APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
545 N.E.2d 429, 189 Ill. App. 3d 535, 136 Ill. Dec. 905 1989.IL.1579
Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Maloney, Judge, presiding.
JUSTICE QUINLAN delivered the opinion of the court. LaPORTA, J., concurs. PRESIDING JUSTICE EGAN, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
Defendants Robert, Melvin and Jimmie Enoch were charged with the rape and aggravated kidnapping of Sandra Davis on December 6, 1979. The defendants were convicted of both counts following a jury trial before Judge Thomas Maloney in the circuit court of Cook County, held in 1980. This court affirmed the convictions (People v. Enoch (1982), 104 Ill. App. 3d 1203, 437 N.E.2d 944 (unpublished order under Supreme Court Rule 23)), and the Illinois Supreme Court denied leave to appeal. Subsequently, the defendants petitioned the United States District Court for the Northern District of Illinois for a writ of habeas corpus. That court granted defendants' petition and ultimately ordered a new trial for the defendants. United States ex rel. Enoch v. Lane (N.D. Ill. 1984), 581 F. Supp. 423.
The United States District Court ruled that the trial court in the original trial had committed reversible error when it refused to allow a witness, Patricia Griffin, to testify for the defense. The trial court had refused to allow Griffin to testify as a discovery sanction since Griffin was not added to the defense witness list until after the State had rested its case, even though Griffin lived next door to the defendants at the time of the alleged rape, and defendants' mother had been aware of Griffin's potential testimony for some time, but simply had never informed defendants' attorney about that testimony. The district court held that the trial court's sanction amounted to reversible error because Griffin's testimony was crucial to the defense, and the State had failed to show any prejudice to it as a result of the late disclosure. (Enoch, 581 F. Supp. 423.) The district court's order was affirmed by the Seventh Circuit Court of Appeals. United States ex rel. Enoch v. Hartigan (7th Cir. 1985), 768 F.2d 161. *fn1
Subsequently, defendants were retried in a jury trial again before Judge Maloney in 1986. At this trial, Robert and Melvin Enoch were again found guilty of rape and aggravated kidnapping, and Jimmie Enoch was found guilty of rape. The trial Judge then sentenced Robert and Jimmie Enoch to 25 years' imprisonment, and Melvin Enoch to 12 years' imprisonment. Defendants now appeal their convictions to this court.
The retrial of defendants in this case took place in January 1986. In defense counsel's opening statement, he told the jury that he would prove that the victim, Sandra Davis, was a prostitute and that she was working on the night when she was allegedly raped. Defense counsel also said he would show that Davis was beaten by her pimp on the morning of December 6, 1981, for not having the money she was supposed to have earned the night before. He further told the jury that Davis had fabricated her story about being raped in order to explain why she had been beaten. Following opening statements, testimony was heard in the case.
Sandra Davis, the victim, testified that she was 18 years old in December 1979 and on the evening of December 5, 1979, she took the CTA to her cousin's house around 8 p.m. to play cards. Davis said she stayed at her cousin's house until approximately 4 a.m. and then took the CTA home. On her way home from the CTA station, around 5 a.m., Davis walked past 2031 South Clark street in Chicago, a building adjacent to her apartment building at 2030 South Clark. *fn2 When she passed 2031 South Clark, she noticed Robert, also known as "Sunny," and Melvin Enoch. She said she knew Sunny and Melvin but was not friends with them.
Davis said that as she walked by, Sunny asked her if she had any cigarettes, and when she said no, he asked her if she thought she was too good to hang around with him. Sunny then grabbed her, showed her a gun, and told her that he and Melvin were going to rape her. Sunny and Melvin pushed her into an elevator and took her up to their apartment on the 14th floor. At this point, Davis testified, she began yelling and crying, so Sunny slapped her in the face. Once inside the Enochs' apartment, Sunny told Davis not to make any noise because his mother was asleep in the apartment. Sunny then hit Davis in the head with his gun.
Davis told the jury that she was taken into a back bedroom which contained two beds. Davis testified that Doug Enoch, Melvin and Sunny's brother, was in one of the beds. Sunny took Davis to the other bed and removed her clothes, as well as some of his clothing. He slapped her and pushed her onto the bed and then had intercourse with her. At this same time, Davis saw Melvin in the doorway taking pictures.
After Sunny had finished having intercourse with her, Davis said, Melvin came into the room. When Davis tried to put her clothes back on, Melvin slapped, pushed and choked her and told her he was the devil. Melvin then had intercourse with her while Sunny stood in the doorway taking pictures.
Melvin then left the room and Jimmie Enoch, another brother, came in with a towel and wiped between Davis' legs. Jimmie then also had intercourse with Davis. Next, Sunny came back into the room and told Davis that he was not finished. Sunny had intercourse with Davis a second time and he told her that she now belonged to them. Sunny slapped Davis around and said if she told anyone what had happened, he would kill her, her mother and her sister, and would show everybody the pictures that he and Melvin had taken.
Davis said she was allowed to leave the Enochs' apartment around 7:25 a.m. When she arrived home, she went into her bedroom without telling her mother what had happened. Davis testified that around noon, she got up and her mother asked her what was wrong. Davis did not reply and her mother again asked her what was wrong. Davis then told her mother that Sunny, Melvin and Jimmie had raped her. Davis' mother immediately called the police. Thereafter, police officers came to the apartment and took Davis to Mercy Hospital.
On cross-examination, Davis admitted that she had said, in 1980, that the Enochs approached her at 2:30 a.m. Defense counsel also asked Davis if she had previously testified that she saw defendants' mother and sister asleep in the Enoch apartment, to which Davis replied "no." Davis admitted that she had previously testified that she saw a flash from the camera, but said that after she had collected her thoughts, she remembered that there was no flash. Davis conceded that her mother had asked her what was wrong at 7:30 a.m. on December 6, 1979, and admitted that she did not tell her mother about the rape at that time. On redirect, Davis explained that she said nothing to her mother at 7:30 a.m. about the rape because she was afraid of Sunny's threats.
Alma Davis, Sandra's mother, then testified that when Davis came home at 7:30 a.m. on December 6, 1979, she was crying and upset and her face was swollen and scratched. When Mrs. Davis asked her what was wrong, Davis did not reply and went into her room. Around noon, Mrs. Davis said, Davis came back out, so Mrs. Davis asked her why she was still upset and crying. Mrs. Davis insisted that Davis tell her what was wrong. Davis then told her mother that Sunny, Melvin and Jimmie Enoch had raped her, at which point Mrs. Davis called the police.
Dr. Patterson testified for the State that he was a specialist in obstetrics and gynecology and was practicing at Mercy Hospital in December 1979. While at Mercy Hospital, Patterson had examined 60 to 70 rape victims and, on December 6, 1979, he examined Davis. He noticed that the right side of her face was scratched and swollen. He also noticed a pool of fluid in her vagina, which upon examination under a microscope showed "numerous multi-sperm freely swimming," indicating intercourse within the last eight hours. Patterson said that throughout the examination, Davis was upset and crying. Patterson said that he remembered three things about this case: that Davis said she had been assaulted by three men, that Davis had been severely beaten around her face, and that Davis said her attackers had taken pictures during the sexual attack. On cross-examination, Patterson admitted that he did not know if, in fact, Davis had been assaulted by three men or if she had actually been raped.
The only witness that defendants presented in their defense was Patricia Griffin. Griffin testified that she was floor captain of the 14th floor in the building located at 2031 South Clark. She testified that the Enochs had lived next door to her in 1979 and that her bedroom shared a wall with the bedroom of the Enoch boys. Griffin said that on December 6, 1979, she got up for work at 6:30 a.m. and left her apartment around 7:15 a.m. Griffin testified that during the time that she was getting ready for work, she never heard any noise from the Enoch apartment.
Griffin also testified that she had known Davis since Davis was young. Griffin then said that as she was leaving her building to go to work on December 6, she saw Davis with a man Griffin did not know. The man was grabbing the front of Davis' blouse. As Griffin ran to catch her bus, she heard someone say, "bitch, where my mother fucking money at" Following Griffin's testimony, the defense rested. As noted, defendants were found guilty and now appeal their convictions and sentences to this court.
Defendants first argue on appeal that the trial Judge displayed a hostile attitude toward their witness, Griffin, and improperly acted as prosecutor in questioning her, thus depriving them of a fair trial. The first exchange objected to by defendants occurred when the trial Judge questioned Griffin about how she knew the Enoch boys shared the bedroom which abutted the wall with her bedroom. Defendants allege that the trial Judge's comments during that exchange revealed impatience and hostility toward Griffin, and also a disbelief in her testimony.
The State contends that the trial Judge was not acting with impatience or hostility when he questioned Griffin, but was merely trying to clarify her testimony. Additionally, the State claims that the trial Judge was attempting to assist the defense in laying the foundation for Griffin's testimony.
The defendants, however, maintain that the trial Judge completely abandoned his judicial role and improperly acted as prosecutor when he questioned Griffin as she was testifying about the man she saw grabbing Davis' blouse. Among the questions complained of by defendants were the following: "Now, you are [the] building captain, aren't you? . . . Did you do anything about this when you saw the man [who allegedly was holding Davis by her blouse] -- had you ever seen the man before? . . . You didn't do anything about it, you kept running, right?" Defendants claim that this line of questioning by the trial Judge discredited Griffin's testimony in the eyes of the jury. Consequently, defendants assert that they were deprived of their right to a fair trial and are entitled to a new trial.
The State, on the other hand, denies that this questioning was improper and contends that, here too, the trial Judge was merely attempting to clarify Griffin's testimony. The State submits that the trial Judge's questioning here did not deprive defendants of a fair trial because the trial record failed to show any bias or partiality on the part of the trial Judge. Accordingly, the State says that the trial court acted properly within its judicial function when it questioned Griffin.
It is within a trial court's discretion to question witnesses in an attempt to elicit the truth or to clarify obscure matters, so long as the court remains fair and impartial in its questioning. (People v. Gross (1988), 166 Ill. App. 3d 413, 422, 519 N.E.2d 1043, 1050; People v. White (1973), 16 Ill. App. 3d 419, 425, 306 N.E.2d 660, 666.) A trial court has not improperly acted as a prosecutor if his questions were asked only to clarify the evidence. (Gross, 166 Ill. App. 3d at 422, 519 N.E.2d at 1050.) A trial court is also given wide discretion in conducting a trial, but the court cannot make comments or insinuations indicating its opinion on the credibility of a witness or the argument of counsel. (People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1028, 516 N.E.2d 382, 395.) However, in order to constitute ...