APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
527 N.E.2d 448, 173 Ill. App. 3d 186, 122 Ill. Dec. 950 1988.IL.1109
Appeal from the Circuit Court of Cook County; the Hon. Matthew Moran, Judge, presiding.
JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN
Following a jury trial, defendant was convicted of aggravated criminal sexual assault, criminal sexual conduct and unlawful restraint and sentenced to concurrent terms of 15 years for aggravated criminal sexual assault and three years for unlawful restraint. On appeal, he contends that he was denied a fair trial by (1) the admission of hearsay testimony concerning statements allegedly made by the complainant after the incident; (2) improper and prejudicial cross-examination of his expert witness; and (3) prejudicial and inflammatory remarks and misstatements of the evidence by the prosecutors in their closing arguments.
At trial, the 16-year-old complainant, G.B., testified that the events at issue occurred on July 5, 1986, when she was 14 years old. On that date, she and her friend, Charlene Williams, left her house near 109th and Green Streets in Chicago at about 5:30 p.m. and, on the request of her mother, walked to the home of an acquaintance who had died to find out the new telephone number of the deceased's family. They were walking back toward G.B.'s house when defendant's brother, Edward, called out to Charlene from the porch of his home on the corner of 111th and Green Streets and invited her to look at some pictures taken on his recent graduation from elementary school. As they approached the house, defendant arose from where he had been sitting on the curb on 111th Street with Frank Tolbert, grabbed her arm, said he wanted to speak with her and asked her to come to the porch. While Edward and Charlene were looking at the photographs, defendant asked her if he could speak to her for a moment and, initially, she agreed; but when he said that he wanted to speak to her privately inside the house she refused. Defendant then grabbed her wrists, pulled her inside the front door and locked it. He asked her to accompany him upstairs to help him bring out some empty beer bottles he had left in his room. At first, she declined; but when he said that after helping him she could leave she agreed. When they reached the top of the stairs, he unlocked his bedroom door and after they entered, he relocked it behind them. After picking up several beer bottles, she began walking toward the door, but he jumped in front of her and asked where she was going, to which she responded that she was leaving. He replied "no you're not" and knocked the bottles from her arms and then placed his hands on her thighs. She pushed him away but did not say anything. He then attempted to pull off her shorts and when she resisted, he said that he had a gun in the closet and threatened to "blow [her] brains out." When he began walking toward the closet, she became afraid and told him to stop, whereupon he returned to where she was standing, pulled off her shorts and underwear and pushed her onto the bed. She kicked and screamed, but he told her that she could scream all she wanted because no one would hear her. He then grabbed her arms, pinned her down and raped her. Afterward, she arose from the bed and picked up her clothes, but he grabbed them from her, threw them across the room, and told her that he wasn't "finished with [her] yet." He sat in a chair near the door and ordered her to her knees. When she refused, he repeated his threat to kill her and began walking toward the closet. Once again, she told him to stop. He then sat down, grabbed her by the hair and forced her to perform oral sex. When she raised her head slightly, she saw him ejaculate on his legs and the chair. He ordered her to continue, threatening to get the gun if she refused, but when he heard a noise outside the room he went to the door, unlocked it, looked out, relocked it and then pushed her to the floor and raped her again. He then threw her shorts at her and, before allowing her to leave, said, "I don't expect nobody to hear about this, right?" to which she responded only by shaking her head. As she came down the stairs, she could hear Charlene outside of the front door screaming to be let in the house. Edward was standing near the front door laughing and as he unlocked it, defendant asked, "Hey, man, you want to go a couple of rounds?" but Edward shook his head. When she exited the house, Charlene, who was on the porch with Jones and Tolbert, asked, "What's wrong with you?" to which defendant replied, "Ain't nothing wrong with her." Except for Tolbert, who was sitting on the step with his head between his legs, the young men all laughed as she and Charlene descended the stairs. Before they left, defendant swung Charlene around, threw her to the ground and then pulled G.B. by the hand, warning her "If you ever tell anybody, I will blow your house up, you and your whole family." On the way back to her house, Charlene repeatedly asked: "What is wrong? What is wrong? I know something is wrong. What is wrong? You can't tell me nothing is wrong. Did he do something to you? Did he hurt you or something?" She then responded, "Yes, he took advantage of me." When Charlene said, "You've got to tell somebody," she answered, "No, I can't tell anybody, because if I tell anybody, he said he is going to blow my house up." Her mother was at home when they arrived there, at about 6:30 p.m., but she did not tell her what had happened because she "was afraid [and] didn't want [her family] to get hurt." She used the bathroom and also washed her hands and face and brushed her teeth. She and Charlene then walked to Charlene's house, where they discussed what she should do about the incident. She explained again to Charlene that she was afraid to tell her parents because she didn't want anyone to be hurt. They left Charlene's house and walked about five blocks to the home of another friend, Steven Bonds, who lived with his sister, Evelyn Reed. When they arrived there she was still very upset and nervous and her eyes were red from crying. After Charlene left a few minutes later, Bonds asked her what was wrong, whereupon she explained what had occurred. After her conversation with Bonds, she encountered Reed in the kitchen. Observing that she was crying and upset, Reed also asked her what was wrong, to which she responded, "He took advantage of me." Reed then asked, "Who, who?" and began to cry. When she responded, "Edwin," Reed inquired, "Who is Edwin?" and then said, "Oh baby, you've got to tell your mama; let's go." Reed drove her home, where she had a conversation with her mother, who then called the police. After speaking briefly to the responding officer, she was transported to the hospital. She arrived there at about 8:30 p.m. and was examined by the emergency room doctor between 11 p.m. and midnight.
On cross-examination, G.B. stated that she had known defendant most of her life and that she had never seen him carrying a gun nor had he ever threatened her. She had never met Tolbert before and was able to tell the police his first name only because she heard Edward introduce him to Charlene. When defendant pulled her inside the house, Tolbert was still seated on the curb and she did not see him again until she exited the house, at which time he was sitting on the porch. She did not know anyone named "Jackie Foggie" and denied seeing anyone else in the house while she was inside with defendant. Defendant did not ejaculate during either of the two times he had intercourse with her. When she returned home, at about 6:30, her mother noticed that she had been crying and asked her if she was upset by the death of the family acquaintance, who had been G.B.'s former babysitter. She answered, "[No]." Her mother then asked, "[Was] it that bad down there?" to which G.B. also responded, "[No], it wasn't that bad." She and Charlene left her house about 20 minutes later, and it was approximately 7:45 when Reed drove her home and she told her mother what had happened earlier. She acknowledged that she did not tell the police that the zipper on her shorts ripped as defendant tried to pull them off, and she did not recall whether she told the responding officer that defendant had forced her to perform oral sex.
Charlene Williams' testimony was essentially the same as G.B.'s regarding the events leading to their arrival at the Evans' home. She further testified that at the time Edward called to her to come over to look at the graduation photographs, defendant was sitting on the curb with a friend and they were both drinking. As they walked toward the porch, defendant approached G.B. and asked her to come over and see him. When she declined, he said that he wanted to talk to her, grabbed her by her wrist and walked her across the street to the house. Edward introduced her (Charlene) to Frank Tolbert, who walked from the curb, sat down on the bottom step of the porch and put his head between his legs and his hands on his ears. When Edward came out with the pictures, defendant told G.B. he wished to speak to her privately, inside the house. G.B. said "no" and she (Charlene) also advised her not to go inside. Defendant said "Come on girl," adding "I'm not going to do anything to her, Charlene." He then grabbed G.B. by her wrist, took her inside and closed the door. She (Charlene) remained outside with Edward, Eugene Jones and Tolbert. While they were looking at the pictures, Tolbert went to the side of the house, vomited and then returned to his earlier position on the step. Jones explained that Tolbert, who did not move or say anything thereafter, was drunk. After looking at the photographs, she requested that Edward go into the house and find G.B. He turned the doorknob but the door was locked and he said that he did not have a key. She then rang the doorbell, but when no one answered she asked Edward to go to the rear entrance to locate G.B. He told her that if she wanted to leave to do so alone, but she refused and an argument ensued. She began pounding on the door, and eventually, Edward went around to the back of the house. She remained on the porch pounding on the door and hollering for someone to open it and for G.B. to come out. Eventually, the door was opened and she saw Edward, defendant -- who was laughing -- and G.B. -- who looked disheveled and very upset -- standing inside. Before stepping outside, defendant asked Edward if he "wanted to go a couple rounds," in response to which Edward merely shook his head. At first she demanded to know what had happened, but then said, "Let's just go. Forget it. Let's go." She began walking down the stairs but when defendant said to G.B., "Don't move; you're not going anywhere," she turned back, grabbed G.B. by the wrist and urged her to leave. Defendant followed, saying "I told you not to move. Don't make me hurt you," whereupon he grabbed her (Charlene) by her shirt and pushed her to the ground. She screamed, "What did you do to her?" to which defendant replied, "I didn't do anything to her." She got up and they began walking again, but before allowing her to leave, defendant pulled G.B. back and said something which she could not hear. As they were walking north on Green Street, she asked G.B. what had happened. At the end of the block, G.B., who was still very upset and crying, finally responded, "He took advantage of me." She advised G.B. to tell someone because otherwise "it would keep on happening"; but G.B. said that if she told anyone, "he would blow up her house with her family in it." They arrived at G.B.'s home at about 6:30 and after giving her mother the telephone number they had obtained, G.B. brushed her teeth, washed her hands and used the bathroom. She and G.B. then walked to her house, where she again asked, "Exactly what happened?" G.B. then told her that she had "performed an act of oral sex on him by force." She accompanied G.B. to Bond's house, remained there about five minutes and then returned home.
On cross-examination, Charlene stated that the next morning she accompanied G.B. and her mother to court but she did not testify that day. She had never been inside the Evans' home and although defendant, G.B. and Edward were the only persons she saw enter or leave the house while she was there, she did not know whether any other people were already inside.
Evelyn Reed testified that she was at home with her 17-year-old brother, Steven Bonds, when G.B. and Charlene arrived, at about 7 p.m. G.B. was crying and asked to see Bonds. After Charlene left, G.B. and Bonds went into an upstairs family room and she (Reed) returned to the kitchen. When they came down a few minutes later, she asked G.B. "What happened? Why are you crying? What's wrong?" At first, G.B. would not respond but then she stated that someone had taken advantage of her and, when Reed asked her who it was, she mentioned a name. Receiving no answer when she telephoned G.B's house, she drove her home, where they were met by G.B.'s mother, who was on the front porch.
G.B.'s mother testified that when G.B. returned home with the telephone number of the deceased friend's family she appeared to have been crying. Referring to the family's reaction to the death, she asked G.B., "Was it that bad?" Although G.B. responded "no," she told her that if she had known it would upset her so badly, she would not have sent her there. She was sitting on the front porch when G.B. returned home later with Reed. Seeing that G.B. was crying, she asked her what was wrong, and after a conversation, she called the police, who interviewed G.B. at the house and then transported her to a nearby hospital, where she spoke to another officer and was then examined and released.
The responding police officer, Patrick Ryan, testified that he received the radio call of a rape at about 8 p.m. When he arrived at G.B.'s house, she appeared very distraught; she was crying and her eyes were bloodshot. After speaking with her and her mother for about 15 minutes, he proceeded to defendant's home. A woman answered the door and stated that defendant lived there but was not at home; however, as they were speaking, defendant arrived. He explained to defendant the allegations that had been made after which defendant agreed to accompany him to the district police station.
On cross-examination, Ryan stated that it was his recollection that G.B. reported that the incident had occurred at about 7 p.m. As written in his report, she told him that there had been "a couple acts of sexual intercourse." She also told him about the act of oral sex, which he noted in the arrest report but not in the department case report. He did not recall from the notation in his report that "[defendant] forced her to remove her pants" whether G.B. told him that defendant forcibly removed them under the threat of force because his report was merely a summary, not a verbatim account, of the preliminary, investigatory conversations.
Doctor Abdul Loya testified that he performed both general and pelvic examinations of G.B. at about 1 a.m., and gathered a collection of physical specimens -- including vaginal and oral swabs -- known as the "Vitullo Kit," which are required by the police department laboratory. In his examination, he "found a fresh blood clot on the hymen indicating a recent injury." On cross-examination, Dr. Loya stated that he saw some blood in the vaginal area and that the hymen was still there but "it was injured -- scratched," an injury "not necessarily" caused by sexual intercourse.
On defense, Raymond Lenz, a criminologist employed by the Chicago police department crime lab testified that in examining the specimens from the "Vitullo Kit" he found two strands of human hair which appeared to be similar. No blood or semen was found on the hairs. He then compared them to pubic hair combings taken from G.B. and defendant and determined that the two strands he found were similar to G.B.'s samples and dissimilar from those of defendant. Microscopic and chemical tests of both the vaginal and oral smears were negative for the presence of spermatozoa or semen.
On cross-examination, Lenz stated that the length of time between ejaculation into the vagina and the taking of smears, urination, the normal secretion of vaginal fluids, and the ejaculator's fertility were all factors which could have an effect on the presence or absence of spermatozoa in a vaginal smear. Similarly, factors such as eating, drinking, spitting out, and even normal swallowing could affect the presence of sperm in an oral swab. Over objection, Lenz stated that the negative findings of his tests neither helped nor hurt defendant in that they neither included defendant nor ruled him out.
Detective John Gallagher testified that he was assigned to the case at about 10:30 p.m. and after speaking with Officer Ryan, he went to the hospital, where he had a brief conversation with G.B. She told him that although at first she struggled with defendant, using her hands and feet to fend him off, he warned her that if she did not cooperate he was going to get his gun and "blow her brains out." She said she did not actually see the gun and he did not conduct or order a search for it. She said that defendant tried to pull her shorts off, but that it was she who removed them. She did not mention that her shorts were torn nor did he observe any tears. He could not recall if she did say that he ejaculated on the chair. When he first saw G.B., she was upset and crying a little and was in a "sullen-type mood."
In an interview at the police station, defendant told him that Eugene Jones, Frank Tolbert and a girl named Jackie Foggie were with him at his house at the time in question. Defendant gave him Jones' telephone number but he did not provide any of their addresses. Attempts to speak with Jones were unsuccessful, and an investigation disclosed that Jackie Foggie had moved away from home and had not been seen nor heard from by her mother or her teachers since a few months before trial.
Carl Harmon, a neighborhood resident, testified that while cutting a lawn across from defendant's house, at about 4:45 p.m., he saw G.B., Charlene and Edward sitting on the porch of the Evan's home looking at pictures. A short time later, he looked up and noticed that G.B. was no longer there. He did not see her again after that, nor did he see defendant, Tolbert or anyone else in front of the house at any time. He was in the process of cutting the Evans' lawn when the police arrived, at about 5:30 p.m. After determining that he was not defendant, they knocked on the front door and then left without making an arrest.
Defendant's brother, Edward, testified that he was sitting on his front porch looking at graduation pictures he had taken a few days earlier when he saw G.B. and Charlene walking down Green Street. He saw a picture of Charlene among the photographs and asked her if she wanted to come over to see them. At this time, defendant was inside the house with Tolbert, Jones and Foggie. Charlene and G.B. came over to the porch and as he and Charlene were looking at the pictures, G.B. asked to see defendant's prom pictures. Edward told her that they were in the house, that defendant was upstairs and that the door was open. G.B. entered the house while he and Charlene remained on the porch looking at the pictures and talking. About 15 minutes later, Charlene asked him to go in the house to find G.B., but just as he was entering the house she came out and the two ...