People v. Bock
| Decision Date | 19 February 1993 |
| Docket Number | 1-88-2664,Nos. 1-88-2642,s. 1-88-2642 |
| Citation | 183 Ill.Dec. 525,611 N.E.2d 1173,242 Ill.App.3d 1056 |
| Parties | , 183 Ill.Dec. 525 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony BOCK & John Fialkowski, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
State's Atty. of Cook County, Renee Goldfarb, Howard Weisman and Ronald Tulin, Chicago, for plaintiff-appellee.
Public Defender of Cook County, Frederick Weil, Vicki Rogers, Chicago, for defendants-appellants.
After a joint trial before separate juries, defendants were found guilty of aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14(a)), and unlawful restraint. (Ill.Rev.Stat.1987, ch. 38, par. 10-3(a).) The trial court vacated the finding on the unlawful restraint charge and sentenced both defendants on the aggravated criminal sexual assault charge. Defendant Bock received a sentence of nine years, while defendant Fialkowski received a sentence of twelve years.
On appeal, both defendants contend: (1) the State's numerous violations of discovery rules and improper comments during trial denied them their right to a fair trial; (2) the trial court erred in denying the defendants the opportunity to introduce evidence or cross-examine the complainant as to her previous complaints of rape; (3) the trial court erred in failing to instruct the juries regarding a mental state required for aggravated criminal sexual assault; and (4) the State failed to prove defendants guilty beyond a reasonable doubt of aggravated criminal sexual assault. In addition, defendant Fialkowski contends that by conducting a joint trial before separate juries, he was denied his right to a fair trial. For the following reasons, we affirm.
Defendants Bock and Fialkowski were both charged by indictment with aggravated criminal sexual assault, unlawful restraint and robbery. Prior to trial, counsel for defendant Bock presented a motion for severance. Defendant Fialkowski's counsel, although present at the hearing on Bock's motion, did not present his own motion. The court, rather than granting Bock's motion, determined to try the case with two juries which would hear the testimony of all the State's witnesses, with the exception of any testimony regarding statements made by a defendant. In addition, closing arguments, which could contain references to such statements, would be made to each jury separately.
The State's first witness was the complainant, T.S. She testified that in September of 1987, she was employed as a bartender at a restaurant in Chicago. On September 10, she finished working for the day at approximately 1 a.m. and, after having dinner with her boyfriend and then dropping him off at his home, she went to a bar called City Limits where she had previously worked. She arrived at City Limits at about 2:30 a.m. and ordered a drink.
T.S. testified that defendant Fialkowski, whom she knew by the name Red, was at City Limits. T.S. knew Fialkowski because he had lived in the same neighborhood as T.S.'s sister. T.S. testified that she had not seen Fialkowski for seven years. In the course of their conversation, Fialkowski asked T.S. for a ride home. Fialkowski also introduced T.S. to his friend, defendant Bock, and asked if he could have a ride too.
T.S. said that she and the defendants went out to her car, and they directed her to an alley near 34th and Western. She parked the car near a trailer, and the defendants got out of the car. She remained in the car and talked with Fialkowski through the driver's side window. Bock then walked up to the window and asked T.S. if she wanted to come inside the trailer. T.S. declined. At that point, Fialkowski jerked open the car door and pulled T.S. from the car by her hands and arms. Bock then grabbed her legs and they carried her, screaming, into the trailer and threw her onto a bed. T.S. testified that when she tried to get up, Bock struck her. When she asked why this was happening, Fialkowski told her to shut up.
T.S. testified that at the time, she was wearing a black jumpsuit, underwear, bra, and shoes. Bock pulled her jumpsuit off of her, tearing it in the process. Fialkowski was helping Bock to remove her clothes. After all her clothes were removed, both defendants sexually assaulted her. Bock got on top of her and had sexual intercourse with her while Fialkowski held her arms. Fialkowski then began to fondle her T.S. said that after the defendants had finished assaulting her, she was allowed to leave the trailer, but could not find her car keys. A man came to the door of the trailer. T.S. answered the door and asked the man to give her those keys. According to T.S., his response was that she "deserved it."
[183 Ill.Dec. 529] breasts and attempted to insert his penis in her mouth. Bock then performed an act of oral sex on T.S. Bock also had vaginal intercourse with T.S. two more times. At some point during the occurrence, [242 Ill.App.3d 1061] Fialkowski left the trailer. T.S. said that when he returned, she heard her keys fall to the floor of the trailer.
T.S. stated that she eventually found her keys on the floor of the trailer. She then grabbed her shoes and jumpsuit and left the trailer. Outside, she noticed that her car was not parked in the same place as she had left it. She drove towards her sister's house, stopping on the way to put on her jumpsuit and shoes. Instead of going to her sister's house, T.S. flagged down a police car. As she was locking her car in preparation to go with the police officers back to the trailer, she noticed her bra and panties in the back of her car and the contents of her purse scattered on the front floor. She testified that $30 which she had with her earlier and her identification were missing. She also noticed that one of her pierced earrings was gone.
When T.S. and the police arrived at the trailer, Fialkowski was standing outside and Bock was coming out of the trailer. Both were arrested.
On cross-examination by Bock's attorney, T.S. reiterated that, when the man came to the door of the camper, she asked him to help her find her keys, but conceded that she did not say "help me, I'm being raped."
T.S. was also asked if she knew what "tick" was, to which she responded yes, it is PCP, an animal tranquilizer. Although she denied using it, she thought tick was usually snorted through the nose.
When cross-examined by Fialkowski's attorney, T.S. stated that when she first saw Fialkowski at City Limits, he was standing in the middle of the room and she walked over to him. She further agreed that Fialkowski never attempted to have sexual intercourse with her, and did not overtly threaten her in any way.
On re-direct, T.S. testified that Fialkowski did hold her arms while Bock sexually assaulted her which caused some bruises on her wrists. She also stated that he attempted to have oral sex with her.
Dr. Helene Connolly was the next witness for the State. She treated T.S. at the hospital the morning of September 10, 1987. Dr. Connolly testified that T.S. was emotionally very upset, and had bruises on the back of her neck and both of her arms. According to Dr. Connolly, the bruises were recent. T.S. also had a cut on one of her arms. In addition, T.S. had an injury to her ear where a pierced earring had been pulled through the earlobe. Dr. Connolly also performed a pelvic examination, and prepared a Vitullo kit.
The State called Officer James Moylan of the Chicago police department as its next witness. At about 5:45 in the morning of September 10, 1987, he and his partner were flagged down by T.S. who told them she had been sexually assaulted. Moylan testified that she was highly upset, crying and stuttering. He observed marks on her elbows, wrists and forearms. T.S. directed the officers to the alley and the trailer where the assault had occurred, and the defendants were placed under arrest. Moylan testified as to what T.S. told him had occurred that morning, which was essentially the same as she had testified to at trial.
Later that day, Moylan examined T.S.'s car. It was very dirty and dusty. The dust on the hood was undisturbed.
At this point, the jury for defendant Bock was excused for the day. Only Fialkowski's jury heard the testimony of the State's next witness, Chicago police Detective Thomas Ptak. Detective Ptak testified that when he interviewed T.S. at the hospital following the assault, she was very upset, was shaking and crying, and had bruises about the face, upper chest and upper back. She also had abrasions to Following his interview with T.S., Ptak spoke with Fialkowski at the police station. Fialkowski told him of meeting T.S. at the bar and asking her for a ride home for himself and Bock. On the way, T.S. asked him for some "tick", but Fialkowski said he did not have any.
[183 Ill.Dec. 530] both of her arms and a tear in her right earlobe.
Ptak further testified that Fialkowski stated he saw Bock and T.S. having sex on the hood of her car. Bock and T.S. then went into the trailer and Fialkowski watched them have sex from outside the trailer through the doorway and the window. He also saw Bock strike T.S. with his fists several times. After Bock and T.S. had sexual intercourse three times, T.S. began screaming that she wanted to get out of there. Fialkowski told Ptak that he entered the trailer at this point and restrained T.S. by grabbing her wrists, trying to calm her down. He took her out of the trailer and retrieved her clothes and keys.
Ptak stated that, based on Fialkowski's statement that Bock and T.S. had sex on the hood of T.S.'s car, he went to the police lot to examine her car. Although the car had "at least, one week's dirt all over it", the dirt was not disturbed.
On cross-examination by Fialkowski's attorney, Detective Ptak was asked about his reports concerning the assault. When he referred to a "major crime worksheet report"...
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