Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant, Earl Echols, was found guilty of the crime of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(3)), sentenced to five years' imprisonment in the Department of Corrections and fined $2,000 plus court costs. On appeal, defendant contends that: (1) he was denied a fair trial when the trial court, as a sanction for what it deemed to be a discovery violation, refused to allow his wife, the mother of the victim, to testify on his behalf; (2) he was denied a fair trial when the court precluded him from introducing evidence concerning the victim's reputation for truth and veracity; (3) improper comments by the State in closing argument resulted in a denial of his right to a fair trial; (4) the court abused its discretion in sentencing him to a term of imprisonment rather than probation; and (5) the court abused its discretion in ordering him to pay a fine.
The record discloses that on August 26, 1983, 15-year-old Tracy A., the victim, was alone in her family's apartment with defendant, her stepfather; her mother and brother had left the apartment to take a family friend home. Tracy testified at trial that while she was ironing clothes in her bedroom, defendant kept walking in and out of the room. On the last occasion, he came toward her, she became frightened and she crawled under a bed. Defendant then pulled her out from under the bed and he proceeded to take both of their clothes off. While Tracy struggled with him, he placed "his finger and penis in her vagina" and kissed her "all over her body." Although the window in the room was open and Tracy "screamed" throughout the struggle, no one came to the apartment during this time. Thereafter, defendant told Tracy to take a bath. While proceeding to do so, Tracy looked out the window, saw a neighbor's daughter, Danielle Armstead, and called out to her for help. Danielle ran to get her mother, Linda Armstead.
Ms. Armstead testified that she had heard a "fight" going on in the Echols' apartment earlier that day and thought it was between defendant and his wife, Gladys Echols. She heard screaming, cursing and crying. After Danielle summoned her, she went to the Echols' apartment. Tracy was trying to get out of the apartment door and defendant kept closing it before she could get out. Finally, Ms. Armstead told defendant to let Tracy out. She then took Tracy to her own apartment. Once there, Tracy asked her to send Danielle to get a family friend, Louise Taylor.
Ms. Taylor testified that upon her arrival at the Armstead apartment she found Tracy dressed only in a housecoat. Tracy had a swollen eye, was crying and looked hysterical. After a conversation in which Tracy told Ms. Taylor defendant had raped her, defendant came to the Armstead apartment and "invited" Ms. Taylor out "on the porch" to "fight" with him. Ms. Taylor and Ms. Armstead went out on the porch, but no fight ensued and defendant returned to his own apartment.
Thereafter, Ms. Taylor took Tracy to her apartment and called the police. Chicago police officers Michael McCollum and Medici testified that they responded to the call. When they arrived on the scene, Tracy was wearing a housecoat and she told them defendant had made sexual advances towards her after she had finished taking a shower or bath. Tracy was then taken to the police station. A short time later, Ms. Shirley Best, Tracy's grandmother, arrived at the apartment and was told by neighbors that Tracy had been taken to the police station. Ms. Best went to the station and talked with Tracy. She told Ms. Best that defendant had raped her. Ms. Best subsequently accompanied Tracy to the Wyler's Children Hospital where Tracy was examined by Dr. David Cline.
Dr. Cline testified that his examination of Tracy revealed abrasions on both her elbows and inner thigh, redness around her neck and eye and sperm cells in the lower portion of her vagina and cervix. Dr. Cline further testified that it would be very difficult to assess the age or type of sperm which "could live up to 48 hours in the area around the cervix." After her examination, the hospital released Tracy into the care of Ms. Best, with whom she lived for a short period of time.
Ms. Best testified that during Tracy's stay with her, she overheard Tracy's telephone conversation with another girl. In that conversation, Tracy said she hated defendant and that she was going to get even with him by saying that he raped her. When Ms. Best later questioned Tracy about this conversation, Tracy told her she said what she did because she did not want defendant in her house anymore and that she was going to do something to hurt him.
Defendant, too, was questioned briefly by the police after their arrival at Ms. Taylor's apartment. He subsequently was taken to the police station and interviewed by Chicago police officer James Cassidy. At that time defendant told him that Tracy had asked him to help her alter the shorts she was wearing and, in attempting to do so, defendant "began rubbing her crotch, she became excited and she took off her blouse," exposing her breasts. This resulted in a "wrestling match" during the course of which defendant "fondled Tracy's breasts, began to rub her vagina and inserted one finger in her vagina."
Thereafter, at the request of Officer Cassidy, Assistant State's Attorney David Borenstein interviewed defendant. Borenstein testified that defendant told him he had "played with [Tracy's] tits and her thigamajig with his hand," but he did not put his penis into her vagina, have oral sex with her or remove his clothes during the incident. Borenstein also stated that although he took defendant's statement down "almost verbatim," he paraphrased portions of it. After reading the statement to defendant, defendant read it, made no corrections and signed his name at the bottom of and across the writing on both pages.
Defendant testified that although he signed the statement, it was not the same statement he orally gave to Borenstein and that he did not read it because he did not have his glasses with him at that time. Contrary to the version of the incident recorded in the statement, defendant asserted that Tracy came into the living room of the apartment after her mother and brother left and asked defendant for a needle and thread so she could sew up some pants. After he gave her the needle and thread, he later went into her room to see what she was doing. After a short conversation with her, he returned to the living room. Subsequently, Tracy came into the living room in her housecoat and "let it fly open," revealing she was naked underneath. She told defendant that, "I won't tell anybody if you don't tell." Defendant stated that in order to scare her, he told her, "If you want to play some funny games, * * * I could show you what can really happen." He further stated that he then "grabbed her by her breasts and * * * reached for her," grabbing her only for an instant. He then told her to take a dollar off the windowsill and to use it to take a bus to join her mother at a friend's house. Defendant also told Tracy he was going to tell her mother about the incident and then left the apartment to use a neighbor's telephone to call the police and his sister because, knowing how much Tracy hated him, he would have a better chance than if she called the police.
Cynthia Johnson and Joseph A., Tracy's 14-year-old brother, also testified on behalf of defendant. Ms. Johnson testified she was Tracy's best friend and that she had been with Tracy and her boyfriend on August 24, 1983, two days prior to defendant's arrest. On that occasion she and her boyfriend had gone with Tracy and her boyfriend to a vacant apartment. While there, Ms. Johnson saw Tracy and her boyfriend "having sex on the floor" in the bedroom. Shortly thereafter Tracy told Ms. Johnson that she was going to say that defendant had raped her. Ms. Johnson also testified that the following night, August 25, she saw Tracy with her boyfriend and Tracy later told her she again had had sex with her boyfriend so that she could say that defendant had raped her.
Joseph A. corroborated defendant's testimony concerning the events of August 25, the day before the incident. Joseph stated that on that date Tracy and defendant had an argument. Tracy had been cursing defendant because he had taken $2 from her. Her mother told her to be quiet and, when Tracy continued, her mother attempted to punish her by striking her with a belt. During their struggle, Tracy kicked her mother in the stomach. Defendant, who had been out on the "porch" of the apartment, went into Tracy's bedroom where she and her mother were struggling. Tracy began screaming at him and said "she wanted to die." Defendant replied that if she wanted to die, he would help her. He then began shaking her by her shoulders, grabbed her around the neck, removed a screen from the window and threatened to throw her out of the window. Tracy held on to the bed and said she did not want to die. The altercation then ended. Joseph also testified that Tracy had told him that she did not like defendant from the very beginning of his marriage to their mother.
Based on the above, defendant was found guilty of the offense of indecent liberties with a child; the jury returned a not guilty verdict on a charge of deviate ...