{
  "id": 2849959,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Eddie James Virgin, a/k/a Eddie Virgle, Defendant-Appellant",
  "name_abbreviation": "People v. Virgin",
  "decision_date": "1973-01-12",
  "docket_number": "No. 57348",
  "first_page": "902",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T15:41:33.026395+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Eddie James Virgin, a/k/a Eddie Virgle, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE DRUCKER\ndelivered the opinion of the court:\nIn a jury trial defendant was convicted of the offense of rape and sentenced to a term of five to 15 years.\nOn appeal defendant contends that (1) the trial judge \u201cimpermissibly invaded the province of the jury\u201d by refusing its request, dining its deliberations, for certain testimony and exhibits; (2) he was denied his right to be present at every stage of the proceedings; (3) it was error to allow the testimony of an officer as to the contents of a lab report which he did not prepare; (4) defendant was denied a fair trial because of repeated instances of hearsay testimony; and (5) the identification testimony should have been suppressed as the product of impermissibly suggestive procedures.\nThe testimony of the State\u2019s witnesses at trial was as follows: On February 1, 1967, at about 5:30 A.M., the complaining witness, Mrs. Connie Smith, was walking on Fifth Avenue near Pulaski Avenue in Chicago on her way to work. As she was walking a man came up behind her, threatened her with a knife, threw a coat over her head, dragged her to the rear of an apartment building and raped her. The rape occurred at approximately 5:30 or 5:45 A.M. During the assault the coat came off of her head on three occasions. She was able to see the attacker twice when the coat came off, for a total of about two minutes. At the time of the assault it was still dark outside, the sun was just beginning to rise and the street lights were on. In the back of the apartment building, where the rape took place, a light on the apartment building illuminated the scene. She described her assailant as about 25 years old, 140 to 150 pounds and wearing a green bulky knit sweater.\nAfter the assault, the complaining witness returned to her home and told her husband what had happened. Her son called the police. The police took her to the hospital. She returned home a short time later.\nAt about 5:30 or 5:40 A.M., the officers who eventually arrested defendant for the rape, were flagged down by a motorist who told them that he had seen a man struggling with a woman for her purse, Pulaski and Fifth Avenue. (Fifth Avenue is 600 south at Pulaski.) As the officers headed for that location they found defendant walking on the 1000 block of South Pulaski. He told the officers that he was coming from Pulaski and Fifth Avenue and had been in a restaurant for the last three hours. The defendant accompanied the officers to the restaurant to check his story. The proprietor of the restaurant told the officers that defendant had in fact been in the restaurant for three hours but had left about 5:00 A.M., 45 minutes earlier than defendant had claimed. Defendant said he had \u201cjust been walking\u201d in the interim. No purse snatching victim had yet. registered a complaint, so the officers released defendant after taking his name and address.\nLater, at about 6:45 A.M., the police dispatch reported a rape which took place in the same area and at about the same time as the citizen reported seeing a man struggling with a woman. The broadcast gave a description of the assailant. The officers decided that defendant \u201cfit\u201d the description. They drove to his home and then to his place of employment but were unable to find him. They went back to his home and this time were successful. One of the officers testified that the arrest occurred at approximately 7:00 A.M. Defendant was dressed in the same clothes as when he was first stopped. He was wearing a bulky knit green sweater.\nThe defendant was brought to the district police station. Later in the morning the police told the complaining witness that they had \u201cpicked up a man that fit the description\u201d she had given. Some time \u201cbefore noon\u201d the two arresting officers brought defendant to her home. One officer went to her front door. The other officer remained standing by the squad car, along with the defendant. When Mrs. Smith saw defendant, she said, \u201cThat\u2019s the man.\u201d\nDefendant did not offer any evidence in his behalf.\nAfter the jury had retired, a bailiff and a deputy sheriff heard the jury buzz. Since they had told the jury to buzz four times when it had reached a verdict, the deputy sheriff and bailiff decided to do nothing. Then they heard someone knock on the door. They asked if someone had knocked, and a member of the jury replied: \u201cYes, we want to ask a question.\u201d The deputy sheriff rephed: \u201cJust a minute\u201d and immediately notified the trial judge. The attorneys were caUed and the above sequence was related to them on the record. The court, defense counsel and the State\u2019s Attorney discussed possible courses of action. Over the objection of defense counsel it was decided to submit a blank pad of paper and a pen to the jury. Defense counsel objected to any response to the jury\u2019s inquiry, arguing that if a question were in fact submitted by the jury, a subsequent refusal to answer the question (i.e., s\u00fcence) might be taken by the jury as a substantive answer in and of itself.\nThe pad and pen were submitted to the jury, and the person who gave them the pad and pen instructed the jury simply to write the question on the pad and then hand it back.\nThe pad was returned with two questions written on it and signed by a member of the jury. The first question was: \u201cCan we have the two defense exhibits entered as evidence in the jury room or read aloud to us?\u201d The second question was: \u201cIf a question arises about oral evidence may we have it read to us?\u201d\nThe pad was returned with the following answer written directly beneath the questions: \u201cThe jury has everything it is aHowed to have. Judge Robert J. Downing.\u201d In discussing the wording of the reply, defense counsel had stated with respect to this reply: \u201cThat\u2019s fine.\u201d\nOpinion\nDefendant first contends that it was error to refuse the jury\u2019s request for certain exhibits and testimony. However, at trial defense counsel fuUy concurred in the court\u2019s response to the jury\u2019s request. Furthermore, the motion for a new trial did not raise this issue. To the contrary, the motion for a new trial, insofar as it relates to contact with the jury, states only: \u201cThe Court erred in allowing improper communication with the jury during their deliberation.\u201d Since this issue has not been properly preserved, it is deemed waived. (People v. Irwin, 32 Ill.2d 441, 443.) However, we note that the two defense exhibits although marked for identification were never admitted in evidence. Moreover, the disposition of the jury\u2019s request was a matter for the sound discretion of the trial judge. (People v. Pierce (1973), 9 Ill.App.3d 153, 291 N.E.2d 58; People v. Mirmelli, 130 Ill.App.2d 1, 264 N.E.2d 470.) An examination of the record and defendant\u2019s brief reveals no abuse of that discretion.\nDefendant next contends that he was denied his constitutional right to be present at every stage of the proceedings against him and he was not present when the above incident occurred. We believe that this argument is without merit. The defendant was represented by counsel when the trial court was deliberating in what action to take and participated in formulating a response to the jury's request. (See People v. Pierce, supra.) The jury was not in the courtroom during this stage of the proceedings.\nDefendant next contends that it was error to allow Officer Finnelly, one of the arresting officers, to testify to the presence of sperm on the complaining witness\u2019 underclothing since he had not prepared the laboratory report which disclosed this information. No proper foundation was established for this testimony but we believe that its admission was harmless beyond a reasonable doubt. The facts of the rape and defendant\u2019s identification were established by other competent evidence. People v. Pelkola, 19 Ill.2d 156, 166 N.E.2d 54.\nDefendant\u2019s next contention is that he was denied a fair trial because of numerous instances of what defendant characterizes as hearsay testimony. The written post-trial motion of defendant does not set out the particular hearsay statements now claimed to be prejudicial and therefore these contentions are deemed waived. People v. Irwin, 32 Ill.2d 441, 443, 207 N.E.2d 76.\nFinally, defendant attacks the identification testimony of the complaining witness at trial as the product of \u2019\u2019unnecessarily suggestive procedures,\u201d referring to the show-up in front of the complaining witness\u2019 home. We need not consider whether the procedures were suggestive and unnecessary since at the time of the rape there was an adequate independent basis for Mrs. Smith\u2019s in-court identification which was corroborated by the circumstances surrounding defendant\u2019s arrest. People v. Cook, 113 Ill.App.2d 231, 252 N.E.2d 29.\nThe judgment is affirmed.\nAffirmed.\nENGLISH and LORENZ, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.",
      "Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (Elmer C. Kissane, Peter J. Wonais, and Mark T. Zubor, Assistant State\u2019s Attorneys, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Eddie James Virgin, a/k/a Eddie Virgle, Defendant-Appellant.\n(No. 57348;\nFirst District\nJanuary 12, 1973.\nGerald W. Getty, Public Defender, of Chicago, (Fred Shandling and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago, (Elmer C. Kissane, Peter J. Wonais, and Mark T. Zubor, Assistant State\u2019s Attorneys, of counsel,) for the People."
  },
  "file_name": "0902-01",
  "first_page_order": 924,
  "last_page_order": 928
}