2014 IL App (1st) 113493
THIRD DIVISION January 17, 2014
No. 1-11-3493
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 11231 ) MATTHEW SCHAFFER, ) Honorable ) Hyman I. Riebman, Defendant-Appellant. ) Judge Presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion
OPINION
¶1 Following a jury trial, defendant Matthew Schaffer was convicted of aggravated criminal
sexual assault, home invasion, and armed robbery. The trial court imposed a 20-year term of
imprisonment for aggravated criminal sexual assault, a consecutive 10-year term for home
invasion, and a concurrent 10-year term for armed robbery, for a total of 30 years in prison. On
appeal, defendant contends that the State improperly cross-examined him regarding other
witnesses' credibility and prejudiced his right to a fair trial. Defendant further argues that other No. 1-11-3493
questions and comments by the prosecutor prejudiced him. For the reasons that follow, we
reverse and remand for a new trial.
¶2 Defendant's conviction arose from the events of May 23, 2010. It is uncontested that in
the early morning hours of that date, defendant and V.L. engaged in some sort of sexual activity
in the condominium of V.L.'s friends in Wheeling, Illinois. The State's theory of the case was
that defendant, a stranger to V.L., broke into the second-floor condominium, sexually assaulted
V.L., and stole certain items from her and the home. Defendant's theory was that V.L. had
purchased marijuana from him twice before, he was invited into the condominium on the date in
question, their sexual activity was consensual, and V.L. gave him her watch as payment for
marijuana and fabricated her allegations because she had been caught cheating on her husband.
¶3 At trial, V.L. testified that on the weekend in question, she traveled from New York to the
Chicago area to visit her parents and her friends. On May 22, 2010, V.L., her friends Lena
Polishuk and Galena Nurayan, along with Nurayan's boyfriend, went into downtown Chicago for
dinner. After dinner the women went to a hotel lounge, where V.L. had a glass of wine, and then
another restaurant. About 2:30 or 3 a.m., V.L. and Polishuk went back to Polishuk's
condominium in Wheeling. Polishuk's husband, Igor Reynlib, was sleeping on the couch. V.L.
borrowed a T-shirt from Polishuk to sleep in, changed, and went to bed in the guest bedroom
with the door closed.
¶4 V.L. testified that some time later, she heard the door to the room open. She opened her
eyes and saw someone standing in the doorway. Thinking it was Reynlib and he needed
something in the room, she said, "It's okay, you can come in. I'm awake." The door closed, but
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then opened again. A man rushed in and grabbed her throat. V.L. could feel a knife at her throat.
The man, who was wearing a pantyhose mask with the eyes and mouth cut out, said he had a
knife and a gun and that if she screamed he would kill her. He kept repeating the threat, so V.L.
did not scream. V.L. testified that she saw the knife, which was about three inches long and
possibly a folding knife.
¶5 The man had V.L. roll onto her stomach and handcuffed her hands behind her back. Her
hands started to go numb, and V.L. complained to the man that the handcuffs were tight and
hurting her hands. When the man turned on a light, she could see he was wearing rubber gloves
and was pointing a gun at her. Despite the pantyhose mask, V.L. could made out pockmarks or
some kind of skin irregularities on the man's face. She described him as about 5 feet 10 inches
tall, 160 or 170 pounds, and stated he may have had a mustache. V.L. said that he had a very
strong odor of marijuana and that he spoke a mixture of English and Spanish, which she
understood because she worked in a Spanish-speaking environment. The man asked her where
all the money and valuables were, but she explained that she did not know because she did not
live there. When V.L. told him the owners of the condominium were in the bedroom across the
hallway, the man reiterated to her that if she made a noise he would kill her.
¶6 V.L. testified that the man pulled off her wedding band, took her watch from the night
stand, and took $100 from her purse. As he moved about the room, he made angry statements
about President Obama and quoted a Martin Luther King speech. He asked V.L. what she had
ever done for anyone to justify his not killing her. V.L. answered that she gave her leftovers to a
homeless person and volunteered in an emergency room. The man responded that maybe she
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was not such a bad person. After making V.L. flip onto her back, he told her she was pretty and
that he had been hurt by pretty women many times before. The man used his knife to cut off her
T-shirt and underwear. He ran the knife along her body and touched her breasts and stomach.
Noting that she was married, he asked V.L. whether she had children. When she told him no, he
said, "[M]aybe if you live through this you'll have some." The man asked V.L. if she was
menstruating. When she lied and said she was, he told her she was lucky.
¶7 The man pushed V.L. to her knees on the floor, with her body against the bed. He asked
if there was a condom in the room. V.L. told him she did not know. The man put his penis in
her anus. V.L. testified that she had never had anal sex before and "it was pain, everywhere was
pain, pain in my hand, pain in my body." The man pushed V.L. onto the bed and asked her if she
wanted to live, to which V.L. responded yes. He also asked if she was going to call the police.
When V.L. said she would not, he told her if she stayed in the room and did not call the police or
go to the hospital, then perhaps he would let her live. The man walked around the room, took the
handcuffs off V.L.'s wrists, and left.
¶8 V.L. testified that she sat there for a little bit and then went to the front door to make sure
it was locked. She then took a shower, during which she noticed blood and washed herself
thoroughly. After the shower, she went to Polishuk and Reynlib's room to wake them and tell
them what happened. Polishuk insisted on calling the police.
¶9 The police arrived at the condominium around 5 a.m. At their direction, V.L. went to
Glenbrook Hospital. There, she was examined by a doctor, with whom she discussed a sexual
assault kit. V.L. and the doctor decided not to use the kit because she had washed very
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thoroughly with antibacterial soap and had several bowel movements prior to going to the
hospital, both of which made it very unlikely there would be any fluid or other material to collect
with swabs. V.L. did take medication for sexually transmitted diseases. After leaving the
hospital, V.L. spoke with members of the Wheeling police department.
¶ 10 V.L. identified photographs of her hands, showing red marks on both her wrists. She also
identified pictures of the underwear and T-shirt she had been wearing on the night in question.
¶ 11 On cross-examination, V.L. stated that at one point, a piece fell out of the gun. The man
picked it up, put it back into the gun, and said, "[N]ow it's loaded, you better be careful." V.L.
suspected the gun might not be real, but was not sure because she did not know anything about
guns. V.L. also testified that she refused a physical examination at the emergency room because
she did not want another man's finger in her anus, and because she and the doctor agreed there
was no reason for the examination. She explained that she refused to see a rape counselor at the
hospital because she preferred to see someone after she got home.
¶ 12 Defense counsel asked V.L. a series of questions regarding what she told the police about
her assailant's physical features. The following exchange occurred:
"Q. You told the police certain things about the assailant that weren't true,
isn't that right?
[ASSISTANT STATE'S ATTORNEY]: Objection.
THE COURT: Sustained.
Q. You made some things up when you talked to Officer Teichen or
Conway, didn't you?
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[DEFENSE COUNSEL]: I don't know what the basis of the objection is,
your honor.
THE COURT: The objection is sustained.
Q. You made things up, you lied to the police because you didn't want the
person who had done this to you -- I'm sorry, you wanted the person who had done
this to you to get away, didn't you?
THE COURT: The objection will be sustained."
Defense counsel asked for a sidebar, during which the prosecutor stated that the questions being
asked were argumentative and meant to harass the witness. Defense counsel responded, "It's
close to being argumentative but I didn't say, 'You're lying,' I didn't come out and say that. It's
not because I said she lied, that is something for the jury to determine. I could ask her if she did
in fact not tell the truth, it's not framed in an argumentative way. It's close but not
argumentative." The trial court indicated that counsel could ask V.L. what she said or did not say
to the police, but could not use the word "lie" in his questioning.
¶ 13 On further cross-examination, V.L. denied knowing defendant prior to the night in
question and denied ever having bought marijuana from him or anyone else.
¶ 14 Lena Polishuk testified that on the night in question, she and V.L. met Polishuk's friend,
Galena Muradyan, and her boyfriend at a restaurant in downtown Chicago. Following dinner, the
6 No. 1-11-3493
three women went to a rooftop lounge. After a few drinks, of which V.L. only had one, the
women went to another bar, where they danced but did not drink. Around 3:30 a.m., Polishuk
and V.L. went back to Polishuk's condominium in Wheeling. Polishuk's husband, Igor Reynlib,
was sleeping on the couch. He woke and took the dog out briefly. V.L. borrowed a T-shirt to
sleep in, and all three went to bed, V.L. in the guest bedroom, and Polishuk and Reynlib in their
bedroom.
¶ 15 Polishuk testified that about 5 a.m., V.L. came into her room, frantic, shaking, crying, and
wearing a towel. V.L. told her, "We have been robbed and I have been raped, there is somebody
in the house." V.L. showed her marks on her wrists and said she had been handcuffed. Reynlib
checked to see if anyone was still in the condominium, but did not find anyone. Against V.L.'s
wishes, Polishuk called the police. The police arrived within minutes. When they asked whether
anything was missing, Polishuk looked around in the guest room and noticed a diamond ring was
gone. Polishuk went to the hospital with V.L., as well as the police station.
¶ 16 On cross-examination, Polishuk agreed that her dog was "very easily excitable" but did
not bark on the night in question. She also acknowledged that after the incident, there was still
money sitting out on the counter in the hallway and a laptop computer on the couch by the
balcony door.
¶ 17 Igor Reynlib testified that on the night in question, he had been sleeping on the couch, but
woke when V.L. and Polishuk came in around 3 a.m. Reynlib took the dog outside, then came
back in and went to bed. Before going to bed, he checked to make sure the condominium doors
were locked. He left the sliding glass door to the condominium open so as to let in the breeze,
7 No. 1-11-3493
but the screen was shut and locked.
¶ 18 Reynlib testified that he woke up when V.L. came into the room he shared with Polishuk
and "started saying things like we just got robbed." She also said she had been raped or
assaulted. Reynlib searched the condominium to make sure no one was there and saw that the
door to the balcony was unlocked. After the police arrived, he noticed his watch was missing.
The police pointed out to him that a slit was cut through the screen door right by its handle, near
the lock.
¶ 19 Wheeling police officer Michael Bieschke, an evidence technician, testified that he
arrived at the scene a little after 6 a.m. and took photographs. He noticed that a metal vent on the
outdoor wall beneath the condominium's balcony was bent, apparently from overweight capacity.
Officer Bieschke was able to get onto the balcony without stepping on the metal vent by grabbing
the balcony railings and lifting himself up. Another officer informed him that there was a
vertical cut in the screen door, next to the door handle. Upon examination, Officer Bieschke
determined that the cut was approximately 3½ inches long. When he reached through the cut, he
was able to touch the door's lock. In the bedroom, Officer Bieschke noted that the bed was
unmade and that a T-shirt and a pair of women's underwear were near the foot of the bed. The
underwear appeared to be torn or cut.
¶ 20 Wheeling police detective Michael Conway testified that he and another detective
prepared a "critical reach flyer," which was disseminated to local police departments, describing
items that were taken from the condominium: a wedding band, a diamond ring, a men's watch,
and a women's watch. The flyer included the serial number of the women's watch. On May 27,
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2010, the detectives received information that the women's watch had been pawned by defendant
at a Chicago pawnshop for $500. Detective Conway went to the pawnshop and recovered the
watch, as well as the receipts for the transaction. He learned that defendant had used his passport
as identification when pawning the watch.
¶ 21 Detective Conway arrested defendant outside a store near defendant's residence and
transported him to the police station in Wheeling. At the station, Detective Conway advised
defendant of his Miranda rights. Defendant told the detective that he spoke Spanish, as he had
previously lived in Arizona with his ex-wife. He said he had recently pawned his ex-wife's
watch, which he had found in her jewelry box. When shown a picture of the watch at issue, he
said it looked like the watch he had pawned. Detective Conway told defendant he did not believe
the watch was his ex-wife's and could prove it. Defendant began to cry and said "this was going
to screw up everything, and he was just getting his life back in order after his divorce." When
Detective Conway stated that mistakes only get worse when people do not tell the truth,
defendant said he would feel better about telling the truth if he would be given a misdemeanor
rather than a felony. Defendant said that on the night in question, he was at a bar in Chicago
from about 8 p.m. until 4 a.m. Subsequent to this conversation, Detective Conway executed a
search warrant for a buccal swab of defendant's cheek. Defendant was thereafter released from
custody.
¶ 22 On cross-examination, Detective Conway testified that on the morning of the incident, he
interviewed V.L., who described her assailant as a man in his forties, 5 feet 10 inches, 170
pounds, with a pock-marked face. Detective Conway acknowledged that defendant was
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"nowhere near" 5 feet 10 inches or 170 pounds and did not have a pock-marked complexion. He
also stated he had never seen defendant with a mustache.
¶ 23 Wheeling police detective John Connolly testified that he executed a search warrant for
defendant's car. In the driver's center arm rest he found a replica handgun, designed to look like a
.38– caliber gun, and a small film canister containing suspect cannabis. A glass smoking pipe
with suspected cannabis residue on it was in the ashtray. In the trunk, Detective Connolly found,
among other things, a plastic toy Uzi gun and a pair of black nylon pantyhose.
¶ 24 Sarah Owen, a forensic scientist with the Northeastern Illinois Regional Crime
Laboratory, testified that she tested the recovered T-shirt and underwear and detected semen on
both. Owen compared defendant's DNA profile with DNA profiles that had been attained from
the T-shirt by another scientist. Defendant could not be excluded as the source of the nonsperm
portion of the DNA on the T-shirt, and the chances of the DNA coming from a random unrelated
Caucasian were 1 in 5.29 million. Defendant's DNA profile matched the sperm portion of the
DNA detected on the T-shirt. The chances of that DNA coming from a random unrelated
Caucasian were 1 in 17.4 quadrillion. No comparisons were made to the sperm detected on the
underwear because the sample failed to yield a sufficient amount of DNA for comparison
purposes.
¶ 25 Detective Conway testified that on June 3, 2010, after a lab identified DNA recovered
from the Wheeling condominium as matching defendant's DNA, he rearrested defendant.
¶ 26 Wheeling police detective Ignacio Oropeza testified that on June 3, 2010, he fingerprinted
defendant and took his mug shots. According to Detective Oropeza, while in the processing
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room, defendant spontaneously said, "I should have killed that girl." Defendant then glanced up
at the room's security camera and said, "I shouldn't have said that at a police station." Detective
Oropeza explained that the security camera did not record audio, and stated that he did not know
the whereabouts of the video.
¶ 27 Defendant testified that at the time of the events at issue, he was 5 feet 5 inches, weighed
between 140 and 150 pounds, and did not have a pock-marked face. He was 32 years old.
Defendant had been selling marijuana for at least 15 years, going back to high school, when he
would deal to "other kids." Recently, he found customers mainly through friends who worked as
bouncers at bars. Customers would contact him via "throw-away" phones, which he explained
were prepaid phones that could not be tracked, that he was able to buy without showing
identification, and that he would throw away after using up their value.
¶ 28 Defendant testified that he first met V.L. in December 2009. She had obtained one of
defendant's throw-away phone numbers from a bouncer in Chicago and called him. V.L. said
that she wanted to buy some marijuana, and they arranged to meet. Defendant drove to the
meeting place, V.L. got into his car, and the two drove to a parking garage where they could have
privacy. After they each smoked a "joint," V.L. bought an eighth of an ounce of marijuana.
¶ 29 In late February or early March 2010, V.L. called defendant on another of his throw-away
phones. V.L. said she was in town on vacation and wanted to buy marijuana. The two made
plans to meet. Defendant picked V.L. up in his car. She was flirty and put her hand on his leg
while they talked. Defendant drove to a parking garage. After they smoked a "joint," V.L. kissed
defendant and performed oral sex on him. V.L. bought half an ounce of marijuana, and the two
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smoked another "joint." Their conversation turned to sex. V.L. told defendant that she had
"fantasies of men taking her over, taking command." She said that she fantasized about a burglar
scenario where a man she did not know would take over. Defendant told V.L. that he was
excited about the things she was saying and they agreed maybe they could "do something" in the
future.
¶ 30 Defendant testified that he next heard from V.L. on May 22, 2010, when she again called
him on a throw-away phone. V.L. said she wanted to buy marijuana and "was hoping [they]
could hook up" in Wheeling in the early morning hours. Defendant, who was staying at his
parents' residence in Highland Park that weekend, agreed. V.L. gave defendant the address of a
condominium and indicated she would call him later. Around 2 a.m., V.L. called to say she was
on her way to the condominium and that "she was hoping that we could do what we had talked
about last time." She also said she was hoping that it could be a little "kinky." Defendant
gathered some childhood toys from his parents' house, including toy guns and metal handcuffs.
He also had with him a small pocket knife, which he would use to clean his nails.
¶ 31 When defendant arrived at the condominium complex, he saw V.L. on a balcony, wearing
a long T-shirt. V.L. told defendant to join her. When he asked why he could not come in the
front door, V.L. said there were people and a dog there and she wanted to keep things quiet.
After defendant got onto the balcony, he noticed that V.L. seemed intoxicated. While defendant
and V.L. smoked a "joint," V.L. rubbed up against defendant's crotch, defendant rubbed V.L.'s
back and rear, and they kissed. V.L. pulled defendant and said, "Let's go inside." V.L. opened
the sliding door and defendant followed her inside and into a bedroom.
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¶ 32 After V.L. closed the bedroom door, defendant showed her the bag of marijuana and the
toys he had brought. V.L. smiled, so defendant grabbed her, kissed her, and put the handcuffs on
her. V.L. said the handcuffs were tight, but she did not resist and did not tell defendant to stop.
Defendant pulled out the gun and said, "I've got a gun to your head." When V.L. asked if the gun
was real, defendant told her it was a toy. Defendant testified that V.L. seemed like she was "into
it," so he pushed her onto the bed and ripped off her T-shirt and underwear. He noticed she was
wearing a tampon. V.L. told him to take it out, but he said he did not want to. In response to his
refusal, V.L. said, "Well, why don't you just put it in my ass then?" Defendant asked V.L. if she
had a condom, but she did not. Because he did not want to have sex without a condom,
defendant "used [his] finger instead" and rubbed against her with his penis until he ejaculated.
V.L. never indicated she was in any kind of pain and never told him to stop. Defendant also
denied having worn a mask or gloves and stated that he had left his pocket knife in the car. He
explained that the pantyhose in his trunk belonged to a girl he was seeing.
¶ 33 Defendant testified that he took the handcuffs off V.L. They were lying on the bed when
suddenly V.L. jumped up and asked defendant, "Did you hear that?" V.L. started getting shaky.
She said she thought she had heard the bedroom door open and close and said she thought it was
Igor. Because V.L. was acting frantic and paranoid, defendant decided to leave. He asked V.L.
whether she still wanted to buy marijuana. She did, but she only had $100, and the price for the
half-ounce defendant had with him was $250. V.L. gave defendant $100 and the watch off her
wrist. She kept saying, "Just get out, just get out." Defendant denied taking any jewelry off
V.L.'s body and denied rummaging through her purse and taking money from her wallet.
13 No. 1-11-3493
¶ 34 Defendant testified that later that day, he pawned the watch V.L. had given him. He was
surprised when he received $500 for the watch. Defendant also got rid of his throw-away phone.
¶ 35 On May 27, 2010, defendant was arrested outside a store near his parents' home. The
arresting officer kept calling him a "pothead." He was taken to the police station, where he was
put in an interrogation room for at least three hours. Officers mainly questioned him about the
watch he had pawned. He admitted pawning the watch, but lied about where he got the watch
because he was concerned he was "getting busted" for drugs. Defendant denied having said, "I
should have killed that girl," and "I shouldn't talk like that in a police department."
¶ 36 On cross-examination, the prosecutor established that defendant had listened to V.L.'s
testimony. The prosecutor then engaged in the following examination:
"Q. [Mr. Clarke:] She said that as she slept, you charged into the room
and grabbed her by the throat and held a knife to her.
A. [Defendant:] No.
Q. [Mr. Clarke:] You didn't do that?
A. [Defendant:] No, sir.
Q. [Mr. Clarke:] She made that up?
A. [Defendant:] Yes, sir.
Q. [Mr. Clarke:] Because it sounds kind of bad for you; right?
MR. MECZYK [defendant's attorney]: Objection, your honor. That's
something for the jury to decide.
THE COURT: What's the objection? What's the objection?
14 No. 1-11-3493
MR. MECZYK: The objection is that's an improper question. He's
commenting on what somebody - - the others believe - -
THE COURT: Okay. The objection - -
MR. MECZYK: - - the credibility of a witness - -
THE COURT: The objection will be - - counsel, I heard your objection.
The objection will be sustained."
¶ 37 Shortly thereafter, the following cross-examination took place:
"Q. [Mr. Clarke:] You heard her testify saying that you rubbed a knife
against her body or throat - -
A. [Defendant:] I heard that.
Q. [Mr. Clarke:] - - or breasts or stomach. Did you do that?
Q. [Mr. Clarke:] You're saying she made that up?
MR. MECZYK: Objection. Same objection.
THE COURT: Overruled.
¶ 38 After a few more exchanges, the prosecutor questioned defendant as follows:
"Q. [Mr. Clarke:] You heard [V.L.] say in this courtroom how many times
over and over again you threatened to kill her. Did you hear her say that?
A. [Defendant:] Yes, I heard it.
Q. [Mr. Clarke:] Isn't that true?
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A. [Defendant:] No, it's not true, sir.
Q. [Mr. Clarke:] Because, again, that sounds pretty bad for you; right?
A. [Defendant:] Yes, that sounds pretty bad.
Q. [Mr. Clarke:] So you're saying that wasn't true?
MR. MECZYK: Object - - your honor, a witness can't comment about - -
THE COURT: Is there an objection?
MR. MECZYK: - - the believability of another witness - -"
¶ 39 At this point, another of defendant's attorneys, Mr. Goldberg, requested a sidebar. The
trial court denied the request and asked what the objection was. Defendant's second attorney Mr.
Goldberg answered that the objection was to the form of the question, and the trial court
overruled the objection. The prosecutor's questioning continued:
"Q. [Mr. Clarke:] You heard [V.L.], when she testified, about you
demanding money and valuables?
A. [Defendant:] Yes, I heard the testimony.
Q. [Mr. Clarke:] You're saying the only demand you made was payment
for your cannabis?
A. [Defendant:] It wasn't really a demand, but - - it was a request.
Q. [Mr. Clarke:] Right. You weren't going to leave there without the extra
150 she owed you; right?
A. [Defendant:] Somewhere around there. It was - - yeah, that's correct.
Q. [Mr. Clarke:] So she is making that up about you demanding property;
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right?
A. [Defendant:] Yes.
Q. [Mr. Clarke:] As far as taking property, you heard her testify that you
took her wedding band off her finger; right?
A. [Defendant:] Yes, I heard that, sir.
Q. [Mr. Clarke:] You're saying you didn't do that?
Q. [Mr. Clarke:] She's making that up?
MR. MECZYK : Your honor, I have to object. I have to ask for a
sidebar."
¶ 40 The trial court granted counsel's request. At the sidebar, defense counsel, Mr. Meczyk
and Mr. Goldberg, asserted that the Mr. Clarke's questions were improper because a witness
cannot comment on the believability of a witness. Counsel also asserted that there was no
difference between asking whether a witness is making things up and whether a witness is lying.
After a short recess, the trial court ruled that it would not allow the prosecutor to use the word
"lying." The court stated, "A better way to frame the question is to say, you know, [V.L.] said
you did this. Did you do that? And then that takes the issue of placing - - determining the
credibility out of play."
¶ 41 The following questioning then took place, without objection from defense counsel:
"Q. [Mr. Clarke:] And you heard her testify about how she told you she
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gave her food to a homeless person and she volunteers in a hospital; right?
Q. [Mr. Clarke:] And you're saying that discussion never took place?
A. [Defendant:] No, it did not.
Q. [Mr. Clarke:] She came up with that?
Q. [Mr. Clarke:] Just like she came up with the Martin Luther King
speeches and the Barak Obama complaints?
A. [Defendant:] Yes, sir."
¶ 42 However, defense counsel objected to the following questioning:
"Q. [Mr. Clarke:] *** [V.L.] said you asked her if she had any children.
Did you ask her if she had any children?
Q. [Mr. Clarke:] So she made that up?
MR. MECZYK: Objection.
THE COURT: I'm sorry; was there an objection?
MR. GOLDBERG [defendant's attorney]: Yes, your honor; form of the
question.
THE COURT: Objection as to the form of the question sustained."
¶ 43 Shortly thereafter, the following exchange took place:
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"Q. [Mr. Clarke:] You saw the pictures and heard the testimony regarding
the cut in the screen door. Do you remember that?
Q. [Mr. Clarke:] And you maintain you didn't do that?
Q. [Mr. Clarke:] Because that, again, sounds kind of bad for you; right?
A. [Defendant:] I'm sorry; could you ask that again?
Q. [Mr. Clarke:] Well, that would make you sound kind of guilty if you cut
that screen?
MR. GOLDBERG: Objection.
MR. MECZYK: Objection to the form of the question.
THE COURT: Sustained."
¶ 44 The prosecutor then turned his attention to defendant's interaction with Detective
Oropeza:
"Q. [Mr. Clarke:] The conversation with Detective Oropeza, or that
statement you said you made on June 3rd of 2010 in the police station when you
were being booked, do you remember that?
A. [Defendant:] No, I didn't make a statement to - -
Q. [Mr. Clarke:] You did get booked by Detective Oropeza on June 3rd?
A. [Defendant:] Oh, yes, I did.
Q. [Mr. Clarke:] Right. So you never said that statement about killing that
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girl?
Q. [Mr. Clarke:] You never said that statement about, I shouldn't have said
that in a police station?
A. [Defendant:] No. It's ridiculous.
Q. [Mr. Clarke:] Detective Oropeza came up with that on his own?
MR. MECZYK : Objection.
THE COURT: Your objection is sustained."
¶ 45 Finally, the prosecutor asked defendant about his conversation with Detective Conway:
"Q. [Mr. Clarke:] And you pleaded for a misdemeanor and not a felony?
A. [Defendant:] No, I never said that.
Q. [Mr. Clarke:] Oh, so Detective Conway is creating that himself?
A. [Defendant:] Yeah, he is.
THE COURT: I'll allow the answer to stand."
¶ 46 During deliberations, the jury sent out a note indicating that it was split on all three
counts. With the agreement of the parties, the trial court directed the jury to continue
deliberating. The jury sent out a second note, asking whether V.L. was required to testify in
order for the trial to take place. The trial court answered the jury by stating that it had all the
instructions as to the law that applied in the case. A few hours later, the jury sent out a third
20 No. 1-11-3493
note, stating that it remained split and "there has been essentially no change since we began
deliberating." Defense counsel, noting that the jury had been deliberating for over eight hours,
asked the trial court to declare a hung jury. The trial court declined to do so, stating that the jury
was not indicating it was deadlocked, and answered the jury that it should continue to deliberate.
Thereafter, court adjourned until the next business day. Following further deliberations, the jury
found defendant guilty of aggravated criminal sexual assault, home invasion, and armed robbery.
¶ 47 The trial court entered judgment on the verdict. Subsequently, the court imposed a 20-
year term of imprisonment for aggravated criminal sexual assault, a consecutive 10-year term for
home invasion, and a concurrent 10-year term for armed robbery, for a total of 30 years in prison.
¶ 48 On appeal, defendant contends that the State improperly cross-examined him. Defendant
argues that because the case came down to a credibility contest and because the evidence was
close, as evidenced by the jury's notes indicating inability to reach agreement, the State's repeated
improper lines of cross-examination prejudiced him. Defendant argues that by repeatedly
pursuing improper lines of cross-examination, "the State wrongly put its thumb on the scale used
by the jury to assess credibility," the central issue in the case. Defendant asserts that the trial
court erred in overruling some of his objections and that its rulings sustaining other objections
were ineffective to cure the harm caused by the prosecutor's questions. Defendant further argues
that he did not open the door to inquiries asking him to comment on other witnesses' credibility.
¶ 49 It is well established that it is improper for a prosecutor to ask a defendant his opinion on
the veracity of other witnesses, as such questions intrude on the jury's function to determine
witness credibility and also demean and ridicule the defendant. People v. Young, 347 Ill. App. 3d
21 No. 1-11-3493
909, 926 (2004) (listing cases). While the practice may be deemed harmless error when evidence
of a defendant's guilt is overwhelming, reversal is warranted when the evidence is closely
balanced and the credibility of the witnesses is a crucial factor underlying the jury's determination
of guilt or innocence. Young, 347 Ill. App. 3d at 926. We review a trial court's decision whether
to permit questions on cross-examination for an abuse of discretion. People v. Turner, 128 Ill. 2d
540, 557 (1989).
¶ 50 Here, the State improperly asked defendant whether V.L. made up that he (1) charged into
the bedroom and held a knife to her; (2) rubbed a knife against her body; (3) threatened to kill
her; (4) took her wedding band; (5) made comments about Martin Luther King and Barack
Obama; and (6) asked whether she had children. The State also improperly asked defendant
whether the cut in the screen door made him seem guilty; whether Detective Oropeza came up
with defendant's statements that he "should have killed that girl" and "shouldn't have said that at
a police station"; and whether Detective Conway was "creating" that defendant pleaded with him
for a misdemeanor and not a felony.
¶ 51 In our view, the prosecutor's improper questions were designed to demean and ridicule
defendant. This was not a case where a prosecutor was simply attempting to give a defendant an
opportunity to explain differences in the evidence. See Turner, 128 Ill. 2d at 558 (prosecutor's
questions allowed the defendant to explain his story in light of overwhelmingly conflicting
evidence). Rather, the prosecutor in the instant case asked defendant questions that forced him to
speculate as to other witnesses' intent and in essence, accuse them of lying. The prosecutor did
not ask defendant whether he had an explanation for differences between his version of events
22 No. 1-11-3493
and V.L.'s. Here, the prosecutor baldly asked defendant whether V.L., Detective Oropeza, and
Detective Conway fabricated their testimony.
¶ 52 The evidence in this case was closely balanced. The jurors were presented with a
"he said she said" scenario in which they were tasked with deciding whether V.L. or defendant
was more believable. Both witnesses presented some problems with credibility. For example,
defendant was an admitted drug dealer and acknowledged that he lied to the police about where
he got the watch he pawned. On the other hand, V.L. refused a sexual assault kit at the hospital
and her physical description of her assailant was unquestionably inaccurate. The credibility of
the witnesses was a crucial factor underlying the jury's determination of guilt. Accordingly, we
cannot find that the prosecutor's improper questions were harmless. See Young, 347 Ill. App. 3d
at 926. Given the closeness of the evidence and the fact that credibility was the core
consideration before the jury, we find that defendant was denied a fair trial by the prosecution's
repeated improper questioning.
¶ 53 We are mindful that the trial court sustained objections to four of the improper lines of
questioning outlined above. However, in light of number of times the prosecutor made improper
inquiries, we believe the trial court's actions were insufficient to remove the prejudice caused by
the prosecutor's questions. See People v. Harris, 228 Ill. App. 3d 204, 208 (1992) (the trial
court's attempts to cure the prejudice of an improper statement made by the prosecutor by
sustaining the defendant's objection and instructing the jury to disregard were insufficient).
Moreover, the trial court's actions did not deter the prosecutor from continuing to ask defendant
whether the State's witnesses were making up portions of their testimonies. Such persistence
23 No. 1-11-3493
cannot be condoned.
¶ 54 The cases relied upon by the State in its brief do not dictate a different result in this case.
¶ 55 In People v. Kokoraleis, 132 Ill. 2d 235, 264-65 (1989), our supreme court acknowledged
the rule that it is generally improper to ask a witness on cross-examination whether an adverse
witness' testimony is truthful, but held that such questioning may be allowed "following
testimony by a defendant on direct examination that he was coerced into repeating inculpatory
statements furnished to him by the authorities." Here, unlike in Kokoraleis, defendant was not
asserting that the police had forced him to make an untrue confession. Moreover, in Kokoraleis,
our supreme court found that the evidence of the defendant's guilt was strong, so any error in
cross-examination was not prejudicial. Kokoraleis, 132 Ill. 2d at 266. Here, the evidence was
close. Kokoraleis is distinguishable.
¶ 56 In People v. Baugh, 358 Ill. App. 3d 718, 726 (2005), the defendant denied making
certain statements to the police. On cross-examination, the prosecutor asked whether the
testifying police officer was "making that up." Baugh, 358 Ill. App. 3d at 740. On appeal, we
held that while the question was improper, the error did not merit a new trial because the
questioning was not extensive and the single question was directed to the defendant's denial of
statements he made in police custody. Baugh, 358 Ill. App. 3d at 740-41. In light of the
evidence presented against the defendant, we could not say that a new trial was warranted.
Baugh, 358 Ill. App. 3d at 740. Here, in contrast, the prosecutor repeatedly asked defendant to
comment on the veracity of V.L., as well as Detective Oropeza and Detective Conway; the
questions were not directed at statements defendant had made in police custody; and the evidence
24 No. 1-11-3493
was closely balanced. Accordingly, Baugh is distinguishable.
¶ 57 Finally, in People v. Turner, 128 Ill. 2d 540, 555 (1989), the defendant testified that he
spent the evening in question fishing at a lake and had nothing to do with the murder for which
he was being tried. The defendant's version of events was contradicted by the evidence presented
at trial, which included the testimony of his brother, his sister-in-law, and an acquaintance, who
stated they saw the defendant in a co-defendant's car, and the testimony of two of the defendant's
cellmates, who heard him explain what had happened on the night of the crime. Turner, 128 Ill.
2d at 556. On cross-examination, the prosecutor asked defendant if one police officer was telling
the truth and asked why several other witnesses would have said certain things. Turner, 128 Ill.
2d at 556-57. On appeal, this court found that the prosecutor was not attempting to humiliate or
embarrass the defendant, but rather, was attempting to have him explain his story in light of the
overwhelmingly conflicting evidence. Turner, 128 Ill. 2d at 558. We determined that the
evidence was not so closely balanced and the error was not of such a magnitude as to deny the
defendant a fair trial. Turner, 128 Ill. 2d at 558. Here, unlike in Turner, the prosecutor did not
ask defendant for an explanation of other witnesses' statements, but simply asked defendant
whether other witnesses had made up or created their testimonies. Also, unlike Turner, the
evidence in this case was close. Turner is distinguishable.
¶ 58 In this case, where the evidence was close and the jury's decision hinged on a credibility
determination, the prosecution's improper cross-examination denied defendant a fair trial.
Accordingly, we reverse and remand for a new trial. Given our determination that a new trial is
necessary on this ground, we need not address defendant's other contentions of prosecutorial
25 No. 1-11-3493
impropriety, including that the prosecutor commented on his exercise of constitutional rights,
attempted to shift the burden of proof, made improper editorial comments, injected other crimes
into the case, and improperly characterized him during closing argument.
¶ 59 For the reasons explained above, we reverse the judgment of the circuit court and remand
the cause for a new trial.
¶ 60 Reversed and remanded.
26 No. 1-11-3493
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MATTHEW SCHAFFER,
Defendant-Appellant.
Appellate Court of Illinois First District, THIRD DIVISION
January 17, 2014 ____________________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
Honorable Hyman I. Riebman, Judge Presiding.
COUNSEL FOR APPELLANT
Ralph Meczyk, of Chicago, IL Darryl Goldberg, of Chicago, IL Marc W. Martin, of Chicago, IL
COUNSEL FOR APPELLEE
Anita Alvarez, State's Attorney of Cook County, of Chicago, IL (Alan J. Spellberg, William L. Toffenetti, Jonathan Hwang, of counsel)