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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[ASSISTANT STATE'S ATTORNEY]: Objection.

THE COURT: Sustained.

[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?

[ASSISTANT STATE'S ATTORNEY]: Objection.

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

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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,

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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.

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¶ 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?

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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?

A. [Defendant:] No, sir.

Q. [Mr. Clarke:] You're saying she made that up?

A. [Defendant:] Yes, sir.

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?

A. [Defendant:] No, sir.

Q. [Mr. Clarke:] She's making that up?

A. [Defendant:] Yes.

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?

A. [Defendant:] Yes, sir.

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?

A. [Defendant:] Yes, sir.

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?

A. [Defendant:] No.

Q. [Mr. Clarke:] So she made that up?

MR. MECZYK: Objection.

A. [Defendant:] Yes.

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?

A. [Defendant:] Yes, sir.

Q. [Mr. Clarke:] And you maintain you didn't do that?

A. [Defendant:] Yes, sir.

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?

A. [Defendant:] No.

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. GOLDBERG: Objection.

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.

MR. MECZYK: Objection.

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,

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,

(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,

(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,

(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,

(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,

. Here, the evidence was

close. Kokoraleis is distinguishable.

¶ 56 In People v. Baugh,

(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,

. 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,

. In light of the

evidence presented against the defendant, we could not say that a new trial was warranted.

Baugh,

. 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,

(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,

. 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,

. 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,

. 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,

. 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)

27