APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendants appeal from judgments of the circuit court of Madison County finding them guilty of deviate sexual assault and unlawful restraint, and finding defendant Gary Ellison also guilty of rape. Defendant Ellison was sentenced to 15 years for rape, 15 years for deviate sexual assault and 3 years for unlawful restraint, with defendant Larry being sentenced to 12 years for deviate sexual assault and 3 years for unlawful restraint, all sentences to run concurrently. On appeal they contend: (1) the trial court erred in denying their motions for a new trial pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72); (2) they were denied a fair trial by the assistant State's Attorney's closing argument; (3) the trial court admitted erroneous rebuttal evidence; (4) the trial court allowed improper impeachment of a defense witness; and (5) the trial court erred in refusing to allow the defense to cross-examine the prosecutrix about prior rape charges she had allegedly brought against others. For the following reasons we reverse and remand this cause for a new trial.
Defendants Gary Ellison and Ike Larry were charged by information alleging that on July 10, 1978, they abducted Ms. Vontella Perry, also known as "Peaches," and committed the aforesaid crimes against her. Ms. Perry testified at trial that at approximately 2 a.m. on the night of July 10, 1978, she was at Big Tony's Tropicana Lounge in East St. Louis, Illinois, where she had brought the night's receipts to her employer from Little Richard's Peacock Alley where she worked. She accepted a ride home from Andre Hudson, who instead took her to his grandmother's house where he attempted to have sex with her against her will. A struggle ensued with Ms. Perry being pushed onto the bed. She identified the two defendants as being let in the house by Andre Hudson. One of them grabbed her arm and said, "Let's go in the bedroom." She testified that she broke loose and ran from the house.
Ms. Perry ran through a field and finally ended up at the Orr-Weathers housing project. Mr. Hudson pursued her in his car and she testified that she refused to leave with him. She stated that she fell on a walkway and was then grabbed by one of the defendants. She clung to a lightpost screaming, but was pulled from the pole and forced into a Continental automobile by defendant Ellison and told to keep her head down.
Ms. Perry further testified that Ellison forced her to engage in deviate sex and sexual intercourse against her will while defendant Larry was driving the car, and that defendants switched places, whereupon defendant Larry also committed a deviate sex act and had intercourse with her. She further stated that defendants told her they had a gun and also threatened to "bust me in the face." The last acts allegedly occurred in a park in Alton. Upon leaving the park, the car was pulled over by the police. Ms. Perry jumped from the car yelling that she had been raped and defendants had a gun. On cross-examination Ms. Perry partially recanted her story and stated that defendant Larry did not have intercourse with her.
East St. Louis police detective John Thurman testified that on the night in question, he was awakened at approximately 3 a.m. by a disturbance at the Orr-Weathers project where he lived. He went outside his apartment where he observed a man violently "whooping" a woman. He stated he first believed this was a domestic quarrel, but testified that after the woman was pulled from the lamp post she hit her head against a metal apartment door with such force that the door was dented. After the woman was hit and dragged around the side of the building, Detective Thurman went inside, got his service revolver, radioed his dispatcher a description of the two people and gave chase. He obtained a partial license number from a car he believed to be occupied by the woman and her assailant, but it proved incorrect. Detective Thurman identified defendant Ellison as the man who was struggling with the woman, although he did not identify Ms. Perry, a past acquaintance of his.
Alton police officers William Fitzgerald and Walter Washington also testified for the State, being the officers who arrested defendants in the park. Officer Fitzgerald testified that after stopping the car, Ms. Perry "bailed out of the vehicle and yelled that she had been raped and that they had a gun." She was naked, yelling and upset. The officer also testified that defendant Ellison was nude in the driver's seat and defendant Larry was in the back seat fully clothed. Officer Washington testified likewise, adding that Ms. Perry had a bruise on her cheek and a cut on her left forearm.
Andre Hudson testified for the defense and stated that Ms. Perry asked him to buy her some drinks at the Tropicana and take her out on a date. Mr. Hudson borrowed his cousin's Continental and as Mr. Hudson and Ms. Perry were leaving the bar, they encountered defendants. Mr. Hudson asked defendant Larry, "Would you lend me some money so I can take this girl with me?" Defendant Larry agreed and then Mr. Hudson stated, "If you all give me some money then you all can go too." Mr. Hudson said Ms. Perry was standing next to him while he asked for the money and said they could go to his grandfather's house. Mr. Hudson testified, "She wanted some money for me to have sex with her," and that it was her idea.
Mr. Hudson testified that after they arrived at his grandfather's home, Ms. Perry refused to have sex with him and in the ensuing struggle she ran from the house as the defendants stood on the front porch. He pursued her to the housing project where she was clinging to a pole and screaming. He stated he released her and chased her again. However, he then saw defendant Ellison and Ms. Perry get into Ellison's Continental. Hudson stated that Ms. Perry was not struggling or yelling and was not forced into the vehicle.
Defendant Ellison testified in his own behalf. He stated that he had had prior sexual relations with Ms. Perry at the Lakeside Motel in May 1978 in return for $20. He stated that he knew her to be a "working girl," "a regular whore," and "a floozy." He further testified that on the night of July 10, 1978, Mr. Hudson, Ms. Perry, defendant Larry and he had a conversation outside the Tropicana about sexual relations, the price and a place to engage therein. Defendant Ellison stated that after being detained by a friend, he and defendant Larry went to Hudson's grandfather's house. Upon arriving they heard an argument from inside. After ringing the doorbell and knocking on the door, Hudson came to the door with only his pants on and said, "Hey man, this gal is going crazy." Ms. Perry then ran from the house.
Defendants and Hudson left in separate vehicles. Defendant Ellison testified that he witnessed Ms. Perry talking to Hudson in two different locations. Defendant Ellison then saw Ms. Perry in the Orr-Weathers housing project banging loudly on a door. He approached her and asked her to come with him and testified that she responded she had lost her money. Ellison said he told her to forget the money and come with him because she was attracting attention. He stated that without force or threats, she voluntarily got in the car with him and defendant Larry, who was driving.
Defendant Ellison said Ms. Perry wanted to go to a hotel in Centerville but he refused. Since Ms. Perry had lost the money, defendant Ellison testified he told her, "If you want to mess around, you can mess around right here and now." Ellison then said that Ms. Perry disrobed and had intercourse with him. He denied engaging in deviate sex with her. Defendant Ellison further stated that he and defendant Larry changed places but that Larry engaged in no sexual contact with Ms. Perry.
In rebuttal, the State called Ms. Jackie DeWalt to testify. She stated that defendant Ellison's mother, Emma Hudson, asked her to offer Ms. Perry money to drop the charges against her son. This testimony was allegedly offered to refute the contention that Ms. Perry was a prostitute by demonstrating that an individual who would not take a bribe would not prostitute herself.
During closing argument the assistant State's Attorney made the following comments: That the jury could infer a relationship between Andre Hudson and Emma Hudson, defendant Ellison's mother; that defendants were attempting by their activities on July 10, 1978, to turn Ms. Perry to a life of prostitution for their own monetary gain; that defendants failed to cross-examine Ms. Perry regarding the Lakeside Motel incident, when the trial court had precluded such interrogation; and that Ms. Perry was in grave danger throughout the trial because the defendants intended to kill her. Defense counsel objected 39 times during closing argument, most of which objections were overruled by the trial judge who told them they would have a chance to reply in their argument. Defendants were found guilty and judgment was entered on October 6, 1978.
Defendant Larry filed his post-trial motion on October 30, 1978, and defendant Ellison filed his post-trial motion on October 31, 1978. Both alleged inter alia that the prosecutor's closing arguments were inflammatory and that Ms. DeWalt was improperly allowed to testify in rebuttal. Defendant Ellison also complained that the trial court erroneously granted the State's motion in limine, thereby denying him the opportunity to cross-examine Ms. Perry regarding alleged prior rape charges she had brought against others. The trial court denied both post-trial motions on November 9, 1978, and entered the sentences as aforesaid. Defendants Larry and Ellison filed their notices of appeal on November 16, 1978 and November 30, 1978, respectively.
Defendants thereafter filed their first motion for a new trial pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) on April 30, 1979, alleging that Ms. Perry had recanted her trial testimony. In a sworn deposition on March 22, 1979, without a representative of the State's Attorney's office present, Ms. Perry stated that she had voluntary sexual contact with both defendants. She further testified that she had originally told the police she had been raped because she had no clothes on at the time the Alton police stopped the car and she feared arrest. She also stated she had been pressured during trial by the East St. Louis and Alton police, members of the latter transporting her to the trial daily, as well as by the assistant State's Attorney, who, Ms. Perry said, threatened her with a perjury charge shortly before the deposition. Ms. Perry also testified she was under the care of a psychiatrist at the time of the deposition.
Ms. Ernestine Florre also gave a deposition on March 22, 1979. She stated that Ms. Perry lived with her since May 1978. Ms. Florre also testified that Ms. Perry had been depressed since the trial and after a hysterectomy in March 1979, and confessed to her that she had only proceeded with the trial because the defendants were in jail and the charges had already been brought against them.
At the July 12, 1979, hearing on defendants' motion for a new trial, Ms. Florre reiterated the testimony given at her deposition and said that Ms. Perry told her she had not been raped. However, Ms. Perry recanted her deposition testimony. She said she went to the deposition with the defendants' mothers and Ms. Florre and gave the statement under duress. She testified that she was paid $10,000 by defendants' mothers to give the deposition, but could not account for the whereabouts of most of the money. Ms. Perry further stated that certain people, among them a man known to her only as "Turkey Breast," had threatened her; "I was told that if I didn't drop charges that something was gonna' happen to me." Therefore, she stated in open court that every statement made in the deposition was a lie.
Mr. Ed Sherrill, an employee of the East St. Louis city inspector's office, testified at the motion hearing that he was known as "Turkey Breast" and had known Ms. Perry for approximately three years. He stated that Ms. Perry "used to turn tricks" at Little Richard's. He testified as follows regarding a conversation he had with Ms. Perry:
"She told me when this first happened, I was down there at Little Richard. And I say, `I heard about a little incident happenin'.' Said, `Yeah, "Turkey", I got those [obscenity] in jail. That's where they're supposed to be.' I said, `What happened?' She said, `I told them that they raped me.' You know. I said, `Why did you do that?' She said, `I don't know why I did it.' You know. I said, `You shouldn't do things like that.' I said, `Did they?' She said, `No.' I said `Why do you wanta' tell the tale on them people?' She said, `I don't know.' And that was all she said."
Mr. Sherrill denied ever threatening Ms. Perry.
Following the hearing, having taken the motion under advisement, the trial court denied the motion for a new trial on July 18, 1979. Defendants filed their notices of appeal from this denial on July 30, 1979. Defendants filed a second motion for a new trial pursuant to section 72 on December 14, 1979, based on Ms. Perry's alleged recantation at an October 30, 1979, hearing of the Illinois Prison Review Board. At this hearing for defendants, Ms. Perry stated that she had not been raped and pressed charges only because she was afraid and feared she might go to jail herself.
A hearing on the second motion for a new trial was held on January 4, 1980. Ms. Perry testified that she had no sexual contact with defendant Larry and that she voluntarily engaged in sexual intercourse with defendant Ellison. She again stated that she proceeded with the trial because she was afraid she might go to jail. She also said that the assistant State's Attorney told her what to say at trial.
The motion hearing was continued to February 3, 1980, so the State could obtain the testimony of former assistant State's Attorney Stephanie Robbins. Mrs. Robbins testified that she did not instruct Ms. Perry what to say at trial and also denied having threatened Ms. Perry with prosecution for perjury prior to the March 22, 1979, deposition.
After taking the matter under advisement, the trial court denied defendants' second motion for a new trial on February 6, 1980. Defendants filed their notices of appeal from this denial on March 5, 1980. Therefore, it is from the denial of their separate post-trial motions, as well as their two joint motions for a new trial pursuant to section 72, that defendants now appeal.
Appellants first contend that the trial court erred in denying their motions for a new trial pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). The basis for the motions was that the victim-prosecutrix Ms. Perry had, at both the March 22, 1979, deposition and the October 30, 1979, hearing before the Illinois Prisoner Review Board, recanted her trial testimony that she had been raped. Relying on People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, the State initially replies that the issue of consent had already been resolved in the hearing on the first section 72 petition, that appellants were bound thereby, and, therefore, the second such petition was properly denied. However, we note that the grounds for each petition were different instances of recantation, each being accompanied ...