People v. Nellons , 130 Ill. App. 3d 908 ( 1984 )

JUSTICE PINCHAM,

concurring in the decision:

I agree that the defendant’s alibi evidence was positive and unimpeached. I agree further that the evidence failed to establish beyond a reasonable doubt that it was the defendant who committed the acts attributed to him by the complainant and that the judgment of conviction should be reversed. I am also of the opinion, however, that the evidence failed to establish the commission of the offense of rape beyond a reasonable doubt. The experiences related by the complainant in this case are quite bizarre. Based on her testimony, it could be persuasively argued that the incident arose out of “a date gone sour,” that is, after an act of voluntary intercourse in her apartment her date, whoever it was, feloniously appropriated her property and evoked her enmity.

The complainant testified that on Tuesday, June 1, 1982, at approximately 10 a.m., she got out of her car and walked with her luggage to her apartment building. The lobby was well lit. As she waited for the elevator to arrive, a black man who was approximately her height walked down the hall. The complainant got on the elevator with her luggage, went to the fourth floor and proceeded down the hall to her corner apartment. She put her key into the lock, unlocked the door, and, with her luggage on the floor, realized that she had a deadbolt lock on the door. She fumbled with the deadbolt. The black man walked up from the stairwell, which was about 10 feet from her apartment. She identified this man as the defendant, Terry Nellons. The complainant testified that her assailant was breathing very heavily, as if he had run up the four flights of stairs.

If this testimony is accepted, it must also be accepted that the assailant knew, as he climbed the stairwell to the fourth floor, that the complainant lived on the fourth floor and in which apartment she lived. The assailant would have also known that the complainant would alight from the elevator on that floor and that he could climb the four flights of stairs simultaneously with the elevator and arrive at her apartment door instantaneously with her.

The complainant testified further that her assailant approached her face-to-face and asked, “Do you know where Marco or Marcus is?” The landlord’s name was Margo, and the complainant told her assailant that he, Margo, was on one of the upper floors. The assailant then turned and went back into the stairwell.

Again, if this testimony is accepted, it must also be accepted that this assailant had some knowledge of Margo’s presence in the building. As hereafter pointed out, there is not one scintilla of persuasive evidence that the defendant had even been in or had any knowledge of this building.

The complainant further testified that she took her key out of the deadbolt lock, put it into the bottom lock and opened the door. She could not remove her key and as she tried to get it out of the lock her assailant rushed up and said, “I want to use your phone,” or, “May I use your phone.” The complainant said no, he could not use her phone and told him to go to the first floor, that there was a phone there. She testified that at that point her assailant cornered her “arm-to-arm against the wall,” with her back pinned against the wall, that her assailant stood there with his arms out, that she was between him and the wall, that as she tried to get her key into the lock he pushed the door open, pushed her into her apartment and that she fell on the floor. He threw her luggage in behind her, rushed in, closed and locked the door.

The complainant did not testify how her assailant locked the door, that is, by key, deadbolt or otherwise. Nor did she relate what action she took as he locked the door. In any event, to accept this testimony it must be accepted that her assailant knew that she would not flee down the corridor or stairwell or scream as he accosted and physically molested her at her apartment door in the hallway. Her assailant would also have known that if she screamed, no one in the 12 apartments on the fourth floor would hear her, and that if her screams were heard by her neighbors, no one would come to her aid. Moreover, if this testimony is accepted, it must also be accepted that her assailant knew that there was no one in the complainant’s apartment when he pushed her in, entered and locked the door. This testimony of how the complainant and her assailant entered her apartment building and, ultimately, her apartment, is questionable.

The complainant testified further that when her assailant threw her down on the carpet in her apartment she screamed loudly. Her assailant threw his hand over her face and clasped his right hand over her mouth and lower jaw. She was lying on the floor. She could not breathe because he had his hand over her mouth and nose. She struggled to try to loosen his hand from her face. She kicked him in the groin and he backed off. She got her hand loose and they struggled. She pushed him away. He again slapped his hand over her face in a cupping motion which caused a small cut on her lip. He told her that he was an escaped convict from some penitentiary. She testified further that her assailant told her that he had a knife and a gun and that if she did not stop screaming he would kill her. She continued to scream. The complainant was 5 feet 10 inches, comparable in size to her assailant. She said that he “took his arm and shoulder and wrapped it around in like a swimmer’s brace” around her neck. When she attempted to run to the door, he tightened his grip. He pushed her toward the bedroom, and she turned around to run out. He pushed her real hard, and she landed on the floor in the bedroom.

The complainant’s apartment had numerous windows with levelor blinds, which were all raised. It was a gorgeous, sunny day and her apartment was well lit. She had a very large bedroom window with levelor blinds, which were also up. The assailant went through the dresser drawers to find a belt. He took out two belts and put her hands behind her back as if he was going to handcuff her. He tried to wrap and secure the belts around her arms.

The complainant testified that she struggled free of the belts. She screamed to him not to hurt her. She screamed real loud, and he took her hands and put them above her head again. He reached into another drawer, took a pair of clear nylon pantyhose and put them over her head with one of his hands. She worked one of her hands loose and pulled it off. He took another pair of nylon hose and put it over her face and head. She ripped it off. He then put his hands above her head and started to kiss her. He kissed her on the mouth, the face, and neck. He forced her to the floor, sat on top of her, took his other hand and ripped open her blouse as she was lying on the floor. After he ripped open her blouse, he pulled her brassiere off. He did not unattach it, but just pulled it off. He took her leather belt apart, unhooked it, and then pulled down her pants and underwear.

The complainant’s meticulous testimony of her numerous struggles with her assailant would suggest that she was not paralyzed by fear. (People v. Rossililli (1962), 24 Ill. 2d 341, 346-47, 181 N.E.2d 114; People v. Keeney (1973), 10 Ill. App. 3d 296, 300, 293 N.E.2d 492.) She testified that her assailant never displayed a weapon. He simply told her that he had a knife and a gun. But this mere verbal recitation of his possession of a gun or knife did not deter her from struggling with her assailant or prevent her from screaming, if her testimony is to be believed. Even though no weapon was displayed to her, and even though she was not too afraid to scream and struggle with her assailant, there is not one iota of evidence in the entire trial record that the complainant resisted by biting, scratching, hitting, stomping or kicking her assailant, except the one previously mentioned instance when she testified she kicked him in the groin. Nor is there one iota of evidence that her assailant ever hit, bit, scratched or kicked her.

Although the complainant testified that when her assailant clasped his hand over her mouth it caused a small cut on her lip, there is not one bit of evidence which corroborates this testimony. Though the police took pictures of the dresser and bed in the apartment, not a single picture was taken of her. Her testimony that she had a small cut on her lip was not even corroborated by the medical examination she received after the incident. (People v. Bain (1972), 5 Ill. App. 3d 632, 283 N.E.2d 701.) There was not a single shred of evidence that she suffered one bruise (however slight), abrasion, tear, laceration or hyperesthesia.

Fifteen pictures of the complainant’s apartment and furniture were admitted into evidence by the State. Yet, not a single garment, the blouse, brassiere, pants, belt or panties that were allegedly ripped and torn from her, was introduced. The State also made no attempt to account for the absence of this ostensibly corroborative evidence. (People v. Szybeko (1962), 24 Ill. 2d 335, 181 N.E.2d 176.) The complainant’s uncorroborated account of her struggle and forced disrobing is therefore not clear and convincing.

Though not impossible, it would appear to be unusual for a rapist to completely disrobe his victim from full street attire to nudity, as the complainant testified. She further stated that after her assailant disrobed her, he pushed her over to the bed, pulled down the comforter and the sheet, pushed her into the bed and then pulled the sheet back up over her. This, too, appears to be rather strange behavior for a rapist. But the eccentricity of this rapist’s conduct does not terminate here. The complainant testified further that her assailant then started to undress and took off all of his clothes. How he disrobed and simultaneously held her in bed is not clear from the evidence. Research fails to reveal a single case in which a rapist completely disrobed his victim and then himself as a prelude to forceable sexual intercourse. To do so would indicate his total oblivion to an expeditious departure.

Testifying further, the complainant stated that her assailant stood nude in front of her fourth floor window with the blinds up, tried to work the levelor blinds down, that he could not get them down and that he just forgot about it. The testimony that a rapist stood nude before a fourth floor, open window and attempted to close the blinds while his victim awaited in bed is also unconvincing.

The complainant further testified that after her assailant was unable to close the blinds, he pulled the bed sheet up, got in bed on top of her, started to kiss her face, lips and neck and then put his penis into her vagina and ejaculated. He then got out of bed and again pulled the sheet up over her, with just her face showing. This was indeed a most considerate rapist. He disrobed his victim, pulled the bedding back to put his rape victim in bed, covered her with the bedding, undressed, unsuccessfully attempted to close the window blinds, raped his victim and thereafter pulled the sheet over her to her neck. To doubt this testimony is reasonable. To believe it beyond a reasonable doubt is unreasonable.

The complainant further stated that when her assailant got out of bed, there was a small vanity next to the bed where she had some towels. He took a hand towel (State’s exhibit No. 9) and wiped his penis and legs. The complainant was proficient in giving the police investigator the towel, which the evidence established contained semen and spermatozoa, but which did not establish or corroborate rape. (People v. Symons (1961), 23 Ill. 2d 126, 130, 177 N.E.2d 185.) She neglected, however, to give the police investigator her torn and ripped blouse, brassiere, panties or pants which would have been corroborative evidence of rape, if a rape occurred.

Chicago police detective Robert W. Richards, a witness for the State, testified that he interviewed the complainant in the late afternoon of June 1, 1982, at the Illinois Masonic Hospital, and that at that time the complainant told him that after the sex act the offender got out of the bed, went to the bathroom for a towel and that thereafter, while he was going through her cabinets, she went to the bathroom. This post-intercourse conduct by the complainant and her assailant likewise fails to suggest that the intercourse was by force and against the complainant’s will. Rather, it strongly suggests consent.

The complete uncorroborated episode as related by the complainant does not persuasively, clearly or convincingly establish that the act of sexual intercourse was by force, that the complainant was paralyzed by fear, or that she used her faculties and physical power to resist, or that she was overcome by physical force and was powerless to resist. People v. Taylor (1971), 48 Ill. 2d 91, 99-100, 268 N.E.2d 865; People v. Rossililli (1962), 24 Ill. 2d 341, 347, 181 N.E.2d 114.

The complainant testified that after her assailant wiped the brass part of the bed he pulled jewelry out of a glass container on her dresser and took papers and a picture of her boyfriend and grandmother from her drawer. He then held the pictures in front of her as she was lying in bed and said that if she told anybody what had happened he would call his Mafia friends and have them kill these two people and her family. He also had an address book of where she lived and her family’s address and told her that there would be no problem for him to find her. He put her jewelry, which she valued at several thousand dollars, and other personal items into a plastic bag. The complainant said to him, “Now that you have everything, would you please leave.” He became very angry with her and said that he had a knife and a gun and that he was going to kill her. He stuffed a picture of her boyfriend into the bag, walked over to the head of the bed near her face and completely dressed. Apparently, when the complainant returned from the bathroom she got back in bed. Certainly the rapist did not have a gun or knife during the extended period that the complainant said he was nude. These uncorroborated events related by the complainant are inherently improbable, incredible and unbelievable. People v. Rosario (1982), 110 Ill. App. 3d 1020, 1024-25, 443 N.E.2d 273.

The complainant testified further that after her assailant wiped around the bed, the glass items, glass jewelry boxes, the bed and himself, he put the towel on the bed, told her to stay where she was, and said that if she made any attempt to get up he would kill her. He left the bedroom, walked to the door to the hallway and closed the door behind him. Upon his departure, the complainant got out of bed, went to the telephone beside the bed and called the police. There is no evidence that the assailant made any effort to disengage the telephone before his departure. The complainant also testified that while on the telephone she looked out the window and saw her assailant walking toward Sheridan Road. Whether the complainant then saw the construction workers working on the sidewalk adjacent to the building, which she testified she observed upon her arrival at 10 a.m., is not disclosed. The record does disclose, however, through the testimony of the complainant and Officer Edward Roberts, who responded to her police call within 15 to 30 seconds, that the assailant departed at about 11:50 a.m. By the complainant’s computation her encounter with her assailant, whether by force or otherwise, lasted over IV2 hours. Coupled with the previously mentioned questionable circumstances, this protracted period of time would appear to be far more compatible with consensual sex. In any event, the complainant’s testimony of her assailant’s departure hour supports the defendant’s alibi. As previously stated, the evidence does not establish rape beyond a reasonable doubt.

A further comment on the defendant’s alibi is appropriate. The defendant and Mrs. Jan F. Lawler testified that on June 1, 1982, between 12:15 and 1:30 p.m., the defendant sold Lawler a subscription to the Ladies Home Journal magazine in front of Lawler’s home in Chicago. Lawler was mowing her lawn. Lawler testified that she paid the defendant for the subscription with a check and at her request the defendant wrote his name across the top of the check. She stated that she did not have the check with her at trial but that it was at her home. Lawler testified further that her children got out of school at 11:30 a.m. and arrived home around 10 to 12. Her children were home at the time. She sent one of her children into the house for her checkbook. Lawler also stated that her husband was a broker at the Chicago Mercantile Exchange, which closed at 12:45 p.m., and that she had been talking to the defendant when her husband arrived home at about 1:20 p.m. The defendant testified that his trial exhibit No. 6 was an accurate photocopy of the invoice, or sales slip of Lawler’s magazine purchase on which he wrote Lawler’s name, address and zip code.

Lawler testified that in March or April, 1983, an assistant State’s Attorney came to her home (perhaps because of information acquired during pretrial discovery about defendant’s alibi). At trial, defendant’s attorney asked Lawler:

“Q. Were you shown anything [by the assistant state’s Attorney in your home] at that time?

A. I was shown two pictures, sir.

Q. Did you pick out those pictures, if you recall—or do you recall what you did?

A. I can remember looking at both pictures and saying do you really expect somebody to be recognized from these two pictures because they were very poor pictures. One was so dark you could hardly see it. It was very foggy. The second picture was a little picture of him standing up and I said, this looks somewhat like him, but it is so foggy and so dark, I don’t know how you can expect to be recognized from it.

Q. Were you shown anything after that?

A. No.” (Emphasis added.)

The assistant State’s Attorney did not ever show Lawler State’s exhibits Nos. 15, 16 or 17, which were clear pictures of the defendant taken after his arrest. Those pictures were shown to the complainant, however. If showing Lawler two “very poor,” “very foggy” pictures was a subterfuge to create a circumstance out of which she could be impeached in her alibi testimony on behalf of the defendant, this deceitful attempt was bungled by Lawler’s integrity, veracity and intelligence.

The trial judge expressly found Lawler to be an “impartial, honest, sincere-type of witness” and further stated, “I’m sure and I’m positive based upon what she said that it is this defendant that she talked to.” Nevertheless, the trial judge found the defendant guilty. He should not have done so. I therefore concur in the reversal.