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People v. Malston

MAY 7, 1970.




Appeal from the Circuit Court of Lee County, Fifteenth Judicial Circuit; the Hon. JAMES E. BALES, Judge, presiding. Reversed and remanded.


Steve Malston, the defendant, then age 17, was charged in a criminal complaint with the offense of indecent liberties with a minor female child age 12 years, occurring on February 23rd, 1969. (Ill Rev Stats 1967, c 38, § 11-4.) Judgment of conviction was entered upon the jury finding of guilty, and defendant was sentenced to a term of 4 to 10 years in the penitentiary.

He claims that reversible error was committed in the exclusion of evidence offered on his behalf and by prejudicial argument of the prosecutor.

The complaining witness testified to an act of intercourse with defendant which she said occurred on the February 23rd date. Counsel, on cross-examination, was allowed to ask the question, "Did you ever have sexual relations with anyone else," to which the girl answered, "No." He then asked, "Did you ever say you did," and the girl again answered, "No." In further cross-examination counsel asked, "Did you ever state to the police or anyone else you had sexual relations with some other male person around that time?" The court sustained the prosecutor's objection stated to be on the ground, "She already testified to that." When the public defender indicated he was asking the question for impeaching purposes, the court responded, "You have asked the questions, there is no need repeating."

The witness was then asked whether she had been interviewed at the police station by a lady and she answered without objection, "Yes." When counsel sought to inquire what she told the lady "regarding this affair," the court sustained an objection. The defense counsel then asked,

Q. "Did you tell her you had been raped by a bearded man?"

A. "Yes."

Mr. Merrick (for the prosecution): "Objection to what she might have told another person."

The Court: "The Court is of the opinion any conversation she had with another witness, it might be properly gone into by the witness. I will sustain the objection, and instruct the jury to disregard the answer. . . ."

The State argues, without citation of any authority, that since the witness had answered "No" to counsel's previous inquiry whether she ever said she had sexual relations with anyone other than defendant, the objection to further questions on that subject was properly sustained as an exercise of judicial discretion. The State further suggests that no proper foundation was laid for the questions because the defense "failed to establish the hour, the month or the year of the conversation and did not establish who was present nor specify what the questioner meant by the words `this affair.'"

[1-3] Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. The evidence is not admitted as proof of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency and is, therefore, not hearsay. The People v. Moses, 11 Ill.2d 84, 87, 142 N.E.2d 1 (1957); The People v. Morgan, 28 Ill.2d 55, 63, 190 N.E.2d 755 (1963). It has often been stated that an accusation of rape or other sexual offenses is easily made, hard to be proved, and still harder to be defended, thus charging a reviewing court with a duty to carefully examine the evidence. The People v. Scott, 407 Ill. 301, 304, 95 N.E.2d 315 (1950); The People v. Qualls, 21 Ill.2d 252, 257, 171 N.E.2d 612 (1961). While the trial court is given discretion in ruling on the extent of cross-examination, the accused should be given wide latitude in his cross-examination of the State's witnesses and this is especially applicable to the testimony of the complaining witness in a sex case. People v. Rainford, 58 Ill. App.2d 312, 315, 208 N.E.2d 314 (1965).

The questions asked by the public defender were inartful and were inadequate to establish a proper foundation for impeachment. A proper foundation requires that the witness be asked as to the time, place and persons involved in the alleged conversation, and the witness must also be asked whether he made a certain contrary statement at that time, to avoid unfair surprise. The People v. Moses, supra, at page 87; People v. Rainford, supra, at page 317. However, the questions here could reasonably be regarded as preliminary to subsequent impeachment, and the erroneous position of the court which was, in effect, that such questions called for hearsay and should be asked of the other party to the alleged conversation, effectively prevented the testing of the credibility of the witness on an issue which concerned the subject matter of the crime charged. Whether the prosecutrix had made inconsistent statements shortly after the time of the alleged crime involving a person or persons other than the accused was crucial, particularly since the testimony of the complaining witness was the only evidence to establish the defendant as the perpetrator of the offense. See The People v. Whitehead, 35 Ill.2d 501, 504, 505, 221 N.E.2d 256 (1966); and People v. Rainford, supra, at pages 318, 319.

We conclude that the court abused its discretion in so limiting the cross-examination of the prosecutrix and thereby committed reversible error.

The error was compounded, in our opinion, by the court's rulings regarding the testimony of Marlene Fahs, the acting police matron, who was in the police station when the complaining witness was present on ...

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