APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN MORRISSEY, JUDGE PRESIDING.
Cousins, Jr., Murray, Gordon
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS, JR. delivered the opinion of the court:
Harold Oliver (defendant) appeals his aggravated criminal sexual assault and armed robbery convictions, and the trial court's subsequent 60-year extended sentence for the aggravated criminal sexual assault charge and consecutive 30-year term for the armed robbery charge.
The issues presented on review are (1) whether the trial court's voir dire examination was sufficient, (2) whether the prosecution proved defendant guilty beyond a reasonable doubt, (3) whether the victim's pre-trial identification of defendant from a lineup should have been admitted at trial, (4) whether the trial court's admission of semen-saliva test results constituted reversible error, and (5) whether the cumulative effect of allegedly erroneous evidentiary rulings denied defendant of a fair trial.
We reverse the judgment and remand for a new trial.
The trial court, during the voir dire examination, informed the venire that a grand jury indicted defendant with aggravated criminal sexual assault and armed robbery. The trial court then questioned the prospective jurors about their previous exposure to crime by asking them if they had anything against a person because he was charged with a crime, whether there was anything about the nature of the charges that would prevent them from rendering a fair and impartial decision, and whether they or people they knew had been victims of crime which would preclude them from being fair and impartial. Martin Lebedon (Mr. Lebedon) was the only prospective juror who indicated that he would be unable to be fair or impartial, and the trial court ultimately excused him. After further examination, the trial court swore-in a panel of jurors and proceeded with trial. At trial, S.S. (victim) testified that on January 24, 1989, defendant raped and robbed her at gunpoint. The victim lived on East 72nd Street and attended school at the Computer Learning Center located at 200 South Michigan Avenue. Dressed in a skirt, sweater, three-inch high heel shoes, and a black bomber jacket, she left her home at approximately 7:45 a.m. that morning. She carried a purse and book bag as she proceeded on foot to 71st and Jeffery to catch her bus.
Defendant suddenly came up from behind her, grabbed her around the neck with his left arm, and said, "Don't look at me, bitch." At the same time, defendant pushed a cold gun into the right side of her neck. The victim grabbed the dark colored handgun, looked up into defendant's face, and noticed that he was wearing glasses and that he had a scar on his face.
Defendant kept his arm around the victim's neck, with the gun up against her head, and ordered her to walk. As they walked across 72nd Street, defendant told the victim to take off her shoes. The victim obeyed and carried her shoes in her hand. Although defendant kept telling her not to look at him, the victim kept looking at him, noticing the scar on his face.
Defendant and the victim walked in and out of two driveways and then further east to a building. Defendant kicked the door open, took the victim into the vestibule of the building, and made her put her belongings on the ground in the middle of the vestibule. He then stood by the door with his gun and directed the victim to walk around the vestibule. The victim got a good look at defendant's face and realized that she recognized him as being "a man named Ralph." Her cousin had, years earlier, introduced defendant to her. She had also occasionally seen him at the YMCA.
After the victim walked across the vestibule, defendant commanded her to raise her skirt and pull down her pantyhose and panties. The victim, crying, was standing face to face with defendant as she followed his orders. Defendant then ordered her to take off her jacket and turn around. Defendant raised her sweater over her head and made her pull out her arms. Defendant then tied the back of her jacket in front of her face and tied her arms in back of her head.
The victim told defendant that it was the "time of the month." Defendant stuck his fingers inside of her vagina, twisted them, and said, "Bitch, you are lying." He then raped the victim by invading her vagina with his penis and having nonconsensual sexual intercourse with her. After defendant finished raping the victim, he made her walk by the door which led to the apartments. He then retorted, "Bitch, get on your knees." As the victim followed his directive, defendant said, "Bitch, you know what to do." Defendant told the victim to open her mouth, put his penis into her mouth, and grabbed her around the head. The victim could feel the gun against her head as defendant started pushing her head back and forth. Although defendant had tied the jacket around the victim's head, it kept falling down, enabling her to see defendant's face again. As defendant ejaculated into her mouth, the victim heard a woman scream.
Mildred Williams (Ms. Williams), a tenant in the apartment building, had gone downstairs and yelled at defendant and the victim to stop. Defendant then snatched the victims's jacket and ran out of the door. The victim spat defendant's ejaculation onto the floor, ran over to Ms. Williams, and began to hug her. Crying, the victim told Ms. Williams that she had been raped.
Ms. Williams had the victim sit on the steps inside another door entrance while a neighbor called the police. When the police arrived, the victim told them that the name of the man who raped her was Ralph. She also gave the police the following description of defendant: dark brown-skinned male, a little taller than herself, 30-35 years old, 130-135 pounds, with a facial scar.
A police officer took the victim to the hospital and interviewed her. She was later examined by a physician and released. Later that day, another police officer went to her home to show her a photo array. The victim selected defendant's photograph as the man who raped her.
Two days after being raped, the victim went to the police station, viewed a lineup consisting of five men, and chose defendant. The victim also told police that defendant was not wearing the glasses which he had worn when he raped her.
Ms. Williams viewed a lineup but was unable to identify the man whom she had seen in the vestibule. However, she did report to the police that the man she had seen in the vestibule was wearing glasses and that she had seen him put something in his waistband.
Christine Anderson (Ms. Anderson or serologist), Chicago Police Department criminologist, and expert serologist, testified that she conducted tests on the blood samples which the victim and defendant had submitted to the Chicago police Department. She determined that the victim was a secretor and that defendant was a nonsecretor. In secretors, blood types can be determined from other bodily fluids such as semen and saliva. Ms. Anderson testified that she found the presence of B and O activity on the semen/saliva swab recovered from the crime scene. She further testified that this B and O activity was consistent with defendant's semen or sperm.
Three of defendant's co-workers testified for the defense as alibi-witnesses. Emanuel Frank (Mr. Frank), a paralegal at E. Duke McNeil & Associates, where defendant was also employed, testified the he opened the office every morning at 7:00 a.m. He further testified that on January 24, 1989, defendant arrived at the office at approximately 7:25 a.m., and left between 10:00 and 10:30 a.m. Mr. Frank admitted that although he learned that defendant had been arrested for a robbery and rape that had occurred around 8:00 a.m. on January 24, 1990, he never told the police or the State's Attorney's Office that defendant had been at work at that time.
Earnest Duke McNeil (Mr. McNeil) testified that defendant was working part-time at his office and that when Mr. McNeil arrived at the office between 7:55 and 8:00 a.m. on January 24, 1990, that defendant was already there. However, Mr. McNeil admitted on cross-examination, that within days of the crime, he told an assistant State's attorney that he had arrived at work on January 24, 1990, between 8:20 and 8:25 a.m.
Deborah Reasno (Ms. Reasno) testified that she had been the office manager for E. Duke McNeil for ten years. She further testified that on January 24, 1990, she arrived at work between 8:15 and 8:30 a.m., and that defendant was already there.
All three of the alibi witnesses testified that there was no sign-in sheet or time-clock to document what time defendant arrived at the office on January 24, 1990. All three witnesses denied being aware or remembering that defendant had a facial scar.
Defendant first contends that the trial court's voir dire examination was insufficient, thus precluding him from receiving a fair and impartial trial. We agree.
Supreme Court Rule 234 voir dire Examination of Jurors provides:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. 87 Ill. 2d R. 234
The purpose of voir dire examination is to filter out prospective jurors who are unable or unwilling to be impartial.
( People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602, 13 Ill. Dec. 667; People v. Johnson (1991), 215 Ill. App. 3d 713, 723-24, 575 N.E.2d 1247, 159 Ill. Dec. 187.) (No precise technical test or formula exists for determining whether a prospective juror will possess the appropriate degree of impartiality. People v. Pope (1985), 138 Ill. App. 3d 726, 736, 486 N.E.2d 350, 93 Ill. Dec. 249.
The determination of whether or not a prospective juror is impartial rests within the sound discretion of the trial court and will only be set aside if it is contrary to the manifest weight of the evidence. Johnson 215 Ill. App. 3d at 724, 575 N.E.2d 1247.
Further, limitation of voir dire questioning may constitute reversible error if it results in denying a party a fair opportunity to properly investigate an important area of potential bias and or prejudice among prospective jurors. ( Gasiorowski v. Homer (1977), 47 Ill. ...