Appeal from the Circuit Court of Cook County. The Honorable Edward Fiala, Judge Presiding.
The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.
The opinion of the court was delivered by: Divito
The Honorable Justice DiVITO delivered the opinion of the court:
Defendants Aaron O'Neal, Roger Wallace, and Victor Garcia were found guilty of numerous offenses in connection with the gang rape of S.B. on June 2-3, 1992. Each defendant received multiple consecutive and concurrent prison sentences. On appeal, they allege errors involving the admission of a prior consistent statement, the preclusion of alibi testimony, the admission of gang evidence, improper closing argument, and the propriety of their convictions and sentences. For the following reasons, we affirm the judgments of the circuit court in part, reverse in part, vacate all the sentences, and remand for resentencing.
Garcia, Wallace, and O'Neal were tried simultaneously in severed trials: Garcia and O'Neal before separate juries, and Wallace before the court.
At the time of the offenses, Garcia was 16 years of age; Wallace was 22 years old; O'Neal was 27 years old; a fourth co-indictee, Richard Walters, was 15 years old; and the complaining witness, S.B., was 18 years old.
S.B. testified that on June 2, 1992, she had been dating Garcia for about a week, during which they had sexual intercourse once. Garcia, O'Neal, Wallace, and Walters were members of the Insane Deuces gang. On June 2, S.B. went to Hamlin Park with her friend Jessica and met up with Garcia, O'Neal, Wallace, and Walters. Garcia suggested that the group go to Wallace's apartment to drink. S.B. agreed.
At the apartment, the group played a drinking game called "Quarters." O'Neal repeatedly won and selected S.B. to drink shots of Cisco, a wine cooler. After several shots in the period of a few minutes, S.B. was more intoxicated than she had ever been in her life.
Garcia led S.B., who had difficulty walking, into the bedroom and told her that he wanted to have sex. She refused, but Garcia removed her clothes and put his penis into her vagina. She screamed. After Garcia left the bedroom, O'Neal and Wallace entered. S.B. screamed, and O'Neal yelled back, "Shut up, bitch." She did not remember anything that occurred in the bedroom after that.
The next thing S.B. recalled was being led naked to a mattress in the living room. Wallace put on a condom and placed his penis into her vagina. Simultaneously, Garcia held a gun to her head and said, "Shut up, bitch, or I'll kill you." She asked Garcia why he was letting them do this to her. Garcia did not answer. Wallace then forced her to take his penis into her mouth.
Afterwards, Garcia led S.B. back to the bedroom, where he tied her hands and legs together and covered her with a blanket. Later, she heard a knock at the door and began screaming for help. Garcia returned to the bedroom and said, "Shut up, bitch, or I'll kill you." Garcia told her to get dressed. As she was incapable of doing so herself, Garcia dressed her. S.B. had entered the apartment wearing a plastic black belt, but when Garcia dressed her he did not put it back on.
Garcia then led S.B. to a couch in the living room. From behind, someone began strangling her with a towel or a belt. She could not see who it was, but she heard Wallace say that they could not kill her because Jessica knew that she was with them. She said that she would not tell and begged them not to kill her. She then urinated and fell unconscious.
S.B. awoke several times throughout the night and vomited. In the morning, she saw that her eyes were blackened, her face was bruised, and her neck was marked. She tried to leave the apartment, but O'Neal blocked the door and told her to ask Garcia if she could go. After conversing with O'Neal and Wallace, Garcia ordered her to take a shower. She tried to lock the bathroom door, but Garcia entered, undressed, got into the shower with her, and washed her body, including her vagina. Garcia told her to lie down in the bathtub, and he attempted, without success, to insert his penis into her vagina. She asked Garcia to help her out of the tub, but he ignored her and walked out of the bathroom.
S.B. dressed, returned to the living room, and found that Stacy Wilkins had come into the apartment. Wilkins left, and Garcia, O'Neal, and Wallace told her that they wanted her to tell her family that while she was riding home on the bus, three men dragged her into their car, raped and beat her, and left her unconscious. She agreed to go along with the story because they told her that they would kill her if she did not. At Garcia's command, she took a nap.
Later, Garcia woke her up and told her that she could leave. When she walked into the living room, she found a tall man dressed in a suit and tie. The man said that he was a police officer, but he did not show her a badge. With Garcia, O'Neal, and Wallace present, he asked her what had happened. She was aware that she was being tricked, so she told the man that she had gotten into a fight. The man warned her that if "she did not say something within 24 hours that the crime would no longer be anything."
When the man left, Garcia and Wallace walked S.B. to the bus stop. Wallace begged her not to tell, said that he was sorry for what he had done, and told her that he would kill her and her family if she told. Garcia gave her a kiss and told her that he would call later to find out what she had told her parents.
After arriving home, S.B. told Jessica and her mother what had happened. Later, at the police station, she identified a photograph of O'Neal.
When Garcia was in jail awaiting trial, he and S.B. maintained contact. She mailed more than 20 letters expressing her wish to marry Garcia and get an apartment together. She falsely told Garcia that she was pregnant with his child out of fear that he would leave her for another woman. Through his letters, Garcia expressed his love for her and asked her to testify that she did not remember what had happened. She visited him in jail on four to six occasions and sent him money. For a time, she did not wish to testify against Garcia, but a few months before trial she began dating a new boyfriend and she told Garcia to get on with his life.
THE STATEMENT OF VICTOR GARCIA
In proceedings before the Garcia jury, Assistant State's Attorney Maria McCarthy testified concerning Garcia's July 23, 1992 statement to the police. After receiving his Miranda warnings, Garcia said that he was the only person to have sex with S.B. McCarthy departed the interview room and returned about 15 to 20 minutes later. She could not recall if she or the police told Garcia that his first statement did not match those of his co-arrestees. In a second interview, Garcia offered and signed a more detailed account of the incident. The statement was published to the jury.
In his statement, Garcia said that on June 2, 1992, in Hamlin Park, he and O'Neal discussed initiating S.B. into the Deucettes, a female branch of the Insane Deuces. Initiation would require S.B. to have sex with Garcia, O'Neal, Wallace, and Walters. Garcia and O'Neal told Wallace and Walters about the plan, and they agreed to participate. S.B. was not aware of the plan.
At Wallace's apartment, the group played Quarters and Garcia took S.B. into the bedroom to have sex. S.B. objected, but Garcia removed her clothes and forced his penis inside of her vagina. When she screamed for Garcia to stop, he hit her several times and told her to shut up. After Garcia left the bedroom, O'Neal and Walters entered and shut the door behind them. The two were in the bedroom for approximately 45 minutes. Garcia could hear S.B. screaming and crying and telling them to stop. When O'Neal and Walters emerged from the bedroom, Walters was carrying a handgun. Wallace then proceeded into the bedroom and closed the door. Garcia could hear S.B. crying and screaming. Walters left the apartment.
Wallace came out of the bedroom and suggested that they should bring the mattress into the living room and have sex with S.B. there. Garcia and Wallace carried the mattress out, and Wallace laid S.B. on top of it. Wallace had intercourse with her while she was crying and struggling. Garcia pointed a gun at her head and told her to shut up or he would kill her. While Garcia held the gun, O'Neal tried to put his penis in her mouth, but she refused. After the sexual contact ceased, Garcia, O'Neal, and Wallace hit S.B. on her face and body. Next, Garcia took S.B. into the bathroom and had intercourse with her in the bathtub. She was then placed in the bedroom, and a couch was pushed against the front door to prevent her from escaping while the others were sleeping.
The following morning, the three discussed shooting S.B., putting her body in a bag, and throwing her into the lake. After dismissing the idea, Garcia and Wallace went into the bedroom and attempted to strangle S.B. with her black plastic belt. Garcia and Wallace pulled on opposite ends of the belt. S.B. passed out and urinated, but the belt strap broke while she was still alive. Garcia carried her out to the living room couch and laid her down. A few hours later, Garcia and Wallace walked her to the bus stop and warned her not to tell anyone what had happened.
THE TESTIMONY OF RICHARD WALTERS
Co-indictee Richard Walters turned State's witness in exchange for a 10-year prison sentence. He corroborated S.B.'s testimony about the initial meeting in Hamlin Park on June 2 and also testified that, outside of her presence, he, O'Neal, Wallace, and Garcia discussed making her a ...