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People v. Frazier

OPINION FILED JULY 12, 1982.

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

v.

ELIJAH FRAZIER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROMIE PALMER, Judge, presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

A jury found Elijah Frazier (defendant) guilty of rape. The trial court sentenced him to six years in prison. Defendant appeals his conviction.

On appeal, defendant argues that (1) he was denied a fair trial by a prosecutor's inquiry into an argument relating to defendant's failure to inform police officers in his post-arrest statements that complainant had asked for money during the sex act; (2) he was unduly prejudiced by the State's introduction of evidence regarding defendant's alleged offer of $1,000 to complainant to drop charges against him; (3) defendant was denied a fair trial due to ineffective assistance of counsel; and (4) the State's closing argument was so highly prejudicial that defendant was denied his right to a fair and impartial trial.

We reverse and remand.

On the evening of October 7, 1979, complainant attended a party in her building at the apartment of her friend Sam Johnson. Johnson called his friend Elijah Frazier (defendant) to invite him to the party. While the two were conversing, complainant picked up the telephone and invited defendant to come over and join the party. Defendant accepted the invitation.

Johnson corroborated defendant's testimony that he (defendant) and complainant spent several hours that evening talking, dancing, kissing and fondling. Complainant claimed that she danced with defendant only once and that when defendant kissed her, she did not kiss him back.

Complainant left the party at 9 p.m. and returned a short while later. In the course of the next several hours, the others in attendance at the party gradually began to leave. Johnson and his girl friend Mary Kirk left to go to Kirk's apartment, leaving defendant and complainant alone in Johnson's apartment. Complainant testified that when she began to leave, defendant grabbed her and said "I want you, I got to have you." She claimed that a struggle ensued and defendant forced her to engage in intercourse. Defendant testified that after Johnson left the apartment, he and complainant exchanged passionate words, disrobed and engaged in consensual intercourse.

Complainant testified that after the rape, while defendant was straightening up the apartment and pulling out the bed, she ran from the apartment to Mary Kirk's apartment. The time was approximately 3:30 a.m. and complainant was clad in a long blouse and bra. Complainant told Kirk she had been raped. She called the police and was taken to the hospital. Hospital reports showed that complainant had sustained bruises on her hand and elbows and a scratch across her collar bone.

Defendant was apprehended early the following morning and taken to police headquarters. Officer David Dioguardi testified that he saw defendant at police headquarters and noticed a red mark on defendant's left hand which showed the indentation of teethmarks. Defendant explained that complainant had become extremely upset for no apparent reason after they had had intercourse and had bitten him on the hand. Defendant testified at trial that after he and complainant had engaged in intercourse, complainant asked him for some money and that when he refused to pay, she left the apartment wearing only a blouse.

Two weeks after the alleged rape, Johnson came to complainant's apartment and asked her to go with him and defendant to a currency exchange. Complainant agreed. She testified that defendant requested that she sign an agreement to drop charges against him in exchange for $1,000. After they arrived at the currency exchange, defendant attempted but was unable to get the $1,000. Complainant telephoned her father from the currency exchange. Her father told her that if defendant "didn't have the grand then we press charges." Complainant stated that she did not sign the papers or accept any money. She also testified that she would have dropped the charges if defendant had come up with the money. Complainant pressed charges. After a jury trial, defendant was found guilty of rape. He now appeals.

First, defendant argues that he was denied a fair trial by the State's inquiry into an argument relating to defendant's failure to inform police officers in his post-arrest statements that complainant had asked him for money during the sex act. After his arrest, defendant told the police that complainant had consented to sexual intercourse. He also told police that she had become upset after having sex and claimed that he did not know what had caused her to become upset. At trial, defendant testified that complainant had asked for money in exchange for sex and had become angry when he refused to pay. The State maintains that it was proper for the prosecutor to cross-examine defendant in regard to the inconsistencies between his post-arrest statement to the police and his trial testimony and that it was proper to point out the inconsistencies during closing argument.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, the United States Supreme Court established a constitutional bar to the use of a defendant's post-arrest silence for purposes of impeachment. Such impeachment is fundamentally unfair because Miranda warnings inform a defendant that his silence will not be used against him. (426 U.S. 610, 618, 49 L.Ed.2d 91, 422, 96 S.Ct. 2240, 2245.) Doyle involved two defendants who made no post-arrest statements about their involvement in the crime. The Doyle rule does not apply to cross-examination that inquires into prior inconsistent statements. Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L.Ed.2d 222, 226, 100 S.Ct. 2180, 2182.

• 1 In the present case, defendant voluntarily made a statement after receiving Miranda warnings. He stated that he did not know what had caused complainant to become upset. His testimony at trial that complainant had become upset because he refused to give her money was inconsistent with his post-arrest statement. It was proper, therefore, for the prosecutor to question defendant concerning the prior inconsistent statement and to remark on the inconsistency during closing argument. In so doing, the State did not violate defendant's due process rights.

Second, defendant argues that he was unduly prejudiced by the State's introduction of evidence regarding defendant's offer of $1,000 to complainant to drop charges against him. The State maintains that such evidence was relevant to defendant's consciousness of guilt and therefore admissible. The trial testimony given by complainant, defendant, and Sam Johnson ...


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