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06/29/94 PEOPLE STATE ILLINOIS v. GERALD

June 29, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GERALD WEATHERSPOON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Marcia Orr, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial defendant Gerald Weatherspoon was found guilty of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-13(a)(1)), robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18-1(a)) and unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10-3(a)) and sentenced to 12 years' imprisonment. Defendant now urges this court to reverse his conviction on grounds that: (1) the trial court erred in excluding evidence of the victim's sexual history and restricting cross-examination of the victim's prior drug addiction; (2) the prosecutor made improper remarks during closing argument; and (3) the jury verdicts were inconsistent since he was convicted of criminal sexual assault and robbery while being acquitted of aggravated criminal sexual assault based upon the same elements.

We affirm the trial court.

On June 30, 1990, defendant was charged by indictment with four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12-14(a)(2), (3), (4)), criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-13(a)(1)), two counts of aggravated kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 10-2(a)(3)), kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 10-1(a)(2)), robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18-1 (a)), unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10-3(a)), and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12-4(b)(8)) for events surrounding defendant's sexual intercourse with S.G. (victim) earlier that morning.

Prior to trial the court denied the State's motion in limine to preclude the defense from presenting evidence regarding the prior arrests and substance abuse treatment of the victim, and granted the State's motion in limine to bar admission of her sexual history pursuant to the Illinois rape shield statute (Ill. Rev. Stat. 1991, ch. 38, par. 115-7).

At trial, the State's first witness (Mary) testified that on June 29, 1990 she dined and consumed alcoholic beverages with the victim in a restaurant before leaving at approximately 9 p.m. for a bar where they each had another drink and spoke with several people, one of whom she identified as defendant. About 10:30 p.m., when Mary informed the victim that she would be leaving for home, the victim stated that she intended to stay awhile longer and then take a cab home. Mary opined that the victim was not intoxicated when she left the bar.

The State next called the victim who corroborated Mary's testimony and added that after having four drinks and dancing with defendant she decided to leave although she did not feel intoxicated. As she entered the foyer to telephone for a taxi, defendant grabbed her arm, placed a hard object behind her neck and led her outside to an area between two condominium buildings. Defendant then punched her in the face and pushed her to the ground, calling her a "bitch" and stating she was "going to like this" before sexually assaulting her. After the act, defendant ripped two gold necklaces from her throat. She told defendant that she was not going to run and that he could hold her purse to make sure. As defendant reached for the purse, she began running toward the bar where she later telephoned her father. The victim went to the hospital for injuries including a black eye and bruises and lacerations around her neck before returning to the scene with the authorities where she recovered one of her earrings and a cross pendant previously secured to one of the necklaces.

On cross-examination the victim admitted that she began using alcohol as a teenager and had been diagnosed as addicted to alcohol and cocaine. She was hospitalized for her cocaine addiction in 1988 and 1989, and denied using any cocaine upon completing her last treatment. She also denied being under the influence of alcohol when she attempted to leave the bar.

The victim further testified that her cocaine use had caused her to suffer nose bleeds, and that she had used cocaine with alcohol in the past. She denied experiencing blackouts since her hospitalization in 1989 or that her inability to recall "bits and pieces" of the evening at issue was attributable to her alcohol consumption. She also denied voluntarily leaving the bar with defendant to use cocaine or for any other purpose.

Susan Manning testified that she worked as a waitress at the bar and on June 29, 1990 recalled serving alcohol to defendant and the victim, whom she recognized from five or six prior visits, and observing them dance. She also remembered the victim calling her former boyfriend, Gabriel Cotton, an obscenity. Manning stated the victim left the bar late in the evening, and returned in hysterics stating that she had been raped. Manning observed that the victim's face was covered with blood, her nose was also bleeding and her clothes were torn and stained with dirt, grass and blood.

The victim's father testified that on June 30, 1990 at 2 a.m. he received a phone call from his daughter who sounded distressed, and subsequently picked her up at the bar bleeding from the nose with lacerations on her face and wearing a torn blouse stained with blood and dirt. His daughter did not appear to be under the influence of drugs or alcohol. Several ...


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