Appeal from Circuit Court of Macon County No. 97CF1327 Honorable John L. Davis, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In October 1998, the State charged defendant, Thomas E. Street, inter alia, with sexually assaulting (720 ILCS 5/12-13(a)(1) (1998)) D.P., whom defendant had dated previously. At trial, defendant asserted consent as an affirmative defense. D.P. testified for the State, admitting that she and defendant had previously engaged in consensual sex but maintaining that on the night in question she did not consent. On cross-examination, defendant asked the victim about the sexual relationship and, during his own case, offered witnesses who, in part, contradicted D.P.'s answers regarding the relationship. At the close of all the evidence, the court requested oral argument on the applicability of Illinois' "rape shield" statute, section 115-7 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115-7 (West 1998)). The court declared a mistrial over defendant's arguments that the statute did not apply. The court later denied defendant's motion to bar a retrial on double jeopardy grounds. Defendant appeals, arguing that (1) section 115-7 of the Criminal Procedure Code did not prevent him from introducing evidence of the prior romantic relationship with D.P. where D.P. acknowledged that such a relationship had existed, and (2) the trial court erred in declaring a mistrial since no manifest necessity required it. We reverse.
During the evening of October 10, 1997, police arrested defendant for sexually assaulting a woman, D.P., with whom he had had a brief prior relationship. D.P. alleged that defendant arrived at her apartment around midnight on October 10, 1997, and the two engaged in conversation for 30 to 60 minutes outside her front door. Afterward, both parties went into D.P.'s apartment. D.P. had been entertaining another male guest who left without incident shortly after defendant came inside.
According to D.P.'s testimony, she and defendant began having consensual sex near the stairs in D.P.'s apartment. The pair moved upstairs to D.P.'s bedroom, where defendant began to get "a little rough." D.P. said defendant penetrated her anally with his fingers and then with his penis despite her continual crying and repeated requests that he stop. D.P. later went to the emergency room where she was treated for superficial abrasions and tears to her vagina and rectum.
Defendant asserted consent as a defense, and the State did not deny that D.P. and defendant had been romantically involved. During opening statements, the prosecutor remarked that "[D.P.] had known [defendant] for several months [and] had dated [him] for a while."
During opening statements for the defense, counsel stated:
"[I]n this particular case there has never been a denial that there was sexual intercourse *** between Mr. Street and [D.P.]. In fact, these people had seen one another for several months before. This case comes down to a case of whether or not the consensual aspect of sex was present [on] October 10."
Defense counsel went on to comment about what D.P. had told her co-workers about defendant:
"[D.P.] claims that she had not seen [defendant] for a couple of weeks. Well *** Sarah [Kozak] will tell you of a conversation that occurred in the break room at [work] two to three days before this allegation was *** made against [defendant.] [D.P.] basically announces that she and Mr. Street[,] the night before[,] had *** sex and that it was of such a nature that they broke the bed, that she commented upon how large he was, and she commented like she had ridden a bull all night. *** Miss Kozak will tell you that *** there had been a handful of other times *** when [D.P.] had talked about dating [defendant], talking about they had sex frequently, talking about the fact that he was hung like a horse."
During the State's case in chief, they called D.P. to testify. She admitted that she and defendant had dated for a short time and had engaged in consensual sex. The following dialogue occurred:
"A. Well, I don't know--we were together a couple of times, like twice, three times.
Q. Did you go to the show, did you go out to eat?
Q. So what kind--what was the nature of your relationship?
A. I guess it was just sexual, I guess?"
The prosecutor also questioned D.P. regarding the nature of her sexual relationship with defendant:
"Q. Now, you said that you did have a relationship with [defendant] before you decided you were going to tell him it was over. This sexual relationship that you had with him before, had it ever *** involved anal sex?
A. No. This is something I have never done ...