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People v. Fuelner

OPINION FILED FEBRUARY 4, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSEPH FUELNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY BOSCO, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, Joseph Fuelner, was charged by information with kidnaping, aggravated kidnaping, rape, and armed violence (Ill. Rev. Stat. 1977, ch. 38, pars. 10-1, 10-2, 11-1, 33A-2). The jury found defendant not guilty of kidnaping and aggravating kidnaping, and guilty of rape and armed violence. Defendant was sentenced to two concurrent 30-year prison terms. He appeals.

The following issues are presented for review: (1) whether defendant was proved guilty beyond a reasonable doubt; (2) whether the trial court erred in allowing the State's witnesses to testify regarding their conversations with the complaining witness; (3) whether the trial court erred when it admitted testimony regarding the complainant's suicide attempt and 5-week hospitalization in a psychiatric ward; (4) whether the prosecutor's closing argument was prejudicial; (5) whether defendant received effective assistance of counsel; and (6) whether the trial court erred in entering judgments of conviction and imposing separate sentences for both rape and armed violence.

We reverse and remand for a new trial.

The complainant's testimony at trial included the following.

On June 4, 1979, the complaining witness was 20 years old. She lived with her 16-year-old sister, Sandra, in an apartment at Cicero and Laramie in Cicero, Illinois. The complainant worked as a bartender and book-keeper at the His and Mine lounge, also located at Cicero and Laramie. She had also tended bar for 2 days at the Eros tavern within the week of June 4, 1979.

The complaining witness stated that she had promised to drive Sandra to a boyfriend's house on the evening of June 4, 1979. She did not own a car and planned to borrow one from her employer. Shortly after 9:30 that evening, the complainant went to the Eros tavern located around the corner from her apartment. The bartender on duty was a woman named Chris. Joseph Fuelner, the defendant, was in the bar with a group of people. The complainant knew that defendant's name was Joe and that he was a trucker. She had seen him on two previous occasions: once in the Eros bar and once when he was coming out of that bar. On this occasion, June 4, she talked with defendant, who offered to buy her a drink, but she declined. Complainant stated that she was in the bar for about 40 minutes, leaving around 10:30 p.m. Defendant had left the bar about 5 minutes prior to her leaving.

After leaving the bar, the complaining witness began crossing an empty lot. When she had reached the middle of the lot, she turned around and saw defendant holding a gun. He took her by the arm, thereafter placing the gun in his pocket, and they proceeded to Laramie Street, a distance of 15 to 20 feet. He told her to get into a car — an old white Lincoln Continental with a rear view mirror on the dashboard. Defendant walked around the back of the car and entered on the driver's side. The complainant did not see the gun again until they were both in the car. Defendant drove south on Laramie and stopped at a gas station. He warned the complainant that his friend owned the station and that she should not "do anything stupid." Defendant got out of the car, laughed and talked with the attendant, and put gas in the car.

After driving away from the station, defendant repeatedly hit complainant lightly on the shoulder with the gun. He talked about his friends as he drove for 40 or 45 minutes. Defendant drove into an area where the complainant saw only trees and water at the sides of two hills. He told her not to move; he then got out of the car, leaving for 2 minutes. Defendant returned to the car and then drove farther on. The complainant asked defendant why he displayed the gun. He said he was going to rape her. Eventually, defendant put the gun away but brought out a knife with a 9- or 10-inch blade. Defendant repeatedly threatened complainant and told her that he had a friend working for the Secretary of State who would "get him out of anything." He also warned her that if she complained he would rape her sister and then he would kill the complainant, for he did not want her to die until she knew that, because of her, her sister had been raped.

When the complainant told defendant that she needed air, he let her out of the car but held onto her left wrist. They walked to the top of the hill and then back to the car. Then, defendant threw complainant onto the car hood, hit her in the back of her head, and pulled down her pants. He touched her vagina and thereafter ordered her to go to the back of the car. Defendant opened the car trunk and removed a blanket and a jar of Vaseline. He then took the knife out of the car and placed the blanket on the ground behind the car. The complaining witness was told to lie down on the blanket on her back. Defendant put the knife on the ground and partially removed her lower garments. Thereafter, defendant returned to the car, knelt down and put on a condom. He then raped complainant. He took off the condom and threw it toward the nearby canal.

Defendant resumed talking to the complaining witness, saying that he was sorry, that he did not know what made him rape her, and that he had never done "anything like that." He said he would make it up to the complainant; he would teach her how to drive a truck. While complainant adjusted her clothing, defendant put the blanket and the Vaseline back in the car trunk and picked up the knife. They entered the car and drove from the scene. Moments later, defendant stopped the car, wiped off the knife and gun with a towel, and emptied the gun. He exited the car, threw the knife toward the canal and then threw the gun away, returned to the car, and drove off. He offered to drive the complaining witness home, but she asked to be let out at a nearby gas station.

At the gas station, while complainant was pacing back and forth, trying to decide whom she would telephone, a man drove up and asked her what was wrong. The complainant did not know the man and said nothing. Her hand was bleeding. The man said he would call the police but the complainant told him not to call. The man drove complainant to within four blocks of her apartment. Once in the apartment, she found a note from her sister, Sandra. At about 1 or 1:30 a.m., the complainant called Sandra and said that she was sorry she had not kept her promise to come back for her. When her sister asked the complainant whether she was alright, the complainant responded that she had been attacked, almost raped, but that she was fine. Sandra inquired as to whether she had called the police; complainant responded that she was not going to call the police.

The complaining witness made another telephone call to Mickey, the sister of Sandra's boyfriend. The complainant wanted Mickey to allow Sandra to stay that night in her home. Complainant then sat down on her bed, fully clothed, and went to sleep.

The next morning, June 5, 1979, the complaining witness was awakened by her older sister, Debbie. The complainant babysat for Debbie from about 9 a.m. to 4 p.m. that day. The complainant then returned to her apartment. At about 10:10 that evening, the complainant revealed to her younger sister, Sandra, that she had been raped rather than attacked, and that she did not want to go to a doctor because the doctor would then have to involve the police. At approximately 10:30 p.m., the complainant talked with Debbie and told her that she could not see Debbie's son, Bobby, anymore because she (complainant) was "dirty." Debbie sent a cab to pick up the complaining witness. Some time later, complainant told Debbie that she had been attacked. The complainant did not want to go to the police because her attacker had threatened that her younger sister would be raped if she contacted the police. At about 2 a.m., June 6, the alleged rape was reported to the Cicero police.

At 9 a.m., June 6, the complainant returned to the police station to give a description of her assailant, in order that the composite sketch might be drawn of the attacker, and to attempt to locate the area where the rape incident occurred. On June 8, the complaining witness visited a physician who gave her a pelvic examination and prescriptions for antibiotics, valium and sleeping pills.

On June 12, 1979, the complainant was staying with an aunt. The telephone rang and complainant answered, but there was no response. Over defense objection, the complainant testified that she called the police and told them that she had been raped and that she thought the man who attacked her was in the house. She ran into the street, hysterical. That evening the complainant swallowed all of the sleeping pills and valium. Over defense objection, the complaining witness stated that she told her aunt that she was tired of living, that she could no longer stand jumping at shadows, that she could not walk ...


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