People v. Harris
Annotate this Case
SIXTH DIVISION
June 30, 1998
No. 1-96-2641
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 95 CR 19606
)
DON HARRIS, ) Honorable
) Michael P. Toomin,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant Don Harris was found guilty of
aggravated criminal sexual assault, criminal sexual assault, armed
violence and aggravated kidnapping. Defendant now contends his
convictions should be reversed and a new trial granted because: (1)
the trial court erred in failing to quash the arrest and suppress
evidence; (2) the trial court erred in admitting evidence of other
crimes; (3) the prosecutor improperly commented on his failure to
testify; (4) the trial court erred in allowing evidence and argument
as to the complainant's alleged loss of virginity; (5) he was denied
his right to confront witnesses; (6) cumulative errors denied him a
fair trial; and (7) the sentence imposed was an abuse of discretion
and unjust.
For the reasons that follow, we affirm.
On the morning of June 17, 1995, N.G., a 14-year-old girl, awoke
around 8:30 a.m. Her aunt asked her if she would go to the store to
buy some milk. She and her four-year-old male cousin, R.W., walked to
the corner store. On the way home, N.G. saw a man, whom she
identified as defendant. He wore a City of Chicago orange
construction worker vest. He put a gun against her side and said,
"[D]o you see this[?]" She said "yes." Defendant made N.G. wear some
sunglasses that had black tape in the inside of the lens so she could
not see. He led them to his car. N.G. was saying "no" and R.W. was
crying and saying "no. We want to go home." Defendant put R.W. in
the back seat and N.G. in the front seat. When he entered the car, he
set the gun by his leg.
As he drove, defendant said N.G. fit the description of a girl
who stabbed his sister. N.G. told him that she was not that person.
He asked her where she lived and she gave him a false address. He
asked her for her name and she told him it was Kiki. He asked her age
and she told him 12 years old. He continued to ask her various
questions, including whether she was a virgin. She replied "[y]es"
and he said he would know if she was lying.
N.G. stated that she was crying and the tape on the sunglasses
started to loosen so that she could see. Defendant stopped the car
and said, "I think you can see." He took the sunglasses off, pulled
duct tape from his pocket and put it directly on her eyes. He put the
sunglasses back on and started to drive again. She was able to see
some of the streets because the tape on her eyes became wet and
started to loosen. Defendant finally drove to an alley and stopped
the car near a garage.
Defendant then pushed the door of the garage open and took them
inside. N.G. could see a vehicle on the first floor of the garage.
It was a dark black or gray car with red lines. Defendant took them
up some stairs. R.W. was crying and saying "no" and stating that he
wanted to go home. When they reached the top of the stairs, there was
an old red couch and he ordered them to sit. N.G. stated that there
were old sales papers, a rolled up carpet, an old gutter, and a lot of
dirt and rocks on the floor.
Defendant took her hat and the sunglasses off. He told her to
stand up and to lift her shirt so he could unbutton her shorts. He
could not get them unbuttoned so he told her to do it. His face was a
few inches from her face. She unbuttoned her shorts and he told her
to lie down. R.W. was still screaming on the couch. Defendant said
that she did not look like she was 12 years old and asked why she was
lying. He pulled her shorts and underwear down. N.G. was crying. He
then pulled her shirt off over her head and turned her on her stomach.
He told her just go along with it and he would not hurt her.
Defendant took his penis and put it in her vagina. As she was crying
and screaming, he told her to be quiet and threatened to slit her
throat. Next defendant turned her on her back and put his penis in
her vagina again. He told her to hold her legs up and be quiet. Then
defendant ordered her to put her arms around him and hug him. She did
so, and she could feel the gun in his back. Then defendant took his
penis out of her vagina. He "got mad and jumped up. He turned to
[R.W.] and said, thanks for ruining my fun."
Defendant told her to dress and then walked them downstairs where
he pulled the tape off her eyes and threw it on the floor. He took a
blue rag and tied it around her eyes. He drove them to 54th Street
and Wood, which was about four blocks from the store where she had
purchased the milk. He told her that he was glad she had cooperated
with him and that she "was the first one he didn't kill." He walked
them to the middle of the street. He told them to walk home and said
that if they turned around he would shoot them. He threatened to kill
them if they said anything. Then he untied the blindfold. After she
made sure he was gone, N.G. ran with R.W. to her grandmother's house.
When they arrived at the house, N.G. told her aunt what happened
and her aunt called the police. When a police officer arrived, N.G.
led him to the garage where the assault occurred. She identified
defendant's vehicle, a gray Riviera. Later she identified a gun as
the one defendant had used during the assault. N.G. went to the
hospital where she was examined by medical personnel and she went to
the police station that afternoon and identified defendant from a
lineup.
Defendant was charged with various counts related to these
events, including criminal sexual assault, aggravated sexual assault,
armed violence and aggravated kidnapping. Defendant moved to quash
his arrest and suppress evidence.
At the suppression hearing, Officer Vernon Mitchell testified
that he and other officers were called to defendant's residence on
July 17, 1995, sometime after 9 a.m. They were to assist other
officers in the possible apprehension of a criminal sexual assault
suspect. Upon arriving at the scene, he was informed as to the
details of the assault as given by N.G. Officer Mitchell spoke with a
person on the street and learned that a man had gotten out of the gray
car in front of the residence with a brown paper bag and had gone into
the house a few minutes before the other officers had arrived.
The officers rang the doorbell and knocked but did not receive an
answer. A girl, later identified as defendant's daughter Lokeya
Caldwell, came to the window on the second floor. She appeared to be
between 11 and 13 years old. She was visibly upset, shaken and
crying. The officers told her to come to the door and eventually she
did so, but she only opened the inner door. She said she was alone
and that her father had locked her in and gone to work. She closed
the door and left the doorway. The officers began calling to the
girl. They were concerned for her safety and called the fire
department. The officer stated, "We had no idea who was in the house
with her, if something was wrong with her or not, so we called the
fire department." He also stated they were aware that the victim had
identified the car. "Maybe he might have been holding her hostage or
something like that. We really weren't sure at all."
When the fire department arrived about five minutes later, they
put a ladder up to the window on the second floor and the officers
entered the house. Officer Mitchell found the girl and asked her if
she was okay and what was happening. She was still shaking and
crying. She told him in a whisper "[h]e's in the house." The other
officers proceeded downstairs. The girl told Officer Mitchell that it
was her father who was in the house and he had come in excited,
running around with a bag that he was trying to hide, and saying that
the police were coming to get him for something he did not do.
In going through the residence, the other officers found a
shotgun in the second-floor bedroom under the bed, a "Tek-9" in a
closet also in the bedroom and two additional guns in a brown paper
bag on the second floor in an oven. One of the officers heard some
noise in the basement and went downstairs to find defendant trying to
conceal himself behind the paneling.
Officer Mitchell asked the girl to call her mother. When Linda
Caldwell arrived about 5 to 10 minutes later, the officers explained
what happened and why they were there. Ms. Caldwell signed a form,
stating:
"I, Linda Caldwell, give permission to
Chicago police officers to search my residence at
5315 South Laughlin on June 17, 1995, and take
out of my residence any illegal weapons."
The officers explained to her that the form was to search the house
and the other properties. The officer said she was "very
cooperative," stating that she wanted to see for herself. Ms.
Caldwell led them through the yard, moved the family's dogs to allow
the officers to pass, unlocked the gates, and let them into the
garage.
When they entered the garage, the officers found two pieces of
duct tape on the ground, one inside the door and one outside the door,
just as N.G. described. They saw a car in the garage with a red
stripe. They went upstairs and found two orange safety vests, a red
couch, carpeting, and crumpled up newspapers. They also recovered
some blue rags and a pair of sunglasses.
Lokeya Caldwell testified that she was watching television in an
upstairs bedroom on June 17, 1995, when her father came home and went
to sleep. After about 15 minutes, she went to the window and saw a
fire truck and police officers. One of the policemen called up to
her. She told them that her father was home. When he asked her to
come down and open the door, she woke her father, who told her to go
to her room. The police came into the house through the window. She
was upset, but denied crying.
Linda Caldwell testified that she signed a piece of paper that
morning but stated that she was told that she had to sign it to get
her property back. She did not read it before signing and the police
did not tell her it was a consent to search form. No police officer
asked her for consent to search her house. She stated that she
refused to open the garage and the officers took her keys and opened
the lock. When asked if she was cooperative, she said, "I had no
other choice."
The trial court found the warrantless entry of the home justified
because of the exigent circumstances. The court determined there was
a strong showing of probable cause that an offense had been committed
and a strong probability that the offender was inside the premises.
Because a weapon was used, it was reasonable to conclude that the
offender could be armed and dangerous. Further, there was another
young girl on the premises. The trial court determined, however, that
the officers exceeded the scope of the protective sweep when they
looked in the oven and found the bag with weapons. But, the court
ruled, based on the totality of the circumstances, valid consent was
given by Mrs. Caldwell and under the doctrine of inevitable discovery
the guns from the oven did not need to be suppressed. The court found
it reasonable to conclude that the police would have maintained a
further search for the weapon used in the assault after they had
gained Ms. Caldwell's consent. Thus, the court denied the motion to
quash arrest and suppress evidence.
The case proceeded to trial, where N.G. and others testified.
Louevetta W., N.G.'s aunt and R.W.'s mother, testified that when R.W.
returned that morning he was crying, hysterical and scared. His eyes
were red and puffy as if he had been crying for an extended period of
time. She also stated that N.G. appeared frightened and was shaking
and crying. Her hair was disarrayed over her head and her clothes
were dirty.
The court allowed L.E. to testify as evidence of another sexual
assault alleged to have been perpetrated by defendant. L.E. testified
that on March 25, 1995, she was 17 years old. At approximately 9 a.m.
she was waiting for a bus when defendant approached and asked if she
had change for a dollar. He grabbed her arm and she felt a gun barrel
to her back. He said, "don't scream or I will shoot you." He told
her to get into his car, a two-door gray Riviera. He told her to lay
her head in his lap. He moved the gun to the back of her head and
proceeded to drive.
Defendant then started asking her personal questions, such as,
her name, her age, who she lived with, and where was she going. He
asked her if she had sucked anyone's penis before and she said "no."
He said, "well, you are about to today" and she started crying. He
unzipped his overalls, raised his shirt, and pushed her head down to
his penis. His penis was in her mouth for 5 to 10 minutes. She told
him she could not breath and he told her "he didn't give a fuck,
bitch." He then zipped his pants back up and told her to lay her head
back down. He asked her if she had ever had sex and she said "no."
"He said don't lie to me." Then he said, "so you are a virgin, huh."
She said "yes." He said, "you are about to find out."
He stopped the car and made her get out. He told her to close
her eyes and put her hands around him. She did so, but she could see
somewhat. They went into an abandoned building and he kissed her. He
told her to take her clothes off and to lie down on an old mattress.
He put his penis in her vagina. He was not able to put it in all the
way and her "lower body kind of hopped up." He told her to shut up
and lie back down. He said he would kill her if she moved again.
Then he put his penis in her vagina again. After 10 to 15 minutes he
got up and told her to dress. Then he walked over to her and ordered
her to hug him.
Defendant then took her out of the building and he told her to
get back in the car. He told her he would kill her if the police ever
found out. He took her to another abandoned building, directed her to
remain in the building for at least 10 minutes and left. Eventually,
she came out and walked home. He had left her about one block from
where he had picked her up. On June 17, 1995, L.E. identified
defendant in a lineup as her attacker. She also identified the gun
that he had used. On cross-examination, she stated that the man who
attacked her had on a hood and wore sunglasses.
The defense theory in the case suggested that N.G. consented to
having sex. Defendant did not testify but offered several witnesses.
Desiree Weeks testified that she saw defendant standing by his car
near the store that morning. She stated that she saw a young lady
with a little boy approach him and have a conversation for about 30 to
40 minutes. She saw the lady attempt to open the passenger door of
defendant's car, but defendant had to come around to open it. She saw
them sit in the car and converse for another 15 minutes before driving
away. On cross-examination, she admitted that Ms. Caldwell initially
asked her to testify and that she had told an investigator that she
saw them talking for a few minutes, rather than 30 to 40 minutes.
Irene Scroggins, a bus driver, testified that defendant assisted
her that morning at an Amoco station when she locked her keys in her
car. She heard a woman yelling from the front seat of defendant's
car, stating that she was ready to go. There was a small head in the
back seat. On cross-examination, Scroggins admitted that she had said
in her statement that the woman that she saw appeared to be in her
late twenties or thirties. She also was not certain of the gender of
the person in the back seat. While Ms. Scroggins was uncertain as to
the exact time of these events she stated at one point that she
started her work break about 7:40 a.m. that morning and she went to
the gas station thereafter. Other evidence indicated that defendant
had driven his wife to work that morning sometime before 8 a.m.
John Davis, defendant's neighbor, testified that he saw a lady
and a child in defendant's car parked next to defendant's garage that
morning. He did not see defendant and the lady did not say anything
to him as he walked by. This was several hours before the police
arrived that morning. On cross-examination, Davis admitted that he
would not talk to the State's investigators when they came to question
him because he had been drinking that day.
The jury found defendant guilty of all charges. The trial court
sentenced him to an extended term of 60 years' imprisonment for the
charge of aggravated criminal sexual assault and 15 years for each
count of aggravated kidnapping. The two kidnapping sentences are to
run concurrently, but they are consecutive to the aggravated criminal
sexual assault sentence, for a total of 75 years.
Defendant first contests the denial of his motion to quash arrest
and suppress evidence. The constitution of Illinois and the fourth
amendment to the United States Constitution in general prohibit police
officers from making warrantless entries into private residences.
People v. Foskey, 136 Ill. 2d 66, 74 (1990), citing Payton v. New
York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). One
exception to the warrant requirement is when the State demonstrates
that exigent or compelling circumstances justified the entry. Foskey,
136 Ill. 2d at 74. Several factors are relevant to a determination of
exigency, including whether:
"(1) the crime under investigation was recently
committed; (2) there was any deliberate or
unjustified delay by the police during which time
a warrant could have been obtained; (3) a grave
offense was involved, particularly a crime of
violence; (4) there was [a] reasonable belief
that the suspect was armed; (5) the police
officers were acting on a clear showing of
probable cause; (6) there was a likelihood that
the suspect would escape if he was not swiftly
apprehended; (7) there was strong reason to
believe the suspect was in the premises; and (8)
the police entry was made peaceably, albeit
nonconsensually." People v. McNeal, 175 Ill. 2d 335, 345 (1997).
In determining whether the police acted reasonably, the court
looks to the totality of the circumstances confronting officers at the
time the entry was made. McNeal, 175 Ill. 2d at 345-46 (exigent
circumstance justified warrantless search of defendant's garbage can);
Foskey, 136 Ill. 2d at 84 (facts insufficient to support warrantless
entry for arrest under exigency exception). This court will not
disturb a decision on a motion to quash and suppress unless that
decision is determined to be clearly erroneous. Foskey, 136 Ill. 2d
at 76.
Defendant contests several of the findings related to these
factors. The record indicates, however, that the officers learned
upon arriving at the home that a 14-year-old girl had just been taken
by gunpoint and sexually assaulted. She had led the officers to the
residence and identified the vehicle parked in front as the one used
by the offender. The officers learned from a person on the street
that someone had recently exited that vehicle and entered the home
with a brown paper bag. While defendant suggests that the officers'
testimony was not credible, this court defers to the trial court in
that assessment. See People v. Hernandez, 278 Ill. App. 3d 545, 551
(1996) (Because a court of review is not in a position to observe the
witness as he testifies, questions of credibility must be left largely
in the discretion of the trial court). The officers were justifiably
concerned about a possible escape and, more importantly, the threat of
immediate harm to another little girl whom they could see in the
residence and who was crying and upset.
Further, Officer Mitchell testified that it took five minutes for
the fire engine to arrive. These events occurred within a relatively
short period of time after the actual assault that morning. There was
not an extensive delay. The record also indicates that the second-
floor window entered was partially open. Thus, the officers entered
peacefully.
Overall, the record supports the trial court's findings as to the
factors for consideration. The conclusion that exigent circumstances
justified the warrantless entry is not erroneous. The trial court did
not err in refusing to suppress the items recovered within the scope
of this protective sweep. As noted by the trial court, however, the
two guns found in the paper bag in the oven of the second floor would
not fall within the scope of this sweep. See McNeal, 175 Ill. 2d at
347 (warrantless police action must be strictly circumscribed by the
exigencies that justify its initiation), citing People v. Abney, 81 Ill. 2d 159, 173-74 (1980).
Defendant next contends the trial court erred in finding consent
to search the garage and to reenter the house. A person may waive his
fourth amendment rights by consenting to a search conducted without a
search warrant. People v. Gutierrez, 243 Ill. App. 3d 867, 870
(1993). The State must prove by a preponderance of the evidence that
the consent was voluntarily given. Gutierrez, 243 Ill. App. 3d at
870. The question of whether a consent to search is voluntary and not
the product of duress or coercion is a question of fact to be
determined from the totality of the circumstances. Hernandez, 278
Ill. App. 3d at 551, citing Schneckloth v. Bustamonte, 412 U.S. 218,
93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). A trial court's
determination on this issue will not be disturbed unless it is clearly
unreasonable. Hernandez, 278 Ill. App. 3d at 551.
The officer testified that Ms. Caldwell arrived at the residence
within 5 to 10 minutes of being telephoned. The officers explained
the situation and asked for consent. She was very cooperative and
stated that she needed to see for herself. She also signed a form
providing the officers with permission to search her residence. She
moved the family's dogs to allow the officers in the yard and opened
the lock on the gates and the garage door to allow the search of the
garage. Given the trial court's position for judging the credibility
of the witnesses, the court's determination that Ms. Caldwell gave
consent to the search of the house and the garage is not clearly
unreasonable.
Defendant also argues that the consent cannot be valid as a
matter of law because it was "tainted" by the illegal search performed
prior to Ms. Caldwell's arrival. In People v. Flagg, 217 Ill. App. 3d
655, 659-60 (1991), this court ruled that a valid consent could not be
found where the search was conducted prior to when the defendant
provided the consent. However, the search performed prior to
obtaining consent was legally permissible (with the exception of the
opening of the stove) under the exigency exception. While defendant
claims the officers improperly continued to search the premises after
defendant was arrested and before Ms. Caldwell arrived, Officer
Mitchell testified that Ms. Caldwell arrived at the home within 5 to
10 minutes after she was called. Further, defendant does not specify
any item recovered during this period that would require suppression.
Defendant also argues that the confrontation with the guns found
in the oven invalidated the consent. "'[C]onsent is ineffective to
justify a search when a search or entry made pursuant to consent
immediately following an illegal search, involving an improper
assertion of authority, is inextricably bound up with illegal conduct
and cannot be segregated therefrom.'" (Emphasis in original.) People
v. Taggart, 233 Ill. App. 3d 530, 553 (1992), quoting People v. Kelly,
76 Ill. App. 3d 80, 86 (1979). In Taggart, 233 Ill. App. at 552, the
defendant claimed his consent was invalid where he was shown illegally
seized photographs before he signed a consent form. The court found
nothing particularly coercive about the events at the police station
where defendant signed the form and stated that the display of the
illegally seized photos, "without more, did not convey an apparent
authority such that defendant would have believed his consent to be a
passive submission to that authority rather than a voluntary
relinquishment of a right." Taggart, 233 Ill. App. 3d at 553.
The record does not indicate that Ms. Caldwell's consent resulted
from the illegal seizure of the guns from the oven. Ms. Caldwell
arrived home, was informed as to what was going on and consented to
the searches. While she may have known that the officers had seized
guns when she signed the form, not all of those seizures were illegal.
She was "very cooperative" and, under the facts presented, her consent
was not "inextricably bound up with illegal conduct."
On a similar note, defendant argues that the doctrine of
inevitable discovery does not apply because the consent obtained
resulted from the fruits of a prior illegal search. The inevitable
discovery exception provides that where the record shows by a
preponderance of the evidence that the challenged evidence would have
inevitably been discovered by lawful means, the evidence is
admissible. People v. Shanklin, 250 Ill. App. 3d 689, 695-96 (1993).
Three criteria must be met: (1) the condition of the evidence must be
the same when found illegally as it would have been when found
legally; (2) the evidence would have been found by an independent line
of investigation untainted by the illegal conduct; and (3) the
independent line of investigation must have already begun when the
evidence was discovered illegally. Shanklin, 250 Ill. App. 3d at 696.
The trial court's determination that Ms. Caldwell voluntarily
consented to the searches here was not unreasonable. While she may
have seen the officers in her home, that entry was justified under the
exigency exception. This was an untainted line of investigation.
While there was one portion of that search that was illegal, the trial
court was aware of that illegality and still determined there was
voluntary consent. As noted, there is nothing indicating that Ms.
Caldwell's consent derived specifically from the illegal portion of
the search. As the trial court observed, it seems reasonable that if
the officers had not found the weapon in the oven when they did, they
would have continued to search and gone back into the residence when
they had consent.
Defendant argues that the trial court erred in allowing L.E. to
testify as to another alleged assault perpetrated by defendant because
this evidence was unreliable. Before evidence of other crimes can be
found admissible, the State must show that a crime took place and that
"the defendant committed it or participated in its commission."
(Emphasis in original.) People v. Thingvold, 145 Ill. 2d 441, 455-56
(1991). The State need not prove this beyond a reasonable doubt, but
must demonstrate more than mere suspicion. Thingvold, 145 Ill. 2d at
456.
Defendant contends L.E.'s identification was unreliable because
her offender was wearing sunglasses and a hood. In determining
whether an identification is reliable, courts have looked to the
opportunity to view the criminal, the degree of attention, the
accuracy of the prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the length of time
between the crime and the confrontation. People v. Simpson, 172 Ill. 2d 117, 141 (1996). L.E. identified defendant as the person who
assaulted her in a lineup about two months after the assault. She
denied telling the officers at the lineup that she was uncertain. She
stated that she asked to look at the lineup twice, to make sure that
she had "everyone correct." She also identified defendant at trial,
and she identified defendant's gun and car. We find this evidence
reliable.
Defendant contends the evidence relating to this other assault
was not relevant and was highly prejudicial. Specifically, he claims
the crimes were not sufficiently similar. Evidence of other crimes is
not admissible for the purpose of showing defendant's disposition or
propensity to commit crime. People v. Illgen, 145 Ill. 2d 353, 364
(1991). Evidence of the commission of other crimes is admissible
where it is relevant to prove modus operandi, intent, identity,
motive, or absence of mistake. Illgen, 145 Ill. 2d at 364-65. The
trial court must weigh the relevance of the evidence to establish the
purpose for which it is offered against the potential prejudice.
Thingvold, 145 Ill. 2d at 452. The court's ruling as to the
admissibility of such evidence will not be reversed absent a clear
abuse of discretion. Thingvold, 145 Ill. 2d at 452-53. When evidence
of another crime is offered, there must be some similarity between the
other crime and the crime charged to ensure that it is not being used
to establish criminal propensity. People v. Johnson, 239 Ill. App. 3d
1064, 1074 (1992).
In Johnson, 239 Ill. App. 3d at 1075, the court found it
permissible to admit evidence that a defendant had committed a prior
sexual assault to show lack of innocent intent in the sexual assault
for which he was on trial. There, "[b]oth victims were abducted while
walking alone on the street and taken to another location; both were
grabbed from behind by the neck; and both women were beaten, choked
and bitten." Johnson, 239 Ill. App. 3d at 1075.
In the instant case, similarities between the two crimes abound:
both victims were young girls, N.G. was 14 and L.E. was 17; they were
attacked on the street at gunpoint, in the same general area of the
city, and they were driven in a gray Riviera to an isolated location;
they were forced to close their eyes or have something placed on their
eyes during the attacks; they were asked several personal questions
during the car ride, including whether they were virgins and both
replied yes; the assaults occurred under filthy conditions; the girls
were threatened; they were forced to hug the offender after the
assault; they were returned to locations near to where they lived and
to where they had been taken; and the assaults occurred on Saturday
mornings in 1995.
The defense suggests that N.G. consented to have sexual
intercourse with defendant. Because this evidence of prior conduct
tends to show that defendant did not act with an innocent intent, the
trial court did not abuse its discretion in its admission.
Moreover, this evidence was also admissible to show modus
operandi. Evidence of other crimes may be admissible as proof of
modus operandi only upon a strong and persuasive showing of the
similarity between the crime charged and the separate offense; there
must be a substantial and meaningful link between the offenses being
compared. People v. Brown, 199 Ill. App. 3d 860, 879 (1990). There
should be some distinctive feature not common to most offenses of that
type. Brown, 199 Ill. App. 3d at 879.
In People v. Jones, 156 Ill. 2d 225, 240 (1993), the supreme
court upheld the admission of evidence that the defendant had raped
another woman to show the rapist's modus operandi. The court found
the rapes of the two women to have enough similarities to conclude
that the other victim's rape demonstrated a pattern or "signature,"
rendering the evidence of that rape probative of the modus operandi
used.
"Both crimes involved sexual assaults on single,
black women in their late twenties. Both rapes
occurred at about 3:30 a.m. on an early Sunday
morning during the spring of 1985. The rapes
were committed less than three months apart, and
less than two blocks away, in the area where
defendant had lived most of his life. Both women
were raped on the first floor of an abandoned
building. Both women were struck in the face,
and both had their clothing removed forcibly.
Finally, both women were raped at knifepoint.
The totality of these factors was probative
of the guilty man's pattern of behavior, and was
properly presented to the jury to establish the
modus operandi of the assailant." Jones, 156 Ill. 2d at 240.
Because the similarities between these crimes was very strong,
the evidence was also admissible to show modus operandi.
Nonpublishavle material under Supreme Court Rule 23 omitted.
Defendant also contends he was denied his right to a fair trial
when the trial court allowed evidence and argument as to N.G.'s
alleged loss of virginity. The State argues that defendant waived
this issue. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant objected to this testimony and there was a sidebar at trial.
However, defendant did not raise his specific objection to the
introduction of this evidence in his posttrial motion. He made only a
general objection to prosecutorial argument. Thus, the issue is
waived.
Plain error analysis may be applied where the evidence is so
close that there is a possibility that an error not objected to may
have resulted in the conviction of an innocent person or where there
are errors of such magnitude that their commission denied the accused
of a fair and impartial trial. People v. Hernandez-Valdez, 260 Ill.
App. 3d 644, 647 (1994). While the evidence was not close and we see
no significant error depriving defendant of a fair trial, we would not
find this issue to warrant reversal even if it was not waived.
The Illinois rape shield statute provides, with certain
exceptions, that evidence of "prior sexual activity" of the victim is
inadmissible in a trial for criminal sexual assault. 725 ILCS 5/115--
7(a) (West 1994). Neither the defendant nor the State may introduce
evidence of a victim's past sexual history. People v. Sandoval, 135 Ill. 2d 159, 170-71 (1990).
The State argues that the evidence as to the victim's virginity
was admissible in this case and did not violate the statute because
defendant asked for this information during the crime. While driving,
defendant asked N.G. if she was a virgin and she said "yes." He then
stated that he would know if she was lying. Defendant asked L.E. the
same question. The State argues this evidence comprised the facts of
the crime itself and defendant should not be able to shield himself
from its impact.
We do not find the evidence offered in this case to be evidence
of the victim's past sexual activity. N.G. and L.E. testified that
defendant asked if they were virgins and they said "yes," but they
were not asked if they told the truth. The record reveals that N.G.
lied to the defendant about her name, address, and age. The evidence
was offered to show defendant's questioning of the victim as part of
the circumstances of his attack.
Moreover, during oral argument defense counsel stated that
defendant's argument did not lie with the admission of this evidence,
but with the prosector's use of this evidence. The record reveals
that the prosection commented on this evidence as if it were true.
During opening argument the prosecutor stated, "And in that room,
ladies and gentleman, [N.G.] lost her innocence forever. She lost
that special moment that people cherish." Defense counsel objected
and the court sustained the objection adding, "[c]onfine yourself to
the evidence." In closing argument, the prosecutor commented further,
without objection, on the victim's loss of innocence and virginity.
While the prosecutor's comments went beyond the claimed purpose
for the introduction of this evidence, we do not find the comments
warrant reversal even if defendant's objection to them had not been
waived, particularly in light of the strong evidence of guilt. See
Hernandez-Valdez, 260 Ill. App. 3d at 644 (even if not waived, any
error in admitting evidence that sexual assault victim was a virgin
was harmless); but see People v. Sales, 151 Ill. App. 3d 226, 233
(1986) (improper argument regarding victim's virginity, as well as
other improper comments, deprived defendant of a fair trial where
evidence was not so overwhelming as to render the comments harmless).
We also note that the State's argument did not focus on N.G.'s
virginity as evidence that she would not have consented, which was the
central defense. Rather, it focused on the motivations of the
defendant or at least the nature of his actions in committing the
crime. Compare People v. Kemblowski, 201 Ill. App. 3d 824, 829 (1990)
(admission of testimony that victim was a lesbian was erroneous and
prejudicial because her avowed preference for sexual activities with
women necessarily affected the jury's assessment of whether she
consented).
Nonpublishable material under Supreme Court Rule 23 omitted.
Affirmed.
ZWICK and QUINN, JJ., concur.
June 30, 1998
No. 1-96-2641
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 95 CR 19606
)
DON HARRIS, ) Honorable
) Michael P. Toomin,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant Don Harris was found guilty of
aggravated criminal sexual assault, criminal sexual assault, armed
violence and aggravated kidnapping. Defendant now contends his
convictions should be reversed and a new trial granted because: (1)
the trial court erred in failing to quash the arrest and suppress
evidence; (2) the trial court erred in admitting evidence of other
crimes; (3) the prosecutor improperly commented on his failure to
testify; (4) the trial court erred in allowing evidence and argument
as to the complainant's alleged loss of virginity; (5) he was denied
his right to confront witnesses; (6) cumulative errors denied him a
fair trial; and (7) the sentence imposed was an abuse of discretion
and unjust.
For the reasons that follow, we affirm.
On the morning of June 17, 1995, N.G., a 14-year-old girl, awoke
around 8:30 a.m. Her aunt asked her if she would go to the store to
buy some milk. She and her four-year-old male cousin, R.W., walked to
the corner store. On the way home, N.G. saw a man, whom she
identified as defendant. He wore a City of Chicago orange
construction worker vest. He put a gun against her side and said,
"[D]o you see this[?]" She said "yes." Defendant made N.G. wear some
sunglasses that had black tape in the inside of the lens so she could
not see. He led them to his car. N.G. was saying "no" and R.W. was
crying and saying "no. We want to go home." Defendant put R.W. in
the back seat and N.G. in the front seat. When he entered the car, he
set the gun by his leg.
As he drove, defendant said N.G. fit the description of a girl
who stabbed his sister. N.G. told him that she was not that person.
He asked her where she lived and she gave him a false address. He
asked her for her name and she told him it was Kiki. He asked her age
and she told him 12 years old. He continued to ask her various
questions, including whether she was a virgin. She replied "[y]es"
and he said he would know if she was lying.
N.G. stated that she was crying and the tape on the sunglasses
started to loosen so that she could see. Defendant stopped the car
and said, "I think you can see." He took the sunglasses off, pulled
duct tape from his pocket and put it directly on her eyes. He put the
sunglasses back on and started to drive again. She was able to see
some of the streets because the tape on her eyes became wet and
started to loosen. Defendant finally drove to an alley and stopped
the car near a garage.
Defendant then pushed the door of the garage open and took them
inside. N.G. could see a vehicle on the first floor of the garage.
It was a dark black or gray car with red lines. Defendant took them
up some stairs. R.W. was crying and saying "no" and stating that he
wanted to go home. When they reached the top of the stairs, there was
an old red couch and he ordered them to sit. N.G. stated that there
were old sales papers, a rolled up carpet, an old gutter, and a lot of
dirt and rocks on the floor.
Defendant took her hat and the sunglasses off. He told her to
stand up and to lift her shirt so he could unbutton her shorts. He
could not get them unbuttoned so he told her to do it. His face was a
few inches from her face. She unbuttoned her shorts and he told her
to lie down. R.W. was still screaming on the couch. Defendant said
that she did not look like she was 12 years old and asked why she was
lying. He pulled her shorts and underwear down. N.G. was crying. He
then pulled her shirt off over her head and turned her on her stomach.
He told her just go along with it and he would not hurt her.
Defendant took his penis and put it in her vagina. As she was crying
and screaming, he told her to be quiet and threatened to slit her
throat. Next defendant turned her on her back and put his penis in
her vagina again. He told her to hold her legs up and be quiet. Then
defendant ordered her to put her arms around him and hug him. She did
so, and she could feel the gun in his back. Then defendant took his
penis out of her vagina. He "got mad and jumped up. He turned to
[R.W.] and said, thanks for ruining my fun."
Defendant told her to dress and then walked them downstairs where
he pulled the tape off her eyes and threw it on the floor. He took a
blue rag and tied it around her eyes. He drove them to 54th Street
and Wood, which was about four blocks from the store where she had
purchased the milk. He told her that he was glad she had cooperated
with him and that she "was the first one he didn't kill." He walked
them to the middle of the street. He told them to walk home and said
that if they turned around he would shoot them. He threatened to kill
them if they said anything. Then he untied the blindfold. After she
made sure he was gone, N.G. ran with R.W. to her grandmother's house.
When they arrived at the house, N.G. told her aunt what happened
and her aunt called the police. When a police officer arrived, N.G.
led him to the garage where the assault occurred. She identified
defendant's vehicle, a gray Riviera. Later she identified a gun as
the one defendant had used during the assault. N.G. went to the
hospital where she was examined by medical personnel and she went to
the police station that afternoon and identified defendant from a
lineup.
Defendant was charged with various counts related to these
events, including criminal sexual assault, aggravated sexual assault,
armed violence and aggravated kidnapping. Defendant moved to quash
his arrest and suppress evidence.
At the suppression hearing, Officer Vernon Mitchell testified
that he and other officers were called to defendant's residence on
July 17, 1995, sometime after 9 a.m. They were to assist other
officers in the possible apprehension of a criminal sexual assault
suspect. Upon arriving at the scene, he was informed as to the
details of the assault as given by N.G. Officer Mitchell spoke with a
person on the street and learned that a man had gotten out of the gray
car in front of the residence with a brown paper bag and had gone into
the house a few minutes before the other officers had arrived.
The officers rang the doorbell and knocked but did not receive an
answer. A girl, later identified as defendant's daughter Lokeya
Caldwell, came to the window on the second floor. She appeared to be
between 11 and 13 years old. She was visibly upset, shaken and
crying. The officers told her to come to the door and eventually she
did so, but she only opened the inner door. She said she was alone
and that her father had locked her in and gone to work. She closed
the door and left the doorway. The officers began calling to the
girl. They were concerned for her safety and called the fire
department. The officer stated, "We had no idea who was in the house
with her, if something was wrong with her or not, so we called the
fire department." He also stated they were aware that the victim had
identified the car. "Maybe he might have been holding her hostage or
something like that. We really weren't sure at all."
When the fire department arrived about five minutes later, they
put a ladder up to the window on the second floor and the officers
entered the house. Officer Mitchell found the girl and asked her if
she was okay and what was happening. She was still shaking and
crying. She told him in a whisper "[h]e's in the house." The other
officers proceeded downstairs. The girl told Officer Mitchell that it
was her father who was in the house and he had come in excited,
running around with a bag that he was trying to hide, and saying that
the police were coming to get him for something he did not do.
In going through the residence, the other officers found a
shotgun in the second-floor bedroom under the bed, a "Tek-9" in a
closet also in the bedroom and two additional guns in a brown paper
bag on the second floor in an oven. One of the officers heard some
noise in the basement and went downstairs to find defendant trying to
conceal himself behind the paneling.
Officer Mitchell asked the girl to call her mother. When Linda
Caldwell arrived about 5 to 10 minutes later, the officers explained
what happened and why they were there. Ms. Caldwell signed a form,
stating:
"I, Linda Caldwell, give permission to
Chicago police officers to search my residence at
5315 South Laughlin on June 17, 1995, and take
out of my residence any illegal weapons."
The officers explained to her that the form was to search the house
and the other properties. The officer said she was "very
cooperative," stating that she wanted to see for herself. Ms.
Caldwell led them through the yard, moved the family's dogs to allow
the officers to pass, unlocked the gates, and let them into the
garage.
When they entered the garage, the officers found two pieces of
duct tape on the ground, one inside the door and one outside the door,
just as N.G. described. They saw a car in the garage with a red
stripe. They went upstairs and found two orange safety vests, a red
couch, carpeting, and crumpled up newspapers. They also recovered
some blue rags and a pair of sunglasses.
Lokeya Caldwell testified that she was watching television in an
upstairs bedroom on June 17, 1995, when her father came home and went
to sleep. After about 15 minutes, she went to the window and saw a
fire truck and police officers. One of the policemen called up to
her. She told them that her father was home. When he asked her to
come down and open the door, she woke her father, who told her to go
to her room. The police came into the house through the window. She
was upset, but denied crying.
Linda Caldwell testified that she signed a piece of paper that
morning but stated that she was told that she had to sign it to get
her property back. She did not read it before signing and the police
did not tell her it was a consent to search form. No police officer
asked her for consent to search her house. She stated that she
refused to open the garage and the officers took her keys and opened
the lock. When asked if she was cooperative, she said, "I had no
other choice."
The trial court found the warrantless entry of the home justified
because of the exigent circumstances. The court determined there was
a strong showing of probable cause that an offense had been committed
and a strong probability that the offender was inside the premises.
Because a weapon was used, it was reasonable to conclude that the
offender could be armed and dangerous. Further, there was another
young girl on the premises. The trial court determined, however, that
the officers exceeded the scope of the protective sweep when they
looked in the oven and found the bag with weapons. But, the court
ruled, based on the totality of the circumstances, valid consent was
given by Mrs. Caldwell and under the doctrine of inevitable discovery
the guns from the oven did not need to be suppressed. The court found
it reasonable to conclude that the police would have maintained a
further search for the weapon used in the assault after they had
gained Ms. Caldwell's consent. Thus, the court denied the motion to
quash arrest and suppress evidence.
The case proceeded to trial, where N.G. and others testified.
Louevetta W., N.G.'s aunt and R.W.'s mother, testified that when R.W.
returned that morning he was crying, hysterical and scared. His eyes
were red and puffy as if he had been crying for an extended period of
time. She also stated that N.G. appeared frightened and was shaking
and crying. Her hair was disarrayed over her head and her clothes
were dirty.
The court allowed L.E. to testify as evidence of another sexual
assault alleged to have been perpetrated by defendant. L.E. testified
that on March 25, 1995, she was 17 years old. At approximately 9 a.m.
she was waiting for a bus when defendant approached and asked if she
had change for a dollar. He grabbed her arm and she felt a gun barrel
to her back. He said, "don't scream or I will shoot you." He told
her to get into his car, a two-door gray Riviera. He told her to lay
her head in his lap. He moved the gun to the back of her head and
proceeded to drive.
Defendant then started asking her personal questions, such as,
her name, her age, who she lived with, and where was she going. He
asked her if she had sucked anyone's penis before and she said "no."
He said, "well, you are about to today" and she started crying. He
unzipped his overalls, raised his shirt, and pushed her head down to
his penis. His penis was in her mouth for 5 to 10 minutes. She told
him she could not breath and he told her "he didn't give a fuck,
bitch." He then zipped his pants back up and told her to lay her head
back down. He asked her if she had ever had sex and she said "no."
"He said don't lie to me." Then he said, "so you are a virgin, huh."
She said "yes." He said, "you are about to find out."
He stopped the car and made her get out. He told her to close
her eyes and put her hands around him. She did so, but she could see
somewhat. They went into an abandoned building and he kissed her. He
told her to take her clothes off and to lie down on an old mattress.
He put his penis in her vagina. He was not able to put it in all the
way and her "lower body kind of hopped up." He told her to shut up
and lie back down. He said he would kill her if she moved again.
Then he put his penis in her vagina again. After 10 to 15 minutes he
got up and told her to dress. Then he walked over to her and ordered
her to hug him.
Defendant then took her out of the building and he told her to
get back in the car. He told her he would kill her if the police ever
found out. He took her to another abandoned building, directed her to
remain in the building for at least 10 minutes and left. Eventually,
she came out and walked home. He had left her about one block from
where he had picked her up. On June 17, 1995, L.E. identified
defendant in a lineup as her attacker. She also identified the gun
that he had used. On cross-examination, she stated that the man who
attacked her had on a hood and wore sunglasses.
The defense theory in the case suggested that N.G. consented to
having sex. Defendant did not testify but offered several witnesses.
Desiree Weeks testified that she saw defendant standing by his car
near the store that morning. She stated that she saw a young lady
with a little boy approach him and have a conversation for about 30 to
40 minutes. She saw the lady attempt to open the passenger door of
defendant's car, but defendant had to come around to open it. She saw
them sit in the car and converse for another 15 minutes before driving
away. On cross-examination, she admitted that Ms. Caldwell initially
asked her to testify and that she had told an investigator that she
saw them talking for a few minutes, rather than 30 to 40 minutes.
Irene Scroggins, a bus driver, testified that defendant assisted
her that morning at an Amoco station when she locked her keys in her
car. She heard a woman yelling from the front seat of defendant's
car, stating that she was ready to go. There was a small head in the
back seat. On cross-examination, Scroggins admitted that she had said
in her statement that the woman that she saw appeared to be in her
late twenties or thirties. She also was not certain of the gender of
the person in the back seat. While Ms. Scroggins was uncertain as to
the exact time of these events she stated at one point that she
started her work break about 7:40 a.m. that morning and she went to
the gas station thereafter. Other evidence indicated that defendant
had driven his wife to work that morning sometime before 8 a.m.
John Davis, defendant's neighbor, testified that he saw a lady
and a child in defendant's car parked next to defendant's garage that
morning. He did not see defendant and the lady did not say anything
to him as he walked by. This was several hours before the police
arrived that morning. On cross-examination, Davis admitted that he
would not talk to the State's investigators when they came to question
him because he had been drinking that day.
The jury found defendant guilty of all charges. The trial court
sentenced him to an extended term of 60 years' imprisonment for the
charge of aggravated criminal sexual assault and 15 years for each
count of aggravated kidnapping. The two kidnapping sentences are to
run concurrently, but they are consecutive to the aggravated criminal
sexual assault sentence, for a total of 75 years.
Defendant first contests the denial of his motion to quash arrest
and suppress evidence. The constitution of Illinois and the fourth
amendment to the United States Constitution in general prohibit police
officers from making warrantless entries into private residences.
People v. Foskey, 136 Ill. 2d 66, 74 (1990), citing Payton v. New
York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). One
exception to the warrant requirement is when the State demonstrates
that exigent or compelling circumstances justified the entry. Foskey,
136 Ill. 2d at 74. Several factors are relevant to a determination of
exigency, including whether:
"(1) the crime under investigation was recently
committed; (2) there was any deliberate or
unjustified delay by the police during which time
a warrant could have been obtained; (3) a grave
offense was involved, particularly a crime of
violence; (4) there was [a] reasonable belief
that the suspect was armed; (5) the police
officers were acting on a clear showing of
probable cause; (6) there was a likelihood that
the suspect would escape if he was not swiftly
apprehended; (7) there was strong reason to
believe the suspect was in the premises; and (8)
the police entry was made peaceably, albeit
nonconsensually." People v. McNeal, 175 Ill. 2d 335, 345 (1997).
In determining whether the police acted reasonably, the court
looks to the totality of the circumstances confronting officers at the
time the entry was made. McNeal, 175 Ill. 2d at 345-46 (exigent
circumstance justified warrantless search of defendant's garbage can);
Foskey, 136 Ill. 2d at 84 (facts insufficient to support warrantless
entry for arrest under exigency exception). This court will not
disturb a decision on a motion to quash and suppress unless that
decision is determined to be clearly erroneous. Foskey, 136 Ill. 2d
at 76.
Defendant contests several of the findings related to these
factors. The record indicates, however, that the officers learned
upon arriving at the home that a 14-year-old girl had just been taken
by gunpoint and sexually assaulted. She had led the officers to the
residence and identified the vehicle parked in front as the one used
by the offender. The officers learned from a person on the street
that someone had recently exited that vehicle and entered the home
with a brown paper bag. While defendant suggests that the officers'
testimony was not credible, this court defers to the trial court in
that assessment. See People v. Hernandez, 278 Ill. App. 3d 545, 551
(1996) (Because a court of review is not in a position to observe the
witness as he testifies, questions of credibility must be left largely
in the discretion of the trial court). The officers were justifiably
concerned about a possible escape and, more importantly, the threat of
immediate harm to another little girl whom they could see in the
residence and who was crying and upset.
Further, Officer Mitchell testified that it took five minutes for
the fire engine to arrive. These events occurred within a relatively
short period of time after the actual assault that morning. There was
not an extensive delay. The record also indicates that the second-
floor window entered was partially open. Thus, the officers entered
peacefully.
Overall, the record supports the trial court's findings as to the
factors for consideration. The conclusion that exigent circumstances
justified the warrantless entry is not erroneous. The trial court did
not err in refusing to suppress the items recovered within the scope
of this protective sweep. As noted by the trial court, however, the
two guns found in the paper bag in the oven of the second floor would
not fall within the scope of this sweep. See McNeal, 175 Ill. 2d at
347 (warrantless police action must be strictly circumscribed by the
exigencies that justify its initiation), citing People v. Abney, 81 Ill. 2d 159, 173-74 (1980).
Defendant next contends the trial court erred in finding consent
to search the garage and to reenter the house. A person may waive his
fourth amendment rights by consenting to a search conducted without a
search warrant. People v. Gutierrez, 243 Ill. App. 3d 867, 870
(1993). The State must prove by a preponderance of the evidence that
the consent was voluntarily given. Gutierrez, 243 Ill. App. 3d at
870. The question of whether a consent to search is voluntary and not
the product of duress or coercion is a question of fact to be
determined from the totality of the circumstances. Hernandez, 278
Ill. App. 3d at 551, citing Schneckloth v. Bustamonte, 412 U.S. 218,
93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). A trial court's
determination on this issue will not be disturbed unless it is clearly
unreasonable. Hernandez, 278 Ill. App. 3d at 551.
The officer testified that Ms. Caldwell arrived at the residence
within 5 to 10 minutes of being telephoned. The officers explained
the situation and asked for consent. She was very cooperative and
stated that she needed to see for herself. She also signed a form
providing the officers with permission to search her residence. She
moved the family's dogs to allow the officers in the yard and opened
the lock on the gates and the garage door to allow the search of the
garage. Given the trial court's position for judging the credibility
of the witnesses, the court's determination that Ms. Caldwell gave
consent to the search of the house and the garage is not clearly
unreasonable.
Defendant also argues that the consent cannot be valid as a
matter of law because it was "tainted" by the illegal search performed
prior to Ms. Caldwell's arrival. In People v. Flagg, 217 Ill. App. 3d
655, 659-60 (1991), this court ruled that a valid consent could not be
found where the search was conducted prior to when the defendant
provided the consent. However, the search performed prior to
obtaining consent was legally permissible (with the exception of the
opening of the stove) under the exigency exception. While defendant
claims the officers improperly continued to search the premises after
defendant was arrested and before Ms. Caldwell arrived, Officer
Mitchell testified that Ms. Caldwell arrived at the home within 5 to
10 minutes after she was called. Further, defendant does not specify
any item recovered during this period that would require suppression.
Defendant also argues that the confrontation with the guns found
in the oven invalidated the consent. "'[C]onsent is ineffective to
justify a search when a search or entry made pursuant to consent
immediately following an illegal search, involving an improper
assertion of authority, is inextricably bound up with illegal conduct
and cannot be segregated therefrom.'" (Emphasis in original.) People
v. Taggart, 233 Ill. App. 3d 530, 553 (1992), quoting People v. Kelly,
76 Ill. App. 3d 80, 86 (1979). In Taggart, 233 Ill. App. at 552, the
defendant claimed his consent was invalid where he was shown illegally
seized photographs before he signed a consent form. The court found
nothing particularly coercive about the events at the police station
where defendant signed the form and stated that the display of the
illegally seized photos, "without more, did not convey an apparent
authority such that defendant would have believed his consent to be a
passive submission to that authority rather than a voluntary
relinquishment of a right." Taggart, 233 Ill. App. 3d at 553.
The record does not indicate that Ms. Caldwell's consent resulted
from the illegal seizure of the guns from the oven. Ms. Caldwell
arrived home, was informed as to what was going on and consented to
the searches. While she may have known that the officers had seized
guns when she signed the form, not all of those seizures were illegal.
She was "very cooperative" and, under the facts presented, her consent
was not "inextricably bound up with illegal conduct."
On a similar note, defendant argues that the doctrine of
inevitable discovery does not apply because the consent obtained
resulted from the fruits of a prior illegal search. The inevitable
discovery exception provides that where the record shows by a
preponderance of the evidence that the challenged evidence would have
inevitably been discovered by lawful means, the evidence is
admissible. People v. Shanklin, 250 Ill. App. 3d 689, 695-96 (1993).
Three criteria must be met: (1) the condition of the evidence must be
the same when found illegally as it would have been when found
legally; (2) the evidence would have been found by an independent line
of investigation untainted by the illegal conduct; and (3) the
independent line of investigation must have already begun when the
evidence was discovered illegally. Shanklin, 250 Ill. App. 3d at 696.
The trial court's determination that Ms. Caldwell voluntarily
consented to the searches here was not unreasonable. While she may
have seen the officers in her home, that entry was justified under the
exigency exception. This was an untainted line of investigation.
While there was one portion of that search that was illegal, the trial
court was aware of that illegality and still determined there was
voluntary consent. As noted, there is nothing indicating that Ms.
Caldwell's consent derived specifically from the illegal portion of
the search. As the trial court observed, it seems reasonable that if
the officers had not found the weapon in the oven when they did, they
would have continued to search and gone back into the residence when
they had consent.
Defendant argues that the trial court erred in allowing L.E. to
testify as to another alleged assault perpetrated by defendant because
this evidence was unreliable. Before evidence of other crimes can be
found admissible, the State must show that a crime took place and that
"the defendant committed it or participated in its commission."
(Emphasis in original.) People v. Thingvold, 145 Ill. 2d 441, 455-56
(1991). The State need not prove this beyond a reasonable doubt, but
must demonstrate more than mere suspicion. Thingvold, 145 Ill. 2d at
456.
Defendant contends L.E.'s identification was unreliable because
her offender was wearing sunglasses and a hood. In determining
whether an identification is reliable, courts have looked to the
opportunity to view the criminal, the degree of attention, the
accuracy of the prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the length of time
between the crime and the confrontation. People v. Simpson, 172 Ill. 2d 117, 141 (1996). L.E. identified defendant as the person who
assaulted her in a lineup about two months after the assault. She
denied telling the officers at the lineup that she was uncertain. She
stated that she asked to look at the lineup twice, to make sure that
she had "everyone correct." She also identified defendant at trial,
and she identified defendant's gun and car. We find this evidence
reliable.
Defendant contends the evidence relating to this other assault
was not relevant and was highly prejudicial. Specifically, he claims
the crimes were not sufficiently similar. Evidence of other crimes is
not admissible for the purpose of showing defendant's disposition or
propensity to commit crime. People v. Illgen, 145 Ill. 2d 353, 364
(1991). Evidence of the commission of other crimes is admissible
where it is relevant to prove modus operandi, intent, identity,
motive, or absence of mistake. Illgen, 145 Ill. 2d at 364-65. The
trial court must weigh the relevance of the evidence to establish the
purpose for which it is offered against the potential prejudice.
Thingvold, 145 Ill. 2d at 452. The court's ruling as to the
admissibility of such evidence will not be reversed absent a clear
abuse of discretion. Thingvold, 145 Ill. 2d at 452-53. When evidence
of another crime is offered, there must be some similarity between the
other crime and the crime charged to ensure that it is not being used
to establish criminal propensity. People v. Johnson, 239 Ill. App. 3d
1064, 1074 (1992).
In Johnson, 239 Ill. App. 3d at 1075, the court found it
permissible to admit evidence that a defendant had committed a prior
sexual assault to show lack of innocent intent in the sexual assault
for which he was on trial. There, "[b]oth victims were abducted while
walking alone on the street and taken to another location; both were
grabbed from behind by the neck; and both women were beaten, choked
and bitten." Johnson, 239 Ill. App. 3d at 1075.
In the instant case, similarities between the two crimes abound:
both victims were young girls, N.G. was 14 and L.E. was 17; they were
attacked on the street at gunpoint, in the same general area of the
city, and they were driven in a gray Riviera to an isolated location;
they were forced to close their eyes or have something placed on their
eyes during the attacks; they were asked several personal questions
during the car ride, including whether they were virgins and both
replied yes; the assaults occurred under filthy conditions; the girls
were threatened; they were forced to hug the offender after the
assault; they were returned to locations near to where they lived and
to where they had been taken; and the assaults occurred on Saturday
mornings in 1995.
The defense suggests that N.G. consented to have sexual
intercourse with defendant. Because this evidence of prior conduct
tends to show that defendant did not act with an innocent intent, the
trial court did not abuse its discretion in its admission.
Moreover, this evidence was also admissible to show modus
operandi. Evidence of other crimes may be admissible as proof of
modus operandi only upon a strong and persuasive showing of the
similarity between the crime charged and the separate offense; there
must be a substantial and meaningful link between the offenses being
compared. People v. Brown, 199 Ill. App. 3d 860, 879 (1990). There
should be some distinctive feature not common to most offenses of that
type. Brown, 199 Ill. App. 3d at 879.
In People v. Jones, 156 Ill. 2d 225, 240 (1993), the supreme
court upheld the admission of evidence that the defendant had raped
another woman to show the rapist's modus operandi. The court found
the rapes of the two women to have enough similarities to conclude
that the other victim's rape demonstrated a pattern or "signature,"
rendering the evidence of that rape probative of the modus operandi
used.
"Both crimes involved sexual assaults on single,
black women in their late twenties. Both rapes
occurred at about 3:30 a.m. on an early Sunday
morning during the spring of 1985. The rapes
were committed less than three months apart, and
less than two blocks away, in the area where
defendant had lived most of his life. Both women
were raped on the first floor of an abandoned
building. Both women were struck in the face,
and both had their clothing removed forcibly.
Finally, both women were raped at knifepoint.
The totality of these factors was probative
of the guilty man's pattern of behavior, and was
properly presented to the jury to establish the
modus operandi of the assailant." Jones, 156 Ill. 2d at 240.
Because the similarities between these crimes was very strong,
the evidence was also admissible to show modus operandi.
Nonpublishavle material under Supreme Court Rule 23 omitted.
Defendant also contends he was denied his right to a fair trial
when the trial court allowed evidence and argument as to N.G.'s
alleged loss of virginity. The State argues that defendant waived
this issue. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant objected to this testimony and there was a sidebar at trial.
However, defendant did not raise his specific objection to the
introduction of this evidence in his posttrial motion. He made only a
general objection to prosecutorial argument. Thus, the issue is
waived.
Plain error analysis may be applied where the evidence is so
close that there is a possibility that an error not objected to may
have resulted in the conviction of an innocent person or where there
are errors of such magnitude that their commission denied the accused
of a fair and impartial trial. People v. Hernandez-Valdez, 260 Ill.
App. 3d 644, 647 (1994). While the evidence was not close and we see
no significant error depriving defendant of a fair trial, we would not
find this issue to warrant reversal even if it was not waived.
The Illinois rape shield statute provides, with certain
exceptions, that evidence of "prior sexual activity" of the victim is
inadmissible in a trial for criminal sexual assault. 725 ILCS 5/115--
7(a) (West 1994). Neither the defendant nor the State may introduce
evidence of a victim's past sexual history. People v. Sandoval, 135 Ill. 2d 159, 170-71 (1990).
The State argues that the evidence as to the victim's virginity
was admissible in this case and did not violate the statute because
defendant asked for this information during the crime. While driving,
defendant asked N.G. if she was a virgin and she said "yes." He then
stated that he would know if she was lying. Defendant asked L.E. the
same question. The State argues this evidence comprised the facts of
the crime itself and defendant should not be able to shield himself
from its impact.
We do not find the evidence offered in this case to be evidence
of the victim's past sexual activity. N.G. and L.E. testified that
defendant asked if they were virgins and they said "yes," but they
were not asked if they told the truth. The record reveals that N.G.
lied to the defendant about her name, address, and age. The evidence
was offered to show defendant's questioning of the victim as part of
the circumstances of his attack.
Moreover, during oral argument defense counsel stated that
defendant's argument did not lie with the admission of this evidence,
but with the prosector's use of this evidence. The record reveals
that the prosection commented on this evidence as if it were true.
During opening argument the prosecutor stated, "And in that room,
ladies and gentleman, [N.G.] lost her innocence forever. She lost
that special moment that people cherish." Defense counsel objected
and the court sustained the objection adding, "[c]onfine yourself to
the evidence." In closing argument, the prosecutor commented further,
without objection, on the victim's loss of innocence and virginity.
While the prosecutor's comments went beyond the claimed purpose
for the introduction of this evidence, we do not find the comments
warrant reversal even if defendant's objection to them had not been
waived, particularly in light of the strong evidence of guilt. See
Hernandez-Valdez, 260 Ill. App. 3d at 644 (even if not waived, any
error in admitting evidence that sexual assault victim was a virgin
was harmless); but see People v. Sales, 151 Ill. App. 3d 226, 233
(1986) (improper argument regarding victim's virginity, as well as
other improper comments, deprived defendant of a fair trial where
evidence was not so overwhelming as to render the comments harmless).
We also note that the State's argument did not focus on N.G.'s
virginity as evidence that she would not have consented, which was the
central defense. Rather, it focused on the motivations of the
defendant or at least the nature of his actions in committing the
crime. Compare People v. Kemblowski, 201 Ill. App. 3d 824, 829 (1990)
(admission of testimony that victim was a lesbian was erroneous and
prejudicial because her avowed preference for sexual activities with
women necessarily affected the jury's assessment of whether she
consented).
Nonpublishable material under Supreme Court Rule 23 omitted.
Affirmed.
ZWICK and QUINN, JJ., concur.
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