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People v. Fuller

OPINION FILED JULY 19, 1983.

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

v.

DAVID FULLER ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Richard J. Petrarca, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 23, 1983.

Defendants, David Fuller and his wife, Rebecca Fuller, were indicted for rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1), unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3), and attempted deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 8-4). Prior to trial, the State dismissed the unlawful restraint charge. In a jury trial, defendants were acquitted of rape and convicted of attempted deviate sexual assault. Each defendant was sentenced to serve seven years in the Illinois Department of Corrections.

On appeal, defendants contend that the trial court erred in denying their motions to quash a search warrant issued on September 24, 1979; that the court should have severed Rebecca's case from David's; that the prosecutors interfered with defense counsel's investigation of this case and failed to tender all discoverable material; that the State used its peremptory challenges to exclude blacks from the jury solely because of their race; that the court erred in admitting evidence of similar occurrences to show a common design or modus operandi; that defendants' rights of confrontation were violated when the out-of-court declarations of co-conspirators were received into evidence prior to a prima facie showing that a conspiracy existed; that the court erred in precluding a defense witness from testifying about a State witness' reputation for truth and veracity; that the court erred in applying the rape shield law (Ill. Rev. Stat. 1981, ch. 38, par. 115-7a) to a witness other than the prosecutrix; that defendants were not proved guilty beyond a reasonable doubt; and that the State failed to prove that Rebecca was accountable for David's actions. For the reasons hereinafter stated, we affirm the defendants' convictions.

The prosecutrix, Dorothy W., who was 21 years old at the time of trial (June 1981), testified as follows:

On October 7, 1979, she was living with a friend, Frances Pass. Pass answered a help wanted advertisement in the Chicago Sun-Times which read:

"Light housekeeping. Girl to live in. Must like country living and travel. Room and board. Small salary. Call 361-2393."

A man identified as defendant David Fuller came to Pass' home to interview Pass for the job. At Dorothy's request, David agreed to consider hiring her if he and his wife needed her. On October 9, 1979, Dorothy called the number listed in the advertisement and was told that she could reach defendants at the Orland Park Bowling Alley. She called the bowling alley from "John's Garage," a restaurant and bar in the Ford City shopping center where she had been with Frances Pass, spoke with defendant Rebecca Fuller and arranged to meet her there. Dorothy hitchhiked to the bowling alley and met both defendants. After defendants finished bowling at approximately 9:30 p.m., they drove Dorothy to their home at 2 Dan Mar Trail in Palos Park, Illinois. They arrived at approximately 10 p.m.

Dorothy entered the family room where David served her an alcoholic drink which made her unusually "woozy." She did not see David prepare the drink. David mentioned defendants' background and explained their need for a live-in babysitter. He then asked Dorothy whether she had a boyfriend, whether she had ever had sexual relations with anyone and whether she had ever seen a pornographic movie. She responded negatively to all three questions. When David began to discuss his own work, Rebecca left the room. David asked Dorothy if she wanted to watch a pornographic movie. Dorothy said, "No." Rebecca then returned to the family room naked and David began to show a pornographic movie. The movie was projected onto a white wall. Dorothy glanced at the film and at Rebecca, told defendants that she did not want the job and attempted to leave their house.

David knocked her to the floor near the base of the stairs leading from the family room to the second floor and attempted to put his penis in her mouth. David lifted Dorothy's blouse and bra and began fondling her breasts. He then removed her slacks, pulled her panties down around her ankles and put his penis into her vagina. Throughout the assault, which lasted approximately 15 minutes, Rebecca sat naked on a chair in the family room. In struggling with David, Dorothy bruised her left knee.

Dorothy finally managed to throw David off of her. She picked up her bag of clothes and ran out of the house as David laughed at her. Although she was not wearing a watch, she estimated that she left defendants' house sometime between 11:15 and 11:30 p.m. She dressed in some nearby bushes and began to hitchhike back to the Ford City shopping center. She told the first person who picked her up that she had a bad experience but did not want to talk about it. After getting another ride from a couple, she arrived at the shopping center sometime between 12:30 and 1 a.m. "John's Garage" was closed and she could not find anyone she knew. She discovered her friend Frances Pass' unlocked automobile in the parking lot and slept in it that night.

Later that morning, Dorothy washed herself and changed clothes in a public bathroom in the shopping center and tried unsuccessfully to telephone Pass. Late in the afternoon or early in the evening, she again entered "John's Garage" and met an acquaintance, Richard Addison. Dorothy told Addison that someone had tried to rape her during a job interview. She also told him that her assailant had "put something in her drink." Addison advised her to call the police, which she did. Dorothy was eventually taken to the Orland Park police station by another friend and then to Palos Community Hospital by the police. At the hospital, she was examined by Dr. James T. Bolan. Dr. Bolan, a defense witness, stated that all tests for the presence of sperm and semen were negative.

On cross-examination, Dorothy denied that she stayed overnight in defendants' home or that Rebecca drove her to the corner of 159th Street and Cicero Avenue at 9 a.m. on October 10, 1979. Dorothy also denied that defense photographs accurately depicted the condition of defendants' family room in October of 1979. In the photographs, the walls in the room were completely paneled with wood and a large aquarium was now positioned where Dorothy said David attacked her.

Dorothy denied that she told Sergeant Reilly of the Orland Park police department that she left defendants' house at 5 or 5:30 a.m. on October 10, 1979, or that she arrived at the Ford City shopping center at 6:30 a.m. Defendants attempted to impeach Dorothy with a police report Sergeant Reilly prepared which indicated that Dorothy left defendants' home at 5 a.m. and arrived at the shopping center at approximately 6:30 a.m. on October 10. Reilly, however, testified that he had prepared two reports, the first at the conclusion of his initial interview with Dorothy, which lasted about 20 minutes, and the second following a 2 1/2- to three-hour interview with her. Reilly explained that the times listed in the first report were his own estimates. Reilly stated that the second report, which indicated that Dorothy left defendants' house near midnight and arrived at the shopping center at approximately 2 a.m., was more accurate.

Following Dorothy's testimony, the State introduced the testimony of two witnesses, Dina P. (Dina) and Melody G. (Melody), who allegedly had experiences with defendants similar to Dorothy's. Dina and Melody did not know each other or Dorothy until shortly before trial. Defendants' objections to their testimony were overruled. The substance of their testimony and its admissibility will be discussed below.

Rebecca testified that Dorothy had stayed all night with defendants at their invitation. Shortly before 9 a.m. the next morning, she drove Dorothy to the corner of 159th Street and Cicero Avenue and gave her money to catch a bus. Rebecca denied that Dorothy had been sexually assaulted. She also denied that she had appeared naked in Dorothy's presence.

In rebuttal, the State presented evidence corroborating the prosecutrix' description of defendants' family room and establishing that defendants possessed photographic equipment, movie projectors and substantial quantities of pornography.

I

• 1 We first address defendants' contention that the trial court erred in denying their motions to quash a search warrant which was issued on September 24, 1979. Although the defendants argue that the warrant lacked specificity, we are unable to reach the merits of this argument because defendants have failed to include in the record on appeal either the warrant itself or the complaint for the warrant. It is the defendants' responsibility to present a record of sufficient completeness so that their claims of prejudice may be knowledgeably considered. They have not met this responsibility and in the absence of a complete record, we must presume that the trial court did not err in denying defendants' motion to quash. People v. Wilson (1981), 92 Ill. App.3d 370, 386, 415 N.E.2d 1315.

We also note that no physical evidence that may have been seized in executing this warrant was introduced by the State. The only evidence stemming from the execution of the warrant consisted of a police officer's rebuttal testimony corroborating the victim's description of defendants' family room and establishing that defendants possessed photographic equipment, movie projectors and pornography. Defendants' motions to quash were not specifically addressed to this evidence. Thus, the issue has been waived. Moreover, since the testimony of the officer was merely cumulative of other evidence presented at trial, the error, if any, in the court's denial of defendants' motions to quash must be deemed harmless.

II

• 2 We next consider Rebecca's contention that her case should have been ...


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