probative value of the excluded evidence "was such that the
defendant's right to effective cross-examination was
substantially diminished." United States ex rel. Blackwell v.
Franzen, 688 F.2d at 501.
Several federal courts, using these standards, have upheld the
application of state rape shield statutes and the rape shield
rule found in Federal Rule of Evidence 412. See, e.g., Bell v.
Harrison, 670 F.2d 656 (6th Cir. 1982); Logan v. Marshall,
680 F.2d 1121 (6th Cir. 1981); United States v. Nez, 661 F.2d 1203
(10th Cir. 1981). The constitutional justification courts give
for excluding evidence of past sexual behavior or reputation
evidence for unchastity is that such evidence is not a relevant
indicator either of the likelihood of the victim's consent to a
specific act or of her veracity, and the accused is not
constitutionally entitled to present irrelevant evidence. Doe v.
United States, 666 F.2d 43, 47 (4th Cir. 1981); United States v.
Kasto, 584 F.2d 268, 271-72 (8th Cir. 1978), cert. denied,
440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). These courts
nevertheless recognize that in some circumstances prior sexual
conduct may be probative and therefore relevant and should be
admitted, for instance (1) where the evidence explains a physical
fact in evidence at trial, such as presence of semen, pregnancy,*fn2
or the victim's physical condition indicating intercourse; (2)
where the evidence tends to establish bias, prejudice or ulterior
motive surrounding the rape charge; or (3) where the victim has
engaged in a prior pattern of behavior clearly similar to the
conduct involved in the present case. United States v. Kasto, 584
F.2d at 271. In some instances, the evidence might also be
admissible to show the accused's state of mind. Doe v. United
States, 666 F.2d at 48.
Fuller did not offer the excluded evidence for any of these
purposes. The Fullers sought to introduce evidence from a doctor
that Gibbs, who was 16 at the time of the occurrence, had been on
birth control pills since she was 13 or 14, and evidence from
Donna Gibbs that Melody had been thrown out of high school for
promiscuous behavior and also had had an incestuous relationship
with her brother. Their purpose was to prove Melody's consent and
to impugn her veracity, particularly in regard to her testimony
concerning forced sexual acts with several others besides the
Fullers in their home. The proffered evidence is at most only
marginally relevant for those purposes.
Looking at the record as a whole, it cannot be said that
Fuller's inability to inquire into these alleged prior sexual
acts "created a substantial danger of prejudice." Fountain v.
United States, 384 F.2d at 628. In addition to the minimal
probative value of the evidence is the fact that the Fullers had
ample alternative means to impeach Gibbs, through
cross-examination undermining parts of her story and through the
testimony of Rebecca Fuller and Donna Gibbs. A further
consideration is that Gibbs' consent or lack of consent was not
a central issue in the case. Her testimony was offered to prove
the defendants' modus operandi, and her prior sexual acts were of
no relevance at all to that issue or to the fundamental issue in
the case — whether the Fullers committed a similar act against
the prosecutrix Wojno.
B. Prosecutorial Misconduct
Fuller's second contention is that her conviction was obtained
through prosecutorial misconduct. She argues she was deprived of
due process because (1) one of the
prosecutors failed to inform the defense attorney of Wojno's
arrest until the day she was to take the stand, even though he
had been specifically asked to provide information on the
witnesses' criminal history three days before and had denied
there was any; (2) the prosecutor made several material,
prejudicial misstatements of the evidence in his closing
argument; and (3) the prosecutors threatened to levy criminal
charges against the defense attorney for investigations of
witnesses made during trial.
In ruling on the first and third arguments raised by Fuller,
the Appellate Court held that the evidence did not support
Fuller's allegations of misconduct. These findings are entitled
to a presumption of correctness, Sumner v. Mata, 449 U.S. 539,
547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981), and we cannot say
that the conclusions reached by the Appellate Court are not
"fairly supported by the record." 28 U.S.C. § 2254(d)(8). As to
the first charge, the record simply does not support defendant's
allegation that Wojno was offered consideration for her testimony
in the form of help getting her valium possession case dismissed.
The three-day delay in revealing the arrest and the alleged
consideration, even if intentional (and the record does not
require such a conclusion), was not sufficiently prejudicial to
have had an impact on the outcome of the case, particularly since
defense counsel did not even ask for a continuance and, in fact,
cross-examined Wojno extensively concerning the arrest. No
violation of due process has therefore been shown. United States
v. Agurs, 427 U.S. 97, 110-112, 96 S.Ct. 2392, 2401-02, 49
L.Ed.2d 342 (1976); Ruiz v. Cady, 710 F.2d 1214, 1216 (7th Cir.
As to the third charge, the record supports the Appellate
Court's finding that the prosecutor simply requested the trial
court to admonish defense counsel not to permit his investigators
to harass a witness and stated his intention to enforce, if
necessary, the section of the criminal code designed to prevent
such harassment. There is no evidence that this "threat"
impermissibly obstructed defense counsel's investigation.
Fuller's second allegation, that the prosecutor made
impermissible comments in his closing remarks, was not raised on
appeal. In fact, only one of the comments to which Fuller now
objects was even the subject of an objection at trial. Without a
showing of cause for the failure to raise the issue and of
prejudice, we cannot review the issue now. Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); United States
ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983). Fuller
argues that space limitations confronting her attorney on appeal
prevented him from detailing every instance of prosecutorial
misconduct. This is insufficient to show cause for failure to
raise the issue on appeal, since the Appellate Court could not be
expected to assume the closing statement was an issue. See
Spurlark, 699 F.2d at 357. Fuller does not explain at all why
only one comment was objected to at trial. Under the
circumstances, Fuller has therefore waived habeas corpus review
of this issue.
C. Sufficiency of the Evidence and Adequacy of Appellate Court
Fuller argues that her conviction was unsupported by the
evidence and therefore cannot stand, since the due process clause
protects against conviction absent proof beyond a reasonable
doubt, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62
L.Ed.2d 126 (1979). Jackson establishes the standard for
reviewing the sufficiency of the evidence: if, after construing
all inferences and conflicts in the evidence in the light most
favorable to the government, any rational trier of fact could
have concluded the defendant committed the crime beyond a
reasonable doubt, habeas corpus relief should be denied. Jackson,
443 U.S. at 319, 99 S.Ct. at 2789.
Applying the standard enunciated in Jackson, this Court cannot
the evidence is insufficient to support Fuller's conviction. The
trier of fact, whose duty it is to resolve questions of
credibility, Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261,
2264, 76 L.Ed.2d 794 (1983), could easily have concluded that
Rebecca Fuller and other defense witnesses were less credible
than the prosecution witnesses.
Fuller also argues that the evidence was insufficient to
support a finding that she should be held accountable for her
husband's alleged attack on Wojno, since even according to Wojno
she simply sat in a chair and watched. Again, however, the
evidence is sufficient to support Rebecca Fuller's
accountability: she placed ads in the newspaper, helped arrange
for meeting and bringing the three women to the Fuller house and
according to both Purdy and Gibbs participated in the sexual
assault on them. The jury could easily infer that she
significantly aided in the commission of the offense against
Wojno, even if she did not participate in the attack itself. See
United States ex rel. Terry v. Franzen, 503 F. Supp. 63, 65
(N.D.Ill. 1980), aff'd without opinion, 714 F.2d 149 (7th Cir.
1983). She can therefore be held accountable for the crime under
Illinois law. Ill.Rev.Stat. 1981, ch. 38, § 5-2.
Fuller also argues that she was denied due process and equal
protection because the Illinois Appellate Court did not carefully
review the evidence. We disagree. The 3300-page record contains
ample evidence to support Fuller's conviction.
D. Similar Occurrence Evidence
Fuller argues that admitting the similar occurrence evidence of
Purdy and Gibbs was so prejudicial that it tainted the entire
trial. We disagree.
Under Illinois law, as well as under federal law, prior bad
acts of the accused are not admissible to prove character or
propensity to commit the crime in question, but are admissible
for other purposes, including to show a common design or modus
operandi and to prove motive or intent. People v. McDonald,
62 Ill.2d 448, 455, 343 N.E.2d 489 (1975); Fed.R.Evid. 404(b). The
trial court admitted Purdy's and Gibbs' testimony as evidence of
a common scheme or design, and that conclusion was upheld by the
Appellate Court, which found the Purdy and Gibbs occurrences
similar enough to Wojno's testimony to show such a common scheme.
The court noted among other things that all three victims were
young girls who answered virtually identical newspaper
advertisements placed by Fuller under her maiden name; defendants
brought each to their home for an interview; while in defendants'
home all three girls were shown movies or magazines which the
court characterized as pornographic but which contained, at the
least, nude pictures; David committed or attempted to commit
deviate sex acts and sexual intercourse with each of the three
girls; and Rebecca appeared in the nude in all three instances
and directly participated in two of the sexual assaults, of Purdy
Habeas corpus review of a state court's admission at trial of
evidence of other bad acts is limited to determining whether the
petitioner's right to a fair trial under the due process clause
was violated. United States ex rel. Bleimehl v. Cannon,
525 F.2d 414, 420 (7th Cir. 1975). Only if "the probative value of such
evidence, though relevant, is greatly outweighed by the prejudice
to the accused from its admission, [does] the use of such
evidence by a state . . . rise to the posture of the denial of
fundamental fairness and due process of law." Bleimehl, 525 F.2d
at 420, quoting United States ex rel. Durso v. Pate,
426 F.2d 1083, 1086 (7th Cir. 1970), cert. denied, 400 U.S. 995, 91 S.Ct.
469, 27 L.Ed.2d 445 (1971).
This Court cannot say in the present case that admission of
Purdy's and Gibbs' testimony of prior sexual assaults by the
Fullers violated Fuller's due process rights. The similarities
between the three occurrences are such that Purdy's and Gibbs'
testimony is highly relevant to show a common scheme or design
and thus to prove that the assault on Wojno actually took place.
The evidence is especially relevant
also to prove Rebecca Fuller's motive or intent in the Wojno
assault. Any prejudice to Rebecca Fuller from this testimony does
not, however, outweigh the high probative value of the evidence.
We agree with the conclusion of the Appellate Court that, even
applying the standard of the Federal Rules of Evidence that other
crime evidence must be "clear and convincing,"*fn3 the testimony in
this case was admissible. It is within the discretion of the
trial court to determine the relevance and probative value of
other crimes evidence and to weigh that against the prejudice to
defendants. Durso, 426 F.2d at 1086. This Court cannot conclude
that in this case the trial court abused its discretion, or that
admission of the testimony of Purdy and Gibbs rises to the level
of a due process violation.
Fuller also argues that, given the prejudicial nature of this
evidence, the trial court's denial of her request for severance
violated her right to due process. Denial of a motion for
severance, however, does not rise to the level of a violation of
due process unless the prejudice is so clearly shown that refusal
of a severance is an abuse of discretion. Durso, 426 F.2d at
1089. We find no abuse of discretion in this case. No evidence
was admitted against David which was not admissible against
Rebecca. The evidence which Fuller claims is so highly
prejudicial against her would be admissible, even were she to
have a separate trial, to prove common scheme, motive, or intent.
Nor was Fuller precluded from raising an antagonistic defense.
Her defense to all three incidents was denial that they occurred,
at least in her presence; this was the defense raised at trial.*fn4
Fuller's third argument concerning other crimes evidence is
that the trial court erred in admitting out-of-court statements
of her co-defendant against her, under the co-conspirator
exception to the hearsay rule. This Court agrees with the
Appellate Court that the record contains sufficient independent
evidence of conspiracy to permit admission of the statements. See
United States v. James, 590 F.2d 575, 581-82 (5th Cir.), cert.
denied 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); People
v. Goodman, 81 Ill.2d 278, 284, 41 Ill.Dec. 793, 408 N.E.2d 215
Finally, Fuller argues that the trial court's failure to give
a limiting instruction at the time of Purdy's and Gibbs'
testimony deprived her of a fair trial and due process of law,
although the instruction was given at the close of all the
evidence. In a collateral attack, not of an erroneous
instruction, but of a state trial court's failure to give a
requested instruction, the petitioner "has a particularly heavy
burden of establishing a constitutional violation." United States
ex rel. Swimley v. Nesbitt, 608 F.2d 1130, 1133 (7th Cir. 1979).
That burden is even heavier where the only objection is that the
instruction was not given when the defendant requested it during
the trial, but was given instead at the close of the evidence.
This Court cannot conclude that the trial court's decision to
give the instruction at the close of the evidence misled the jury
and so tainted the trial that Fuller's right to a fair trial was
The final argument raised in Fuller's petition is that the
trial court impermissibly considered the similar occurrence
evidence in sentencing her, thus denying her due process by
convicting her of those other crimes without proof of guilt
beyond a reasonable doubt. This issue, however, was first raised
after the Appellate Court decision in a motion to remand and then
on appeal to the Illinois Supreme Court. Although Fuller has
exhausted her state court remedies because she did provide a
belated opportunity for the state courts to consider this issue,
her failure to raise the issue earlier constitutes a waiver under
Illinois law, People v. Kamsler, 40 Ill.2d 532, 240 N.E.2d 590
(1968), cert. denied, 394 U.S. 911, 89 S.Ct. 1027, 22 L.Ed.2d 224
(1968), thus precluding a habeas court from reviewing the issue
absent a showing of cause and prejudice. Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); United States ex
rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983). Fuller
offers no explanation for her failure to raise the sentencing
issue at trial or initially on appeal. This Court therefore
cannot consider her claim.
For the foregoing reasons, this Court concludes that Fuller's
petition for habeas corpus relief must be denied and summary
judgment granted for respondent. It is so ordered.