People v. Grant

• Decision Date: 10 July 1992
• Docket Number: No. 1-88-3473,1-88-3473
• Citation: People v. Grant, 596 N.E.2d 813, 232 Ill.App.3d 93, 173 Ill.Dec. 189 (Ill. App. 1992)
• Parties: , 173 Ill.Dec. 189 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl GRANT, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 813

596 N.E.2d 813

232 Ill.App.3d 93, 173 Ill.Dec. 189

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl GRANT, Defendant-Appellant.

No. 1-88-3473.

Appellate Court of Illinois First District, Fifth Division.

July 10, 1992.

Rita A. Fry, Office of the Public Defender, Cook County, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty., Cook County, Chicago, for plaintiff-appellee.

Justice GORDON delivered the opinion of the court.

Following a jury trial, defendant Carl Grant was found guilty of home invasion and aggravated criminal sexual assault, and was sentenced to fifty years in the Illinois Department of Corrections, followed by a three-year period of mandatory supervised release. On appeal, defendant contends that (1) his conviction for aggravated criminal sexual assault should be reversed because complainant's testimony that the assault occurred in a dark room where four other people were sleeping and no one woke up lacks credibility and is contrary to human experience; (2) the trial court erred in refusing to allow cross-examination of the complainant regarding prior sexual relations with her boyfriend to explain or rebut the medical evidence; (3) the prosecutor's comments during closing argument regarding the subpoena power of defendant to obtain the testimony of an emergency room physician impermissibly shifted the burden of proof to the defendant; and (4) the examination of the complainant's mother on redirect concerning the taking of certain photographs of her apartment building had the effect of making the prosecutor a witness. For the reasons set forth below, we affirm.

FACTS

L.F., the 13-year-old complainant, lived in an apartment with her mother, two sisters, ages seven and sixteen, and three brothers, ages seven, eight and fourteen. The apartment consisted of a living room, dining room, kitchen, bathroom and two bedrooms. L.F.'s mother slept in one bedroom and five of her children slept in the other bedroom. The furniture in the children's bedroom consisted of a king size mattress and box spring which were next to each other on the floor, and two dressers. L.F. and two of her brothers slept on the mattress, and two other children slept on the box spring. Her sixteen-year-old sister slept on a sofa in the dining room.

L.F. testified that on April 1, 1988, at about 7:30 p.m., she was at home, in bed, when she saw the defendant and his friend walking through the apartment. The defendant was on the way to his uncle's apartment which was downstairs from the apartment where she lived. She had known the defendant for close to a year.

Later during the night, L.F. saw the defendant again. She was in bed, sleeping, but woke up to find the defendant on top of her, pulling down her shorts and underwear. The defendant called her by her nickname. His face was a foot to a foot and a half away from hers. There was light coming into the bedroom from the kitchen, bathroom and a window.

L.F. testified that she tried to sit up and pull her shorts back on, but the defendant pushed her down and put her hands behind her back. He then vaginally penetrated her and "started pumping" on her. She was crying softly, and tried to push him away. She thought that he had a knife. He told her to stop trying to push him away or it was going to hurt. L.F. testified that after he was finished, she felt sperm on her vagina and on her underwear.

L.F. ran to the bathroom, where she found her mother, and told her mother that "Carl raped me." When she and her mother went into the living room, the window, screen and door were open. Her mother took her to the police station and then to the hospital.

Eight days later, L.F. identified the defendant in a line up.

On cross-examination, L.F. testified that she did not yell out or scream. Her elbow was touching her eight-year-old brother sleeping next to her.

The defense then attempted to question L.F. about her boyfriend. When he asked L.F. whether she had told the police that she had sex with her boyfriend the day of the alleged rape, the State objected. The court sustained the objection. At a sidebar, defense counsel argued that L.F. had told a police officer that she had sex with her boyfriend at noon on the day in question. It was the defense position that someone other than the defendant may have been the source of the seminal material detected on swabs taken from the victim following the alleged assault since seminal material may remain in the body for up to three days after sexual intercourse, and that this fact cast doubt on the validity of the scientific evidence to be presented later.

As his offer of proof, defense counsel stated:

"If I call the officer, I don't know what her response would be, yes or no, if she admitted or denied, but I would elicit testimony from Officer Patterson where she indicated to him when he interviewed her she allegedly had sex with her boyfriend.

* * * * * *

Just so that we did talk to her and my partner did remind me and she does have a boyfriend and she has had sex with him two or three times and she told us the last time four or so months prior to this incident."

The court ruled that any reference to sexual activity by the complainant with her boyfriend was barred by the Rape Shield Statute (Ill.Rev.Stat.1987, ch. 38, par. 115-7), and instructed the jury to disregard the last question.

Janice Reisse, an emergency room nurse at Ingalls Memorial Hospital, testified that she saw L.F. in the early hours of April 1, 1988. L.F. told her that she had been raped. Nurse Reisse collected hair and blood samples from L.F., and also was present when the emergency room physician examined L.F. and took vaginal swabs for evidence.

On cross-examination Ms. Reisse testified that she observed one abrasion on L.F.'s face, but she noted that it was an old abrasion. She did not see any marks or bruises anywhere else on L.F.'s body.

Sadie Fulwiley, L.F.'s mother, also testified at trial. She described her children as sound sleepers, and said that it was not unusual for her children to sleep while the radio or television were on or while a party was in progress.

Sadie Fulwiley testified that on the evening of March 31, 1988, she was at a card party at a house two doors down from hers. She left the party at about 3:00 a.m. on April 1st, after drinking seven or eight beers, and went home. Upon arriving home, she went straight to the bathroom. Her daughter came to the bathroom door and told her mother that Carl had raped her. She and her daughter went into the living room and found one of the windows and a screen open. She nailed the window shut before she and her daughter walked five and one half blocks to the police station.

Sadie Fulwiley also testified that prior to April 1, 1988, it was usual for her to see the defendant around her house three or four times a week. After April 1, 1988, she did not see him again until April 9, 1988, the day L.F. identified him in a lineup.

The prosecutor showed Mrs. Fulwiley several photographs, which she identified as photographs of the exterior of her apartment building. On cross-examination, she said that the pictures had been taken three or four days prior to trial by two state's attorneys.

Also on cross-examination, Mrs. Fulwiley stated that when she came out of the bathroom, she looked in on the other children in the bedroom and they were all asleep. The sixteen-year-old was asleep on the sofa in the dining room, and did not wake up until her mother "shook her and hollered her name out a couple times."

On re-direct, the State asked several other questions about the photographs of the apartment, without any objection at that time:

"[Prosecution]: Q: Sadie, you testified that both Mr. Cahill and myself came out to your apartment on Saturday, this past Saturday; is that correct?

"A: Yes.

Q: We both came out there. Do you remember who was taking the pictures?

A: You.

Q: Do you remember when I first started taking the pictures that I started by taking pictures of the front of the house?

A: Yes.

Q: And I took three from a far distance from the front and three more close up of the porch?

A: Yes.

Q. These are the pictures you see here?

A: Yes.

Q: Then do you remember me taking pictures of the door and of the window?

A: Yes."

Officer Lawrence Patterson, a detective with the Harvey police department, also testified for the State. Prior to Patterson's testimony, defense counsel, outside the presence of the jury, requested permission to ask him whether L.F. had told the officer that she had had sexual relations with her boyfriend on March 31. As an offer of proof, counsel stated that, if asked, the officer would indicate that L.F. told him that she had sex with her boyfriend at noon on the 31st. The prosecutor countered that he was present for that conversation, and no mention was made of sex with the boyfriend. The court denied defense counsel's request, but stated "the offer of proof can be developed through Officer Patterson, if necessary, outside the presence of the Jury, so that is is fully preserved for whatever purposes." Defense counsel responded "my offer is consistent with what was stated initially," and made no further attempt to question Officer Patterson on the subject.

When the jury returned, Officer Patterson testified that the defendant surrendered himself to the police on April 9, 1988. Later that day a lineup was held, and L.F. identified the defendant by sight and by voice. Patterson described the defendant as 30 years old, and approximately 6'1"' tall. L.F. is approximately 5'6"' tall and weighs 130 pounds. Patterson described L.F. as a shy, non-talkative "closet" child who would not speak up for herself.

Officer Patterson testified that L.F. told him she did not fight with the defendant because he said that he would hurt one of her brothers who were in bed with her. The defendant had his hands on her neck and was choking her. He also smelled like...