{ "id": 1581481, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Steve Malston, Defendant-Appellant", "name_abbreviation": "People v. Malston", "decision_date": "1970-05-07", "docket_number": "Gen. No. 69-147", "first_page": "466", "last_page": "473", "citations": [ { "type": "official", "cite": "122 Ill. App. 2d 466" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "176 NE2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1931, "opinion_index": 0 }, { "cite": "344 Ill 278", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5257899 ], "year": 1931, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill/344/0278-01" ] }, { "cite": "163 NE2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "18 Ill2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329364 ], "year": 1959, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0138-01" ] }, { "cite": "167 NE 857", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1929, "opinion_index": 0 }, { "cite": "335 Ill 590", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5790220 ], "year": 1929, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/ill/335/0590-01" ] }, { "cite": "221 NE2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "35 Ill2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380332 ], "year": 1966, "pin_cites": [ { "page": "504, 505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0501-01" ] }, { "cite": "208 NE2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "58 Ill App2d 312", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2601029 ], "year": 1965, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/58/0312-01" ] }, { "cite": "171 NE2d 612", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "21 Ill2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2733356 ], "year": 1961, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0252-01" ] }, { "cite": "95 NE2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "407 Ill 301", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2640513 ], "year": 1950, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill/407/0301-01" ] }, { "cite": "190 NE2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363782 ], "year": 1963, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0055-01" ] }, { "cite": "142 NE2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "11 Ill2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2784724 ], "year": 1957, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0084-01" ] } ], "analysis": { "cardinality": 544, "char_count": 9678, "ocr_confidence": 0.601, "pagerank": { "raw": 1.0671120797234471e-07, "percentile": 0.5586466624115923 }, "sha256": "481276d7e099cb901adb6718f7a717b3ac352d24fe83b1969a616221adf2b58e", "simhash": "1:fe4e0ef6feedc83e", "word_count": 1616 }, "last_updated": "2023-07-14T21:02:54.032479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Steve Malston, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE SEIDENFELD\ndelivered the opinion of the court.\nSteve Malston, the defendant, then age 17, was charged in a criminal complaint with the offense of indecent liberties with a minor female child age 12 years, occurring on February 23rd, 1969. (Ill Rev Stats 1967, c 38, \u00a7 11-4.) Judgment of conviction was entered upon the jury finding of guilty, and defendant was sentenced to a term of 4 to 10 years in the penitentiary.\nHe claims that reversible error was committed in the exclusion of evidence offered on his behalf and by prejudicial argument of the prosecutor.\nThe complaining witness testified to an act of intercourse with defendant which she said occurred on the February 23rd date. Counsel, on cross-examination, was allowed to ask the question, \u201cDid you ever have sexual relations with anyone else,\u201d to which the girl answered, \u201cNo.\u201d He then asked, \u201cDid you ever say you did,\u201d and the girl again answered, \u201cNo.\u201d In further cross-examination counsel asked, \u201cDid you ever state to the police or anyone else you had sexual relations with some other male person around that time?\u201d The court sustained the prosecutor\u2019s objection stated to be on the ground, \u201cShe already testified to that.\u201d When the public defender indicated he was asking the question for impeaching purposes, the court responded, \u201cYou have asked the questions, there is no need repeating.\u201d\nThe witness was then asked whether she had been interviewed at the police station by a lady and she answered without objection, \u201cYes.\u201d When counsel sought to inquire what she told the lady \u201cregarding this affair,\u201d the court sustained an objection. The defense counsel then asked,\nQ. \u201cDid you tell her you had been raped by a bearded man?\u201d\nA. \u201cYes.\u201d\nMr. Merrick (for the prosecution): \u201cObjection to what she might have told another person.\u201d The Court: \u201cThe Court is of the opinion any conversation she had with another witness, it might be properly gone into by the witness. I will sustain the objection, and instruct the jury to disregard the answer . . . .\u201d\nThe State argues, without citation of any authority, that since the witness had answered \u201cNo\u201d to counsel\u2019s previous inquiry whether she ever said she had sexual relations with anyone other than defendant, the objection to further questions on that subject was properly sustained as an exercise of judicial discretion. The State further suggests that no proper foundation was laid for the questions because the defense \u201cfailed to establish the hour, the month or the year of the conversation and did not establish who was present nor specify what the questioner meant by the words \u2018this affair.\u2019 \u201d\nEvidence of prior inconsistent statements by a witness is admissible to impeach his credibility. The evidence is not admitted as proof of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency and is, therefore, not hearsay. The People v. Moses, 11 Ill2d 84, 87, 142 NE2d 1 (1957); The People v. Morgan, 28 Ill2d 55, 63, 190 NE2d 755 (1963). It has often been stated that an accusation of rape or other sexual offenses is easily made, hard to be proved, and still harder to be defended, thus charging a reviewing court with a duty to carefully examine the evidence. The People v. Scott, 407 Ill 301, 304, 95 NE2d 315 (1950); The People v. Qualls, 21 Ill2d 252, 257, 171 NE2d 612 (1961). While the trial court is given discretion in ruling on the extent of cross-examination, the accused should be given wide latitude in his cross-examination of the State\u2019s witnesses and this is especially applicable to the testimony of the complaining witness in a sex case. People v. Rainford, 58 Ill App2d 312, 315, 208 NE2d 314 (1965).\nThe questions asked by the public defender were inartful and were inadequate to establish a proper foundation for impeachment. A proper foundation requires that the witness be asked as to the time, place and persons involved in the alleged conversation, and the witness must also be asked whether he made a certain contrary statement at that time, to avoid unfair surprise. The People v. Moses, supra, at page 87; People v. Rainford, supra, at page 317. However, the questions here could reasonably be regarded as preliminary to subsequent impeachment, and the erroneous position of the court which was, in effect, that such questions called for hearsay and should be asked of the other party to the alleged conversation, effectively prevented the testing of the credibility of the witness on an issue which concerned the subject matter of the crime charged. Whether the prosecutrix had made inconsistent statements shortly after the time of the alleged crime involving a person or persons other than the accused was crucial, particularly since the testimony of the complaining witness was the only evidence to establish the defendant as the perpetrator of the offense. See The People v. Whitehead, 35 Ill2d 501, 504, 505, 221 NE2d 256 (1966); and People v. Rainford, supra, at pages 318, 319.\nWe conclude that the court abused its discretion in so limiting the cross-examination of the prosecutrix and thereby committed reversible error.\nThe error was compounded, in our opinion, by the court\u2019s rulings regarding the testimony of Marlene Fahs, the acting police matron, who was in the police station when the complaining witness was present on February 24th, the day following the charged offense.\nThe time, place, and those present was elicited from the witness. The witness testified that she had a conversation with the alleged victim; she then began to talk about the \u201cstory\u201d that the girl told her. On objection, the court informed her that she must relate the conversation in terms of who said what to whom. The witness then stated that there was no conversation between the girl and herself, that she was listening to the girl\u2019s conversation with the police officers who were present.\nDefense counsel then asked whether the witness was present at the preliminary hearing in the case, and she responded that she was. Counsel then asked whether certain questions were asked her at that hearing by defendant\u2019s counsel. The State\u2019s Attorney then objected to any questions with reference to the preliminary hearing, and the court said \u201cYou can\u2019t get in the position of impeaching your own witness.\u201d Defendant\u2019s counsel persisted in asking about the conversation and the witness still referred to the \u201cstory\u201d and objections were sustained, the court commenting that \u201cYou called her and you are bound by her testimony.\u201d Defense counsel then asked,\nQ. \u201cMr. Fahs, do you recall the preliminary hearing here in Dixon ?\u201d\nA. \u201cYes.\u201d\nQ. \u201cDo you recall the court asking this question?\u201d\nMr. Merrick: \u201cObjection to any question asked at the preliminary hearing.\u201d\nThe Court: \u201cSustained.\u201d\nMarlene Fahs testified for the prosecution at the preliminary hearing. Although called as a defense witness at the trial, when it appeared that she first admitted that she had a conversation with the girl on February 24th, then denied that the conversation was between herself and the girl, defendant\u2019s counsel should have been allowed to refresh her memory with her testimony at the preliminary hearing.\nWhen a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him to show that fact and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience. The People v. Michaels, 335 Ill 590, 592, 167 NE 857 (1929); SHA, c 110A, \u00a7 238, and Committee comments. See also The People v. Wesley, 18 Ill2d 138, 151, 163 NE2d 500 (1959); and The People v. Rongetti, 344 Ill 278, 284, 176 NE2d 298 (1931).\nIt appears from the memorandum opinion of the trial judge filed with the record that the trial court reasoned, \u201cThe defendant cannot impeach his own witness which is a fundamental rule of evidence.\u201d In that opinion the court charged ineptness of counsel in laying the foundation for the conversations and felt he could not intervene to try defendant\u2019s case for him. However, it appears to us from all of the circumstances that the court did not exercise discretion under Supreme Court Rule 238, supro, to determine whether the witness was hostile or unwilling but instead believed that the law inflexibly prevented the impeachment or even the refreshing of recollection of a witness by the party calling her under any circumstances.\nUnder this record, defendant was deprived of a fair trial by prejudicial error and a new trial is required.\nThe remaining claims of error argued by the defendant do not have substantial merit, in our opinion, and require no discussion.\nReversed and remanded.\nABRAHAMSON and MORAN, JJ., concur.\nThe record contains a transcript of the pertinent portion of Marlene Fahs\u2019 testimony at the preliminary hearing as attached to the post-trial motion. It appears that the \u201cstory\u201d she alluded to was the version of the incident the girl had told to the police officers concerning \u201cthree bearded men\u201d and that Mrs. Fahs did not go into the details of what the girl had said to the officers. However, she did ask the girl if the \u201cstory\u201d she had told was true, and testified that the girl answered \u201cYes.\u201d The witness then testified that she asked, \u201cDid the men pick you up\u201d and she said \u201cYes\u201d and I said \u201cDid they take you out in the country\u201d and she said \u201cYes.\u201d", "type": "majority", "author": "MR. JUSTICE SEIDENFELD" } ], "attorneys": [ "Thomas E. Hornsby and Edwin S. Wadsworth, of Dixon, for appellant.", "Albert N. Kennedy, State\u2019s Attorney, of Dixon, for appellee." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Steve Malston, Defendant-Appellant.\nGen. No. 69-147.\nSecond District.\nMay 7, 1970.\nThomas E. Hornsby and Edwin S. Wadsworth, of Dixon, for appellant.\nAlbert N. Kennedy, State\u2019s Attorney, of Dixon, for appellee." }, "file_name": "0466-01", "first_page_order": 472, "last_page_order": 479 }