People v. Scott , 2021 IL App (4th) 190538-U ( 2021 )

NOTICE
2021 IL App (4th) 190538-UThis Order was filed under FILED
Supreme Court Rule 23 and is
NO. 4-19-0538 June 10, 2021
not precedent except in the
limited circumstances allowed
Carla Bender
under Rule 23(e)(1). IN THE APPELLATE COURT 4th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JULIUS O. SCOTT, ) No. 18CF692
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Cavanagh and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the trial court did not err in
excluding defense witness testimony and (2) the prosecutor did not improperly
bolster the victim’s credibility during trial.
¶2 Following a May 2019 trial, a jury found defendant, Julius O. Scott, guilty of two
counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2016)). The jury
acquitted defendant on two counts of criminal sexual assault (720 ILCS 5/11-1.20 (a)(1) (West
2016)). In July 2019, the trial court sentenced defendant to four years’ imprisonment on both
counts of aggravated criminal sexual abuse, to be served concurrently.
¶3 Defendant appeals, arguing he was denied a fair trial where (1) the trial court
excluded critical testimony from a defense witness that corroborated his defense that he
reasonably believed the alleged victim was 17 years old at the time they had intercourse and
(2) the prosecutor improperly bolstered the credibility of the alleged victim by (a) personally
vouching for the alleged victim’s testimony during closing arguments, (b) arguing the alleged
victim made prior consistent statements based on evidence outside of the record, and (c) using
voir dire to predispose the jurors into accepting the alleged victim’s testimony. We affirm.
¶4 I. BACKGROUND
¶5 On July 18, 2018, the State charged defendant with (1) criminal sexual assault
(the penis of defendant and the vagina of the victim) (720 ILCS 5/11-1.20 (a)(1) (West 2016))
(count I), (2) criminal sexual assault (the mouth of defendant and the vagina of the victim) (720
ILCS 5/11-1.20 (a)(1) (West 2016)) (count II), and (3) criminal sexual assault while being in a
position of trust (the penis of defendant and the vagina of the victim) (720 ILCS 5/11-1.20 (a)(4)
(West 2016)) (count III), and (4) criminal sexual assault while being in a position of trust (the
mouth of defendant and the vagina of the victim) (720 ILCS 5/11-1.20 (a)(4) (West 2016))
(count IV), (5) aggravated criminal sexual abuse where the victim was at least 13 years old but
under 17 years old and defendant was at least five years older than the victim (the penis of
defendant and the vagina of the victim) (720 ILCS 5/11-1.60 (d) (West 2016)) (count V), and
(6) aggravated criminal sexual abuse where the victim was at least 13 years of age but under 17
years of age and defendant was at least five years older than the victim (the mouth of defendant
and the vagina of the victim) (720 ILCS 5/11-1.60 (d) (West 2016)) (count VI). The charges
stemmed from a November 2017 incident between the victim, D.H., who was 16 years old and
defendant, who was 22 years old, where defendant inserted his penis into D.H.’s vagina and
performed oral sex on D.H.
¶6 A. Pretrial Motions
¶7 On March 29, 2019, defendant provided discovery pursuant to Illinois Supreme
Court Rule 413 (eff. July 1, 1982), alleging, in relevant part, he might call “Kendell [sic] Martin”
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as a witness at trial. During an April 5, 2019, pretrial hearing, defense counsel requested a
continuance, stating,
“About two weeks ago my client gave me the name of someone
who had information as to the victim in this case. It’s a—it’s a—a
couple of the charges are charged as unable to consent based on the
victim being under the age of 17 years of age. Obviously, there is
a defense that if the defendant was under a reasonable belief that
the victim was over 17 on his part, this witness, Kendall Martin,
has information pertaining to that.
I, after getting a [tele]phone number for Mr. Martin, had an
investigator attempt to contact him. She did make contact over
[the] [tele]phone. He did not meet with her as she had requested.
She has since in the last week been trying to get him served with
an actual subpoena for next week and talk to him further but has
been unable to do that.”
The trial court granted defendant a continuance. On April 25, 2019, Kendall Martin was
personally served a witness subpoena.
¶8 On May 3, 2019, defendant provided discovery pursuant to Illinois Supreme
Court Rule 413 (eff. July 1, 1982), alleging he “intends to assert the defense that he reasonably
believed the alleged victim to be 17 years of age of [sic] over, defendant may call any of the
persons listed in the State’s Discovery Compliance as a witness.” On May 6, 2019, defendant
provided additional discovery pursuant to Rule 413, alleging he intended to assert the defense of
consent as to counts I and II.
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¶9 B. Defendant’s Jury Trial
¶ 10 Below, we summarize the relevant testimony elicited during defendant’s May
2019 jury trial. Before the case proceeded to voir dire, the State moved to dismiss counts III and
IV because “upon further investigation it appears that the defendant did not hold a position of
trust or authority or supervision over [the] victim.” The case proceeded to trial on counts I, II, V,
and VI. The trial court admonished defendant on the charges against him. As to counts V and
VI, the court stated, “consent is not a defense. However, an affirmative defense of that you had a
reasonable belief that the alleged victim was over 17 is available as a defense.”
¶ 11 1. Voir Dire
¶ 12 During voir dire, the prosecutor asked potential jurors about their possible
responses to a mass shooting. The prosecutor stated,
“All right, folks, this next question, I’m definitely not
trying [to] bring up anything that makes anybody uncomfortable,
but could you raise your hands—the folks sitting up here in this
jury box, could you raise your hand if you remember the 2012
mass shooting that took place in Aurora, Colorado, inside of a
movie theater, if you remember that incident happening in the
United States of America. ***.
***
*** So it looks like everybody raised their hand related to
that question. So, ladies and gentlemen, obviously unfortunately in
society today mass shootings are a fairly frequent occurrence. And
the reason I bring that up is my next question is could you raise
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your hand if you’ve thought about what you would do personally if
you were in a mass shooting situation? Could you raise your hand
if you ever thought about what you would do in a mass shooting
situation?”
The prosecutor then informed jurors that there were three possible victim reactions to a mass
shooting: (1) confront the mass shooter, (2) flee from the mass shooter, and (3) uncertain how
one would react to a mass shooter. For each possible response, the prosecutor had the jurors
raise their hands to indicate how they would react to a mass shooter. The prosecutor asked the
same set of questions to a second group of prospective jurors. Both parties selected prospective
jurors from the two groups to serve on the jury.
¶ 13 2. Opening Statements
¶ 14 During opening statements, the prosecutor reminded the jurors of their different
responses to the mass shooting question during voir dire and asked them to remember their
responses when observing D.H. testify. Specifically, the prosecutor stated,
“I want you to keep that in mind that [D.H.] at the time this
happened was just sixteen years old. She may not act the way that
you expect a typical sexual assault survivor to act. Going back to
the Colorado shooting example when you guys were all selected
through the jury selection process, each one of you had a different
reaction to how exactly you would react in that situation. I want
you to keep that in mind when [D.H.] is testifying in front of you.
Because she was a child when this happened, she may react a little
bit differently by laughing nervously. She has a tendency to smile
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at awkward times. She understands the gravity of what happened
to her, even though she was young at the time that it happened and
she’s embarrassed to talk about it. I’m confident you’ll find her
account of what happened to be authentic and the details to be
compelling.”
¶ 15 3. The State’s Evidence
¶ 16 a. D.H.
¶ 17 D.H., the victim, testified that in the fall of 2017 she was 16 years old and lived in
Bloomington, Illinois, with her grandmother. D.H. lived down the street from the Boys and Girls
Club (Club) and Sunnyside Park. D.H. testified that in November 2017 she was not a member of
the Club but she attended teen nights at the Club on Tuesdays and Thursdays. D.H.’s sister
worked at the Club, and D.H. frequented the Club.
¶ 18 D.H. first met defendant in the summer of 2017, when she went to Sunnyside
Park after seeing a group from the Club and defendant, who she guessed “was a volunteer” with
the Club, playing in the park. D.H. identified defendant in court as the person she met at
Sunnyside Park. D.H. testified she saw defendant at the Club frequently but she did not interact
with him. D.H. spoke with defendant one time while she played with the younger kids in the
gymnasium. D.H. did not recall a staff member at the Club ever speaking to her about
defendant.
¶ 19 D.H. testified that in the fall of 2017 she obtained defendant’s Snapchat
information from her cousin. D.H. and defendant began to communicate back and forth on
Snapchat. D.H. described her and defendant’s communications as “Sometimes it was just hey,
how you doing. But then it got to the point where he kept texting me and asking me, you know,
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begging me to try to be with him.” D.H. explained she took “be with him” to mean date him.
D.H. told defendant she was not interested in dating him. D.H. testified she told defendant she
was 16 years old and never told defendant she was 17 years old or older. Defendant told D.H. he
was 23 years old. D.H. testified she sent defendant a photograph through Snapchat once.
¶ 20 D.H. testified that on November 16, 2017, she attended a teen night at the Club.
Around 7 p.m., D.H. left teen night with her cousin, A.M. D.H. and A.M. walked to Sunnyside
Park. While in the park, defendant showed up. D.H. and defendant started talking, and
eventually A.M. left the park, leaving defendant and D.H. alone. D.H. testified she and
defendant were just talking and walked over to a nearby tree. Once by the tree, defendant asked
D.H. to be with him, but she told him no. Defendant then kissed D.H., and she kissed him back
once. Defendant briefly picked D.H. up before he put her down, and they walked over to a
hillside. Once over by the hill, defendant and D.H. sat down. D.H. testified she did not have a
blanket with her and they sat on the grass. Defendant then got on top of D.H. and kissed her.
D.H. tried, unsuccessfully, to push defendant off her.
¶ 21 Defendant pulled D.H.’s pants and underwear off and performed oral sex on D.H.
where defendant licked her vagina for “one to two licks.” D.H. testified that she repeatedly told
defendant no. Defendant then pulled his penis out of his pants and placed his penis in D.H.’s
vagina. D.H. testified defendant’s penis was inside of her vagina for “one or two strokes so
about ten seconds.” D.H. told defendant no and eventually pushed him off her. D.H. then
walked home crying. When D.H. got home, she showered and found blood in her underwear.
D.H. testified defendant called her the next day but she told him to “stop calling me, just leave
me alone.” D.H. had no further communication with defendant and never saw him again.
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¶ 22 D.H. testified she told A.M. about the incident with defendant a few weeks after it
happened. D.H. testified she told her parents and grandmother about the incident with defendant
after they confronted her about her failing grades. Eventually, D.H. spoke with Detective Curt
Maas at the Child Advocacy Center (CAC) about the incident with defendant. D.H. viewed a
photo lineup and identified defendant as the person involved in the incident in the park.
¶ 23 On cross-examination, D.H. denied talking to her friends about defendant after
meeting him. D.H. testified A.M. knew how she felt about defendant and her desire to not be left
alone with him in the park on November 16, 2017. D.H. reiterated she only talked to defendant
in person one time before the intercourse in the park. When asked if she brought a blanket to
Sunnyside Park on October 30, 2017, and engaged in intercourse with defendant, D.H. stated she
did not remember. D.H. also testified she did not remember meeting with defendant at Sarah
Raymond Elementary School on November 3, 2017. When confronted with a photograph she
sent defendant through Snapchat on November 15, 2017, D.H. admitted she sent the photograph
to defendant but explained the emoticon on the photograph did not mean anything. D.H. testified
she and defendant “never had a conversation about him not finding out I was eighteen.” D.H.
stated defendant knew she was not 18.
¶ 24 D.H. testified she did not recall telling Detective Maas that on the night of
November 16, 2017, defendant carried her all the way up the hill, threw her down on the ground,
and did not remove her underwear but pushed her panties to the side. D.H. testified defendant
did not take her underwear or pants completely off during the intercourse.
¶ 25 On redirect examination and recross-examination, D.H. testified that prior to the
intercourse in the park on November 16, 2017, she called defendant on the telephone using a
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private telephone number and defendant gave her his telephone number but she did not give him
her telephone number.
¶ 26 b. Schanda Butcher
¶ 27 Schanda Butcher, former director at the Club from 2014 to 2018, testified she
knew D.H. through her attendance and regular involvement at the Club. Butcher testified
defendant began volunteering at the Club to complete community service requirements and his
duties were “to work with our K through five youth and any cleaning that we had to do after our
meals or at the end of the day, kind of to support program K through five as far as like behavior
and stuff like that.”
¶ 28 Butcher recalled one occasion where she observed D.H. and defendant speaking
at the Club. While defendant and D.H. were speaking in the gymnasium, Butcher observed D.H.
blushing. Butcher later spoke with defendant about the interaction, and defendant told Butcher
“it was nothing.” Following her conversation with defendant, he left the Club “then came back
within like the hour.” Butcher testified D.H. was a member of the Club and she “participated in
teen club and stuff like that.”
¶ 29 c. A.M.
¶ 30 A.M. testified she was 15 years old and D.H. was “kind of like my cousin.” In
2017, A.M. and D.H. spent a lot of time together, and they both regularly attended teen night at
the Club. In November 2017, after a teen night, A.M. and D.H. walked home and cut through
Sunnyside Park. Once in the park, defendant showed up and spoke with both girls. Eventually,
A.M. left the park alone to catch a ride home, but defendant and D.H. remained at the park.
A.M. testified she was not concerned about leaving D.H. with defendant in the park.
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¶ 31 A.M. described defendant and D.H.’s relationship as “friends.” A.M. testified
that a few weeks after the night in the park, she spent the night at D.H.’s house and asked D.H.
what happened in the park. D.H. told A.M. she did not want to talk about it and “was sad and
crying.” A.M. testified D.H. “was acting different. She wasn’t acting like herself.” Eventually,
D.H. told A.M. about the incident between her and defendant in the park.
¶ 32 A.M. also testified that in November 2017, she asked defendant his age and he
told her he was 18 years old. After the incident with defendant and D.H. in the park, A.M. found
out defendant was not 18 years old. A.M. and D.H. originally met defendant at a teen night at
the Club while he volunteered. A.M. testified in order to be a volunteer at the Club you had to
be at least 18 years old.
¶ 33 A.M. testified D.H. talked about defendant a lot, she thought he was cute, and she
kind of liked him. A.M. knew defendant and D.H. communicated via Snapchat. D.H. never
shared any of their conversations with A.M., but A.M. knew D.H. sent defendant pictures via
Snapchat. A.M. testified D.H. and defendant talked for purposes of “trying to see if they were
going to date.”
¶ 34 d. Detective Curt Maas
¶ 35 Curt Maas, a detective with the Bloomington Police Department, testified that in
May 2018 he interviewed D.H. at the CAC. D.H. told Detective Maas about the incident in the
park with defendant. Detective Maas testified that D.H. told him defendant picked her up, laid
her down on a hillside, and her underwear stayed on during the sexual assault where defendant
moved her underwear to the side when he penetrated her.
¶ 36 In July 2018, Detective Maas interviewed defendant at the Bloomington Police
Department about the incident in the park with D.H. Detective Maas testified defendant denied
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having intercourse with D.H. in November 2017 but later claimed he had sex with D.H. plenty of
times before maintaining he only had intercourse with D.H. once. Detective Maas also testified
defendant originally told him D.H. was 16 or 17 years of age at the time of the incident. The
State played a video recording of defendant’s police interview for the jury.
¶ 37 e. Anticipated Witness
¶ 38 Following Detective Maas’s testimony, the State rested its case-in-chief outside
the presence of the jury. The State then made the trial court aware there was an issue with one of
defendant’s anticipated witnesses, Kendall Martin, due to his testimony being outside the scope
of the disclosure originally given to the State. Specifically, the State alleged Martin would
testify about a conversation he overheard between defendant and D.H. where D.H. denied her
real age and told defendant she was older than she was.
¶ 39 Defense counsel explained the nature of the conversation. Specifically, sometime
in November 2017 while at the Club, defendant showed some guys he played basketball with a
picture D.H. sent him of herself. It then came up that D.H. was only 16 years old. After
defendant and Martin finished playing basketball, Martin witnessed defendant confront D.H. at
the Club about her age, and D.H. told defendant she was 18 years old. The State argued Martin’s
testimony about what D.H. said about her age was hearsay because D.H. was not confronted with
the statement.
¶ 40 The trial court found Martin’s anticipated testimony about the conversation he
allegedly heard between defendant and D.H. constituted hearsay. Specifically, the court
indicated:
“[Martin’s anticipated testimony about the conversation] would be
a matter that the [S]tate would be prejudiced by by not being able
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to—excuse me, having closed its case in chief and not having
addressed the issue. Also, it’s irrelevant as I will get to in just a
minute here as to what impact it had upon Mr. Martin as far as the
effect on that statement being allegedly made by the victim.
As it relates to the defendant, however, the analysis is
different. If the defendant testifies that that statement was made by
the alleged victim in this case, it is not being offered to prove the
truth of the matter asserted. It would be admissible on a limited
basis to show it’s [sic] effect on the listener, that being the
defendant, and why it is that he acted in the manner that he
ultimately did. Credibility cuts both ways, basically, as far as the
alleged victim and the defendant, and it’s up to the jury to
determine who to believe as far as what statements were made and
whether or not they were true. So, no as to Martin; yes as to the
defendant.”
The court clarified Martin could testify, but he could not testify about the conversation he
overheard and if defendant testified about the conversation, the State could call D.H. back to the
stand to refute the statements.
¶ 41 Back in the presence of the jury, the State rested its case-in-chief.
¶ 42 4. The Defense
¶ 43 Following the State’s case-in-chief, defendant called his first witness.
¶ 44 a. Kendall Martin
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¶ 45 Kendal Martin testified that in the fall of 2017, he played basketball with
defendant at the Club. One day, defendant showed Martin and other basketball players a
photograph of D.H. Martin testified that after defendant showed the photograph, some of the
other guys reacted to the photograph. Martin did not hear the conversation between the other
guys because he was on the basketball court. Martin believed defendant showed the picture to
the guys sometime in December 2017.
¶ 46 Martin testified to his relationship with defendant, calling defendant a “good
friend.” Martin and defendant talked “every time [they] got the chance to.” Martin stated they
spoke “[m]ore than a couple of times a week.” Martin and defendant met at the Club during
Martin’s sophomore year in high school where Martin knew defendant to be a volunteer.
¶ 47 b. Defendant
¶ 48 Defendant acknowledged he was previously convicted of domestic battery on
November 2, 2017. In August 2017, defendant began volunteering at the Club to complete 95
hours of community service for a misdemeanor plea.
¶ 49 Defendant testified he met D.H. in September 2017, while volunteering at the
Club. Defendant explained he met D.H. “through another person that she referred to as her
cousin.” The day defendant met D.H., she was in the gymnasium. Defendant testified he had a
“slight conversation” with D.H. in the gymnasium but “[i]t was more like a, ‘Hey, how are you
doing?’ ‘I’m doing fine.’ And then kind of get to work.” Defendant continued to see D.H. at the
Club with her sister, a staff member, but he did not speak with D.H.
¶ 50 Defendant and D.H. began communicating through Snapchat after D.H.’s cousin
gave defendant D.H.’s Snapchat information and informed him D.H. liked him. Defendant
described his Snapchat conversations with D.H. as “simple” conversations that occurred “[e]very
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day, all day, Monday through Sunday.” Defendant testified that eventually his relationship with
D.H. progressed and “[i]t was elaborated upon more that she liked me. I did, in fact, like her. I
hadn’t let it be known that I liked her, but that’s how our relationship progressed.” Defendant
engaged in light conversations with D.H. at the Club “but usually it was just talking through
Snapchat.”
¶ 51 Defendant testified that in October 2017, he spoke to D.H. about her age over
Snapchat. Defendant asked her about her age “because I [had] seen her at the club, but I don’t
ever see her do anything, and I don’t ever see her with teen unless she’s having a conversation
with them, and she’s the only person that I would see that would come and go and disappear.”
Defendant testified D.H. “told me she was 17 getting ready to be 18 in December.” D.H. sent
defendant pictures of herself getting ready for school. Defendant testified D.H. told him “she
would be graduating from school a semester early” and planned to study child development at
Illinois State University. Defendant stated while it was known he was 18 or older because he
was a volunteer at the Club and that was a requirement, he never personally told D.H. his age.
¶ 52 Eventually, defendant and D.H.’s relationship progressed into a physical
relationship. Defendant testified that on October 30, 2017, he met D.H. in Sunnyside Park.
When he approached her in the park, D.H. was alone, and she greeted him by jumping into his
arms. Defendant testified D.H. had a blanket with her, the two of them laid down on the blanket,
and had sex. Defendant also performed oral sex on D.H. After the interaction, they both went
their separate ways home. Defendant continued communicating with D.H. on Snapchat.
Defendant met up with D.H. on November 8, 2017, at Sarah Raymond Elementary School and
on November 18, 2017, at the Club. Defendant also testified D.H. met him on November 3,
2017, at Sarah Raymond Elementary School.
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¶ 53 On November 15, 2017, defendant received a photograph of D.H. and saved it to
his cell phone. On Saturday, November 18, 2017, defendant played basketball at the Club and
showed the photograph of D.H. to a few people he played basketball with. Defendant stated, “I
showed that picture because I let them know there was a girl I had been talking to recently.”
Defendant testified the guys he played basketball with were astonished and asked him why he
was talking to someone so much younger than him. Then, one of the guys told defendant that
D.H. was 15 or 16 years old.
¶ 54 The next day, defendant asked D.H. to come to the Club. Defendant testified he
did not believe anyone was around when he confronted D.H. Specifically, defendant testified he
was upset and confronted D.H. about her age. Defendant testified that when he confronted D.H.,
she told him she was 17 years old turning 18 years old. Defendant then ended the relationship.
Defendant testified they stopped communicating over Snapchat but about a week and a half later,
he received a private telephone call from D.H. but they did not resume a relationship.
¶ 55 In July 2018, defendant went to the Bloomington Police Department and spoke
with Detective Maas. Defendant testified Detective Maas prevented him from leaving and
pushed him up against a wall. Defendant admitted he initially lied to Detective Maas about the
incident with D.H. after Detective Maas mistreated him when he arrived at the police station.
Eventually, defendant told the truth to Detective Maas about the intercourse with D.H. At the
time of the interview, defendant knew D.H.’s real age. Defendant testified that when he arrived
at the police station to speak with Detective Maas, he was under the influence of marijuana.
¶ 56 On cross-examination, defendant testified that in September 2017, D.H. asked
him his age and he told her he was 22 years old. Defendant denied having sex with D.H. on
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November 16, 2017. Defendant reiterated the intercourse between him and D.H. occurred on
October 30, 2017.
¶ 57 In rebuttal, the State called Detective Maas. Detective Maas stated defendant
showed no signs of intoxication during the police interview. Detective Maas also denied he
threw defendant against a wall or initially told defendant he could not leave.
¶ 58 5. Closing Arguments
¶ 59 Prior to closing arguments, the trial court stated to the jury, “Just as I told you
during opening statements, what the attorneys say during closing arguments is not evidence and
should not be considered by you as evidence.”
¶ 60 During closing arguments, the prosecutor stated, “you have [A.M.’s] testimony
which I found especially compelling.” In response, defense counsel called into question D.H.’s
credibility and remarked D.H.’s testimony was not truthful. In rebuttal argument, the prosecutor
addressed the number of inconsistencies in defendant’s testimony compared to the number of
inconsistencies defense counsel identified in D.H.’s testimony. Specifically, the prosecutor
pointed out that, at trial, defense counsel tried to find inconsistencies in D.H.’s testimony
compared with the information she provided during her interview with Detective Maas. During
argument, the prosecutor stated:
“As you can remember, when [D.H.] takes the stand and is
being questioned by defense counsel, they were pointing out
inaccuracies with her testimony based off of the information as
provided to Detective Maas at the Children’s Advocacy Center
back in May of 2018. So [D.H.], obviously, had this interview
with Detective Maas, she testifies here in court, defense counsel is
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then capable attempting to impeach her, they caught
inconsistencies in those statements. So the interview at the CAC
took place back in May of 2018 and it is now May of 2019, and the
number of inconsistencies that we saw in the testimony of [D.H.]
explained that she was sexually assaulted amounted to the
following.
Was she set down on the ground by the defendant after he
walked her over to the grassy area or did she walk there herself and
sit down? Were her underpants taken completely off of her body
during the sexual assault or were her pants taken off and her
underpants moved to the side during the oral sex and sexual assault
during the sexual intercourse? That is the total number of
inconsistencies that were presented to you by the defense of
[D.H.’s] testimony related to her sexual assault from November 16
of 2017.
Two, the number of inconsistencies from the defendant in
this case just related to his talking to Detective Maas to meet up to
talk about the investigation amounted to approximately 10. ***.
***
So [D.H.’s] testimony, the inconsistencies in her story
amount to literally nothing, and just that small snippet of the story
of the defendant in this case, multiple inconsistencies. And then
you watch his interview. You watched it; you read the transcript
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yesterday. You see him testify here today. The number of
inconsistencies, ladies and gentlemen, I apologize if I get heated
and animated, it was mind blowing to hear that testimony today. ‘I
wasn’t presented with the opportunity to give my information to
Detective Maas that day.’ Yes, you were. We saw it on screen
multiple times. ‘Be honest. Tell me what’s going on.’ ‘No
opportunity.’ ‘It was because I was playing with him.’
Shall I continue and address all the inconsistencies? For
starters, he worked at the Boys and Girls Club for two years. He’s
been there since September. Known [D.H.] the entirety of 2017
and built up our relationship. He met her in October or September.
That’s in the first five seconds of the interview.”
Further, the prosecutor stated,
“Ladies and gentlemen, I understand that defense counsel’s
questioning that were asked of the victim in this case, but I would
make the comment that I would ask you to remember her
demeanor on the stand. She was having a difficult time testifying
as to what happened to her. I felt like she was being exceptionally
truthful on the stand.”
D.H.’s recorded police interview was not admitted into evidence.
¶ 61 6. Jury Verdict
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¶ 62 The jury found defendant guilty on both counts of aggravated criminal sexual
abuse (counts V and VI). The jury found defendant not guilty on the two counts of criminal
sexual assault (counts I and II).
¶ 63 C. Posttrial Motion
¶ 64 On June 5, 2019, defendant filed a motion for judgment of acquittal
notwithstanding the verdict or, in the alternative, a new trial. In the motion, defendant alleged
(1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) the jury’s findings
were against the manifest weight of the evidence, and (3) the above errors individually and
cumulatively deprived defendant of due process and a fair trial.
¶ 65 D. Krankel Hearing
¶ 66 During a July 9, 2019, hearing, defense counsel informed the trial court that
defendant wanted to file an appeal alleging ineffective assistance of trial counsel. The trial court
then explained defendant could present his issues at the current hearing or he could wait to get
his thoughts together and present those issues at the next court hearing. Defendant responded he
was prepared to proceed on his ineffective assistance claim that day.
¶ 67 Defendant argued his defense counsel failed to impeach A.M. and D.H. with prior
inconsistent statements they made about his age. Defense counsel stated she did not impeach
A.M. or D.H. about defendant’s age based on trial strategy and “[w]hat the victim, alleged
victim, believed [defendant’s] age to be wasn’t the question.”
¶ 68 The trial court found the jury heard, even without defense counsel impeaching
D.H.’s testimony, that:
“[D.H.] said on one occasion she thought you were 17 and then on
another occasion she thought that you told her you were 23. So it’s
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not ineffective assistance of [defense counsel] not to bring that out
when the jury already heard it. It’s a matter of the trier of fact, the
jury, to determine what weight to give to her testimony and which
of those statements would be more credible.”
The court determined any testimony as it related to A.M. was irrelevant and defense counsel
demonstrated effective assistance where it was up to counsel to decide what strategy to use
during trial. Further, the court stated, “So it’s not anywhere close to a claim, that lacks merit on
that particular claim because it’s both legally immaterial and it pertains to trial strategy and the
[c]ourt so finds.”
¶ 69 The trial court asked defendant if he had any other issue to address on his claim
for ineffective assistance of counsel and he responded, “[t]hat’s all.” The court again stated that
defendant’s ineffective assistance of counsel claim lacked merit “because it’s legally immaterial
and pertains solely to an issue of trial strategy.” The court also clarified that the jury never saw
video footage of D.H.’s interview with Detective Maas, contrary to defendant’s assertion. Then,
the court continued defendant’s sentencing hearing to another day.
¶ 70 E. Sentencing
¶ 71 On July 30, 2019, the trial court denied defendant’s posttrial motion and held a
sentencing hearing. In sentencing defendant, the court stated:
“All right. For purposes of sentencing the court has
considered the evidence at trial, the gravity of the offenses, the
presentence investigation report as amended, the financial impact
of incarceration, the victim’s impact statement. The group exhibit,
defendant’s group exhibit which contains character reference
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letters for the defendant. The court having also considered all
statutory matters in aggravation and mitigation, the history and
character and attitude of the defendant, his age, as well as his
potential for rehabilitation. The court having considered all
sentencing options, having further considered the
recommendations and arguments of the counsel along with the
defendant’s statement in allocution.”
Ultimately, the court sentenced defendant to four years’ imprisonment on both counts of
aggravated criminal sexual abuse, to be served concurrently.
¶ 72 This appeal followed.
¶ 73 II. ANALYSIS
¶ 74 On appeal, defendant argues he was denied a fair trial where (1) the trial court
excluded critical testimony from a defense witness that corroborated his defense asserting he
reasonably believed the alleged victim was 17 years old at the time they had intercourse and
(2) the prosecutor improperly bolstered the credibility of the alleged victim by (a) personally
vouching for the alleged victim’s testimony during closing arguments, (b) arguing the alleged
victim made prior consistent statements based on evidence outside of the record, and (c) using
voir dire to predispose the jurors into accepting the alleged victim’s testimony. We address each
issue in turn.
¶ 75 A. Excluded Witness Testimony
¶ 76 Defendant argues he was denied a fair trial where the trial court excluded critical
testimony from a defense witness that corroborated his defense claiming he reasonably believed
D.H. was 17 years old when they had intercourse. Specifically, defendant argues the trial court
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erred when it prohibited Kendall Martin from testifying about a conversation he overheard
between defendant and D.H. where defendant confronted D.H. about her being 16 years old and
D.H. told defendant she was 18 years old. The State disagrees and argues the court did not err by
excluding Martin’s testimony about the conversation between defendant and D.H.
¶ 77 To preserve an error for consideration on appeal, a defendant must object to the
error at trial and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48, 89
N.E.3d 675. Failure to do so constitutes forfeiture. Id. However, we may consider a forfeited
claim where the defendant demonstrates a plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1,
1967). To prevail under the plain error doctrine, defendant must first demonstrate a clear and
obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11
(2007). If an error occurred, we will only reverse where (1) “the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error” or (2) the “error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness
of the evidence.” Id. Defendant forfeited this issue on appeal where he failed to raise the issue
in a posttrial motion. See Sebby, 2017 IL 119445, ¶ 48. Thus, we turn to whether a clear or
obvious error occurred.
¶ 78 1. Clear or Obvious Error
¶ 79 At trial, outside the presence of the jury, the State rested its case-in-chief and
made the trial court aware of a potential issue with defense witness Martin due to his anticipated
testimony being outside the scope of the disclosure originally given to the State. The State
alleged Martin would testify about a conversation he overheard between defendant and D.H.
where D.H. denied her real age and told defendant she was older than she was. The State argued
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D.H. was not confronted with the statement while on the stand, and the State was unable to
investigate the matter further.
¶ 80 Defense counsel explained the context of the conversation to the trial court.
Specifically, Martin witnessed defendant confront D.H. at the Club about her age and D.H. told
defendant she was 18 years old. The State argued Martin’s testimony about the conversation was
hearsay because D.H. was not confronted with the statement.
¶ 81 The trial court found Martin’s anticipated testimony about the conversation he
heard between defendant and D.H. constituted hearsay. Specifically, the court indicated:
“[Martin’s anticipated testimony about the conversation] would be
a matter that the [S]tate would be prejudiced by not being able to—
excuse me, having closed its case in chief and not having
addressed the issue. Also, it’s irrelevant as I will get to in just a
minute here as to what impact it had upon Mr. Martin as far as the
effect on that statement being allegedly made by the victim.
As it relates to the defendant, however, the analysis is
different. If the defendant testifies that that statement was made
by the alleged victim in this case, it is not being offered to prove
the truth of the matter asserted. It would be admissible on a
limited basis to show it’s [sic] effect on the listener, that being the
defendant, and why it is that he acted in the manner that he
ultimately did. Credibility cuts both ways, basically, as far as the
alleged victim and the defendant, and it’s up to the jury to
determine who to believe as far as what statements were made and
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whether or not they were true. So, no as to Martin; yes as to the
defendant.”
The court clarified Martin could testify but he could not testify about the conversation he
overheard and if defendant testified about the conversation, the State could call D.H. back to the
stand to refute the statements.
¶ 82 Defendant argues Martin’s anticipated testimony about the conversation he heard
between defendant and D.H. was not hearsay. In support of his argument, defendant cites People
v. Burgund, 2016 IL App (5th) 130119, ¶¶ 198, 208, 66 N.E.3d 553 (The defendant sought to
introduce out of court statements made by the victim’s mother to a corroborating witness to
prove the proposition that the victim’s mother made the statements, making it more likely that
she also made similar statements to defendant under similar circumstance. The appellate court
found the trial court improperly barred the witness testimony as impermissible hearsay.). The
State disagrees and argues Martin’s testimony about the conversation was inadmissible hearsay.
¶ 83 Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). However, not all out-of-court statements are
inadmissible hearsay. People v. Buffman, 260 Ill. App. 3d 505, 511, 636 N.E.2d 783, 788
(1994). Only those statements offered to prove the truth or falsity of the matter contained therein
are subject to the hearsay rule. Id. “If an assertion is offered to prove that an event it describes
occurred or did not occur, it is hearsay; conversely, if offered only for the fact that the declarant
said those particular words, it clearly is admissible.” Id. (Emphasis in original.) (citing People
v. Carpenter, 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741 (1963); see also Michael H. Graham,
Cleary and Graham’s Handbook of Illinois Evidence § 801.1 at 562-63, 570-71 (5th ed. 1990)).
- 24 -
¶ 84 Here, Martin’s anticipated testimony about the conversation he heard between
defendant and D.H. was not hearsay because his testimony was not being offered to prove the
truth of the matter asserted. Rather, his testimony was being offered to establish D.H. told
defendant that she was 18 years old. Martin’s testimony would then corroborate defendant’s
defense that D.H. represented to him she was 17 years old turning 18 years old and that
representation reasonably made defendant believe D.H. was at least 17 years old at the time they
had intercourse. Martin’s proposed testimony about the conversation between defendant and
D.H. also would have called into question D.H.’s credibility where she testified she was 16 years
old and that defendant knew she was not 17 years old or older.
¶ 85 While we find Martin’s anticipated testimony was not hearsay, the trial court did
not err by excluding Martin’s testimony about the conversation he heard between defendant and
D.H. The State became aware of Martin’s anticipated testimony at the time it closed its
case-in-chief. Therefore, the late notice deprived the State of sufficient time to investigate
Martin’s potential testimony, find other witnesses that may have overheard the conversation, and
call those individuals to testify. Also, the evidence was conflicting with regard to whether other
people were present during the conversation between defendant and D.H. when he confronted
her about her age. According to defense counsel, Martin’s anticipated testimony would indicate
he was present for the conversation between D.H. and defendant, but defendant testified he and
D.H. were alone.
¶ 86 Further, defendant did not place Martin on the stand and make an offer of proof
with respect to Martin’s anticipated testimony. While defense counsel alluded to that fact that
Martin would testify to overhearing a conversation between D.H. and defendant about D.H.’s
age, we do not know for certain that Martin would have testified that he overheard the
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conversation or exactly what he heard. Moreover, we did not find Martin’s trial testimony
particularly strong given Martin had difficulty recalling the victim’s name and ended up denying
participating in the conversation regarding the victim’s age where Martin testified he was
playing basketball and not part of the conversation about the photograph. We also reject the
notion that Martin served as a potential credible neutral witness who could corroborate
defendant’s story that he believed D.H. was at least 17. To the contrary, defendant testified to a
close relationship with defendant. Martin described defendant as a “good friend” who he spoke
to “[m]ore than a couple times a week.” Specifically, Martin had known defendant since his
sophomore year of high school.
¶ 87 Given the late disclosure depriving the State of sufficient time to rebut Martin’s
anticipated testimony, defendant’s failure to make an offer of proof with respect to Martin’s
anticipated testimony, the inconsequential nature of Martin’s actual trial testimony, and the
potential credibility questions stemming from the relationship between defendant and Martin, we
find the trial court did not err in excluding Martin’s testimony that he overheard a conversation
between D.H. and defendant about D.H.’s age. Accordingly, defendant fails to demonstrate a
clear or obvious error to support his contention of plain error.
¶ 88 2. Ineffective Assistance of Counsel
¶ 89 In the alternative, defendant argues he received ineffective assistance of trial
counsel for failing to preserve in a posttrial motion defendant’s claim that the trial court erred
when it excluded Martin’s testimony. Specifically, defendant argues had defense counsel
discovered and disclosed Martin’s proposed testimony before trial, properly argued that the
evidence was not hearsay, and included that matter in a posttrial motion, the trial court would
have admitted Martin’s testimony. Defendant asserts counsel’s failure to do so allowed the jury
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to adjudicate defendant without critical testimony that corroborated his claim that D.H.
misrepresented her age.
¶ 90 We review claims of ineffective assistance of counsel under the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective
assistance of counsel, defendant must show (1) the attorney’s performance fell below an
objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.
Id. at 687.
¶ 91 Both prongs of the Strickland test must be satisfied; therefore, a finding of
ineffective assistance of counsel is precluded if a defendant fails to satisfy one of the prongs.
People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. “A court may resolve a claim of
ineffective assistance of counsel by reaching only the prejudice prong, as a lack of prejudice
renders irrelevant the issue of counsel’s alleged deficient performance.” People v. Hall, 194 Ill.
2d 305, 337-38, 743 N.E.2d 521, 540 (2000). Prejudice results when there is a reasonable
probability that, but for counsel’s unprofessional error, the result of the proceedings would have
been different. People v. Simms, 192 Ill. 2d 348, 362, 736 N.E.2d 1092, 1106 (2000). Here,
defendant is unable to establish prejudice.
¶ 92 We find trial counsel’s failure to preserve in a posttrial motion defendant’s claim
the trial court erred when it excluded Martin’s testimony did not prejudice defendant. As stated
above, the trial court did not err in excluding Martin’s anticipated testimony where Martin’s trial
testimony was not particularly strong and his relationship with defendant called into question his
credibility. The jury could have found Martin’s testimony unbelievable simply based on his
close relationship with defendant. Further, the evidence conflicted as to whether people were
present during the conversation between defendant and D.H. when he confronted her about her
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age. According to defense counsel, Martin’s anticipated testimony intended to allege he was
present for the conversation between D.H. and defendant, but defendant testified he and D.H.
were alone.
¶ 93 Defendant fails to show there is a reasonable probability that the result of the
proceedings would have been different if counsel had preserved this issue and the jury heard
Martin’s anticipated testimony. Because the trial court did not err in excluding Martin’s
anticipated testimony, we conclude defendant’s ineffective assistance claim fails where he
cannot demonstrate prejudice under the Strickland analysis.
¶ 94 B. Prosecutorial Misconduct
¶ 95 Last, defendant argues the prosecutor improperly bolstered the credibility of D.H.
by (a) personally vouching for D.H.’s testimony during closing arguments, (b) arguing D.H.
made prior consistent statements based on evidence outside of the record, and (c) using voir dire
to predispose the jurors into accepting D.H.’s testimony. Specifically, defendant argues the
prosecutor’s actions individually and cumulatively prejudiced him. The State argues the
prosecutor did not improperly bolster D.H.’s credibility during voir dire or closing argument.
¶ 96 Defendant failed to object to this issue at trial and raise this issue in a posttrial
motion, rendering the issue forfeited. Sebby, 2017 IL 119445, ¶ 48. However, as stated above,
we may consider a forfeited claim where the defendant demonstrates a plain error occurred. Ill.
S. Ct. R. 615(a) (eff. Jan 1, 1967). Thus, we first examine whether a clear or obvious error
occurred. See Piatkowski, 225 Ill. 2d at 565.
¶ 97 1. Closing Argument
¶ 98 Defendant argues the prosecutor improperly bolstered the credibility of D.H. by
personally vouching for D.H.’s testimony during closing argument. The State disagrees and
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argues the prosecutor did not personally vouch for D.H.’s credibility during closing argument.
Further, the State contends the arguments made during closing argument must be viewed in their
entirety.
¶ 99 “Prosecutors are afforded wide latitude during closing argument and may properly
comment on the evidence presented and reasonable inferences drawn from that evidence,
respond to comments made by defense counsel that invite a response, and comment on the
credibility of the witness.” People v. Marzonie, 2018 IL App (4th) 160107, ¶ 47, 115 N.E.3d
270. “Prosecutors breach that latitude when they express personal beliefs or opinions or invoke
the State’s Attorney’s office’s integrity, to vouch for a witness’s credibility.” People v. Wilson,
2015 IL App (4th) 130512, ¶ 66, 44 N.E.3d 632 (citing People v. Boling, 2014 IL App (4th)
120634, ¶ 126, 8 N.E.3d 65). “[I]n reviewing allegations of prosecutorial misconduct, the
arguments of both the prosecutor and the defense counsel must be examined in their entirety and
the allegedly improper remarks must be placed in the proper context.” People v. Campbell, 332
Ill. App. 3d 721, 727, 773 N.E.2d 776, 781 (2002) (citing People v. Westbrook, 262 Ill. App. 3d
836, 856, 635 N.E.2d 398, 411 (1992)). “Reversal is not warranted unless the improper remarks
result in substantial prejudice to the defendant.” Wilson, 2015 IL App (4th) 130512, ¶ 66.
¶ 100 During closing arguments, the prosecutor in rebuttal stated,
“Ladies and gentlemen, I understand that defense counsel’s
questioning that were asked of the victim in this case, but I would
make the comment that I would ask you to remember her
demeanor on the stand. She was having a difficult time testifying
as to what happened to her. I felt like she was being exceptionally
truthful on the stand.”
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Defendant argues the prosecutor’s statement “I felt like she was being exceptionally truthful on
the stand” was improper. Specifically, defendant asserts the prosecutor’s statement improperly
expressed a personal opinion on D.H.’s testimony and her credibility and vouched for D.H.’s
explanation of what happened between her and defendant. In support of his argument, defendant
cites Boling, 2014 IL App (4th) 120634, ¶ 127, where this court found the statement “I do think
[K.A.’s] statements are credible” improperly expressed the prosecutor’s opinion on K.A.’s
credibility.
¶ 101 While the prosecutor should not have used the statement starting with “I,” we find
the prosecutor’s statement was of little significance in the overall context of his closing
argument. When viewing the closing argument in its entirety, the prosecutor’s statement
rebutted defense counsel’s remarks that D.H.’s testimony was not truthful. Specifically, defense
counsel stated, “Now we know that [D.H. is] not being truthful.” The prosecutor further
addressed inconsistencies in defendant’s testimony compared to D.H.’s testimony. Moreover,
prior to closing argument, the trial court instructed the jury that what any attorney says during
closing argument is not evidence and should not be considered as such. We do not find a single
statement in response to defense counsel’s assertion about D.H.’s truthfulness amounted to the
prosecutor vouching for D.H.’s credibility. Accordingly, defendant fails to demonstrate a clear or
obvious error occurred.
¶ 102 2. Prior Consistent Statements Outside the Record
¶ 103 Defendant next argues the prosecutor improperly bolstered the credibility of D.H.
when the prosecutor argued D.H. made prior consistent statements based on evidence outside of
the record. While the State does not address defendant’s claim that the prosecutor used D.H.’s
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purportedly prior consistent statements that were outside the record to bolster D.H.’s trial
testimony, we analyze the issue below.
¶ 104 It is improper for a prosecutor to argue facts not in evidence. Marzonie, 2018 IL
App (4th) 160107, ¶ 47; People v. Burton, 63 Ill. App. 3d 915, 919, 380 N.E.2d 929, 932 (1978).
As a result, when a witness’s prior statement is not admitted into evidence, the prosecutor should
refrain from attempting to improperly argue that his witness made prior consistent statements.
See People v. Adams, 2012 IL 111168, ¶ 26, 962 N.E.2d 410. A defendant’s right to a fair trial
is violated by the prosecutor’s actions in making the jury aware that defense counsel had access
to prior statements of a witness but failed to impeach the witness’s testimony from those
materials. See People v. Suggs, 50 Ill App. 3d 778, 783-84, 365 N.E.2d 1118, 1121 (1977).
¶ 105 During closing argument, the prosecutor in rebuttal addressed inconsistencies in
defendant’s testimony compared to D.H.’s testimony. In doing so, the prosecutor pointed out
that during trial, defense counsel tried to find inconsistencies in D.H.’s testimony compared with
the information she previously provided during her police interview with Detective Maas.
Specifically, the prosecutor stated,
“As you can remember, when [D.H.] takes the stand and is
being questioned by defense counsel, they were pointing out
inaccuracies with her testimony based off of the information as
provided to Detective Maas at the Children’s Advocacy Center
back in May of 2018. So [D.H.], obviously, had this interview
with Detective Maas, she testifies here in court, defense counsel is
then capable attempting to impeach her, they caught
inconsistencies in those statements. So the interview at the CAC
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took place back in May of 2018 and it is now May of 2019, and the
number of inconsistencies that we saw in the testimony of [D.H.]
explained that she was sexually assaulted amounted to the
following.
Was she set down on the ground by the defendant after he
walked her over to the grassy area or did she walk there herself and
sit down? Were her underpants taken completely off of her body
during the sexual assault or were her pants taken off and her
underpants moved to the side during the oral sex and sexual assault
during the sexual intercourse? That is the total number of
inconsistencies that were presented to you by the defense of
[D.H.’s] testimony related to her sexual assault from November 16
of 2017.
Two, the number of inconsistencies from the defendant in
this case just related to his talking to Detective Maas to meet up to
talk about the investigation amounted to approximately 10. ***.
***
So [D.H.’s] testimony, the inconsistencies in her story
amount to literally nothing, and just that small snippet of the story
of the defendant in this case, multiple inconsistencies. And then
you watch his interview. You watched it; you read the transcript
yesterday. You see him testify here today. The number of
inconsistencies, ladies and gentlemen, I apologize if I get heated
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and animated, it was mind blowing to hear that testimony today. ‘I
wasn’t presented with the opportunity to give my information to
Detective Maas that day.’ Yes, you were. We saw it on screen
multiple times. ‘Be honest. Tell me what’s going on.’ ‘No
opportunity.’ ‘It was because I was playing with him.’
Shall I continue and address all the inconsistencies? For
starters, he worked at the Boys and Girls Club for two years. He’s
been there since September. Known [D.H.] the entirety of 2017
and built up our relationship. He met her in October or September.
That’s in the first five seconds of the interview.”
D.H.’s recorded police interview was not admitted into evidence.
¶ 106 Defendant argues the prosecutor during closing argument asked the jury to infer
from the defense counsel’s failure to impeach the entirety of D.H.’s in-court testimony that the
remainder of her testimony was consistent with her statements in her interview with Detective
Maas. Because D.H.’s police interview was not admitted into evidence, defendant argues it was
complete speculation to assume that the rest of her testimony was consistent with her statements
in the interview. Defendant asserts the prosecutor’s statements bolstered D.H.’s credibility.
¶ 107 While D.H.’s police interview was not admitted into evidence, D.H. testified
during direct examination that Detective Maas interviewed her about the sexual assault. Then,
on cross-examination, defense counsel attempted to impeach D.H. with prior statements she
made during her police interview. Specifically, D.H. testified she did not recall telling Detective
Maas that on the night of November 16, 2017, defendant carried her all the way up the hill, threw
her down on the ground, and did not remove her underwear but pushed her panties to the side.
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D.H. testified defendant did not take her underwear or pants completely off during the
intercourse.
¶ 108 As stated above, “Prosecutors are afforded wide latitude during closing argument
and may properly comment on the evidence presented and reasonable inferences drawn from that
evidence, respond to comments made by defense counsel that invite a response, and comment on
the credibility of the witness.” Marzonie, 2018 IL App (4th) 160107, ¶ 47. We find the
prosecutor’s statements during closing argument did not amount to the prosecutor improperly
bolstering D.H.’s credibility. The prosecutor did not emphasize D.H.’s prior consistent
testimony. Rather, the prosecutor was simply responding to defense counsel’s cross-examination
where he called into question D.H.’s credibility based on inconsistencies in her trial testimony
compared to statements in her police interview. The prosecutor never directly addressed
evidence outside the record. Moreover, prior to closing argument, the trial court properly
instructed the jury that closing arguments are not evidence and any statement or argument made
by an attorney which is not based on the evidence should be disregarded.
¶ 109 We find the prosecutor did not err in addressing D.H.’s prior consistent statements
based on evidence outside of the record where defense counsel cross-examined D.H. on
statements she made during her police interview. Accordingly, defendant fails to demonstrate a
clear or obvious error occurred.
¶ 110 3. Voir Dire
¶ 111 Last, defendant argues the prosecutor improperly bolstered D.H.’s credibility by
using voir dire to predispose the jurors into accepting D.H.’s testimony. The State argues the
prosecutor did not improperly bolster D.H.’s credibility during voir dire because the prosecutor’s
line of questioning was not fact-driven toward the State’s theory at trial.
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¶ 112 “ ‘The purpose of voir dire examination is to assure selection of an impartial jury;
it is not to be used as a means of indoctrinating a jury, or impaneling a jury with a particular
predisposition.’ ” People v. Mapp, 283 Ill. App. 3d 979, 986, 670 N.E.2d 852, 857 (1996)
(quoting People v. Bowel, 111 Ill. 2d 58, 64, 488 N.E.2d 995, 998 (1986)). “[V]oir dire should
not be converted into a ‘vehicle for pre-educating and indoctrinating prospective jurors as to a
particular theory or defense or impaneling a jury with particular predisposition.’ ” Id. (quoting
People v. Kendricks, 121 Ill. App. 3d 442, 449, 459 N.E.2d 1137, 1142 (1984)).
¶ 113 During voir dire, the prosecutor asked potential jurors about their possible
responses to a mass shooting. Specifically, the prosecutor stated,
“All right, folks, this next question, I’m definitely not
trying [to] bring up anything that makes anybody uncomfortable,
but could you raise your hands—the folks sitting up here in this
jury box, could you raise your hand if you remember the 2012
mass shooting that took place in Aurora, Colorado, inside of a
movie theater, if you remember that incident happening in the
United States of America. ***.
***
So it looks like everybody raised their hand related to that
question. So, ladies and gentlemen, obviously unfortunately in
society today mass shootings are a fairly frequent occurrence. And
the reason I bring that up is my next question is could you raise
your hand if you’ve though about what you would do personally if
you were in a mass shooting situation? Could you raise your hand
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if you ever thought about what you would do in a mass shooting
situation?”
The prosecutor then informed jurors that there were three possible victim reactions to a mass
shooting: (1) confront the mass shooter, (2) flee from the mass shooter, and (3) uncertain how
one would react to a mass shooter. For each possible response, the prosecutor had the jurors
affirmatively raise their hands to demonstrate how they would react to a mass shooter. The
prosecutor asked the same set of questions to a second group of prospective jurors. The parties
selected jurors from the two groups.
¶ 114 Defendant argues the prosecutor’s line of questioning during voir dire improperly
indoctrinated and conditioned the prospective jurors to believe D.H.’s testimony by using a
lengthy hypothetical emphasizing different victim responses to the tragic events of a mass
shooting. Specifically, the prosecutor’s use of a hypothetical predisposed the jurors to accept
D.H.’s demeanor and believe her testimony at trial. Further, defendant argues the prosecutor
compounded this error during opening statements when the prosecutor reminded the jurors of
their different responses to the mass shooting question during voir dire and to remember their
responses when observing D.H. testify. Specifically, the prosecutor stated,
“I want you to keep in mind that [D.H.] at the time this
happened was just sixteen years old. She may not act the way that
you expect a typical sexual assault survivor to act. Going back to
the Colorado shooting example when you guys were all selected
through the jury selection process, each one of you had a different
reaction to how exactly you would react in that situation. I want
you to keep that in mind when [D.H.] is testifying in front of you.
- 36 -
Because she was a child when this happened, she may react a little
bit differently by laughing nervously. She has a tendency to smile
at awkward times. She understands the gravity of what happened
to her, even though she was young at the time that it happened and
she’s embarrassed to talk about it. I’m confident you’ll find her
account of what happened to be authentic and the details to be
compelling.”
In support of his argument, defendant cites People v. Bell, 152 Ill. App. 3d 1007, 505 N.E.2d 365(1987). We find Bell distinguishable.
“In Bell, the defendant was charged with the murders of his
parents. During voir dire, the State asked a majority of the
potential jurors whether they believed that people have a natural
impulse to confess their wrongdoings, and whether they believed
that a person could carry out a plan to murder a family member as
a solution to problems in that relationship. The defendant did not
object to these questions. He was convicted. On appeal, the
appellate court chose to address the issue on the merits, and held
that the questions were improper ‘because they served primarily to
indoctrinate the jurors as to the State’s theory at trial and asked
them to prejudge the facts of the case.’ ” People v. Rinehart, 2012
IL 111719, ¶ 19, 962 N.E.2d 444 (quoting Bell, 152 Ill. App. 3d at
1017).
- 37 -
¶ 115 Based on the record, we find the prosecutor’s line of questioning during voir dire
did not improperly indoctrinate or condition the prospective jurors to believe D.H.’s testimony.
The prosecutor’s hypothetical was not based on the State’s theory of the case or fact-driven.
Rather, the prosecutor’s questions focused on the potential jurors’ possible reaction to a
traumatic experience. Frankly, the hypothetical, though somewhat lengthy and based on events
completely unrelated to the case, rightfully fostered the State’s legitimate attempt to identify
prospective jurors who might hold set views on how a victim of a sexual assault should react and
present on the witness stand if he or she is telling the truth. Where the prosecutor’s line of
questioning did not relate to the facts of the case or the State’s theory of the case, we find the
prosecutor did not improperly bolster D.H.’s credibility during voir dire.
¶ 116 Further, where the prosecutor did not err during voir dire by using a hypothetical
to gauge prospective jurors’ reactions to a traumatic event, the prosecutor’s reference to the
hypothetical during opening statements was not improper. Accordingly, defendant fails to
demonstrate a clear or obvious error to support his contention of plain error.
¶ 117 Because we find no clear or obvious error where the prosecutor did not
improperly bolster the credibility of the victim during trial, we decline to address any cumulative
error claim.
¶ 118 4. Ineffective Assistance of Counsel
¶ 119 In the alternative, defendant argues he received ineffective assistance of trial
counsel where his trial counsel permitted the prosecutor to improperly bolster the credibility of
the alleged victim throughout trial as described above.
¶ 120 To succeed on a claim of ineffective assistance of counsel, defendant must show
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
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deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. “A court may
resolve a claim of ineffective assistance of counsel by reaching only the prejudice prong, as a
lack of prejudice renders irrelevant the issue of counsel’s alleged deficient performance.” Hall,
194 Ill. 2d at 337-38. Prejudice results when there is a reasonable probability that, but for
counsel’s unprofessional error, the result of the proceedings would have been different. Simms,
192 Ill. 2d at 362. Here, defendant is unable to establish prejudice.
¶ 121 Defendant fails to show there is a reasonable probability that the result of the
proceedings would have been different if counsel would have objected and argued the prosecutor
improperly bolstered the credibility of the alleged victim throughout the trial. Because the
prosecutor did not improperly bolster the credibility of the victim, we conclude defendant’s
ineffective assistance claim fails where he cannot demonstrate prejudice under the Strickland
analysis.
¶ 122 III. CONCLUSION
¶ 123 For the reasons stated, we affirm the trial court’s judgment.
¶ 124 Affirmed.
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