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10/13/87 the People of the State of v. Guillermo Fernandez Et Al.

October 13, 1987





516 N.E.2d 366, 162 Ill. App. 3d 981, 114 Ill. Dec. 211 1987.IL.1530

Appeal from the Circuit Court of Cook County; the Hon. Robert J. Sulski, Judge, presiding.


PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.


After a jury trial, defendants Guillermo Fernandez and Angel Pena, both of whom are mentally retarded, were found guilty of one count of rape, two counts of deviate sexual assault, one count of unlawful restraint, and one count of aggravated battery, for which Fernandez was sentenced to a term of eight years' imprisonment and Pena received seven years. We reverse the decision of the trial court and remand the cause for a new trial for the reason that the defendants did not have effective assistance of counsel.

The record discloses that Margaret Mahoney (Margaret), 27, the alleged rape victim, originally met Fernandez at a sheltered workshop for mentally retarded adults. Margaret is also mentally retarded. She and Fernandez began dating, and, according to his testimony, during the course of their relationship they engaged in sexual intercourse 40 to 50 times, often at the Renaissance House for retarded adults where Margaret lived. Margaret's roommate Janet apparently observed them perform various sexual acts while she maintained lookout for supervisors. Later, at Janet's request, Fernandez asked Pena to be a sexual partner for Janet. The defendants thereafter frequently went to the Renaissance House and each couple would have sex while the other watched for supervisors. However, after several months of such activity, Fernandez ended his relationship with Margaret.

The testimony adduced at trial conflicted sharply concerning the subsequent course of events. Fernandez testified that Margaret was desperate after their breakup and called his house repeatedly, telling him that she would prove her love by having sex with him and Pena together. Fernandez then talked with Pena and proposed to him that they both have sex with Margaret. After initial reservations, Pena agreed with the suggestion. On July 8, 1983, Fernandez and Pena went to the Renaissance House and asked Margaret if she wanted to go out for some ice cream, but she refused the invitation, telling them that she had to complete her chores. The defendants left when they saw a house supervisor approaching. That night, Pena stayed at Fernandez' house, and they talked about having sex with Margaret together. The next day Fernandez returned to the Renaissance House and picked up Margaret. According to his testimony, she left with him voluntarily. They boarded a bus and proceeded to his house.

When they arrived at Fernandez' residence, Pena was there waiting for them, and the group had a cold drink in the kitchen. Fernandez testified that Margaret voluntarily began to remove her blouse, and that prompted him to suggest that the threesome go upstairs to his bedroom. Pena testified that Margaret then willingly performed fellatio on Fernandez, and Fernandez agreed that Margaret readily engaged in oral sex. Fernandez claimed that Margaret then consented to sexual intercourse and that she did not object when he bit her as part of the sexual act. He said that Pena did not bite Margaret. Fernandez related that Margaret then requested that they "have sex like a dog" and that she asked that they tie a belt around her neck like a leash. Pena testified that Fernandez wanted to perform cunnilingus, but he complained that Margaret had too much pubic hair, so Fernandez shaved it off with an electric razor. Pena also maintained that Margaret asked Fernandez to put a wooden coat hanger against her vagina and move it like a vibrator.

After approximately three hours of these various sexual acts, the defendants allowed Margaret to leave. Fernandez testified that before she left, they quarreled about her soiled underwear and whether she could accompany them to a bachelor party that night. He claimed that Margaret threw her panties into a waste can and left, saying as she was leaving, "I'll fix you!" because of her anger at not being able to go to the party.

In contrast to the defendants' narration of these events, Margaret conceded that she agreed to have sex with Fernandez, but she denied agreeing to have sex with Pena. She stated that Fernandez told her that he and Pena would be waiting for her and that she would be in for a surprise. She claimed, however, that when Fernandez came to her house, she did not leave with him willingly, but instead he pushed her down the street and forced her to get on a bus with him, threatening to kill her. She admitted, however, that she did not really believe he would follow through on the threat. At any rate, she admitted that she did not seek help or attempt to escape. On the way to Fernandez' house, she even saw a police car, but she asserted that she did not call out for help because she was scared. Upon arriving at Fernandez' house, she told both defendants that she wanted to go home, and she began to cry. She testified that Fernandez then ordered her upstairs and demanded that she take off her clothes.

Margaret claimed that over her objections she was then forced to engage in oral sex with Fernandez. She asserted that Fernandez then laid on top of her, bit her breast, and requested that Pena join him in these acts. Pena then proceeded to get on top of her, and they then both bit on her breasts, stomach, and sides. She testified that they also forced her to engage in anal intercourse and that she did not consent to having a belt put around her neck. She stated that the belt was tied so tightly around her neck that she vomited. In addition, she stated that Fernandez put "something sharp" inside her, and that she was crying and screaming during the entire incident. After several hours, Margaret claimed she was permitted to leave, but forgot her underwear when she ran from the house, bleeding. She also noted that Fernandez threatened to have the Latin Kings get her if she told anyone that he had raped her.

Lawrence Golsten, Fernandez' neighbor, testified that at 3 p.m. on July 9 he was standing in front of his home when he heard someone scream "Help me!" Margaret then ran to him and asked for assistance, claiming that she had been raped. Golsten observed that her face was "red and puffy." An ambulance was summoned, and she was taken to Illinois Masonic Hospital, where she was examined by Dr. Dennis Uehara, who testified that he observed bruises and bite marks on her neck, arms, breasts and stomach. He also noted that she was bleeding from her vagina, and a subsequent pelvic examination led to the discovery of three lacerations five inches inside her vaginal tract, which required sutures to heal.

Chicago police officer Carey Orr testified that at approximately 6 p.m. on the day of the alleged rape he went to Fernandez' home and informed him that he was under arrest, to which Fernandez replied, "Is this about Margaret?" Orr stated that he read Fernandez his Miranda rights, and he recalled that Fernandez indicated that he understood the implications of making any statements. Orr then asked the suspect, "What did you use on Margaret?" Fernandez then brought Orr to his bedroom and pointed to an object which Orr described as the top half of a wooden coat hanger. Orr questioned Fernandez as to where he put Margaret's underpants, and Fernandez ...

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