{ "id": 3383622, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY JACOBS, Defendant-Appellant", "name_abbreviation": "People v. Jacobs", "decision_date": "1977-08-08", "docket_number": "No. 13868", "first_page": "455", "last_page": "460", "citations": [ { "type": "official", "cite": "51 Ill. App. 3d 455" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "366 N.E.2d 1058", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384045 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0461-01" ] }, { "cite": "363 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464094 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0585-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "361 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2972534 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0719-01" ] }, { "cite": "280 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2914269 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0382-01" ] }, { "cite": "122 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701536 ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0224-01" ] }, { "cite": "193 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "30-31" } ], "opinion_index": 0 }, { "cite": "28 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5362185 ], "weight": 2, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0464-01" ] }, { "cite": "174 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788568 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0175-01" ] }, { "cite": "298 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 782", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930725 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0782-01" ] }, { "cite": "352 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2969453 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0322-01" ] }, { "cite": "287 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526489 ], "pin_cites": [ { "page": "1016" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/1009-01" ] } ], "analysis": { "cardinality": 643, "char_count": 10995, "ocr_confidence": 0.891, "pagerank": { "raw": 2.7831877252288293e-07, "percentile": 0.8354021798182056 }, "sha256": "ff8ef718ef44e2903a1ac912a61db529d838c54132058de97d5d2a642d34eb6f", "simhash": "1:128f9259fae38fa1", "word_count": 1852 }, "last_updated": "2023-07-14T14:38:54.645684+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. JERRY JACOBS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE MILLS\ndelivered the opinion of the court:\n\u201cThe perfect trial has yet to be tried. And we venture to suggest that it never will be. For any creation of man is merely a reflection of himself \u2014 imperfection. Consequently, there is no such thing as a perfect trial. All we can reasonably and logically strive for is a fair trial \u2014 the \u2018cutting edge\u2019 to our system of criminal justice.\u201d People v. Parisie (1972), 5 Ill. App. 3d 1009, 1016, 287 N.E.2d 310, 312.\nIn contrast to Parisie, the trial below was so riddled with error as to effectively dull its \u201ccutting edge.\u201d\nThere must be a new trial.\nJerry Jacobs was charged with rape and taking indecent liberties with a child. A Macon County jury acquitted Jacobs of rape but found him guilty of indecent liberties. Defendant timely appealed. Since defendant will receive a new trial, our discussion of the facts and the issues will be limited to those necessary for the disposition of this case. People v. Monaghan (1976), 40 Ill. App. 3d 322, 352 N.E.2d 295.\nThe State attempted to show that defendant forced a 12-year-old girl (babysitting at a mobile home) to lie on the trailer\u2019s bed where defendant allegedly gave the girl a \u201chickey\u201d on her neck and had intercourse with her for approximately an hour and a half. Other testimony indicated that two small children lying on the same bed were asleep for the entire hour and a half, that the girl answered the door during that time but did not tell the callers of the incident, that defendant remained in the trailer after the alleged incident when the child\u2019s mother came to retrieve her and that the child, under questioning by her mother\u2019s boyfriend, at first denied knowledge of how she received the hickey before she later implicated the defendant. It was stipulated by the parties that a vaginal smear taken on the night of the incident showed no presence of sperm.\nBoth the child\u2019s mother and the mother\u2019s boyfriend were allowed to testify, over objection, to the details of what the child told them about the incident. The testimony was offered to show the truth of the matter asserted, i.e., that Jacobs raped or took indecent liberties with the child. As such, the testimony was classic hearsay since its truth rested on the credibility of one not the witness (in this case, the child). The fact that the child would testify and be open to cross-examination is irrelevant and does not create an exception to the proffered hearsay. The case offered by the State at trial does not support the testimony\u2019s admission.\nThe objected hearsay testimony is admissible, if at all, as either a spontaneous declaration or a corroborative statement. The spontaneous declaration exception to the hearsay rule applies if: (1) there is an occurrence sufficiently startling to produce an unreflecting spontaneous statement, (2) there is absence of time to fabricate, (3) the statement relates to the circumstances of the occurrence. (People v. Alexander (1973), 11 Ill. App. 3d 782, 298 N.E.2d 355; People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) We are convinced that the child\u2019s statements to her mother and her boyfriend were not spontaneous declarations within this rule. In Alexander the court felt that the rape victim\u2019s statements were spontaneous when made five minutes after the defendant left her apartment and the victim was crying and visibly upset. The victim ran to a neighbor\u2019s house and when the neighbor opened the door the victim said, \u201c[Defendant] kicked open the door and raped me.\u201d\nIn the instant case, the child was not crying or visibly upset when her mother returned to the trailer and made no complaint at that point. Defendant was still present and, as far as the record shows, did not intimidate the child in any way. It seems logical that any statements the child made at this point might have been spontaneous, but she said nothing and went home with her mother. Even after arriving home the child said nothing. It was not until the boyfriend noticed the hickey and began to ask questions that she told the story. Applying the criteria for the exception, it seems clear that the child\u2019s demeanor was not excited enough to qualify and she had ample time to fabricate. In addition, she never offered any spontaneous statement but opened up only upon repeated questioning. The fact that the declaration comes in response to an inquiry does not automatically exclude it from the exception (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25), but considering the time lapse, and the child\u2019s lack of excitement, her conversations about the incident were not spontaneous declarations within the rule.\nUnder the corroborative statement exception, which applies in rape cases, statements by the victim as to what occurred, which are made at a time too remote to qualify as spontaneous declarations, may be admissible. The statements are admissible to show that something violent occurred and that the victim lodged a complaint. That complaint must be spontaneous and not made as a result of a series of questions. (People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573.)\n\u201cUnder this rule * * * only the fact of the complaint, and not the details thereof, may be admitted into evidence, and it is necessary, before such statement is admissible at all, that the complainant be a witness in the proceeding in which the statement is introduced.\u201d Damen, 28 Ill. 2d 464, 473, 193 N.E.2d 25, 30-31.\nThe record clearly shows that the State went beyond showing the mere fact of a complaint being made to the mother and her boyfriend. Both testified to hearsay accounts of the details of the occurrence, which is clearly unwarranted as the rule allows the witness only to relate the fact of complaint and not even the defendant\u2019s name. Damen.\nIn a case, such as this, where there is no physical evidence admitted implicating defendant and which relies solely on the victim\u2019s testimony, we find that the fact that the jury heard the child\u2019s story three times (twice without any possible effective cross-examination) is cumulative to the point where it may have contributed to the verdict and was definitely not harmless error.\nThe next alleged error has a constitutional basis. Over defense objection, an officer testified that Jacobs wrote his age on a Miranda form. Several questions later, the prosecutor asked if the officer had questioned Jacobs. The officer responded, \u201cHe refused to comment on the complaint made against him.\u201d There was no defense objection to this question and answer and this point was not raised in defendant\u2019s post-trial motion. To be recognized on appeal, therefore, the error must rise to the level of plain error under Supreme Court Rule 615(a). (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a).) On the basis of People v. McDowell (1972), 4 Ill. App. 3d 382, 280 N.E.2d 471, we find that the testimony of the officer about defendant\u2019s silence was an impermissible comment on Jacobs\u2019 Miranda rights and also is plain error. (See also Monaghan; People v. Deberry (1977), 46 Ill. App. 3d 719, 361 N.E.2d 632.) The State\u2019s attempted explanation of the question is unmeritorious because of the earlier reference to defendant\u2019s age. On the record before us, we cannot say that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.\nBefore the mother testified for the State, the trial judge granted a prosecution motion in limine that defense counsel could not impeach the mother\u2019s testimony through the introduction of her recent forgery conviction. The reasons for this determination escape our comprehension and we find the ruling to be an abuse of discretion. This issue is governed by People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, and Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805. The supreme court in Montgomery followed proposed Federal Rule 609, pertinent portions of which are:\n\u201c* \u00b0 \u00b0 For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime * \u00b0 \u00b0 is admissible but only if the crime e # * (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.\u201d (Emphasis supplied.) (47 Ill. 2d 510, 516, 268 N.E.2d 695, 698.)\nThe prosecution below offered authority in support of its contention, but a review thereof shows that the defendant sought to have evidence of the crime excluded. Forgery is a felony and a crime involving \u201cdishonesty or false statement.\u201d To exclude the evidence, the prosecution must have convinced the court that the probative value of the evidence was outweighed by the danger of .unfair prejudice. When a defendant is impeached by a prior crime, the greatest danger of unfair prejudice is that the jury may convict based on defendant\u2019s prior acts or a perceived propensity to commit crime and not solely on the basis of the proof in the case at hand. (People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058.) The balancing of considerations must necessarily differ, however, when the witness to be impeached in a criminal trial is not the defendant. The mother is not on trial for any crime and we can see no use of her forgery conviction by the jury other than that which is intended by the rule, i.e., to question her credibility. The Montgomery rule applies to all witnesses at a trial, civil or criminal (see Knowles). The decision by the court to exclude the mother\u2019s recent forgery conviction was an abuse of discretion. On this record, the exclusion of the evidence was not harmless.\nFurther in-depth comment will not be made on any other issues before us due to our reversal and remand. The following points, however, are likely to recur upon retrial: (a) At the new trial, the defendant should be allowed to fully question the child on the theory of a fabricated story; (b) we trust the trial court will not inject its opinion of a witness\u2019 credibility through its questioning, as a jury may easily be influenced thereby; (c) testimony stricken below concerning the boyfriend\u2019s relationship with the child should be tested before admission or exclusion based on its relevance to the child\u2019s credibility or motive.\nAs stated before, we specifically decline to address Jacobs\u2019 reasonable doubt and sentencing issues.\nThe whetstone has been applied; it is now up to the parties to see that the proper edge is kept on retrial.\nDefendant\u2019s conviction is reversed and the cause remanded for a new trial.\nReversed and remanded.\nCRAVEN, P. J., and KUNCE, J\u201e concur.", "type": "majority", "author": "Mr. JUSTICE MILLS" } ], "attorneys": [ "James Geis and Kathy M. Morris, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Patrick M. Walsh, State\u2019s Attorney, of Decatur, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY JACOBS, Defendant-Appellant.\nFourth District\nNo. 13868\nOpinion filed August 8, 1977.\nJames Geis and Kathy M. Morris, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nPatrick M. Walsh, State\u2019s Attorney, of Decatur, for the People." }, "file_name": "0455-01", "first_page_order": 477, "last_page_order": 482 }