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July 14, 1995


In the Circuit Court of Cook County. Honorable Shelvin Singer, Judge Presiding.

The Honorable Justice Zwick delivered the opinion of the court: Rakowski, J., concurs. Justice Egan specially concurring.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Defendant, Clinton Danielly, was convicted following a jury trial of aggravated criminal sexual assault. He was sentenced to a prison term of 12 years for the offense. On appeal he argues that police conduct in returning the complainant's underwear to her following the initial investigation deprived him of due process and has deprived him of ever being able to receive a fair trial. He also argues that an ex parte communication between the trial judge and the jury, in combination with the trial court's later decision to give a Prim instruction urging jury consensus, constitutes reversible error. We reverse and remand for further proceedings.

At trial, the defendant and the complainant offered dramatically different versions of the events which occurred following their date on July 21, 1990. At one time, years earlier, the defendant and the complainant had dated one another regularly and had engaged in consensual sexual relations. Although the complainant had not seen the defendant in recent years, they were reintroduced at a party and she subsequently agreed to spend July 21 with defendant at his house helping him to clean his flooded basement. Later, the couple changed their clothing at the defendant's home and went out for drinks at a local nightclub. The complainant denied having had consensual sexual relations with the defendant at any time on July 21. The defendant later stated that the two had sex that afternoon.

At the nightclub, the defendant and the complainant began to argue. The complainant testified that she told the defendant at the club that she had no interest in having sexual relations with him and that he became upset. She demanded that they return to his house so that she could recover her purse and duffel bag which contained the clothing she had worn while cleaning up the basement. After the two arrived at the house, however, she stated that the defendant went into his bedroom and returned with nothing on but his shirt. The complainant testified that the defendant grabbed her with both his hands and shoved her to the floor. As he ripped off her skirt and underpants, she was screaming for defendant to get off of her. When defendant began to choke her, she scratched his face. Defendant became more angry and threatened to kill her stating, "I'll kill you, bitch."

The complainant testified that, while defendant was on top of her, she lost consciousness for a short period of time. When she awoke, defendant had placed his arm across her chest to keep her on the floor. It was at this point that the defendant placed his penis into her vagina for approximately one minute. The complainant testified that, when she was able to finally get away from the defendant, she ran out of the house naked and bloody. All of her belongings were left in his home.

To corroborate the complainant's testimony, the State introduced the testimony of Marian Butler who lives a short distance from the defendant's home. She testified that she was called to her front door on July 21 and found the complainant hysterical, nude and looking as though she had just been beaten. The complainant stated to her that she had just been raped and asked that her mother be called. When Mrs. Butler allowed the complainant into her home the complainant crouched into a ball in the corner, crying and shaking. Mrs. Butler called the police. When they arrived, the complainant would only allow Mrs. Butler to speak with her for the first 15 minutes. Eventually, the complainant was able to speak with the police. One of the police officers who arrived at the scene testified that "she trembled and tried to back up farther into the wall but there was no place to go." She eventually told the officers that she had been raped by the defendant and showed them where he lived.

When the complainant was examined in the hospital she told the examining physician that she had been punched in the face and been forced to engage in vaginal intercourse. The doctor testified that a vaginal examination revealed reddening. She was treated with antibiotics to prevent sexually transmitted diseases and referred to counseling.

When the officers knocked on the defendant's door they received no response and took the complainant to Little Company of Mary Hospital for treatment. She had facial scratches, a swollen left eye and was not under the influence of alcohol.

Two days after the attack, the complainant went to the police station and asked for her belongings back. She was given her checkbook and purse. She testified that she also received her ripped undergarments, one shoe and her shorts, all of which she threw in the trash.

Detective Edmond Leracz testified that he and his partner went to the defendant's home and again received no response. They then proceeded to the defendant's parents home and the defendant's parents then accompanied the police to the defendant's house. Defendant was found inside the house after the front door was opened with a key. When asked about the complainant's belongings, defendant told the detectives that there was nothing in the house which belonged to the complainant.

Mr. Derrick Webster testified that he was cleaning his yard when he discovered the complainant's clothing in his trash. After the police were called, his neighbor, Mr. Clark, gave Mr. Webster a woman's purse which Mr. Clark had discovered earlier in the day. Mr. Webster identified the complainant's purse and checkbook as the same items he had seen on July 22.

As part of the defendant's case, a police crime lab serologist testified that she examined swabbings taken from the complainant at the hospital following the attack. The serologist found no sperm. She stated that she could not conclude from the lack of sperm, however, that the complainant had not been sexually assaulted.

Defendant's sister, Denise Danielly Hill, also testified as part of defendant's case. She stated that she had spent part of July 21, 1990, with the defendant and the complainant. Ms. Hill helped clean the defendant's flooded basement that day. Hill left the house at approximately 7:30 p.m. to go to her bartending job at a local nightclub. Later, at a bar where she worked, she saw the defendant and the complainant from about 10 p.m. to 1 a.m. She observed them kissing, hugging and dancing. Just before they left the bar, it was apparent that the complainant wanted to stay and the defendant wanted to leave. Initially, defendant left by himself, but then returned and they left together.

The defendant testified that he received a call from the complainant on July 21 and she asked him if he wanted to go out that evening. He agreed and she came to the house that afternoon where they worked on the basement together, showered together and had sexual relations. The defendant stated that he used a prophylactic while they had sex in the shower. He testified that at the nightclub, he wanted to go but that the complainant wanted to stay and they argued. When they left together they continued the argument.

Defendant testified that, when they arrived at the house, he wanted to "set the right mood" and so put on soft music and they eventually ended up naked and in bed together. Everything was going smoothly when he and the complainant began another fight. Defendant testified that he and the complainant eventually began physically shoving each other and he admitted striking her in the face. He testified that he held her down on the floor while she tried to scratch and bite him. When he finally allowed her to get up, she ran out of the house naked and screaming.

The defendant stated that he was scared at this point and took the complainant's possessions down a nearby alley and threw them in a garbage can. None of the clothing was torn. Defendant admitted that he originally told police that he had put the complainant out of his car following a fight they had and that he ...

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