APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1981.
Following a jury trial in the circuit court of Cook County, the defendant, Henry Pointer, was convicted of indecent liberties with a child. (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(3).) The defendant appeals his conviction, alleging that the court erred in admitting into evidence testimony of prior consistent statements of the complaining witness, evidence of a gun that was found in the defendant's possession when he was arrested, and evidence of the prior rape conviction of the defendant.
The 13-year-old complainant testified that at about 9:30 p.m., she was rolling her hair in the bathroom when the defendant walked in the open door. The defendant sometimes resided in her house and is the father of one of her brothers but is not her father. The complainant was wearing a nightgown and a housecoat. The defendant grabbed her. She bit him but failed to get loose. The defendant dragged the complainant into her bedroom where the indecent liberties occurred. The incident took about 10 minutes. The complainant hit the defendant during the incident. When the defendant left the complainant, she went to Brenda Clark's apartment which was a few doors down the street.
Brenda Clark testified that the complainant came to her house and was crying. When asked why she was crying, the complainant continued crying and did not respond. After failing to receive a response, Clark went to get her neighbor, Sandra Cox. The two women succeeded in calming the complainant after about five or seven minutes. Over objection, both Clark and Cox testified as to what the complainant said about what had occurred with the defendant. The statements of the complainant as testified to by Clark and Cox were consistent with the complainant's testimony in court.
The defendant testified that he arrived at the complainant's house at about 8:30 or 9 o'clock that evening. The complainant was not at home at that time nor was she at home anytime that evening. He did not see the complainant until the next day. The defendant testified that he went to bed because he had to get up early the next morning in order to go to work. He was unable to sleep and got up to go to the bathroom. On the way back to bed he went into the complainant's bedroom and turned on a tape recorder which was on the complainant's bed. After about 30 minutes the complainant's mother came in and cut the defendant on the arm with a butcher knife. The mother stated that she would shoot him if she had a gun. The defendant realized that he had a gun which he kept under the mother's bed. He put the gun in his pocket and walked to her brother's house. From her brother's house the defendant was able to see police cars at the complainant's house. He returned to the complainant's house after the police were gone and was told to stay until the police returned. He was arrested when the police returned.
Two rules, one exclusionary and the other not, bear on the admissibility of the in-court testimony of Clark and Cox concerning the statements the complainant made to them shortly after the incident in the bedroom. The complainant's statements to Clark and Cox were consistent with the complainant's in-court testimony. The exclusionary rule asserted by the defendant provides that a witness cannot ordinarily have his in-court testimony corroborated or bolstered by testimony that on a prior occasion he made a consistent statement out of court. (Stolp v. Blair (1873), 68 Ill. 541; People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363; People v. Rogers (1980), 81 Ill.2d 571, 411 N.E.2d 223; Annot., 75 A.L.R.2d 909, 916 (1961); contra, State v. Netcliff (1972), 14 N.C. App. 100, 187 S.E.2d 450.) The State asserts that the spontaneous declarations or excited utterances exception to the hearsay rule permits such out-of-court statements under certain limited circumstances. People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804.
The rule that excludes in-court testimony of a witness' out-of-court statements is of fairly recent origin. Under the early common law, prior consistent statements were admitted without limitation on the theory that there is real corroborative support in such evidence. (4 Wigmore, Evidence § 1123, at 254-55 (3d ed. 1972); 81 Am.Jur.2d Witnesses § 641 (1976).) Since then, the following rationales have been stated for excluding such testimony: these statements are self-serving and make a witness' credibility depend upon the number of times he has repeated the same story rather than upon the truth of the story itself (81 Am.Jur.2d Witnesses § 643 (1976)); such statements do not aid the witness because an improbable or untrustworthy story is not made more probable or trustworthy by the number of times it is repeated (4 Wigmore, Evidence § 1124, at 255 (3d ed. 1972); such testimony is utterly incompetent (Annot., 75 A.L.R.2d 909, 915-16 (1961)); and such testimony is untrustworthy because it is not given under oath. United States v. Sherman (2d Cir. 1948), 171 F.2d 619, 622.
There are several exceptions to the rule that excludes testimony of prior consistent out-of-court statements. Such evidence would be admitted to rebut an allegation of recent fabrication or a charge that the witness is motivated to testify falsely. (People v. Rogers (1980), 81 Ill.2d 571, 578, 411 N.E.2d 223, 227; see Fed. R. Evid. 801(d)(1)(B).) In rape cases testimony will be permitted only as to the fact that the complainant alleged she was raped but not as to the details. (People v. Damen (1963), 28 Ill.2d 464, 193 N.E.2d 25; see McCormick, Evidence § 298, at 709 (2d ed. 1972).) Special rules apply to testimony concerning prior consistent out-of-court identifications. A witness will be allowed to testify that on a prior occasion either that witness or someone else present in court made an out-of-court identification of the defendant. Rogers, 81 Ill. App.3d 571, 579, 411 N.E.2d 223, 227; see Fed. R. Evid. 801(d)(1)(C).
The rule concerning rape cases is only applicable to complaints for rape and not to other sex offenses such as the charge of indecent liberties. People v. Romano (1923), 306 Ill. 502, 138 N.E. 169; however, see McCormick, Evidence § 298, at 709 (2d ed. 1972).
The State argues, however, that the testimony of Clark and Cox as to the complainant's statements is admissible because those statements constituted spontaneous declarations or excited utterances.
• 1 The spontaneous declarations or excited utterance exception to the hearsay rule permits testimony of prior out-of-court statements on the premise that the excitement caused by the event or condition temporarily stills the capacity for reflection, thus producing statements free of conscious fabrication. (People v. Damen (1963), 28 Ill.2d 464, 193 N.E.2d 25; E. Cleary and M. Graham, Handbook of Illinois Evidence § 803.3, at 426 (3d ed. 1979).) Because of the lack of time to reflect and fabricate, these statements are believed to have special reliability. (Damen; McCormick, Evidence § 297, at 704 (2d ed. 1972).) The person who made the statement need not be available at trial. People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804.
The State relies on People v. Damen in arguing that the complainant's statements to Clark and Cox were properly admitted as spontaneous declarations. In Damen, a police officer testified that the complainant told him her husband had stabbed her. This statement was consistent with the complainant's trial testimony. The defendant argued that this prior consistent statement was hearsay while the State contended that the statement was admissible as a spontaneous declaration. The court found that the evidence was properly admissible as a spontaneous declaration.
The defendant argues that Damen is no longer viable in light of the more recent decision in People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363. There, the defense witness provided an alibi by testifying that the defendant was at her house at the time of the murder. Over the defendant's objection, the trial court excluded the witness' further testimony that she had made the same statement three weeks after the murder when the police searched her house. The Illinois Supreme Court said that the trial court properly excluded this evidence and that the parties were in error in arguing the issue on grounds that it fell within or without the spontaneous declaration exception to the hearsay rule. The court said that the hearsay rule was not in issue because there was an opportunity for ...