Court of Appeals of Illinois, First District, Third Division
Defendant’s convictions for armed robbery, home invasion, and aggravated criminal sexual assault were reversed and the cause was remanded for a new trial, since the evidence was closely balanced, the outcome depended on the jury’s resolution of the issue of credibility, and the prosecutor improperly cross-examined defendant in a manner that forced him to speculate as to the intent and credibility of the victim and other witnesses and whether they had fabricated their testimony.
Rule 23 Order filed November 27, 2013
Rule 23 Order withdrawn Opinion filed January 15, 2014
Appeal from the Circuit Court of Cook County, No. 10-CR-11231; the Hon. Hyman I. Riebman, Judge, presiding.
Ralph E. Meczyk, Darryl A. Goldberg, and Marc W. Martin, all of Appeal Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, William L. Toffenetti, and Jonathan Hwang, Assistant State's Attorneys, of counsel), for the People.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Matthew Schaffer was convicted of aggravated criminal sexual assault, home invasion, and armed robbery. The trial court imposed a 20-year term of imprisonment for aggravated criminal sexual assault, a consecutive 10-year term for home invasion, and a concurrent 10-year term for armed robbery, for a total of 30 years in prison. On appeal, defendant contends that the State improperly cross-examined him regarding other witnesses' credibility and prejudiced his right to a fair trial. Defendant further argues that other questions and comments by the prosecutor prejudiced him. For the reasons that follow, we reverse and remand for a new trial.
¶ 2 Defendant's conviction arose from the events of May 23, 2010. It is uncontested that in the early morning hours of that date, defendant and V.L. engaged in some sort of sexual activity in the condominium of V.L.'s friends in Wheeling, Illinois. The State's theory of the case was that defendant, a stranger to V.L., broke into the second-floor condominium, sexually assaulted V.L., and stole certain items from her and the home. Defendant's theory was that V.L. had purchased marijuana from him twice before, he was invited into the condominium on the date in question, their sexual activity was consensual, and V.L. gave him her watch as payment for marijuana and fabricated her allegations because she had been caught cheating on her husband.
¶ 3 At trial, V.L. testified that on the weekend in question, she traveled from New York to the Chicago area to visit her parents and her friends. On May 22, 2010, V.L., her friends Lena Polishuk and Galena Nurayan, along with Nurayan's boyfriend, went into downtown Chicago for dinner. After dinner the women went to a hotel lounge, where V.L. had a glass of wine, and then another restaurant. About 2:30 or 3 a.m., V.L. and Polishuk went back to Polishuk's condominium in Wheeling. Polishuk's husband, Igor Reynlib, was sleeping on the couch. V.L. borrowed a T-shirt from Polishuk to sleep in, changed, and went to bed in the guest bedroom with the door closed.
¶ 4 V.L. testified that some time later, she heard the door to the room open. She opened her eyes and saw someone standing in the doorway. Thinking it was Reynlib and he needed something in the room, she said, "It's okay, you can come in. I'm awake." The door closed, but then opened again. A man rushed in and grabbed her throat. V.L. could feel a knife at her throat. The man, who was wearing a pantyhose mask with the eyes and mouth cut out, said he had a knife and a gun and that if she screamed he would kill her. He kept repeating the threat, so V.L. did not scream. V.L. testified that she saw the knife, which was about three inches long and possibly a folding knife.
¶ 5 The man had V.L. roll onto her stomach and handcuffed her hands behind her back. Her hands started to go numb, and V.L. complained to the man that the handcuffs were tight and hurting her hands. When the man turned on a light, she could see he was wearing rubber gloves and was pointing a gun at her. Despite the pantyhose mask, V.L. could made out pockmarks or some kind of skin irregularities on the man's face. She described him as about 5 feet 10 inches tall, 160 or 170 pounds, and stated he may have had a mustache. V.L. said that he had a very strong odor of marijuana and that he spoke a mixture of English and Spanish, which she understood because she worked in a Spanish-speaking environment. The man asked her where all the money and valuables were, but she explained that she did not know because she did not live there. When V.L. told him the owners of the condominium were in the bedroom across the hallway, the man reiterated to her that if she made a noise he would kill her.
¶ 6 V.L. testified that the man pulled off her wedding band, took her watch from the night stand, and took $100 from her purse. As he moved about the room, he made angry statements about President Obama and quoted a Martin Luther King speech. He asked V.L. what she had ever done for anyone to justify his not killing her. V.L. answered that she gave her leftovers to a homeless person and volunteered in an emergency room. The man responded that maybe she was not such a bad person. After making V.L. flip onto her back, he told her she was pretty and that he had been hurt by pretty women many times before. The man used his knife to cut off her T-shirt and underwear. He ran the knife along her body and touched her breasts and stomach. Noting that she was married, he asked V.L. whether she had children. When she told him no, he said, "[M]aybe if you live through this you'll have some." The man asked V.L. if she was menstruating. When she lied and said she was, he told her she was lucky.
¶ 7 The man pushed V.L. to her knees on the floor, with her body against the bed. He asked if there was a condom in the room. V.L. told him she did not know. The man put his penis in her anus. V.L. testified that she had never had anal sex before and "it was pain, everywhere was pain, pain in my hand, pain in my body." The man pushed V.L. onto the bed and asked her if she wanted to live, to which V.L. responded yes. He also asked if she was going to call the police. When V.L. said she would not, he told her if she stayed in the room and did not call the police or go to the hospital, then perhaps he would let her live. The man walked around the room, took the handcuffs off V.L.'s wrists, and left.
¶ 8 V.L. testified that she sat there for a little bit and then went to the front door to make sure it was locked. She then took a shower, during which she noticed blood and washed herself thoroughly. After the shower, she went to Polishuk and Reynlib's room to wake them and tell them what happened. Polishuk insisted on calling the police.
¶ 9 The police arrived at the condominium around 5 a.m. At their direction, V.L. went to Glenbrook Hospital. There, she was examined by a doctor, with whom she discussed a sexual assault kit. V.L. and the doctor decided not to use the kit because she had washed very thoroughly with antibacterial soap and had several bowel movements prior to going to the hospital, both of which made it very unlikely there would be any fluid or other material to collect with swabs. V.L. did take medication for sexually transmitted diseases. After leaving the hospital, V.L. spoke with members of the Wheeling police department.
¶ 10 V.L. identified photographs of her hands, showing red marks on both her wrists. She also identified pictures of the underwear and T-shirt she had been wearing on the night in question.
¶ 11 On cross-examination, V.L. stated that at one point, a piece fell out of the gun. The man picked it up, put it back into the gun, and said, "[N]ow it's loaded, you better be careful." V.L. suspected the gun might not be real, but was not sure because she did not know anything about guns. V.L. also testified that she refused a physical examination at the emergency room because she did not want another man's finger in her anus, and because she and the doctor agreed there was no reason for the examination. She explained that she refused to see a rape counselor at the hospital because she preferred to see someone after she got home.
¶ 12 Defense counsel asked V.L. a series of questions regarding what she told the police about her assailant's physical features. The following exchange occurred:
"Q. You told the police certain things about the assailant that weren't true, isn't that right?
[ASSISTANT STATE'S ATTORNEY]: Objection.
THE COURT: Sustained.
Q. You made some things up when you talked to Officer Teichen or Conway, didn't you?
[ASSISTANT STATE'S ATTORNEY]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I don't know what the basis of the objection is, your honor.
THE COURT: The objection is sustained.
Q. You made things up, you lied to the police because you didn't want the person who had done this to you–I'm sorry, you wanted the person who had done this to you to get away, didn't you?
[ASSISTANT STATE'S ATTORNEY]: Objection.
THE COURT: The objection will be sustained."
Defense counsel asked for a sidebar, during which the prosecutor stated that the questions being asked were argumentative and meant to harass the witness. Defense counsel responded, "It's close to being argumentative but I didn't say, 'You're lying, ' I didn't come out and say that. It's not because I said she lied, that is something for the jury to determine. I could ask her if she did in fact not tell the truth, it's not framed in an argumentative way. It's close but not argumentative." The trial court indicated that counsel could ask V.L. what she said or did not say to the police, but could not use the word "lie" in his questioning.
¶ 13 On further cross-examination, V.L. denied knowing defendant prior to the night in question and denied ever having bought marijuana from him or anyone else.
¶ 14 Lena Polishuk testified that on the night in question, she and V.L. met Polishuk's friend, Galena Muradyan, and her boyfriend at a restaurant in downtown Chicago. Following dinner, the three women went to a rooftop lounge. After a few drinks, of which V.L. only had one, the women went to another bar, where they danced but did not drink. Around 3:30 a.m., Polishuk and V.L. went back to Polishuk's condominium in Wheeling. Polishuk's husband, Igor Reynlib, was sleeping on the couch. He woke and took the dog out briefly. V.L. borrowed a T-shirt to sleep in, and all three went to bed, V.L. in the guest bedroom, and Polishuk and Reynlib in their bedroom.
¶ 15 Polishuk testified that about 5 a.m., V.L. came into her room, frantic, shaking, crying, and wearing a towel. V.L. told her, "We have been robbed and I have been raped, there is somebody in the house." V.L. showed her marks on her wrists and said she had been handcuffed. Reynlib checked to see if anyone was still in the condominium, but did not find anyone. Against V.L.'s wishes, Polishuk called the police. The police arrived within minutes. When they asked whether anything was missing, Polishuk looked around in the guest room and noticed a diamond ring was gone. Polishuk went to the hospital with V.L., as well as the police station.
¶ 16 On cross-examination, Polishuk agreed that her dog was "very easily excitable" but did not bark on the night in question. She also acknowledged that after the incident, there was still money sitting out on the counter in the hallway and a laptop computer on the couch by the balcony door.
¶ 17 Igor Reynlib testified that on the night in question, he had been sleeping on the couch, but woke when V.L. and Polishuk came in around 3 a.m. Reynlib took the dog outside, then came back in and went to bed. Before going to bed, he checked to make sure the condominium doors were locked. He left the sliding glass door to the condominium open so as to let in the breeze, but the screen was shut and locked.
¶ 18 Reynlib testified that he woke up when V.L. came into the room he shared with Polishuk and "started saying things like we just got robbed." She also said she had been raped or assaulted. Reynlib searched the condominium to make sure no one was there and saw that the door to the balcony was unlocked. After the police arrived, he noticed his watch was missing. The police pointed out to him that a slit was cut through the screen door right by its handle, near the lock.
¶ 19 Wheeling police officer Michael Bieschke, an evidence technician, testified that he arrived at the scene a little after 6 a.m. and took photographs. He noticed that a metal vent on the outdoor wall beneath the condominium's balcony was bent, apparently from overweight capacity. Officer Bieschke was able to get onto the balcony without stepping on the metal vent by grabbing the balcony railings and lifting himself up. Another officer informed him that there was a vertical cut in the screen door, next to the door handle. Upon examination, Officer Bieschke determined that the cut was approximately 3½ inches long. When he reached through the cut, he was able to touch the door's lock. In the bedroom, Officer Bieschke noted that the bed was unmade and that a T-shirt and a pair of women's underwear were near the foot of the bed. The underwear appeared to be torn or cut.
¶ 20 Wheeling police detective Michael Conway testified that he and another detective prepared a "critical reach flyer, " which was disseminated to local police departments, describing items that were taken from the condominium: a wedding band, a diamond ring, a men's watch, and a women's watch. The flyer included the serial number of the women's watch. On May 27, 2010, the detectives received information that the women's watch had been pawned by defendant at a Chicago pawnshop for $500. Detective Conway went to the pawnshop and recovered the watch, as well as the receipts for the transaction. He learned that defendant had used his passport as identification when pawning the watch.
¶ 21 Detective Conway arrested defendant outside a store near defendant's residence and transported him to the police station in Wheeling. At the station, Detective Conway advised defendant of his Miranda rights. Defendant told the detective that he spoke Spanish, as he had previously lived in Arizona with his ex-wife. He said he had recently pawned his ex-wife's watch, which he had found in her jewelry box. When shown a picture of the watch at issue, he said it looked like the watch he had pawned. Detective Conway told defendant he did not believe the watch was his ex-wife's and could prove it. Defendant began to cry and said "this was going to screw up everything, and he was just getting his life back in order after his divorce." When Detective Conway stated that mistakes only get worse when people do not tell the truth, defendant said he would feel better about telling the truth if he would be given a misdemeanor rather than a felony. Defendant said that on the night in question, he was at a bar in Chicago from about 8 p.m. until 4 a.m. Subsequent to this conversation, Detective Conway executed a search warrant for a buccal swab of defendant's cheek. Defendant was thereafter released from custody.
¶ 22 On cross-examination, Detective Conway testified that on the morning of the incident, he interviewed V.L., who described her assailant as a man in his forties, 5 feet 10 inches, 170 pounds, with a pock-marked face. Detective Conway acknowledged that defendant was "nowhere near" 5 feet 10 inches or 170 pounds and did not have a pock-marked complexion. He also stated he had never seen defendant with a mustache.
¶ 23 Wheeling police detective John Connolly testified that he executed a search warrant for defendant's car. In the driver's center arm rest he found a replica handgun, designed to look like a .38-caliber gun, and a small film canister containing suspect cannabis. A glass smoking pipe with suspected cannabis residue on it was in the ashtray. In the trunk, Detective Connolly found, among other things, a plastic toy Uzi gun and a pair of black nylon pantyhose.
¶ 24 Sarah Owen, a forensic scientist with the Northeastern Illinois Regional Crime Laboratory, testified that she tested the recovered T-shirt and underwear and detected semen on both. Owen compared defendant's DNA profile with DNA profiles that had been attained from the T-shirt by another scientist. Defendant could not be excluded as the source of the nonsperm portion of the DNA on the T-shirt, and the chances of the DNA coming from a random unrelated Caucasian were 1 in 5.29 million. Defendant's DNA profile matched the sperm portion of the DNA detected on the T-shirt. The chances of that DNA coming from a random unrelated Caucasian were 1 in 17.4 quadrillion. No comparisons were made to the sperm detected on the underwear because the sample failed to yield a sufficient amount of DNA for comparison purposes.
¶ 25 Detective Conway testified that on June 3, 2010, after a lab identified DNA recovered from the Wheeling condominium as matching defendant's DNA, he rearrested defendant.
¶ 26 Wheeling police detective Ignacio Oropeza testified that on June 3, 2010, he fingerprinted defendant and took his mug shots. According to Detective Oropeza, while in the processing room, defendant spontaneously said, "I should have killed that girl." Defendant then glanced up at the room's security camera and said, "I shouldn't have said that at a police station." Detective Oropeza explained that the security camera did not record audio, and stated that he did not know the whereabouts of the video.
¶ 27 Defendant testified that at the time of the events at issue, he was 5 feet 5 inches, weighed between 140 and 150 pounds, and did not have a pock-marked face. He was 32 years old. Defendant had been selling marijuana for at least 15 years, going back to high school, when he would deal to "other kids." Recently, he found customers mainly through friends who worked as bouncers at bars. Customers would contact him via "throw-away" phones, which he explained were prepaid phones that could not be tracked, that he was able to buy without showing identification, and that he would throw away after using up their value.
¶ 28 Defendant testified that he first met V.L. in December 2009. She had obtained one of defendant's throw-away phone numbers from a bouncer in Chicago and called him. V.L. said that she wanted to buy some marijuana, and they arranged to meet. Defendant drove to the meeting place, V.L. got into his car, and the two drove to a parking garage where they could have privacy. After they each smoked a "joint, " V.L. bought an eighth of an ounce of marijuana.
¶ 29 In late February or early March 2010, V.L. called defendant on another of his throw-away phones. V.L. said she was in town on vacation and wanted to buy marijuana. The two made plans to meet. Defendant picked V.L. up in his car. She was flirty and put her hand on his leg while they talked. Defendant drove to a parking garage. After they smoked a "joint, " V.L. kissed defendant and performed oral sex on him. V.L. bought half an ounce of marijuana, and the two smoked another "joint." Their conversation turned to sex. V.L. told defendant that she had "fantasies of men taking her over, taking command." She said that she fantasized about a burglar scenario where a man she did not know would take over. Defendant told V.L. that he was excited about the things she was saying and they agreed maybe they could "do something" in the future.
¶ 30 Defendant testified that he next heard from V.L. on May 22, 2010, when she again called him on a throw-away phone. V.L. said she wanted to buy marijuana and "was hoping [they] could hook up" in Wheeling in the early morning hours. Defendant, who was staying at his parents' residence in Highland Park that weekend, agreed. V.L. gave defendant the address of a condominium and indicated she would call him later. Around 2 a.m., V.L. called to say she was on her way to the condominium and that "she was hoping that we could do what we had talked about last time." She also said she was hoping that it could be a little "kinky." Defendant gathered ...