Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted and sentenced to eight years for rape. He contends on appeal that (1) he was denied his constitutional right to confront witnesses against him because the complaining witness could not be adequately cross-examined; (2) the trial court erred in allowing the State to establish the elements of the crime by asking leading questions of the complaining witness; and (3) he was not proved guilty beyond a reasonable doubt.
At trial, Edith McConnell (Edith), the 13-year-old sister of the complaining witness Diane McConnell (Diane), testified that when she left for school on the morning of September 16, 1981, Diane was in the apartment and the house was neat. When she returned home between 4 and 5 p.m., a chair in the kitchen was overturned, the couch cover and pillows were on the floor, and the radio and television were playing loudly. Diane was shaking and appeared frightened, her hair was in disarray, and her nightgown was open. Diane, who is mute, indicated by gestures that she had been raped. When asked what happened, Diane pointed to her vaginal area, west toward the Cabrini-Green housing project, then to her (Edith), then to her (Diane's) child who was in the apartment with her. She (Edith) asked if Diane meant that a boy had done this to her and that he was one of her (Edith's) friends from the project, and Diane nodded her head yes. Diane then pointed east toward her own apartment, and she (Edith) asked whether the boy was one who had accompanied her to Diane's apartment; Diane nodded yes. Edith explained that she went to Diane's apartment with defendant a few days earlier to pick up Diane's child, and Diane saw defendant at that time. She had never taken any other boy to Diane's apartment. Edith further testified that Diane indicated to her through gestures that defendant gained admittance by knocking on the door and asking for her (Edith). The police took Diane to the hospital, and while she (Edith) was alone at approximately 8 p.m. she heard a knock on the door, peered out, and saw defendant standing on the porch. Two officers approached him and, when defendant tried to flee, a struggle ensued during which defendant dropped a gun and then ran away. Edith also testified that Diane is 31 years old and lives in her own apartment with her child and boyfriend and is able to move about the neighborhood by herself.
When Diane McConnell was called to testify, the trial court explained for the record that because of her inability to speak, Diane would be using a blackboard containing letters of the alphabet, numbers, colors, picture symbols for simple concepts such as house, and anatomically correct dolls in testifying. Diane then indicated through gestures, pointing to the board, and reenactment using the dolls, that she was at her mother's apartment with her son on the afternoon of September 16 when she heard a knock on the door. When she opened it, defendant entered and asked to see Edith, but she (Diane) indicated to him that Edith was not home. Defendant then pushed her onto the couch and had sexual intercourse with her; the intercourse was against her will. She further indicated that defendant was wearing a gray coat and a hat, but she could not give any clear, consistent answers when asked what time defendant arrived and left or how long he stayed, and gave conflicting answers on how she was dressed at the time and whether she had seen defendant prior to the incident. Upon further questioning, Diane demonstrated her understanding of the difference between intercourse and rape by making pushing and choking gestures when asked to explain the distinction.
Brandy Brown testified that she lived next door to the apartment where the rape occurred and was acquainted with Diane. Between 1:30 and 2 p.m. on the date in question, she heard Diane's son screaming, then the volume on the television set in that apartment was turned up very loud. At about 3 p.m., she (Brown) went out to get her mail and saw Diane standing in the doorway of her apartment. She asked Diane what was wrong because she looked upset, dazed, and her eyes were watering, but Diane did not respond. Later, Edith told her that Diane had been raped, and when she (Brown) went next door, she noted that there were chairs overturned and the couch cover was on the floor.
Officer Jones testified that when he arrived at the scene, the apartment was disheveled and Diane appeared to be in shock. He transported her to the hospital, then went to defendant's apartment and told his mother the police wished to speak to him. Defendant came to the police unit in Cabrini-Green at 10:40 that night and was wearing, among other items of clothing, a gray sportcoat and a cap.
Detective Stabnick testified that she interviewed Diane at the hospital that night with the aid of Brown, who acted as an interpreter because she (Stabnick) could not understand Diane's gestures. During this interview, Diane indicated that defendant raped her. Stabnick further testified that she and her partner went to the apartment where the rape occurred at approximately 9 p.m. that night and, as they approached, they saw defendant standing at the door and asked his name. Defendant fled, but there was no struggle and defendant did not drop a gun.
It was stipulated that tests conducted on Diane at the hospital were positive for the presence of spermatozoa.
Ernestine Gideon, a defense witness, testified that defendant came to her apartment at approximately 10 a.m. on the date in question and, after speaking to her for 15 minutes, went next door to visit his girl friend. Defendant returned to her apartment for 15 minutes at noon, then went back to his girl friend's home. She saw him again at 3 p.m., but did not know where he was in the interim. Gideon further testified that her apartment is less than one block from the apartment where the rape occurred.
In rebuttal, it was stipulated that shortly after being taken into custody and after being read Miranda warnings and acknowledging his understanding of them, defendant stated to an assistant State's Attorney that he knew Diane and Edith; that he went to their apartment at 2 p.m. on the date in question looking for Edith; that when Diane indicated that Edith was not home, he left and returned to his apartment; and that he knocked at their apartment door at approximately 9:30 that night "looking for a haircut" but fled when he saw the police.
Defendant testified in surrebuttal that he did tell officers he stopped at Diane's apartment, but denied telling them what time he was there. He further stated that he arrived at the apartment at 9 a.m. but only stayed two or three minutes and did not touch Diane. From there, he went to Gideon's house and stayed until 9 p.m. As he was passing near Diane's apartment on his way home, two officers attempted to stop him, and he ran because he thought they would arrest him for a curfew violation, although he acknowledged that he was 17 years old at the time and it was only 9 p.m. He explained that officers frequently harassed young men out after dark in the area surrounding the housing project. When he arrived home, he learned that the police wanted to speak to him, and immediately went to the police unit in the project. Defendant admitted that he met Diane before the date in question but denied raping her.
Defendant first contends that he was denied his right to confront witnesses against him because the complaining witness' mild to moderate retardation and inability to communicate verbally prevented him from cross-examining her adequately. In support thereof, he cites People v. White (1968), 40 Ill.2d 137, 238 N.E.2d 389, wherein the sole witness to a theft was a nursing home patient who could hear but could not speak. In reversing the defendant's conviction, which was based solely on her testimony, the court noted that there were "grave doubts" as to the witness' competency and susceptibility to influence, and that the only way she could communicate was to raise her knee if her answer was yes, and remain still if her answer was no. The court further stated that "[t]he witness had no means of originally communicating an accusation. She was unable to state what she saw nor could she describe the [article stolen] or the person who took it." (40 Ill.2d 137, 139, 238 N.E.2d 389, 390.) The court ruled that, under those circumstances, the defendant's right to cross-examine the witness was violated.
It is defendant's position that the instant case is similar to White, relying on a letter from Dr. Kaplan, a staff psychiatrist at the Psychiatric Institute of Cook County, who examined Diane and expressed his opinion that she was on the borderline between mildly and moderately retarded. Kaplan further stated that while Diane was able to communicate "a reasonably adequate description of the alleged crime," when questioned thereon she "gave confusing and conflicting responses," and it was therefore his impression that she ...