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People v. Buford

OPINION FILED OCTOBER 26, 1982.

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

v.

DENNIS BUFORD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant Dennis Buford was charged by indictment with rape, deviate sexual assault, armed robbery, unlawful use of weapons and armed violence. After a jury trial, defendant was found guilty of rape and armed violence. Judgment was entered on the verdict and defendant was sentenced to 60 years for rape and 30 years for armed violence. Defendant contends on appeal that: (1) the Illinois "rape shield" statute (Ill. Rev. Stat. 1979, ch. 38, par. 115-7) is unconstitutional as applied to him because it works a denial of his right to confrontation and his right against self-incrimination; (2) the same statute is also unconstitutional as a legislative infringement on the inherent powers of the judiciary; (3) the trial court committed reversible error when it allowed a letter which was purportedly authored by the defendant into evidence without proper authentication; (4) the prosecutor's closing argument contained misrepresentations of law, references to facts not in evidence and attacks on defense counsel's integrity, all of which denied the defendant his right to a fair trial; (5) the logical inconsistency of the jury's verdict demands a finding that the prosecution did not prove defendant guilty beyond a reasonable doubt, and (6) the sentences imposed were excessive and should be reduced.

On January 19, 1979, at approximately 4 a.m., Chicago police officer Michael O'Connor went to 1711 West 82d Street in response to a radio call. When he arrived with his two partners, they observed the complainant's son standing in a first floor apartment window and pointing towards the alley. As the officers walked through a courtway towards the alley, they heard someone crying. Officer O'Connor testified that he saw defendant and complainant lying in the snow. Defendant was on top of complainant and was holding a gun to her head. Officer O'Connor twice ordered defendant to "freeze," after which defendant tried to put his gun underneath the complainant's body, saying "tell him I am your boyfriend or else I am going to kill you." When the officers took the defendant's gun and pulled him off of the complainant, they observed that his penis was outside of his pants. The complainant was dressed in a C.T.A. uniform, and her pants were down around her ankles. At the scene, in addition to the gun, the police recovered a satchel full of tools, a shoulder holster and $133 from the defendant.

Complainant testified that she left her apartment at 4 a.m. on January 19, 1979, to go to work as a C.T.A. bus driver. She passed the defendant on the street, and as she turned to look at him he pointed a gun at her. He grabbed her and forced her to the rear of the building, where he took $133 from her and threatened to kill her. Defendant then forced her to have oral and vaginal intercourse with him.

A medical examination conducted soon after the incident confirmed the presence of semen in complainant's vagina and in her throat.

Complainant testified that she had never seen defendant before January 19, 1979. She also testified that in February 1979 she received a letter from defendant which expressed sorrow over the incident and asked her to reconsider pressing charges. This letter was received into evidence over defense counsel's objection to its foundation.

Defendant testified that he had known complainant since 1972, having met her at 46th and Prairie Streets, an area of Chicago's south side which is frequented by prostitutes and is known as "The Stroll." He testified that he had paid complainant for sex almost weekly between 1972 and 1974. Defendant was imprisoned from 1974 to 1978, and he testified that they resumed their relationship after his release. Defendant testified that on January 18, 1979, he telephoned complainant and invited her to his house. When she arrived, they drank rum and smoked marijuana. Andre Davis, defendant's 14-year-old brother, testified that he was present for part of the time that complainant was in the house. Defendant testified that he and complainant had oral and vaginal intercourse that night, for which he paid her $25. He stated that he fell asleep, and that when he woke up complainant was gone and $143 of his money was missing.

Defendant testified that he left early for work on the morning of January 19 because of the inclement weather conditions. On the way to work, he stopped at complainant's house to retrieve his money. At first, she denied having taken the money, but she later produced $133 and gave it to defendant. He told her that $10 was missing. Defendant testified that complainant suggested that they go behind her house and have sex for the missing amount. They did so, and when they laid down, defendant removed the gun he was carrying from its shoulder holster to make himself more comfortable. Defendant testified that when he heard the police he picked up his gun and ordered complainant to tell the police that everything was all right, but that when complainant began to cry, he knew that she had "set him up."

Prior to trial, the court granted the State's motion in limine prohibiting the defense from making any reference to the fact that complainant was convicted of solicitation for prostitution in 1972. The court based its ruling on the Illinois "rape shield" statute (Ill. Rev. Stat. 1979, ch. 38, par. 115-7), which provides: "In prosecutions for rape or deviate sexual assault the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused."

Defendant's first contention on appeal is that the "rape shield" statute is unconstitutional as applied to him because the exclusion of complainant's 1972 conviction for solicitation denied him the right to confront the witnesses against him. Defendant asserts that he was precluded from showing that, because complainant was convicted of mail fraud in 1978 and was on Federal probation at the time of the incident, she had a motive to fabricate her testimony in order to protect her probation. Defendant argues that complainant admitted that she knew that a conviction for any crime, including prostitution, would result in a revocation of her probation, and that her 1972 conviction was relevant to this issue. Defendant's brief does not clarify how a 1972 conviction might affect a probation which began in 1978, or how that earlier conviction is relevant to complainant's possible fear that her probation might be revoked.

Defendant asserts that the case of Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, is controlling. In that case, the defendant was charged with breaking into a bar and removing its safe. The safe was found near the home of Richard Green, who testified that he had seen and spoken with two men in the area where the safe was found on the day before the safe was discovered. Green later identified the defendant in a lineup as one of the men that he had seen, and stated that the defendant had been carrying a crowbar. Green was on juvenile probation for burglary at the time the safe was stolen and at the time of trial. Prior to trial, the court granted a protective order, pursuant to Alaska statute, which prohibited the defense from making any reference to Green's probationary status. On appeal, the defense contended that the application of the statute unconstitutionally restricted its right of cross-examination in that it made it impossible to show that Green, as a convicted burglar, might have been subject to coercive police questioning at the time the safe was discovered near his home and that his identification of the defendant and his testimony might have been the products of police pressure.

The court noted that Green was cross-examined as to his state of mind at the time that the safe was found, and that when he was asked if he felt that the police might suspect him of the burglary he denied feeling any concern at all. The court found it doubtful that Green would have responded in the same way had he been subject to traditional cross-examination, and held that in this situation defense counsel should have been free to inquire into the possible bias of the witness.

In holding that the restriction placed on cross-examination in that case violated the confrontation clause, the court stated:

"While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an ...


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