APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
524 N.E.2d 742, 170 Ill. App. 3d 273, 120 Ill. Dec. 712 1988.IL.879
Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. INGLIS and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
On May 13, 1986, defendant, Keith Brown, was charged by indictment with aggravated criminal sexual assault. On November 6, 1986, he was convicted in a jury trial. Defendant was sentenced to a term of 12 years' imprisonment.
On appeal defendant raises the following issues: (1) the trial court erred in admitting as a spontaneous declaration the details of a statement which the complainant made to Deputy Keith Smith; (2) the trial court erred in denying defendant's motion for discharge under the section 103-5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 103-5); and (3) the prosecutor committed reversible error in the trial proceedings. We reverse and remand. VICTIM'S TESTIMONY
Mary E. Butler, the alleged victim, testified that on April 26, 1986, she left her home during the early morning hours after arguing with her husband. By that time in the evening, Butler had consumed one-half gram of cocaine and two or three beers. At approximately 1:45 a.m., Butler was sitting in her car, which was situated in front of Aurora's American Legion Hall. Defendant approached Butler's car and introduced himself. After a brief conversation, he asked her if she would "like to go out and party a while and get some beer and stuff to drink?" Butler agreed, saying also that she wanted to drive her car.
They drove to several "after-sets" looking for a cocaine dealer named "Tennessee." She described "after sets" as parties held in private homes after the bars had closed. Defendant remained in the car while Butler went into the homes. At one after-set, defendant gave Butler $2 for the cover charge. Only Butler sought cocaine; defendant did not use any drugs during the time he was with her.
While driving from party to party, defendant attempted to kiss Butler, but she rebuked him. Defendant apologized, and Butler continued driving.
Butler eventually found Tennessee and purchased one-half gram of cocaine from him. Butler drove to the apartment of her friend, Theresa Saulsberry. There she "free-based" the cocaine. Defendant remained in the car while Butler was in the apartment.
When Butler returned to her car, defendant said that if she wanted more cocaine, they could go to his brother's house in Elgin. Butler wanted more of the drug and agreed to go to Elgin. Defendant bought gas for Butler's car. Butler drove north on Mitchell Road and then proceeded north on Hart Road which she described as "dark and a back road."
While traveling on Hart Road, defendant asked Butler to pull over so he could "go to the bathroom." Butler stopped but kept the car running and the lights on. Defendant started to exit the car, then turned and tried to take the car keys out of the ignition. Butler fought with defendant for the keys.
Defendant slid across the seat, climbed on top of Butler, and began choking her with both hands. Defendant said that he should kill Butler. Defendant then opened the car door, and they tumbled to the ground. Defendant dragged Butler down an embankment and up a small hill.
Butler stopped fighting and said that she would do whatever defendant wanted. Defendant never said that he wanted to have sexual intercourse with her, but Butler assumed that was his intention. Butler could not remember whether she took off her own shorts or if defendant removed them, but she did recall removing her sanitary napkin.
After Butler and defendant had intercourse, he stood up and began yelling at Butler that she was trying to cheat him. Defendant told Butler to take him back to Aurora, where his car was located.
On the way back to Aurora, defendant continued to yell at Butler. After leaving defendant at his car, she attempted to follow him in order to memorize his license plate number; however, by the time Butler had circled the block, defendant was gone. Butler conceded that, as she dropped off defendant, she yelled that she was "going to make my old man kill your ass."
Butler searched for a police car for 10 to 15 minutes but was unable to locate one. She then went to Harper's Gas Station to telephone the police. Before making the call, however, Butler debated whether to report the incident. She was not sure if she wanted to call the police because she was embarrassed and afraid of what her husband would say.
Butler ultimately telephoned the police. While waiting for their arrival, 10 or 15 minutes later, Butler returned to her car and discovered defendant's wallet on the front seat. She gave the wallet to the police. Kane County deputy sheriff, Keith Smith, took a statement from Butler and then transported her to the scene of the alleged incident and later to Mercy Hospital, where she was examined by a nurse. As a result of the struggle with defendant, Butler sustained minor injuries, including bruises and scratches.
Butler told police that she did not know defendant prior to April 26, 1986, but that she did know his sister-in-law. Butler did not tell the officer that she had purchased and ingested cocaine because she did not want him to think she was an addict. She also did not inform Officer Smith that she had argued with her husband earlier in the evening.
Butler admitted that she had taken cocaine several times in the year prior to April 26, but insisted that she was not an addict. She admitted that in the hours preceding this purported incident, she had ...