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05/28/87 the People of the State of v. Larry Fletcher

May 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LARRY FLETCHER, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. ROBERT

v.

BOHARIC, JUDGE, PRESIDING. APPELLATE JUDGES:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 625, 156 Ill. App. 3d 405, 108 Ill. Dec. 929 1987.IL.692

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, P.J., concurs. JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Defendant, Larry Fletcher, was convicted of attempted aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 12-14(b)(1)), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)), and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3) following a jury trial in the circuit court of Cook County. The trial Judge later entered judgment solely on the attempted aggravated criminal sexual assault verdict and sentenced defendant to the penitentiary for a term of 14 years.

On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt of attempted aggravated criminal sexual assault, (2) the trial Judge erred by admitting into evidence certain testimony of the 6-year-old victim, (3) he did not receive a fair trial due to the prosecutor's prejudicial and inflammatory closing argument, and (4) the trial Judge abused his discretion in sentencing him.

We reverse and remand.

The record shows that in early January 1985, defendant and his girlfriend, Lagretta Newell, lived with the family of her daughter, Tina Newell, in an apartment at 4155 South Lake Park Avenue in Chicago, Illinois. Tina Newell's family consisted of her boyfriend, Tony Briggs, and their children, the victim and three others.

The record further shows that on January 4, 1985, at about 9 p.m., defendant, Lagretta, and the victim were in one of the bedrooms of the apartment. The bedroom door was closed and locked. The victim and her grandmother lay in bed while defendant lay on the floor next to them. Defendant and the victim's grandmother had been drinking that night. Consequently, defendant, by his own admission, was "high" and the grandmother was very tired. The victim and defendant were watching television when it began to malfunction. Defendant attempted to repair it from the rear while the victim assisted him by holding up a mirror. The grandmother fell asleep during defendant's repairs.

The jury heard conflicting testimony at this point. The State's evidence is summarized as follows. After defendant repaired the television, he took the victim from the bed, laid her on the floor and raised up her nightgown. The victim told defendant to let her go. Defendant rubbed her leg. He next unzipped his pants and exposed himself. He next rubbed his sex organ on the top part of the victim's leg. Defendant next pulled down her panties and inserted his finger into her vagina.

Walking by the bedroom, the victim's mother knocked on the door and told the grandmother to send out the victim so that she could go to bed. Defendant answered in the affirmative. Defendant then finished with the victim, opened the door, and let her out of the bedroom. The victim's mother noticed her daughter leaving the room. When the mother walked by the bedroom, the door was slightly ajar. She saw defendant, his sex organ exposed, zipping up his pants. She then went to her daughter. The victim was shaking and biting her nails. She asked her daughter what was wrong. The victim began crying and said that defendant "had been messing with her."

In contrast, defendant testified that after he repaired the television, the victim lay down again with her grandmother while he lay down again on the floor. A short time later, the victim's mother knocked on the door and told her daughter to get ready to go to bed. The victim then left the bedroom.

Both sides agree that the following events occurred. A few minutes after the victim left the bedroom, her mother entered, accused defendant of molesting her daughter, and then left the room. Shortly thereafter, the victim's father charged into the room and punched defendant in the face; defendant ran out of the apartment building. The victim's parents telephoned the police. A police officer went to the apartment, made a report of the incident, and obtained a description of defendant. The police officer then took the victim and her mother to Michael Reese Hospital, where a physician examined the victim. The examination revealed no evidence of oral trauma or bleeding or tears in the victim's vaginal area.

Defendant also went to Michael Reese Hospital that night, where he received stitches over his right eye and stayed overnight. Police officers arrested defendant at the hospital the next morning.

Defendant was charged by indictment with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)), criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12-13(a)(1), (a)(2)), attempted aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 12-14(b)(1)), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)), and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3). On August 8, 1985, the jury found defendant guilty of attempted aggravated criminal sexual assault, aggravated criminal sexual abuse, and unlawful restraint. The trial Judge later entered judgment solely on the attempted aggravated criminal sexual assault verdict. At the close of the sentencing hearing on September 16, 1985, the trial Judge sentenced defendant to the penitentiary for a term of 14 years. Defendant appeals. I

Defendant claims that the prosecutor made improper comments during the State's rebuttal closing argument. Defendant argues that he did not receive a fair and impartial trial as a result of these comments. We agree. For the reasons that follow, we reverse the conviction and remand the cause for a new trial.

The record shows that the prosecutor made the following comments during the State's rebuttal closing argument:

"You have two choices when you go in the back, guilty and not guilty. You can find him guilty because we have proven him so through all the testimony, we have proven him guilty beyond a reasonable doubt. Or you can apply some of the things that the Defense Counsel tried to tell you. ...


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