People v. Lawler

(No. 70028.

THE PEOPLE THE ILLINOIS, OF OF STATE Appel-

lant, LAWLER, v. STANLEY K. Appellee. 22, 1991.

Opinion February filed MILLER, C.J., HEIPLE, J., joined by dissenting.

Neil F. Hartigan, General, of Attorney Springfield, and Hillis, Paul Jr., State’s Ruiz, of Salem J. Attorney, (Robert General, Solicitor Terence M. Donatelli, Madsen and Jack General, Assistant Attorneys of Chicago, and Kenneth R. E. Boyle, Stephen Jr., Norris and F. Raymond Buckley, the Office State’s Prosecutor, Attorneys Appellate of Mt. Vernon, of for counsel), the People. Kirwan,

Daniel M. Defender, and R. Deputy Larry Wells, Assistant Defender, of the Office of the State Ap- pellate Defender, Vernon, Mt. for appellee.

JUSTICE MORAN delivered the of the opinion court: trial, After a jury defendant, Lawler, K. Stanley was in convicted the circuit court of Marion County 1987, criminal sexual assault Rev. Stat. (Ill.

aggravated ch. and was sentenced to par. 13(a)(1)) years’ 12 — The court and re appellate reversed imprisonment. trial. Ill. (194 manded the cause for a new 3d App. We the State’s for leave to granted petition appeal (107 Ill. R. 315 (a)). (1) whether: the ap- issues raised on review are court erred in that the defendant was de-

pellate finding a fair to hear the nied trial because allowed jury the com- content of a between telephone father, in which she alleged witness and her plaining man, and she was an armed being abducted erred in could not and get (2) appellate away; a fair the defendant was denied the to finding right trial the trial court allowed the to consider jury because the defendant’s convictions. testified as fol witness 21-year-old complaining 17, 1987, on the evening July 21/2-year-

lows: that former hus (her old son went to with his father stay time; that she Vernon, the second band) only Mt. for so frightened, was afraid her son would be lonely times and drove she called her ex-husband several during throughout evening house repeatedly no on the because there was answer morning July Mt. door; a.m., that at 3:30 or 4 she left or at his Shattuc, Illi to drive to her home began Vernon and into the nois; on her she saw a car accelerate way, car lane, her; next to that as the pulled left and pull up to her her, (the defendant) yelled next the driver up off; she come that her left rear tire was about she lot because then into a pulled nearby parking over earlier driven car, as she had concerned about her followed her into the defendant over a deep pothole; she and the defendant looked lot; that after parking leave, he her car to drew car, at her and she into got that she move from his and demanded gun waistband drive; that that as he was seat so he could passenger that she him a her ex-husband had driving, told story that she of a out child, party stolen her search part in, and that if did soon looking for him she not call well; others would for her as and that he looking start then drove a so that she could make pay phone over her call. conversation, her

Regarding complainant testified as follows: that she called her father collect (so he that could trace the that the defendant was call); next to her entire time she on the right spoke phone; answered, that when her father she him the told story her son, about ex-husband and her and “to get said out that she her if “Liz police looking”; asked father and Dave” names (fictitious that she used to alert her father) in; were that her father then became concerned and asked her a number that questions could be answered “No”; “Yes” or that that format through she able let her father know that she an was with armed “weirdo,” that she was somewhere between Centraba and Mt. Vernon, and that she could not and get away; that her then father told her to try and convince the defendant to take her to the Hardee’s in Mt. Vernon, he where would have the police waiting. also testified: she and the car,

defendant then back got into the and he drove the location; car to an isolated he then exited the car that, and to the front of at it; time, walked she was was, unsure where so she into the gun moved car; driver’s seat tried and to start that before she could at get pointed gun defendant her away, mistake; head and told her she made serious he seat; then forced her to and move back disrobe into the he then with penetrated vagina penis; that she informed him that was not birth using she con- towel, he into a which ejaculate

trol and asked that he did. that as further testified as follows: on, said she was at- their clothes the defendant

they put her; he to kill that it was a shame that had tractive and sex part- for not better apologized being that she then got something if ner, they and that she would be better Vernon; in Mt. eat, Hardee’s suggested closer, and be- he the Hardee’s in Centralia was stated direction; that, in on the way, to drive that gan windows; his car to roll up defendant stopped lot, them into the parking that a black car followed large father’s; her that she recognized opened which she as car, to her father’s car door, her out of ran jumped defendant; and that and told him to shoot then drove off. defendant 1, a No.

The identified Exhibit People’s semiautomatic, gun as the Taurus 9 millimeter She that she her. also stated defendant used abduct so to him, sex and did only did not consent to have with life. save her he as follows: that father testified complainant’s in the early call from his daughter

received a phone 1987; that the conversation hours of morning July her some questions unusual and that he then asked was or “No” and that a “Yes” that could be answered with with an format, that she was this he learned through and Mt. Centralia “weirdo,” somewhere between armed he then called that Vernon, get and she could not away; up and he and his wife gun, picked got police, that her; for looking husband and began complainant’s that looked the east side Centralia he saw a car on park- into a he followed the car daughter’s; like his the entrance as to block lot, his car so and ing stopped car and out of the lot; daughter jumped that his air; into the man, him he fired a shot so told to shoot his car that the into and was got hysterical, drove defendant’s shaking; that he crying car, plate and had his wife write license num- down ber; and then to the sta- daughter police that he took his tion. mother husband related the complainant’s her same accounts as father. he

State Thomas testified that Trooper Olivero saw car with the license the complainant’s number car, mother had He then and ar- provided. stopped rested the defendant. Gary

Detective testified that Leming the defendant waived his Miranda and made rights tape-recorded (which statement for the In the played state- jury). ment, the defendant stated: he was driving area of Centralia around the late 17 and evening July early 18; he saw morning July a car with a badly rear tire and he wobbling (the alerted the driver com- that her car had a he plainant) pulled over, problem; and the complainant was that she told him crying; child, ex-husband had taken her and she asked him if he would her car help drive find them because she so that he drove her the direction upset; she indi- cated, and at her so request, stopped she could make a call; after call, that the she told that phone him she was cold, and and he her his lonely gave jacket; that she then him, kissed embraced and and asked him to have sex her; he then the with that drove car to an isolated spot where he the car parked and then sex in they had seat; back that she told him that “not she was on the car; so he into towel in pill” ejaculated a that they then drove back and he his Centralia car stopped to roll up windows; car suddenly pulled black and the driver with and up jumped out fired pistol it into the air; that he it complainant’s was the thought husband or so he let her out of the boyfriend, get car later off;

and he drove and that he came for his back own car. also

Detective testified he Leming operated car and find no in either of complainant’s could wobble Durr, the rear tires. Ronald an auto also repairman, car, he find stated that after could also no examining tires. wobble wife,

Lori as fol- Lawler, defendant’s testified lows: defendant did a Taurus 9 millimeter own semiautomatic that on the night July pistol; pistol the defendant left for work at 8 and the p.m., house; still in the that she left the house p.m., at re- in-laws; and next she morning, at sleep from seen trieved the the same she had it place pistol, before, gave and it to a officer. night police defense, in a man- In his own the defendant testified tape recording. ner consistent with the He also said con- he did not attention to the complainant’s phone pay versation, did not to the after shots go police and fired he wife find out were because was afraid his would his encounter. about sexual Winters,

The also called David the pastor defense had church, defendant’s who testified defendant for in the truthfulness a good reputation community peacefulness. deliberations, a verdict jury returned

Following criminal sex- aggravated the defendant finding guilty ual assault. The trial court sentenced the defendant 12 years’ imprisonment. re- court the appellate

The defendant appealed for a the case new versed and remanded conviction had errone- the trial court trial. court found that be- the content of the admitted ously the con- because and her father tween exception not fit into an and did hearsay versation that be- found additionally to the rule. hearsay

557 that the cause the misstated role defend- prosecutor ant’s convictions had prior felony assessing guilt, a fair trial. defendant was denied court, On to this the first issue the State appeal raises is whether the court erred in appellate reversing defendant’s conviction and the case for a remanding new trial, because telephone between and her father was inadmissible hearsay. (194 Ill. 3d at This down into 558.) breaks App. question two (1) whether the statement was parts: hearsay; (2) if it was it was whether admissible under an hearsay, to the rule. exception hearsay evidence is an out-of-court

Hearsay statement offered asserted, the truth of the matter prove and is gener inadmissible unless it ally falls within an exception. (Peo ple v. Ill. Carpenter (1963), 28 The State argues that a statement from a witness as to his own prior out-of-court statement cannot violate the hearsay rule, because the will witness at trial with the testify of an oath safeguards cross-examination, reducing the risk of perjured of the testimony. Adoption State’s rationale would obliterate essentially good portion rule. hearsay noted, As has been or presence “[t]he absence court of the declarant of the out-of-court *** statement is irrelevant to a determination as to whether the out-of-court statement is M. Gra hearsay.” ham, & Graham’s Handbook of Illinois Cleary Evidence §801.1, 1990). at 564-65 ed. See v. (5th People Spicer 79 Ill. 2d (1979), (where this court held that inconsistent statements of an in-court wit hearsay ness cannot be used as evidence). substantive

In case, the instant heard from jury testimony both the and her father a tele- concerning phone conversation that occurred the complainant while earlier, was with the defendant. As noted the complain- ant abducted, testified that after she was she convinced make call. As to the

the defendant to let her a phone her father call, and content of the both for that the call she asked during testified as follows: out Dave,” “Liz asked that he “get police and and and ask- began he suspicious that looking”; very became could answered with her a that be ing series questions “No”; leading and that this through question a “Yes” or “alone” to tell him that she was format, (1) she was able “in armed, she was (2) was that with a “weirdo” who she and that was (3) and could not get away, trouble” Mt. Vernon. “sort of” in between Centraba and made a motion in limine to the con- keep Defendant The trial out of evidence. tent of the conversation phone the statement was motion, finding that court denied an assertion of it device and not not since was a hearsay that alternative, found In the trial truth. utterance. conversation was a spontaneous chose that the prosecution It is clear from the record was that the conversation ruling to follow the alternative ar- In his closing as a utterance. admissible spontaneous stated: prosecutor gument, that she was abducted testified complainant]

“Now [the Lawler, She called her gun. that he showed by Stanley her fa- You heard father, her father he was armed. told called, excited, she said in that she she was testify ther ‘Yes.’ with a weirdo?’ you ‘Are response questions, it- offense very In the course of the ‘Is he ‘Yes.’ armed?’ and tell for her father cry help for managed self she he was armed that weapon, him that this man had consenting not Obviously, a weirdo. was with she There’s abundant help. Okay. for crying this act if she’s weapon.” that he had a evidence prosecutor from this statement It is clear content of the conversation was arguing pur- for a nonhearsay factual, simply and not offered in its brief fact, the State notes In pose. “[t]he evidence” phone independent consent to intercourse. Unlike Peo did not Ill. this is not a case v. ple Rogers (1980), offered to corrobo an out-of-court statement was where at rate 81 Ill. 2d testimony. (Rogers, in-court as evidence to statement was used substantive clearly asserted, is prove the truth of the matter clearly correct in Thus, holding court was hearsay. appellate that the content of the conversation was phone hearsay. found that the content of the conversa

Having tion was the next hearsay, is whether con question tent of the conversation was admissible under an excep tion to the rule. The State hearsay first contends the statement falls under the state-of-mind exception. An out-of-court statement of a declarant is admissible when that statement tends to show declarant’s state of mind at the time of the People utterance. v. Britz 112 (1986), 314, Ill. 2d 320.

The argument State’s that the state-of-mind exception applies to this case is not The persuasive. prosecution spe- used the cifically complainant’s phone conversation with her father as substantive evidence that the defendant had a and that the gun could not get away. prosecution did not use the conversation as evidence solely of the state of mind complainant’s whether she concerning consented to intercourse. The never prosecution mentioned such a limited for the evidence purpose trial, at and it is clear from the prosecutor’s closing (as earlier argument that the used as quoted) phone conversation was substan- tive evidence of the content of the conversation. the State

Secondly, also the conversation argues was admissible under the declaration spontaneous excep- tion to the rule. hearsay There are three for requirements a statement to as a qualify spontaneous declaration:

“ ‘(1) an startling occurrence a sufficiently produce spon- statement; (2) taneous and of time unreflecting absence fabricate; must relate to the circum (3) the statement ” People (1963), v. Damen 28 Ill. of the occurrence.’ stances 175, 471, (1961), Poland Ill. 2d People v. quoting 2d 181. a third de party may of the declarant

Questioning such as “what simple hap but a spontaneity, question stroy (Damen, 28 Ill. at Persistent 472.) not. will pened” (People v. however, destroy spontaneity. will questioning, Taylor, girl In told Taylor (1971), 48 Ill. 2d he after only persist fireman that had been but raped, she noted that “had the ques her. ently questioned the statement would not have been tions not asked been Taylor, 48 Ill. 2d at 97. made.” to the instant principles the aforementioned Applying abduction of the case, alleged complain it is clear that as star would qualify “sufficiently ant was an event admission, own she However, complainant’s tling.” father; thus, her of the conversation with fabricated much situation, time to reflect on the she had enough obviously execute that fabrication, of a fabrication conceive informa she Additionally, conveyed call. making phone that she leading questions a series of tion to her father via Damen, or where “Yes” “No.” Unlike could answer to the in response made a statement spontaneous declarant (Damen, 471), 28 Ill. 2d at here “what question happened” her fa the assertions of merely adopted is not Therefore, ther as her own. declaration exception under the spontaneous admissible the rule. hearsay the conversation phone the State argues

Finally, a the of complaint admissible under “prompt was properly com to the rule. rape” hearsay “prompt exception into evidence a declara of a allows exception plaint rape” was made that she was which raped tion a victim by rape a utterance. to be considered spontaneous at a time too remote (D admis- “The of amen, 472.) 28 Ill. 2d at basis [the that it is natural that entirely sion of these is declarations] regard the have out rape spoken victim forcible would not do so would in effect it, and the fact she did ing of the fact that violent had occurred.” nothing be evidence Damen, 28 at 472. Ill. 2d that the case,

In the instant the noted appellate conversation, at the of the phone did not occur time rape so the of a “prompt complaint rape” exception Ill. (194 558.) rule was not 3d at hearsay applicable. App. had, fact, begun, State as argues rape testified that the defendant was kissing her on her neck without her at the time of permission State, call. to the phone According was rape so the call of that progress, complaint prompt rape.

In to the of a ex regards complaint rape” “prompt rule, to the this court has held that ception hearsay “[the must have been and not made as complaint] spontaneous result a series of to which answers were questions if, 28 Ill. 2d at Even as the State given.” (Damen, asserts, sexual assault had and the alleged begun meet phone conversation could the spontaneity require ment, still conversation fails prompt-complaint test, as the or re “complaint” simply adoption of a series of formulated jection leading questions father. See 48 Ill. 2d at 97. Taylor, complainant’s content of the does not fit As the rule, into to the admis- any exceptions hearsay sion of the content of the conversation was error. The remarks in error was compounded prosecutor’s conversation, where he closing argument concerning the conversation the defend- “proved” stated the, could not get ant was armed and away. or innocence on the guilt depends entirely

“Where defendant, error of an and the no accuser credibility 562 v. (People Emerson to

should be intervene.” permitted 97 Ill. 2d Since crucial in (1983), question to in this case was whether the consented defendant, of the defendant guilt tercourse with on the of and hinged credibility entirely exist, a is to is man himself. When error shown reversal that the error was not clearly it is shown datory, unless 502.) Here, 97 at the record prejudicial. (Emerson, Ill. 2d harmless, much not the error was as of does show that use upon the State’s case substantive dependent her father. of the conversation with complainant’s in Thus, the court acted remanding appellate properly this case for a new trial. court argues appellate

The State also erred trial the defendant was denied a fair be- finding to consider the permitted jury cause trial trial, Prior to the defend- defendant’s convictions. prior limine keep nine-year- filed a out his ant motion old, robbery aggravated convictions for felony result, As a this motion was denied. evi- battery. The the defendant’s dence was used State impeach trial. testimony at made argument,

During closing prosecutor statement: following *** felony has convictions prior two

“[The defendant] is to the only credibility. reason that is relevant issue if this is another instance where guy again, Now a — Stanley do what Lawler Stanley willing Lawler is wants to do.” overruled, the court

Defense objection counsel’s stated: law, as and the jury

“The will instruct to the Court jury instructed the the introduc- already Court has convic- concerning prior tion of the defendant’s evidence judging credibility. is limited purpose tion for the to the jury disregard any will remarks counsel contrary.” next remarks prosecutor’s were:

“Now, what couple the commission of prior —of truth, felonies tends to telling show is that he is not because if a person willing is to violate the law to commit a felony, presumes then the law that he to willing is lie.” court found that the appellate sec prosecutor’s ond remark er during closing argument was reversible ror because conviction does not create prior a “pre that a sumption” lie, defendant is to as a willing matter of law. The court further found that because the case on hinged witnesses, the credibility the comment de the prived defendant of a fair trial. 194 Ill. 3d at App. 559, citing v. People (1981), 808, Crossno 93 Ill. 3d App. 821.

Evidence the defendant committed other crimes is inadmissible to show the defendant had a propen sity commit crime. v. (People Lindgren (1980), Ill. However, if crime is for prior or felony other crime involving dishonesty, then, discretion, at its the trial court can allow the conviction to impeach defendant, so long as it feels that the prejudicial effect of the evidence is outweighed its probative value of the defendant’s v. credibility. (People Montgomery (1971), 47 Ill. 2d 510.) Evidence of a conviction used to impeach a witness is not admissible if a of more than 10 period years has elapsed since the date of conviction or release of the witness from confinement, whichever is later. 47 Ill. 2d Montgomery, at 516.

In case, this the defendant’s convictions prior felony were in and he was in trial, released 1986. The case, instant was in Thus, 1988. under Montgomery, it was within the trial court’s discretion to allow the prior conviction into evidence for impeachment purposes.

This court cannot court find that trial abused discretion.

In closing his mis- argument, clearly prosecutor that, stated the law the defendant by arguing because crimes “the that he committed law past, presumes However, is lie.” court erred by willing appellate instructions, not into account the jury properly taking which have a curative effect on the improper had may case, In this trial argument. gave very specific instructions as to should consider the evi- jury how it should dence of the defendant’s convictions: prior consider the convictions as evidence of his be- only not Pat- guilt (Illinois as evidence of lievability, tern 3.13 Instructions, Criminal, (2d 1981) No. ed. Jury (hereinafter 2d)); IPI Criminal and that statement any an evidence should be attorney contrary 2d No. The trial court (IPI 1.03). Criminal disregarded also defendant pre- instructed jury trial, had throughout sumed innocent State guilty the of him continuing proving beyond burden 1.01, (IPI 2.03). doubt Criminal Nos. reasonable Court has Supreme recently explained: carry weight of less with “[Ajrguments generally counsel do the court. The former than instructions from jury to as of ar- usually jury are billed in advance the matters *** the gument, evidence, likely viewed as not and are advocates; latter, recog- of the we have often statements of nized, binding statements are viewed as definitive and Arguments counsel which misstate the law. of [Citations.] subject objection the by the law are correction 370, 384, (Boyde v. California (1990), 494 U.S. court.” 331-32, (finding 110 L. Ed. 2d S. Ct. 1200 argument jury not induce the prosecutor’s that a did law consider- impermissible interpretation of in reach an penalty hearing).) at a mitigating of factors death ation of coun- arguments has “the Court also noted court, must sel, the of the be judged like instructions the arguments the in which made” and they context are as do not the same on impact jury counsel do have California, v. 494 U.S. at Boyde instructions. jury at 1200. 385, 108 332, 110 L. Ed. 2d at S. Ct. the whole context reviewing prosecutor’s

When that he made an case, in this it is clear closing argument the defend- statement of the law improper concerning told However, ant’s as the trial prior judge convictions. on numerous occasions that the evidence was to jury be used on the issue of the defendant’s solely credibility, and because the on the law instructed jury properly convictions, mis- regarding prior prosecutor’s and, statement thus, was of little not re- consequence versible error.

For reasons, of the foregoing judgment appel- late court is affirmed.

Appellate affirmed. MILLER, CHIEF JUSTICE dissenting part: I do not with the court’s conclusion that agree defendant was denied a fair trial the admission into evidence of the contents of the vic- testimony relating tim’s view, call to her father. In the tele- telephone my phone conversation was a consistent statement and, here, under circumstances shown was properly introduced State to counter the defendant’s trial charge testimony victim’s fabricated. I dissent. Accordingly,

As the states, the victim majority opinion placed call control of telephone after the defendant took shortly telephone vehicle at In the course of the gunpoint. conversation, father that the victim to alert her managed she was in Through trouble. a series questions, victim’s father was that his daughter able ascertain was held an armed and that she was being by “weirdo” then located somewhere Mt. Vernon and between made, After the call was the defendant drove

Centralia. area, to a he her. raped the victim secluded where victim, returned with the in the The defendant later car, to the lot which he had left victim’s parking into the lot own The defendant was followed by vehicle. father, who, the victim’s being an automobile driven husband, had the victim’s mother and accompanied by after receiv- daughter immediately for his begun looking lot, the vic- arriving call. at ing Upon telephone the defendant drove off. tim but of the car and jumped was taken to victim, who was crying hysterical, asserted, at for treatment. The defendant both hospital trial, at that he and the the time of his arrest and later relations. victim had in consensual sexual engaged is of a statement a witness Evidence prior trial in consistent with the witness’ at be testimony may related the same ac troduced to show the person occasion, time of count of events an earlier before the on alleged or the existence of an mo alleged an fabrication v. People Shum 117 Ill. (1987), tive to See testify falsely. Titone People v. 317, 340-41; 115 Ill. 2d (1986), 2d 487, 499- People v. Emerson 422-23; 97 Ill. 2d (1983), v. Ill. See Clark 501; 389-90. People (1972), of Illinois Graham, M. & Graham’s Handbook Cleary also 1990). ed. (5th Evidence §611.14 tele- the evidence of the victim’s Properly analyzed, father admissible as a conversation with her statement. Throughout present pro- consistent prior challenged veracity the defendant has ceedings, and has testimony attempted portray the victim’s trial The contents of the victim as a sexual willing partner. introduced call could therefore be the victim’s telephone defense, call theory. into evidence to counter the In the alleged the time of the fabrication. made to communi- conversation, was able victim telephone she danger her father that she was cate to corrobo- This evidence will. against held being the and contradicted trial testimony rated the victim’s case, the In the present claim of consent. defendant’s the reliable because is particularly evidence challenged with was contemporaneous telephone circumstances, I con- would facts it related. Under these detailing telephone victim’s testimony clude that into admitted evidence. properly call to her father was of er- allegation one additional The defendant raises ror, argument which concerns prosecutor’s I of the defendant’s convictions. on jury import overstated agree prosecutor with the majority effect of the convictions but impeaching brief comment did not defendant prosecutor’s deny fair trial. The instructed on jury properly signifi- evidence, cance of the as well as on impeaching pur- remark closing pose argument, prosecutor’s I was not would affirm unduly prejudicial. Accordingly, of the circuit court. judgment HEIPLE JUSTICE this dissent. joins

Case Details

Case Name: People v. Lawler

Court Name: Illinois Supreme Court

Date Published: Feb 22, 1991

Citation: 568 N.E.2d 895

Docket Number: 70028

Court Abbreviation: Ill.