US ex rel. Fuller v. ATTORNEY GENERAL OF ILL., 83 C 8058.

• Decision Date: 18 May 1984
• Docket Number: No. 83 C 8058.,83 C 8058.
• Citation: 589 F. Supp. 206
• Parties: UNITED STATES of America ex rel. Rebecca Trammell FULLER, Plaintiff, v. ATTORNEY GENERAL OF ILLINOIS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

589 F. Supp. 206

UNITED STATES of America ex rel. Rebecca Trammell FULLER, Plaintiff, v. ATTORNEY GENERAL OF ILLINOIS, Defendant.

No. 83 C 8058.

United States District Court, N.D. Illinois, E.D.

May 18, 1984.

Rebecca Trammell Fuller, pro se.

Mark Weinstein, Asst. Atty. Gen., Chicago, for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Petitioner Rebecca Fuller ("Fuller") has filed a habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254. Fuller is currently in the custody of the Illinois Department of Corrections, serving a sentence of seven years for attempted deviate sexual assault, for which she and her husband were jointly convicted on July 2, 1981. On appeal, the Illinois Appellate Court affirmed both convictions, and the Illinois Supreme Court denied leave to appeal.

Fuller challenges her conviction on the following six grounds:

1. The conviction was obtained through a denial of her Sixth Amendment rights to confrontation and cross-examination.

2. The conviction was obtained through prosecutorial misconduct so egregious as to deprive her of due process of law.

3. The Illinois Appellate Court denied her due process and equal protection by failing to apply the "careful review of the evidence" standard required of Illinois reviewing courts in sex offense cases.

4. The evidence is insufficient to support her conviction, particularly the evidence showing her accountability for the crime, resulting in a violation of due process.

5. The conviction was secured through the unconstitutional introduction of similar occurrence testimony, which was so pervasive and prejudicial that it tainted the entire trial and violated her due process rights.

6. In explicitly considering the similar occurrence evidence in sentencing her, the trial court in essence convicted her of those alleged crimes, denying her rights to trial by jury, due process and equal protection.

Presently before the Court is a motion for summary judgment by respondent Illinois Attorney General ("respondent"). For the following reasons, respondent's motion is granted.

I. Facts

Rebecca Fuller and her husband David were indicted for rape, unlawful restraint and attempted deviate sexual assault. The prosecutrix in the case, Dorothy Wojno ("Wojno") testified that she answered an ad for a live-in babysitter that Rebecca had placed in the newspaper. She met the Fullers at a bowling alley and was taken to their home. While there, David gave her a drink which made her "woozy." After a while the conversation turned to sex and "pornography." Rebecca left the room, then returned naked and David began showing a sexually explicit movie. Wojno told defendants she did not want the job and attempted to leave the house. David then sexually attacked her, while Rebecca sat naked on a chair. Wojno finally threw David off her and escaped from the house.

In addition to Wojno, two other women, Dina Purdy and Melody Gibbs, testified that they had also answered Rebecca's ad in the newspaper. Purdy actually lived with the Fullers for a short time. Both women testified that the Fullers had sexually assaulted them while they were in the Fuller home. Defendant's objections to their testimony were overruled.

Rebecca testified in her defense that Wojno had stayed all night with the Fullers at their invitation. Rebecca then drove Wojno to a bus stop in the morning and gave her money for a bus. Rebecca denied that Wojno had been assaulted and that she had appeared naked in Wojno's presence.

II. Summary Judgment

Summary judgment should be granted if, viewing the evidence in the light most favorable to the non-moving party, no genuine issue of material fact exists. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Fuller argues that summary judgment is improper in this case because the petition raises disputed factual issues. The factual issues to which Fuller refers, however, are issues which can be resolved by reviewing the record itself. No evidentiary hearing is required. This Court concludes, after reviewing the record, that respondent is entitled to prevail as a matter of law.

A. Denial of the Right to Confront and Cross-Examine Witnesses

Fuller's first ground for relief is that she was denied her Sixth Amendment right to confront and cross-examine witnesses because (1) the trial court held that the two similar occurrence witnesses, Purdy and Gibbs, were protected by the Illinois rape shield statute, Ill.Rev.Stat.1981, ch. 38, ¶ 115-7a; (2) the trial court refused to allow the defense attorney to question one of his own witnesses, Donna Gibbs, concerning her step-daughter Melody Gibbs' reputation for truth and veracity; and (3) the trial court allowed in hearsay testimony regarding a prescription Wojno had for Valium, which the prosecution had introduced to rehabilitate her after defense counsel cross-examined her on her arrest for possession of the Valium and the state's alleged help in obtaining dismissal of the possession charges.

The last two contentions, even if Fuller is correct in arguing that the evidentiary rulings were in error, are not a sufficient basis for granting habeas relief. A conviction should stand unless the claimed evidentiary error "amounted to a fundamental defect so great that it inherently resulted in a complete miscarriage of justice." Cramer v. Fahner, 683 F.2d 1376 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 509 (1982). In this case, neither the refusal to allow Donna Gibbs to testify concerning Melody Gibbs' reputation for truth and veracity, nor the admission of Wojno's testimony that she had a prescription for Valium rises to the level of a "fundamental defect." In addition, defense counsel had an adequate opportunity to cross-examine Wojno about her arrest and prescription, and there is no reason to believe under the circumstances that her testimony that she had a prescription was unlikely to be true. Admission of hearsay should therefore not be considered constitutional error. Davis v. Franzen, 671 F.2d 1056, 1058 (7th Cir.1982).

Fuller's first contention raises greater difficulty, but we conclude nevertheless that the trial court's refusal to allow in evidence of Gibbs' or Purdy's prior sexual conduct or reputation¹ did not result in a violation of Fuller's Sixth Amendment right to confront the witnesses against her. That right requires that a defendant be given an opportunity for effective cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). The right to cross-examination, however, "is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). The reviewing court must decide, looking to the record as a whole and to the alternative means open to the defendant to impeach the witness, whether "defendant's inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness's direct testimony." United States v. Rogers, 475 F.2d 821, 827 (7th Cir.1973), quoting Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); United States ex rel. Blackwell v. Franzen, 688 F.2d 496, 500-01 (7th Cir. 1982), cert. denied, 460 U.S. 1072, 103 S.Ct. 1529, 75 L.Ed.2d 950 (1983). In making its determination, we must decide whether the probative value of the excluded evidence "was such that the defendant's right to effective cross-examination was substantially diminished." United States ex rel. Blackwell v. Franzen, 688 F.2d at 501.

Several federal courts, using these standards, have upheld the application of state rape shield statutes and the rape shield rule found in Federal Rule of Evidence 412. See, e.g., Bell v. Harrison, 670 F.2d 656 (6th Cir.1982); Logan v. Marshall, 680 F.2d 1121 (6th Cir.1981); United States v. Nez, 661 F.2d 1203 (10th Cir. 1981). The constitutional justification courts give for excluding evidence of past sexual behavior or reputation evidence for unchastity is that such evidence is not a relevant indicator either of the likelihood of the victim's consent to a specific act or of her veracity, and the accused is not constitutionally entitled to present irrelevant evidence. Doe v. United States, 666 F.2d 43, 47 (4th Cir.1981); United States v. Kasto, 584 F.2d 268, 271-72 (8th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). These courts nevertheless recognize that in some circumstances prior sexual conduct may be probative and therefore relevant and should be admitted, for instance (1) where the evidence explains a physical fact in evidence at trial, such as presence of semen, pregnancy,² or the victim's physical condition indicating intercourse; (2) where the evidence tends to establish bias, prejudice or ulterior motive surrounding the rape charge; or (3) where the victim has engaged in a prior pattern of behavior clearly similar to the conduct involved in the present case. United States v. Kasto, 584 F.2d at 271. In some instances, the evidence might also be admissible to show the accused's state of mind. Doe v. United States, 666 F.2d at 48.

Fuller did not offer the excluded evidence for any of these purposes. The Fullers sought to introduce evidence from a doctor that Gibbs, who was 16 at the time of the occurrence, had been on birth control pills since she was 13 or 14, and evidence from Donna Gibbs that Melody had been thrown out of high school for promiscuous behavior and also had had an incestuous relationship with her brother. Their purpose was to prove Melody's consent and to impugn her veracity, particularly in regard to her testimony concerning forced sexual acts with several others besides the Fullers in their home. The proffered...