People v. Moore

• Decision Date: 01 June 1990
• Docket Number: No. 1-87-2604,1-87-2604
• Citation: 199 Ill.App.3d 747,145 Ill.Dec. 767,557 N.E.2d 537
• Parties: , 145 Ill.Dec. 767 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darryl MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 537

557 N.E.2d 537

199 Ill.App.3d 747, 145 Ill.Dec. 767

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darryl MOORE, Defendant-Appellant.

No. 1-87-2604.

Appellate Court of Illinois,

First District, Sixth Division.

June 1, 1990.

Darryl Moore, Menard, pro se.

Cecil A. Partee, State's Atty., Chicago (Inge Fryklund, Kenneth T. McCurry, David R. Butzen, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice LaPORTA delivered the opinion of the court:

Defendant was charged in a thirteen-count information with six counts of aggravated criminal sexual assault, one count of criminal sexual assault, one count of robbery, three counts of aggravated kidnapping, one count of kidnapping, and one count of unlawful restraint. After a jury trial in which the defendant appeared pro se, he was found guilty of all charges. Defendant's motion for a new trial and writ of error were denied. After a sentencing hearing, the defendant was sentenced to concurrent terms of sixty years for aggravated criminal sexual assault, seven years for robbery, and fifteen years for aggravated kidnapping. He appeals, and we affirm for the reasons stated.

In his appeal, defendant raises twenty-one issues, many of which are related or repetitive and so have been combined in this opinion. Defendant argues that the trial court committed reversible error by (1) not granting defendant's motion to dismiss which alleged that the information had been brought about through prosecutorial misconduct; (2) allowing discovery violations to occur which denied him access to necessary documents and information material to his defense; (3) allowing the State to introduce perjured and unsupported testimony; (4) not compelling the productions of witnesses; (5) not recusing itself from the case; (6) allowing the State to bolster the victim's testimony by use of a prior consistent statement and by the testimony of other witnesses; (7) improperly questioning a witness on the stand; (8) allowing a portion of the trial to be recorded and broadcast by the news media; (9) allowing false photographs which did not accurately depict the site of the alleged attack to be admitted into evidence and published to the jury; (10) allowing expert testimony not based upon facts in evidence; and (11) giving jury instructions which were erroneous, confusing, and did not accurately state the law. Defendant also argues that the sentence was improper.

The defendant did not testify at trial, concentrating instead on disproving the testimony of the State's witnesses by cross-examining them and by the testimony of his witnesses.

The first person to testify was the eleven-year-old victim. She testified that on the evening of February 13, 1987, her mother had given her ten dollars to go to a local sandwich shop for dinner, and that as she walked under a viaduct towards the shop she was approached by a man, whom she identified as the defendant, who showed her a gun and asked if she knew anybody who wanted to buy a gun. The victim did not answer and tried to walk away, but the man grabbed her, pulled her into an alley, pushed her down beside a garage, removed her pants and underpants, removed his sweatpants, pulled his penis through the opening in his boxer shorts, and inserted his penis in her vagina. She testified that the ten dollar bill she had been given by her mother fell out of her pocket and although she reached for it the defendant took it. After a "couple of minutes," during which he kept his hand over the victim's mouth, the defendant removed his penis and moved away from the victim, who was able to stand, dress herself, and run home.

When the victim arrived home, she told her mother what had happened, and her mother told the victim's brother to call the police while she, the victim, and a neighbor retraced the victim's route in an effort to find the attacker. When they returned home a few minutes later a police car with two officers waited. The victim got into the squadrol and spoke to the officers while her mother went upstairs briefly, then the victim directed the officers to the scene of the attack. Afterwards the officers drove the victim to the hospital, where she was examined, and then was taken home.

The next morning, the victim and her mother went to the police station, where she spoke with various officers and an assistant state's attorney. The victim and her mother viewed a lineup of five men, and the victim identified the defendant as her attacker. The victim marked the defendant on a photograph of the lineup, and stated that she identified him by his sweatpants and by the scars on his face. She also identified her underpants, which had been taken at the hospital for use as evidence, and identified a series of photographs of her route to the sandwich shop and the scene, testifying that the photographs were a true and accurate representation of the area.

During his cross-examination, the defendant raised discrepancies between the victim's trial testimony that she had told the emergency room nurse that she was raped by a man with a gun, and police and medical reports which he said reflected no such information. When the victim insisted that she had told the emergency room nurse, police officers, and others of the gun, the defendant stated that she was saying that because the state's attorney had told her to lie. The defendant read part of the victim's preliminary hearing testimony which he said contradicted her trial testimony and proved that the state's attorney had told the victim to lie. The victim testified that the information was hers, and did not come from the state's attorney.

The victim's mother testified that approximately forty minutes after she gave the victim a ten dollar bill to go to the sandwich shop, the victim returned to the apartment "screaming and hollering" and told her mother that a man had attacked her. After telling her son to call the police, the mother took the victim and a neighbor along the victim's route in an attempt to find the attacker. At this time, the victim had not told her mother where the attack occurred or that the man had a gun.

When they returned home, the mother told the police that her daughter had been raped, and went upstairs to use the washroom. When she returned, the victim and the neighbor were seated in the police car, and the victim was telling the police officers what had happened. The victim described the man to the officers, and directed them to the scene of the attack. The mother identified one of the photographs as a true and accurate depiction of the scene. The officers then took the victim and her mother to the hospital, where the victim was examined. The mother testified that she spoke to one doctor, who said that the victim was all right, but that she did not ask him whether the victim had been raped. One of the police officers came to the mother and told her that they had found someone who matched the victim's description and that they should come to the police station the next day to make an identification.

The next morning, a detective came to take the victim and her mother to the station, where they went into one little room and spoke to some detectives. The mother and victim then moved to another room where they viewed a lineup, and the victim identified the defendant as her attacker; at trial the mother was asked by the attorney to mark the man her daughter had identified on the lineup photograph. They then returned to the first room, where the victim was shown a gun which she identified as the weapon the defendant had used during her attack. The assistant state's attorney spoke to them briefly, and the victim and her mother returned home.

On cross-examination, the defendant focused on the description given by the victim to the police officers, asking how the victim had identified him if the clothing her attacker had worn was not the same as that the defendant had been wearing when he was arrested. The mother testified that the victim had identified the defendant by the scars on his face.

After the mother testified, the judge informed the jury that pursuant to the defendant's request they would be taken to view the scene of the attack. The defendant objected, claiming that the scene to which the jury was to be taken was not correct, and arguing that there was no documentary evidence that the victim had taken the officers to the scene. The defendant's objections were overruled, with the trial judge noting that if evidence of a different site were revealed later in the trial, the jury would be taken to the other site. The judge informed the jury that news reporters would be at the scene but would be told to keep their distance. At the scene, the victim pointed out various areas she had described in her testimony.

The next day, the defendant moved for a mistrial because the case had been reported on the radio and in the newspapers. The trial judge asked for and reviewed the newspaper articles, then queried each juror in chambers, with the defendant present. Of the twelve jurors and two alternates, only one, an alternate, admitted having seen an article and testified that he had stopped reading it when he realized that it was the case he was on. He assured the judge and the defendant that the little he had seen would not affect his judgment on the case, and that if it would he would inform the court. A juror mentioned that "somebody" mentioned that a gang leader and drugs had been mentioned, but assured the court that she would remain unbiased, and the defendant asked her no questions.

Officer Joseph DeCarlo, one of the police officers who had been dispatched to the scene, testified that the mother had told him that her daughter had been raped. The officer asked the victim what had happened, and asked for a description of the attacker. He then radioed a description of the attacker to all other cars in the vicinity.

The officer asked the victim...