People v. Rainford

• Decision Date: 29 April 1965
• Docket Number: Gen. No. 49899
• Citation: 58 Ill.App.2d 312,208 N.E.2d 314
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John RAINFORD (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 314

208 N.E.2d 314

58 Ill.App.2d 312

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John RAINFORD (Impleaded), Defendant-Appellant.

Gen. No. 49899.

Appellate Court of Illinois, First District, Third Division.

April 29, 1965.

Raymond, Mayer, Jenner & Block, Donald R. Harris, Chicago, for plaintiff in error.

Daniel P. Ward, Elmer C. Kissane, Kenneth L. Gillis, Chicago, for defendant in error.

DEMPSEY, Presiding Justice.

The defendant and his wife, Florence Rainford, were indicted in March 1960 for assault with intent to commit rape and in November 1960 they were found guilty of that crime in a nonjury trial in the Criminal Court of Cook County. The trial judge sentenced the defendant to the penitentiary for a term of not less than 13 nor more than 14 years. Florence Rainford received a similar sentence. This appeal by John Rainford seeks a reversal of the judgment on the ground that the court unduly restricted his cross-examination of the witnesses for the State.

The complaining witness was the 13-year-old stepdaughter of the defendant. Her testimony was that on March 1, 1958, she lived with her mother and stepfather and six brothers and sisters in a four room home in South Holland, Illinois. She testified that on that morning her mother told her to return to the children's bedroom and undress and get into bed with her stepfather. She did this. The defendant was undressed and kneeled over her in a straddled position. At this moment her stepbrother, Bill Rainford, 17, walked through the room into a bathroom which adjoined the bedroom. The defendant then covered himself and she started to cry. After her stepbrother left the bathroom her stepfather told her to get up and get dressed. This testimony was corroborated by Bill Rainford who testified on behalf of the State. Both the defendant and his wife denied the occurrence.

The accused in a criminal prosecution should be permitted broad latitude in cross-examination of the State's witnesses. This is particularly true in sex cases where as often stated by our courts the accusation is easily made and difficult to disprove. People v. Matthews, 17 Ill.2d 502, 162 N.E.2d 381; People v. Scott, 407 Ill. 301, 95 N.E.2d 315; People v. Fitzgibbons, 343 Ill. 69, 174 N.E. 848. The general issue presented is whether the court clearly abused its discretion in limiting the efforts of the defense to cross-examine the prosecutrix and her stepbrother on matters affecting their credibility. People v. Dukes, 12 Ill.2d 334, 146 N.E.2d 14, 67 A.L.R.2d 724.

The defendant cites four specific instances where the court allegedly committed prejudicial error. These shall be considered in order.

The first contention is that the trial judge refused to permit cross-examination of the complaining witness regarding a prior inconsistent statement purportedly made by her to an assistant state's attorney some two and one-half years prior to the trial. The pertinent segment of the record concerning this contention reveals the following:

'Q. Now, as a matter of fact, young lady, isn't it true that in March of 1958 you were taken to Pat Egan's office, an Assistant State's Attorney, in this building?

* * *

* * *

'Mr. Wolke [assistant state's attorney]: Object.

'The Court: What is the purpose of the inquiry?

'Mr. Brody [attorney for the defendant]: The purpose of the inquiry is to show this Honorable Court that on another occasion she made a statement contrary to what she is making now. I have a right to bring that out.

'The Court: * * * The objection will be overruled. You may ask her the question. (Pending question read by reporter.)

'A. Yes, I was.

'Q. And did you and he have a conversation?

'A. Yes, we did.

'Q. And did he ask you at that particular time whether your stepfather had sexual relations with you?

'Mr. Wolke: Object.

'The Court: Objection sustained.

'Q. Did he at that particular time ask you if your stepfather had undressed himself and had kneeled over you in a straddling position?

'Mr. Wolke: Object.

'The Court: The objection is sustained. That is not the way you impeach a witness.

'Q. Well, what questions did Mr. Egan ask you?

'Mr. Wolke: Object.

'The Court: The objection is sustained * * *.'

Evidence of prior inconsistent statements is admissible to impeach the credibility of a witness. People v. Morgan, 28 Ill.2d 55, 190 N.E.2d 755. However, before a witness may be impeached by his prior statements a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness an opportunity to explain. People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1. A proper foundation consists in the satisfaction of two distinct requirements: the witness must be asked as to the time, place and persons involved in the alleged conversation (People v. Perri, 381 Ill. 244, 44 N.E.2d 857); secondly, the witness must be asked whether he made a certain contrary statement at that time. People v. Boulahanis, 394 Ill. 255, 68 N.E.2d 467; Eizerman v. Behn, 9 Ill.App.2d 263, 132 N.E.2d 788; McCormick on Evidence, chap. 5, sec. 37, p. 67 (1954). Here the witness was never asked whether she made a contrary statement and the second requirement was therefore not satisfied. There is nothing in the record to show the substance of the alleged contrary statement or that such a statement was in fact made. Under these circumstances the defendant's attorney, who stated that his purpose was to show that a contrary statement had been made, did not lay a proper foundation for impeachment and accordingly we cannot sustain the contention that the court's ruling on this point was, of and by itself, reversible error. People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500, cert. denied, 81 S.Ct. 87, 364 U.S. 845, 5 L.Ed.2d 69.

The defense questions, however, could reasonably be regarded as preliminary to subsequent impeachment. And, in view of the broad latitude permitted on crossexamination in sex cases, we believe that the court should have overruled the objections and given the defense an opportunity to develop the subject further. The questions merely sought information as to whether certain prior inquiries were made of the prosecutrix by an assistant state's attorney. The pertinency of these questions in relation to the truth or falsity of the complaining witness' testimony becomes apparent when it is remembered that she was being interrogated about an interview which took place in March 1958, a short time after the alleged crime. In view of the fact that the defendant was not indicted for this crime until March 1960 it is reasonable to suppose that the prosecutrix told a different story to the assistant state's attorney in March 1958 than she did to the Grand Jury in March 1960. Despite the fact that she had an opportunity to inform the prosecutor in March 1958 about what happened to her on March 1st she made no complaint until February 1960. The attempted impeachment of the prosecutrix was not, therefore, directed to the usual 'was this question asked you and did you make this answer' type of contradiction. In order to lay a foundation for an arguable inference that the witness' testimony at the trial in 1960 differed from what was told the assistant state's attorney in 1958, it was necessary for the defense to establish the subject matter of the 1958 conversation. If the subject matter concerned the crime for which the defendant was being tried, this of itself--irrespective of any specific conflicting statement--would have tended to discredit the prosecutrix. Therefore, the objections to the questions, which would have disclosed whether the conversation was about the events of March 1, 1958, should have been overruled.

The defendant next argues that the court erred in sustaining objections to three questions which attempted to elicit from the complaining witness the admission that she continued to live in the Rainford home after the alleged occurrence. The claim is that such conduct was incompatible with the charge she was making against her parents. It is proper to cross-examine as to acts or conduct on the part of a witness which are inconsistent with what would be the natural or probable course of conduct if the witness is testifying truthfully about the occurrence in dispute. People v. Boston, 309 Ill. 77, 139 N.E. 880; 98 C.J.S. Witnesses § 379, pp. 138-139. It has been held that evidence of the inconsistent conduct of the prosecutrix should be especially considered in cases of this kind where the charges are difficult to disprove. People v. Nunes, 30 Ill.2d 143, 195 N.E.2d 706. While these questions were proper we do not believe the fact that a 13-year-old girl remained at home with parents after such an incident would have much probative value. There is nothing in the record to disclose where or to whom she might have turned. It is more natural and probable that a...