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People v. Paisley

OPINION FILED OCTOBER 31, 1986.

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

v.

HARMON PAISLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Judge, presiding.

JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Harmon Paisley, was convicted of the offenses of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(a)) and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(1)). Defendant appeals contending that he was denied his right to cross-examine a State's witness about the latter's pending charges, and that in sentencing him the trial court failed to consider his rehabilitative potential.

Several witnesses including the victim, Gloria Martin, and the defendant testified at trial. The victim testified that on October 8, 1984, she was awakened between 3 and 4 a.m. A man whom she could not see, grabbed her and held a knife to her. He blindfolded her and threatened to kill her if she did not comply with his requests. He forced her to engage in various sexual acts. He then taped her eyes shut with tape, bound her hands with her telephone cord, took her money and keys, and placed a screwdriver handle in her vagina before he left. She never saw her attacker and did not know who he was. She denied ever having seen the defendant before.

Both the victim's neighbor and the physician who examined her testified that she was crying and upset after the incident.

David Davenport testified for the State. He said he spoke to defendant in the early morning of October 8, 1984. Defendant told him that he had been out late, had had sex, and had done something that he probably should have not done. On cross-examination, the defense elicited that Davenport had been convicted of a felony in 1975.

A recess was held, and in chambers, the trial court stated that both the defendant and Davenport were charged in connection with another incident, unrelated to this case. Defense counsel argued that he wanted to question Davenport as to whether he came forward with his information before or after he was charged because it could show bias in that the witness attempted to influence the authorities in regard to his pending charges by disclosing this information. The trial court stated that if such a line of questioning were allowed, then there would be the danger that the State could bring out defendant's involvement in this other offense, either in redirect examination of Davenport, or in cross-examination of defendant. Davenport testified in chambers that he was charged with home invasion for an incident on November 10, 1984, and had not negotiated with the State concerning that charge. He had not been promised that his testimony would affect his treatment in his case. The trial court ruled that Davenport could not be impeached with pending charges.

Darin Marquez testified that he knows defendant and had met Gloria Martin. On October 4, 1984, he saw Gloria Martin at a depot party in a park, and they went together to defendant's house. Later, he, Gloria Martin, and defendant went out together to a bar; Gloria Martin put her arms around defendant. He dropped off Gloria Martin and defendant at her apartment, and defendant was going to let her into her apartment somehow as she had lost her keys.

Defendant's wife testified that she had met Gloria Martin, and that on August 4, 1984, Darin Marquez, Gloria Martin, and defendant had left defendant's home together.

Defendant testified that he saw Gloria Martin on August 4, 1984, when she and Darin Marquez came to his home. Darin Marquez dropped defendant and Gloria Martin off at her apartment, and defendant used a screwdriver to open her door because she had lost her keys. They had intercourse in the apartment. He had intercourse with her again in September.

Defendant testified that he next saw Gloria Martin in October. He called her after 3 a.m., and she told him that he could come over. She was wearing a bra and underpants. They had intercourse. Afterwards, she wanted him to tie her hands behind her back, put tape over her eyes, and insert something into her vagina. He asked to borrow money, and she consented. He denied threatening her or using a knife.

Gloria Martin testified that she was intoxicated on August 4, 1984, when she went to the depot picnic and did not recall with whom she went home. She only remembered that day and the next morning. She had had other occasions of memory blank and conceded that it was possible that she had seen the defendant on August 4, 1984. She denied the possibility of having had intercourse with the defendant in September 1984.

After the jury returned verdicts of guilty, the trial court sentenced the defendant to 20 years for each count of aggravated criminal sexual assault, 10 years for home invasion, 10 years for armed robbery, and 5 years for aggravated criminal sexual assault.

We reverse and remand for a new trial.

• 1 Defendant first argues that his right to cross-examine a State's witness was improperly restricted when the trial court refused to allow defense counsel to question David Davenport about his pending charges. The State first responds that the issue was waived because no objection was made at trial and because defendant did not file a post-trial motion. As defense counsel did argue in chambers that he wished to question Davenport about his pending charges in order to bring out possible bias, the issue was brought before the trial court. While the issue was not raised in a post-trial motion, we consider the issue under the plain-error doctrine (87 ...


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