Before a witness may be impeached with a prior inconsistent statement, a proper foundation must be laid on cross-examination by directing the witness' attention to the time, place, and other circumstances of the statement to prevent unfair surprise and to give the witness the opportunity to explain the statement. (People v. Henry (1970), 47 Ill. 2d 312, 321, 265 N.E.2d 876.) If a party fails to lay such a foundation on cross-examination, it is within the discretion of the trial court to permit the witness to be recalled for the purpose of perfecting the foundation. People v. Henry, 47 Ill. 2d at 322, 265 N.E.2d 876; People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
547 N.E.2d 616, 191 Ill. App. 3d 13, 138 Ill. Dec. 449 1989.IL.1781
Appeal from the Circuit Court of Cook County; the Hon. Ronald J.P. Banks, Judge, presiding.
JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO
Defendant-appellant Edmond Jimenez was charged by indictment with attempted aggravated kidnapping in connection with the attempted abduction of nine-year-old N.R., and with two counts of aggravated kidnapping and 12 counts of aggravated criminal sexual assault in connection with the abduction and sexual assault of seven-year-old B.C. on the same date. Following a jury trial, he was found guilty of aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, and attempted aggravated kidnapping. He was sentenced to concurrent terms of 60 years' imprisonment for aggravated criminal sexual assault, 15 years' imprisonment for criminal sexual assault, 15 years' imprisonment for aggravated kidnapping, and 7 years' imprisonment for attempted aggravated kidnapping.
Defendant raises as issues on this appeal (1) whether hair and blood comparison evidence was improperly admitted at trial; (2) whether the trial court erred in refusing to allow him to recall one of the complaining witnesses for the purpose of laying a foundation for impeachment with a prior inconsistent statement; (3) whether reversal of his conviction is required because of the admission at trial of a police officer's hearsay testimony; (4) whether the trial court erred in instructing the jury to return a general verdict on the counts of the indictment alleging aggravated criminal sexual assault; (5) whether the criminal sexual assault or aggravated criminal sexual assault statutes violate due process; (6) whether the trial court erred in not transferring and then denying his motion for a substitution of Judges; (7) whether his exercise of his right to a jury trial, the ages of his victims, and improper convictions were erroneously considered by the trial court at sentencing; and (8) whether any of the foregoing issues which are deemed waived because of defense counsel's failure to preserve them, must nevertheless be considered on their merits because trial counsel's failure to preserve any issue that has merit constituted ineffective assistance of counsel.
N.R., 10 years old at the time of trial, testified that on January 14, 1986, she and her younger sister were walking to a grocery store when a red station wagon with a red steering wheel and "smoky windows" approached them on the corner of 61st Avenue and 15th Street in Cicero, Illinois. The man inside the car, whom N.R. later identified as defendant, leaned out of the window and, from a distance of two feet, said, "[Your] mother sent me to pick you up." N.R. shook her head and the man said, "No, not her," indicating N.R.'s sister. N.R. shook her head again and the man said, "Oh, okay, I'm sorry." The man then drove away and turned into an alley. N.R. ran home and told her mother about the incident.
N.R.'s mother testified that N.R. left for the store at 3:15 p.m. and returned approximately 10 minutes later. N.R. was crying and told her mother that "some man tried to get her in the car." N.R. told her mother that the man was 20 to 30 years old, with dark, neck-length hair and a mustache, and was driving a dirty red station wagon with old, dirty windows. N.R.'s mother called the police and gave them this information. N.R. gave the police the same description of the man later that evening, except that she stated he had the "start" of a mustache and was wearing a white shirt and a blue jacket.
B.C., eight years old at the time of trial, testified that on January 14, 1989, at about 3:30 p.m., a red station wagon with "dark windows" approached her as she and her sister were walking down Elm Street near 15th Street in Berwyn, Illinois. The man inside the car opened the door and, speaking to her sister, said, "Do you know this address?" B.C. walked to the edge of the car, at which point the man grabbed her and pulled her inside. The man ordered B.C. to lie under the dashboard on the passenger side; told her to cover her eyes; and said "[b]e quiet or I will . . . poke your eyes out or smash your head in." With B.C. under the dashboard, the man drove for 15 minutes before stopping. When he stopped the car he "helped" B.C. take off her boots; ordered her into the back seat of the car; and told her again to keep her eyes closed. The man exited the car and reentered through the back passenger side door. He then ordered B.C. to take off her pants and underwear.
B.C. testified that she heard the man "unsnapping" his pants before "something" was put into her vagina. She could not see what touched her, but "thought she knew what it was." B.C. was then ordered to put her clothes back on and climb back underneath the dashboard in the front of the car. The man drove the car again, let B.C. out in an alley, and then drove off. B.C. left her underwear and boots in the car.
Eventually, B.C. approached Sandra Fernatt on the street and asked to use her phone. Fernatt testified that she saw B.C. at about 4:15 p.m. on the corner of 19th and Home Streets in Berwyn, took B.C. to her own house, and called the police. The police arrived at about 5 p.m. and took B.C. to the hospital.
The physician who examined B.C. at the hospital testified that he found abrasions on her neck; a bruising of her abdomen; and some superficial lacerations around the exterior of her vagina that were three to four inches long with visible amounts of blood.
Officer Kenneth Kravcik of the Berwyn police department testified that at 3:45 p.m. on January 14, 1989, he received a call of an attempted child abduction. The suspect was described as a white male with long, brown hair driving an older model red station wagon with tinted windows. One red station wagon was stopped by other Berwyn police officers, but the driver did not match the suspect's description and was released. At about 4:10 p.m., Kravcik, who was in a marked squad car and in police uniform, stopped a red station wagon driven by defendant. Defendant was wearing a "bluish" jacket, a white shirt that was opened, and dark pants with an opened zipper. Kravcik ordered defendant to exit the car. Defendant asked "Why?" and Kravcik opened the car door and again ordered defendant out. Defendant then put his car in reverse and sped away. At 4:23 p.m., after a high-speed chase, defendant was finally apprehended.
Officer David Hartman of the Cicero police department testified that at about 3:50 p.m. on January 14, 1989, he also received a report of an attempted child abduction and a description of the suspect. Hartman received a second call from the Berwyn police directing him to a location where a red station wagon had been spotted. Upon arriving at the location, Hartman saw a red station wagon with untinted windows stopped by other squad cars. The man who exited that station wagon did not match the description of the suspect. Hartman was then ordered to report to N.R.'s house, where he spoke with N.R. and her mother.
At about 4:10 p.m., Hartman received a radio transmission from a Berwyn squad car involved in the chase with defendant. Hartman joined the chase and eventually saw defendant's red station wagon pulled over to the side of the road and surrounded by police cars. Defendant was placed into custody and his car was towed to the police station. B.C.'s boots and underwear were not found inside defendant's car.
Later that evening, N.R. was brought to the police station, where she identified defendant's car as the red station wagon she had seen earlier. N.R. then viewed a lineup consisting of defendant and four other men. Defendant was in the number one position and was the only participant wearing a blue jacket. Each participant was required to say "Your mother sent me to pick you up." Initially, N.R. was unable to make an identification. She thought the man in the number one position was the man she had seen, but did not pick him because "there [were] a whole bunch of bruises on his face" that she had not seen before. N.R. left the viewing room and told her mother that she ...