People v. Brown

• Decision Date: 06 June 1988
• Docket Number: No. 2-86-1172,2-86-1172
• Citation: 170 Ill.App.3d 273,120 Ill.Dec. 712,524 N.E.2d 742
• Parties: , 120 Ill.Dec. 712 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 742

524 N.E.2d 742

170 Ill.App.3d 273, 120 Ill.Dec. 712

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith BROWN, Defendant-Appellant.

No. 2-86-1172.

Appellate Court of Illinois Second District.

June 6, 1988.

G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Daniel D. Yuhas, 4th District Appellate Defender, David Bergschneider, Asst. Defender, Office of State Appellate Defender, Springfield, Robert L. Janes, for Keith Brown.

Robert J. Morrow, Kane County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, State's Attys. Appellate Service Com'n, Kevin T. McClain, Immel, Zelle, Ogren, McClain, Germeraad &amp Costello, Springfield, Robert F. Casey, Kane County State's Atty., for People.

Justice WOODWARD delivered the opinion of the court:

On May 13, 1986, defendant, Keith Brown, was charged by indictment with aggravated criminal sexual assault. On November 6, 1986, he was convicted in a jury trial. Defendant was sentenced to a term of 12 years' imprisonment.

On appeal defendant raises the following issues: (1) the trial court erred in admitting as a spontaneous declaration the details of a statement which the complainant made to Deputy Keith Smith; (2) the trial court erred in denying defendant's motion for discharge under the section 103-5 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1985, ch. 38, par. 103-5); and (3) the prosecutor committed reversible error in the trial proceedings. We reverse and remand.

Victim's Testimony

Mary E. Butler, the alleged victim, testified that on April 26, 1986, she left her home during the early morning hours after arguing with her husband. By that time in the evening, Butler had consumed one-half gram of cocaine and two or three beers. At approximately 1:45 a.m., Butler was sitting in her car, which was situated in front of Aurora's American Legion Hall. Defendant approached Butler's car and introduced himself. After a brief conversation, he asked her if she would "like to go out and party a while and get some beer and stuff to drink?" Butler agreed, saying also that she wanted to drive her car.

They drove to several "after-sets" looking for a cocaine dealer named "Tennessee." She described "after sets" as parties held in private homes after the bars had closed. Defendant remained in the car while Butler went into the homes. At one after-set, defendant gave Butler $2 for the cover charge. Only Butler sought cocaine; defendant did not use any drugs during the time he was with her.

While driving from party to party, defendant attempted to kiss Butler, but she rebuked him. Defendant apologized, and Butler continued driving.

Butler eventually found Tennessee and purchased one-half gram of cocaine from him. Butler drove to the apartment of her friend, Theresa Saulsberry. There she "free-based" the cocaine. Defendant remained in the car while Butler was in the apartment.

When Butler returned to her car, defendant said that if she wanted more cocaine, they could go to his brother's house in Elgin. Butler wanted more of the drug and agreed to go to Elgin. Defendant bought gas for Butler's car. Butler drove north on Mitchell Road and then proceeded north on Hart Road which she described as "dark and a back road."

While traveling on Hart Road, defendant asked Butler to pull over so he could "go to the bathroom." Butler stopped but kept the car running and the lights on. Defendant started to exit the car, then turned and tried to take the car keys out of the ignition. Butler fought with defendant for the keys.

Defendant slid across the seat, climbed on top of Butler, and began choking her with both hands. Defendant said that he should kill Butler. Defendant then opened the car door, and they tumbled to the ground. Defendant dragged Butler down an embankment and up a small hill.

Butler stopped fighting and said that she would do whatever defendant wanted. Defendant never said that he wanted to have sexual intercourse with her, but Butler assumed that was his intention. Butler could not remember whether she took off her own shorts or if defendant removed them, but she did recall removing her sanitary napkin.

After Butler and defendant had intercourse, he stood up and began yelling at Butler that she was trying to cheat him. Defendant told Butler to take him back to Aurora, where his car was located.

On the way back to Aurora, defendant continued to yell at Butler. After leaving defendant at his car, she attempted to follow him in order to memorize his license plate number; however, by the time Butler had circled the block, defendant was gone. Butler conceded that, as she dropped off defendant, she yelled that she was "going to make my old man kill your ass."

Butler searched for a police car for 10 to 15 minutes but was unable to locate one. She then went to Harper's Gas Station to telephone the police. Before making the call, however, Butler debated whether to report the incident. She was not sure if she wanted to call the police because she was embarrassed and afraid of what her husband would say.

Butler ultimately telephoned the police. While waiting for their arrival, 10 or 15 minutes later, Butler returned to her car and discovered defendant's wallet on the front seat. She gave the wallet to the police. Kane County deputy sheriff, Keith Smith, took a statement from Butler and then transported her to the scene of the alleged incident and later to Mercy Hospital, where she was examined by a nurse. As a result of the struggle with defendant, Butler sustained minor injuries, including bruises and scratches.

Butler told police that she did not know defendant prior to April 26, 1986, but that she did know his sister-in-law. Butler did not tell the officer that she had purchased and ingested cocaine because she did not want him to think she was an addict. She also did not inform Officer Smith that she had argued with her husband earlier in the evening.

Butler admitted that she had taken cocaine several times in the year prior to April 26, but insisted that she was not an addict. She admitted that in the hours preceding this purported incident, she had consumed one gram of cocaine, for which she had paid $100.

Deputy Smith's Testimony

Deputy sheriff Keith Smith testified that on April 26, 1986, he was dispatched to the Harper Gas Station, where he took Butler's complaint. Smith observed that Butler had bits of grass in her hair. Her shirt was torn in the shoulder area, and she had bruises around her throat. He also observed some scrapes on her left hip. Butler appeared quite emotional and reluctant to talk with Smith, who did not think she was under the influence of drugs or alcohol.

Over defense counsel's strenuous and continuing objections, Deputy Smith testified to his interview with Butler. Butler told him that she met defendant at the American Legion Hall in Aurora. After a brief and casual conversation, they went looking for some parties, several of which Butler went to, while defendant stayed in the car. Following the last party, defendant asked Butler to take him to Elgin and stated he would give her $1.50 for gas. Whereupon they went to a gas station at Route 25 and Indian Trail in Aurora. After getting gas, they went northbound on Mitchell and Hart Roads. On Hart Road, defendant asked Butler to pull over so that he could relieve himself. After the car had stopped, defendant opened the passenger door but then abruptly turned and attempted to grab the keys out of the ignition, saying that Butler wasn't going to leave him there. They struggled over the keys; defendant threatened to kill Butler. He then put both hands on her throat and began to choke her. In the struggle, defendant opened the driver's side door, whereupon they fell out onto the pavement. He dragged her to a grassy area and up an embankment, at which point Butler said that she would give him what he wanted. Butler started to remove her pants, which defendant forcibly took off her person. She removed her sanitary napkin, and they engaged in sexual intercourse. Defendant told her to drive him back to Aurora, which she did. After dropping defendant off on Bonner Avenue, Butler saw him walk to what she thought was a white Monte Carlo. Butler unsuccessfully attempted to follow his car and then drove to Harper's Gas Station, where she called the police. Waiting for the police, she discovered defendant's wallet in her car's front seat.

Deputy Smith further testified that following his interview with Butler, he accompanied her to the scene of the alleged sexual assault. There Smith found a barrette and sanitary napkin, both of which Butler identified as hers.

Defendant's Testimony

Defendant testified that in the early morning hours of April 26, 1986, he went to the American Legion Hall in Aurora, where he consumed two or three beers. About 1:45 a.m., as he was leaving, Butler gestured for him to come to her car. Defendant had been acquainted with Butler since they were children. He had seen her at two social occasions in the previous year. Butler asked defendant if he would like to "party," and he responded that he would and entered her car. Defendant laid his wallet on the front seat because he had no back pockets. Butler stated that she had to stop at some parties to purchase cocaine.

At the first party, Butler exited the car and looked for the vehicle of an acquaintance named "Tennessee," from whom she wanted to buy cocaine. Defendant remained in the car. Butler could not locate Tennessee, and she returned to the car and drove to another party.

Butler thought she saw Tennessee's car at the second party. She then kissed defendant and said she would be right back. Butler returned to the car a few minutes later, stating that she had been mistaken and that Tennessee was not at the party. Butler drove back to the first party and saw Tennessee's car. She again left defendant...