APPEAL from the Circuit Court of Randolph County; the Hon.
DAVID W. COSTELLO, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Andrew Sanders, was charged in the circuit court of Randolph County with the offenses of rape, aggravated kidnapping, deviate sexual assault and aggravated assault. Following a jury trial, defendant was found guilty as charged from which he brings this appeal. By order, upon the finding of ample evidence that defendant was deprived of his right to a fair trial, this court has reversed the judgment entered and remanded the cause for a new trial. This opinion follows.
The charges herein stem from an incident which occurred during the early morning hours of February 3, 1977. At trial, the complaining witness testified that at 12:30 a.m., a man knocked on her trailer door and identified himself as the brother of Linda Saunders, a co-worker of the complaining witness. Saunders is in fact defendant's sister. After answering the door, the complaining witness turned on the kitchen light. The man, bearing a rifle, then forced his way into the trailer. She described the gun as having a short barrel and a protrusion or clip under it giving it the appearance of being a machine gun. She further stated that from a distance of three feet, in the light of the door area, she was able to get a good look at the man. At trial she positively identified defendant as being that man. She stated that defendant forced her outside and into his truck. On the seat therein, she saw three more rifles. Her description of the truck matched that owned by defendant. Moreover, she noticed a "license applied for" sticker on the windshield and evidence showed that, at that time, defendant's truck bore a similar sticker. Defendant then drove the witness to a secluded location where various sexual acts were committed by force. At the scene, defendant had removed a tampon from the complaining witness and had thrown it out of the truck. Evidence showed that subsequently a tampon had been found near the scene. Further, evidence showed that tire tracks in the snow at the scene indicated a vehicle with two snow tires in the back and two regular tires in the front. Defendant's truck was also so equipped with tires.
The witness stated that following the sexual acts, defendant drove her to a country bridge and forced her to sit upon a railing. He then aimed a rifle at her and announced that he was going to kill her. She begged for her life and ultimately, defendant acquiesced upon her promise never to reveal the incident. She stated that he told her that he would kill her if he learned that she had talked.
The fiance of the complaining witness testified that at 2 a.m. he received a telephone call from her. She was upset and crying and she stated that she had been raped. At that time he agreed not to inform the police because she was fearful for her life. However, on the afternoon of February 4, 1977, after having been convinced by a friend to report the crime, the complaining witness went to the police. She testified at trial that subsequently she made a photographic identification of defendant from a group of photographs. She also testified that after defendant had been arrested, the police brought four guns to her but that she was unable to positively identify them. It appears that these guns had been taken from defendant's home.
At trial, following the testimony of the complaining witness, the State introduced in evidence, over defendant's objection, a detailed eight-page handwritten statement by the witness essentially recounting in full her oral testimony at trial. The statement was a carefully prepared product of two prior rough drafts and was written at the suggestion of the police soon after the crime was reported.
In addition to the foregoing, the State introduced in evidence the testimony of Larry Hoeb. Hoeb testified that he had spent the night of the crime, until about midnight, with defendant drinking at a bar in a bowling alley. Over defendant's objection, Hoeb further testified that when he had arrived at his trailer-home at four in the morning, he discovered that it had been broken into and that his four rifles had been taken. He described one of the guns as having a 10-inch "banana clip" under it, and he described another gun as having a gun strap on it. None of these guns were ever recovered.
The State presented further evidence that a gun strap had been found in defendant's truck. However, on cross-examination of Hoeb, he admitted that he could not identify the gun strap found in defendant's truck as being the one that was taken from his trailer.
Defendant presented an alibi defense.
Upon review of the issues raised by defendant on appeal, we find the following trial errors disclosed by the record: (1) the introduction in evidence of the written statement of the complaining witness; and (2) the chain of errors involving admission of testimony and argument accusing defendant of the burglary of Hoeb's trailer and the theft of Hoeb's guns, the admission in evidence of the gun strap, and the testimony relating to defendant's own four guns.
1, 2 Turning first to the introduction in evidence of the written statement, it is a general rule that the testimony of a witness cannot be bolstered up or supported by evidence that the witness has made similar statements, out of court, in harmony with his testimony at trial. (People v. Buckley, 43 Ill. App.3d 53, 356 N.E.2d 1112; People v. Clark, 52 Ill.2d 374, 288 N.E.2d 363.) An exception to this rule is made in a prosecution for rape in that evidence of a fresh complaint or corroborative statement may be admitted; however, testimony of such must be limited to the fact of a complaint and cannot extend to the details thereof. (People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25; People v. Hood, 59 Ill.2d 315, 319 N.E.2d 802.) Another exception is permitted to rebut a charge or an inference that the witness was motivated to testify falsely or that his testimony was of recent fabrication in which case evidence is admissible that he told the same story before the motive came into existence or before the time of the alleged fabrication. (People v. Buckley; People v. Clark.) In the instant case it is undisputed that neither of these exceptions are applicable.
As is so often the situation in cases involving sex-related crimes, the State's evidence consisted primarily of the testimony of the complaining witness along with certain other corroborating evidence. The introduction of the written statement could only have been intended to serve as "corroboration" by repetition. This tactic preys on the human failing of placing belief in that which is the most often repeated. The State, by presenting the statement in evidence, effectively put the complaining witness in the jury room during its deliberations where she could continually repeat her testimony. In this manner the State succeeded both in emphasizing every detail of her testimony and in bolstering her testimony by showing that it was consistent with the prior statement.
3 While the State now concedes that the admission of the statement was error, it argues that this error was harmless. We cannot agree. From the record before us, we conclude that the State's tactic substantially denied defendant his right to a fair trial.
Equally grave is the chain of trial error involving the testimony of the burglary of Hoeb's trailer and theft of his four guns, the testimony concerning four additional guns apparently found in defendant's home and the introduction in evidence of the gun strap found in defendant's truck. At the core of this chain was the evidence of the burglary and ...