People v. Hall, 1-89-1841

• Decision Date: 02 September 1992
• Docket Number: No. 1-89-1841,1-89-1841
• Citation: 176 Ill.Dec. 185,601 N.E.2d 883,235 Ill.App.3d 418
• Parties: , 176 Ill.Dec. 185 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul HALL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 883

601 N.E.2d 883

235 Ill.App.3d 418, 176 Ill.Dec. 185

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul HALL, Defendant-Appellant.

No. 1-89-1841.

Appellate Court of Illinois First District, Third Division.

Sept. 2, 1992.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, Randall E. Roberts, Mary Brigid Kenney, of counsel), for plaintiff-appellee.

Stephen M. Komie, Marco A. Raimondi, Komie & Associates, Chicago, for defendant-appellant.

MODIFIED ON DENIAL OF REHEARING

Presiding Justice GREIMAN delivered the opinion of the court:

In a jury trial, defendant Paul Hall was convicted on five counts of aggravated criminal sexual abuse involving a foster child who resided in his home. Defendant was sentenced to four years in prison.

On appeal, defendant alleges the trial court erred by (1) refusing to exclude the testimony of a witness, K.H., without an evidentiary hearing regarding the loss of an audiotape of the initial interviews with the witness that had last been in the prosecutor's possession; (2) allowing two witnesses to testify to similar acts of sexual abuse that defendant performed upon them; (3) allowing testimony by police and a physician of prior consistent statements by complainant D.S.; (4) permitting the State to present extrinsic evidence on rebuttal to impeach defendant on collateral matters inquired of him on cross-examination.

We affirm defendant's conviction.

The complainant, D.S., was 13 years old in February 1986 when he was placed in defendant's foster home by a Department of Children and Family Services caseworker. Defendant is well-known in his community not only as the minister of his church, but for his active community involvement which includes his founding of the Paul Hall Boys Club, a gang hotline and a food distribution program for the needy.

D.S. testified that his sleeping quarters were defendant's bedroom, initially on a mattress on the floor, later with defendant in his bed. On several occasions during May 1986 defendant told D.S. to remain at home after dinner to answer the telephone while the other foster boys who lived with defendant went to the Paul Hall Boys Club. The boys who lived in defendant's home went to the club for activities several evenings each week.

During these evenings, defendant sought to become sexually intimate with D.S. and on the third evening, defendant performed fellatio on an unwilling D.S. When D.S. objected to this conduct, defendant told him that "no matter where you go or where you live, you are going to have to do something for someone" and "in order for me to do something for you, you're going to have to do something for me."

On at least two occasions later in the month, defendant performed fellatio on D.S. and then performed anal intercourse upon the young boy. When D.S. screamed in pain, defendant stopped and told him "You did good."

On June 7 and June 14, 1986, defendant told D.S. and K.H., another minor residing with defendant, to stay home while the others left the house for church activities. Defendant ordered the boys into his bedroom and directed each of them to touch and fondle the other, then, on each of those days, required one boy to watch while defendant performed anal intercourse on the other boy.

After that experience, D.S. testified that defendant performed anal intercourse, using a lubricant, every other week and performed oral intercourse every week. The sexual relations continued for 20 months until December 1987. The incidents occurred when the other boys were at the boys club and defendant told D.S. to remain at home to answer the phone, which defendant would take off the hook.

In November 1986, on at least two occasions, defendant showed D.S. homosexual pornographic movies, told him to wear women's lingerie which defendant provided, and gave him a drug called Rush, supposedly a muscle relaxant, prior to fellatio and anal intercourse. D.S. testified that defendant kept the movies, lingerie and Rush in a box in a crawl space accessed through defendant's bedroom closet.

D.S. testified that defendant gave him money every day, nice clothes, a watch, radio, cassette player and bicycle. Occasionally, after their sexual encounters, defendant would tell D.S., "You did good."

On the morning of January 18, 1988, D.S. left the boys club around noon, never intending to return to defendant's home. Police found him sleeping at O'Hare airport at 1 a.m. the next morning. When the police informed him that they would return him to defendant's foster home, D.S. told them about the sexual activity occurring there because he feared defendant and did not wish to return to the situation.

K.H.'s testimony corroborated D.S.'s testimony regarding sexual acts that defendant performed on K.H. in D.S.'s presence and on D.S. in K.H.'s presence. K.H. testified that defendant told him that D.S. was going to replace K.H. and defendant was using K.H. as an example to D.S. K.H. stated that prior to D.S.'s arrival at defendant's foster home, K.H. had slept in defendant's bedroom and had been subjected to regular incidents of fellatio and anal intercourse with defendant.

K.H. testified that during 1984, sexual encounters between K.H. and the defendant occurred several times per week and that defendant was generous in giving him cash and gifts.

When defendant wanted K.H. to have sex with him, he would require him to remain home to answer the phone. K.H. testified that defendant also used a lubricant when he performed anal intercourse, that the sexual activity took place in defendant's bedroom suite, that defendant asked K.H. to wear women's lingerie, and that he kept the lingerie in a box in the crawl space.

K.H. testified that when he tried to avoid the sexual encounters, defendant would repeatedly tell him that he had to endure them because nobody wanted to take care of him and he had nowhere else to turn. Finally, K.H. ran away from the house and subsequently enlisted in the Army.

T.W., another foster child in defendant's home, also testified that defendant performed sexual acts on him, beginning in October 1987, the month that he moved into defendant's home. The incidents occurred when other household members were at the boys club and defendant ordered him to remain at home to answer the phone. The sexual activity occurred in defendant's bedroom suite; a lubricant was used; and when T.W. told defendant that he was in pain, defendant told him "You did good."

T.W. testified that defendant gave him money every day and often bought him expensive gifts and clothing, such as a radio, camera, watch, books and a $400 suit. When T.W. voiced his objection to the sexual activity, defendant told him he would have to do what defendant wanted or defendant would not adopt him or allow him to live in the house.

On January 19, 1988, the day after D.S. ran away from defendant's home, T.W., as instructed, was cleaning defendant's room when defendant entered and told him to go downstairs. T.W. then saw defendant and Darryl Hall, another resident, carrying belongings out of the house, a briefcase and a box with lingerie hanging out of it, which they placed in defendant's car before driving away.

T.W. stated that before he left defendant's bedroom, the door to the attic was closed, and after defendant left the house with the box, the door was open. At a meeting that evening, defendant told household members that they were not to talk to the police about the adults who lived in the house and that they were not to tell police that D.S. slept in defendant's room. T.W. stated that he lied to police that night because he feared defendant's power and connections.

During pretrial investigation, K.H., who was serving in the Army in California, was contacted and interviewed twice by a Salinas, California police officer in early February 1988. On those occasions, the officer surreptitiously tape-recorded the interviews. Based upon their conversations, the officer wrote a five-page summary of K.H.'s statements and sent the written report and tape to the Cook County sheriff's office in Chicago, who forwarded the evidence to the Cook County State's Attorney.

Three months prior to trial, prosecutors notified defense counsel that they were unable to locate the tape pursuant to discovery requests, although the written summary prepared by the California police officer was available and provided to defendant. The court heard pretrial arguments on defendant's motion to bar the testimony of K.H. in which the State argued that the tape was inadvertently lost when the case was transferred to different prosecutors within the State's Attorney's office. The court denied the motion.

Defendant first contends that the trial judge erred when it denied his motion to exclude K.H.'s testimony because (1) prosecutors failed to comply with the discovery rules required in production of a tape of his interviews; (2) there was no evidentiary hearing regarding the cause or explanation for the loss of the tape; and (3) failure to hold a more formal hearing denied defendant the opportunity to present a jury instruction on failure of a party to produce evidence.

Defendant seeks a reversal and remandment for new trial where the testimony of K.H. would be excluded and a proper instruction given to the jury regarding the missing tape.

During the hearing on defendant's motion to bar K.H.'s testimony, the State acknowledged that the tape of the interviews had been received by the State's Attorney's office and thereafter lost or mislaid in the transfer and change in personnel handling the file. Neither of the assistant State's Attorneys then assigned to the case had heard the tape or knew of its contents.

When a search conducted within the State's Attorney's office proved unsuccessful, the State immediately contacted defense counsel to inform him of the lost tape. The State also timely advised defendant during pretrial investigation that...