complaining witness testified that on February 3,1977, at about 12:30 a.m., she heard someone knocking on her trailer door. She turned on the porch light, looked out the window, and saw a man she did not know, whom she described as five feet 10 inches tall, with brown, “sort of curlish” hair, and dark-rimmed glasses. He told her he was the brother of Linda Sanders, a co-worker of the victim. The man then forced his way into the trailer, and pointed a rifle at her. She stepped back into the kitchen area and turned on a nearby light. She stated that her assailant was three feet from her, and she could see him clearly. Defendant then forced her out of the trailer and into his pickup truck at gunpoint. The victim described the truck as light-colored, with a dark interior and worn dash, no carpet, and a standard, on-the-floor transmission. She saw a license-applied-for sticker on the right comer of the windshield and on the left, an inspection sticker. Inside the truck the victim saw three more guns and a plaid CPO jacket. The assailant then drove the complainant to a secluded location where he committed various sexual acts by force. During this time he removed a tampon from the witness and threw it out of the truck. Thereafter, he drove the victim to a country bridge and forced her to sit upon a railing, where he aimed a rifle at her and announced his intention to kill her. She begged for her life, and ultimately, defendant acquiesced, although he said he would kill her if she told anyone of the incident. While driving, the assailant told the witness that he had a wife and a little girl, and that he had been having problems with his wife. When he returned the witness to her trailer, he apologized, then thanked her for “letting him get his head back together.”

After her assailant left, the victim telephoned her fiance and told him she had been raped. He testified that she was crying and upset, and fixed the time at 2 a.m. At her insistence, he agreed not to call the police, because she feared for her life. However, on the following day, February 4, 1977, the victim went to the police, related her story, and made a photographic identification of the defendant from a group of photographs.

At the trial, evidence revealed that the defendant is in fact the brother of Linda Sanders. At the time of the crime, he owned a light pickup truck with dark interior, standard-type transmission, and with license-applied-for and inspection stickers on the windshield. He also owned a plaid CPO jacket such as the witness had described. The evidence also showed that upon retracing the route of the truck at the victim’s direction, the police saw tracks in the snow made by a vehicle with two snow tires in the back and two regular tires in the front. Defendant’s vehicle was equipped with such tires. A tampon was found on the ground near the scene. At trial, the victim positively identified the defendant as her attacker.

When the defendant testified at trial, he pointed out to the jury a scar below his right eye, a scar on the right side of his chin, and a tattoo on his left shoulder, none of which the complaining witness had noted in her descriptions. His ex-wife, who had been married to him at the time of the offense, testified that he had arrived home at 1:30 a.m. on the date of the crime.

The defendant raises several issues on appeal. He first asserts that the trial court erred in permitting the prosecution to amend the aggravated kidnapping count of its information. Count II of the original information charged defendant with “aggravated kidnapping in that the said defendant, in committing the offense of kidnapping, in violation of Illinois Revised Statutes, Chapter 38, Section 10 — l(a)l, knowingly and secretly abducted [the complaining witness] at gunpoint from her trailer, against her will, while armed with a dangerous weapon, a rifle, in violation of Illinois Revised Statutes, 1976, Ch. 38, Sec. 10 — 2(a)5.” On remand of the cause, the State filed an amended information, substituting the word “confined” for the word “abducted.” The amendment was permitted over the objection of the defendant, who contended that the omission of the word “confined” was a fundamental defect and could not be cured by amendment.

As we noted in People v. Adams (1977), 46 Ill. App. 3d 735, 736, 361 N.E.2d 827, 828, the standard used to test the sufficiency of an indictment is whether it is “sufficiently specific to inform the defendant of the offense charged so as to enable him to prepare a defense and to allow pleading the resulting judgment in bar of any future prosecution for the same conduct.” A complaint must be read as a whole, and where the statute is cited therein, the statute and the charge are to be read together. (People v. Baez (1974), 20 Ill. App. 896, 314 N.E.2d 258.) The charge here refers to the appropriate section of the Criminal Code, and when both are read together, the crime with which defendant was charged is clearly indicated. Furthermore, for a defendant to have “knowingly and secretly abducted” the victim against her will, as originally alleged, he would necessarily have had to confine her. It is also significant that the amendment was made many months prior to trial by leave of court and with defendant’s knowledge, and the information was reverified. Defendant relies on the case of People v. Troutt (1977), 51 Ill. App. 3d 656, 366 N.E.2d 370. However, the decision in that case turned on the fact that the information was materially amended and was not reverified, neither of which is true in the case at bar. We find that both the original and the amended informations effectively charged a crime, and enabled the defendant to prepare a defense. In addition, the defendant was afforded liberal discovery, and has failed to show any prejudice from the claimed defect. People v. Garmon (1974), 19 Ill. App. 3d 192, 311 N.E.2d 299.

The defendant’s second contention is that the trial court erred in failing to hold an arraignment on the amended aggravated kidnapping charge. However, defendant did not object to this omission at the trial level, and therefore the issue was waived. (Ill. Rev. Stat. 1977, ch. 38, par. 113 — 6.) Furthermore, the Supreme Court of Illinois in the case of People v. Hill (1959), 17 Ill.

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Bluebook (online)
400 N.E.2d 468, 80 Ill. App. 3d 809, 36 Ill. Dec. 48, 1980 Ill. App. LEXIS 2264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sanders-illappct-1980.