People v. Brothers

FILED
2015 IL App (4th) 130644 September 18, 2015
Carla Bender
NOS. 4-13-0644, 4-13-0650 cons. th
4 District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
EDDIE BROTHERS, ) Nos. 12CF891,
Defendant-Appellant. ) 12CF1020
)
) Honorable
) Robert L. Freitag,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Knecht and Harris concurred in the judgment and opinion.
OPINION
¶1 In January 2013, a jury in McLean County case No. 12-CF-891 convicted
defendant, Eddie Brothers, of home invasion (720 ILCS 5/12-11(a)(1) (West 2010)), three counts
of aggravated criminal sexual assault (two involving vaginal penetration and one involving anal
penetration) (720 ILCS 5/11-1.30(a)(1) (West 2010)), three counts of domestic battery (720
ILCS 5/12-3.2(a)(1) (West 2010)), and aggravated unlawful restraint (720 ILCS 5/10-3.1(a)
(West 2010)). That same month, defendant pleaded guilty to harassment by telephone (720
ILCS 135/1-1 (West 2010)) and violation of a bail bond (720 ILCS 5/32-10(b) (West 2010)) in
McLean County case No. 12-CF-1020.
¶2 Defendant's convictions in case No. 12-CF-891 stemmed from a September 2012
incident in which defendant entered the trailer of his estranged lover, A.W., and physically and
sexually attacked her over the course of several hours. Defendant's convictions for harassment
by telephone and violation of a bail bond in case No. 12-CF-1020 resulted from numerous
jailhouse phone calls defendant made to A.W. while he was in pretrial custody in case No. 12-
CF-891. In those calls, defendant persuaded A.W. not to cooperate with the prosecution in case
No. 12-CF-891. In March 2013, the trial court sentenced defendant to aggregate prison terms of
95 years in case No. 12-CF-891 and 6 years in case No. 12-CF-1020, with the 6-year sentences
to be served consecutively to those imposed in case No. 12-CF-891.
¶3 Defendant appeals, arguing that he was denied a fair trial in case No. 12-CF-891
because (1) the trial court improperly admitted, as substantive evidence under section 115-10.1
of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2012)), A.W.'s
hearsay statements to a detective; (2) the State presented improper opinion testimony from police
officers regarding defendant's and A.W.'s credibility; and (3) the State failed to present sufficient
evidence to sustain defendant's conviction for home invasion.
¶4 We agree with defendant that the State presented inadmissible hearsay and
opinion testimony. Because the only evidence supporting one of defendant's convictions for
aggravated criminal sexual assault (involving anal penetration) was inadmissible hearsay, we
reverse that conviction and remand for further proceedings on that count. However, because (1)
the properly admitted evidence overwhelmingly proved defendant guilty of the remaining counts
and (2) no reasonable probability exists that the jury would have acquitted defendant if the
improper hearsay and opinion testimony had been excluded, we affirm defendant's remaining
convictions.
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¶5 I. BACKGROUND
¶6 The State presented the following evidence at defendant's January 2013 jury trial.
¶7 A. A.W.'s Testimony
¶8 A.W. testified that on September 4, 2012, she ended her romantic relationship
with defendant. In light of the break up, she changed the locks on her trailer home, which was
located in the Royal Acres mobile home park (Royal Acres) in Normal, Illinois.
¶9 On September 6, 2012, A.W. went to work at 2:45 p.m., locking the door of her
trailer behind her. When she returned home shortly after 10:30 p.m., she unlocked her front door
and went inside to the bathroom, where she removed her clothes. As A.W. was using the
bathroom, defendant emerged from inside the shower stall. A.W. tried to get away from
defendant through the back door of the trailer, but defendant grabbed her and brought her into
the kitchen. Defendant was angry because he suspected that A.W. was "messing around" with
his brother, Gregory. Defendant took A.W.'s cell phone from the counter and began looking
through it.
¶ 10 A.W. testified that after defendant took her phone, the next thing she remembered
was running through the street to her grandfather's house wearing only a towel. When the State
asked A.W. why she was wearing only a towel, she recalled that she had taken a shower in her
trailer, but she claimed that she did not remember anything else that happened in the trailer.
¶ 11 The trial court admitted an audio recording of a 9-1-1 call made immediately after
the incident. (We note that A.W.'s mother—who did not testify—initiated the 9-1-1 call and
spent the first several minutes of the call giving her secondhand account of the incident to the
dispatcher. Pursuant to the parties' agreement, the jury heard only the portion of the call after
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A.W. began speaking.) A.W. sounded hysterical and was sobbing throughout much of the 9-1-1
call. Because both defendant and the State agree that the 9-1-1 call was a critical piece of
evidence, we set forth the pertinent portions of the call in detail, as follows:
"[DISPATCHER]: Take a deep breath for me, okay?
Alright, now what's your name?
[A.W.]: [A.W.]
[DISPATCHER]: Okay, so you explain to me exactly what
happened over at your trailer.
[A.W.]: I got home from work [probably] like 10:45, and I
went into the bathroom to get ready to get in the shower like I
always do, and he was hiding in the shower.
[DISPATCHER]: Okay, and what happened then?
[A.W.]: He got out and he kept talking about—'cause he
said I'm messin' with his brother. So he kept—that's all he kept
saying. He grabbed me by my hair and dragged me in the kitchen
where my phone was so he could go through it. Then he got the
knives out of the drawer and he followed me around everywhere I
went so I couldn't leave, and he made me take all my clothes off
and walk around. He made me—he made me have sex with him
twice. And he had me in there for a couple hours. Finally I
convinced him I needed to go out to the car to get my—
[DISPATCHER]: —Okay. Okay. Did he actually cut you
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at all?
[A.W.]: No. He punched me in my back and then punched
me in my chest. Then when I finally convinced him I needed to
get my insulin out of the car, I was in a towel, and while he was
bent over in the car looking, I ran down the street to my grandpa's
house, and he came chasing after me and ripped my towel off, so I
just started screaming. And then he finally ran off. And then my
grandpa—
[DISPATCHER]: Okay.
[A.W.]: —I came to his porch.
[DISPTACHER]: *** So, okay, backup here. ***
Do you know where he's at now?
[A.W.]: I don't know.
[DISPATCHER]: Okay, can you describe what he's
wearing for me?
[A.W.]: Um, I think it was a black T-shirt and some blue
jeans.
[DISPATCHER]: Did he have keys to your trailer?
[A.W.]: He had all my—he has all my keys, to the car and
everything.
[DISPATCHER]: Okay, do you need an ambulance to
check you out at all? [pause] Okay, A.W.?
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[A.W.]: I—I don't. He just had me on the ground once I—
he caught me coming from his brother's house 'cause he was hiding
me in his shower.
[DISPATCHER]: Okay, A.W., you need to talk to me
instead of whoever is there, okay? Are you talking to an officer
now?
[A.W.]: I am talking to you.
[DISPATCHER]: Okay. *** When you took off running,
do you know if he went back in the home? Did he go off on foot
somewhere?
[A.W.]: Well, he had to have went back to the house 'cause
all he had was a towel on. So he had to go back to the house to put
his clothes on.
[DISPATCHER]: Okay. Did, at any times when he had
you take your clothes off and his clothes were off, did he try and
have—have intercourse with you at all?
[A.W.]: He—he made me twice.
***
[DISPATCHER]: Okay, so—so you both had towels on
when you went out to the car?
[A.W.]: Yes.
[DISPATCHER]: Okay.
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[A.W.]: 'Cause he made me get in the shower because I'm
on my period and he made me have sex with him, so it was messy.
So he made me get in the shower. [Long pause.] What, are they
outside?
[DISPATCHER]: Okay, is there an officer out there now?
[A.W.]: I can hear 'em.
[DISPATCHER]: Okay, if there's an officer out there now,
you need to talk to them, okay?
[A.W.]: Okay.
[DISPATCHER]: Alright. [End of call.]"
¶ 12 A.W. testified that shortly after the incident, she began receiving several phone
calls each day from defendant, who at that time was in custody at the McLean County jail. A.W.
claimed to remember nothing about the calls, other than defendant's saying he loved her, and her
telling defendant she loved him, too. A.W. admitted that she subsequently disobeyed a grand
jury subpoena and refused to testify against defendant at grand jury proceedings. (The trial court
took precautions to prevent the jury from learning that A.W. was testifying at defendant's trial
while she was in custody, after having been arrested pursuant to a bench warrant for her refusal
to comply with the State's trial subpoena.)
¶ 13 A.W. professed to having no memory of her conversations with the 9-1-1
dispatcher or police officers after the incident. She denied refusing to provide the police with a
recorded statement about the incident. She explained that the officers never came to her for a
recorded statement, as they originally told her they would. The following exchange occurred on
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direct examination by the State:
"[THE STATE]: [Y]ou talked to an officer on September
7th, [2012,] is that correct?
[A.W.]: Yes, I believe I talked to several of them.
[THE STATE]: Okay. You actually even walked an
officer through your house. Is that right?
[A.W.]: I might have. I don't remember that neither.
[THE STATE]: And when you talked to that officer and
walked them through, you even pointed out certain evidence about
things that happened that night. Is that right?
[A.W.]: I—I guess so. I don't recall it[.]"
***
[THE STATE]: Now, when you talked to the officer, you
gave him details about what happened between you and the
defendant that night, correct?
[A.W.]: If I would have did it that night, then I probably
would have remembered that night if I did give him details. I just
don't remember what happened now.
[THE STATE]: Did you tell him that night what
happened?
[A.W.]: I guess so. I can't say for sure because I don't
remember."
-8-
Although A.W. professed memory loss as to the content of her prior conversations, she stated
that she would not have lied or "made something up" to police officers or the 9-1-1 dispatcher.
She also stated that she would not have had sex willingly while on her period.
¶ 14 On cross-examination, A.W. testified that she had spoken with defendant several
times each day between the September 4, 2012, break up and the September 6, 2012, incident.
She and defendant were both uncertain as to whether they should actually end their relationship.
The following exchange occurred between defense counsel and A.W.:
"[DEFENSE COUNSEL]: Didn't you agree to talk with
[defendant] about your relationship after you got off work, and
didn't you leave the door unlocked for him to come in and wait for
you?
[A.W.]: I'm not sure about leaving the door unlocked. But
I do, I remember saying I'd talk to him but I didn't say an exact
time and place I was going to talk to him.
***
[DEFENSE COUNSEL]: Is it possible that you did leave
the door unlocked?
[A.W.]: Anything is possible.
[DEFENSE COUNSEL]: Didn't you—didn't you
acknowledge in a written affidavit that you may have left the door
unlocked after a conversation with him?
[A.W.]: I may have, but with me having to use my key, I
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just figured nobody was there. I mean maybe he could have went
in and locked it back. But like I say, I don't remember."
¶ 15 Later on cross-examination, defense counsel asked A.W. about an affidavit she
completed after the State charged defendant in this case:
"[DEFENSE COUNSEL]: And in this written affidavit
that you faxed to the State's Attorney, you remember that, don't
you, that document?
[A.W.]: I don't remember what all I said in it, sir.
[DEFENSE COUNSEL]: You don't remember writing
[']the night in question we were arguing and things got out of
proportion, and, yes, I was mad, but I laid there because of my love
for him and I never told him no.['] You don't remember writing
that?
[A.W.]: I remember writing it, but if I—if I would have
laid there, it would have had to have been—I wouldn't have. If I
was scared, I would have did it. I would have laid there. But like I
said, I don't remember how I [was] even feeling at that point
because I don't remember being in the room with him."
¶ 16 B. Sergeant Longfellow's Testimony
¶ 17 Sergeant Jeff Longfellow, an investigator with the Normal police department,
testified that on September 7, 2012, he spoke with A.W. at Royal Acres. The State's direct
examination of Longfellow proceeded, as follows:
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"[THE STATE]: Were you able to understand what she
was saying?
[LONGFELLOW]: She briefly told me what happened.
She basically stated that—
[DEFENSE COUNSEL]: Objection.
THE COURT: Just a minute. Counsel?
[DEFENSE COUNSEL]: We object.
THE COURT: [Counsel for the State?]
[THE STATE]: Basically just [answer] the question, could
you understand the words that she was saying?
[LONGFELLOW]: I could understand, yes, I could.
THE COURT: Objection is sustained. Ask your next
question.
[THE STATE]: Did you ask her what happened?
[LONGFELLOW]: I did.
[THE STATE]: And was she able to tell you what
happened?
[LONGFELLOW]: She did.
[THE STATE]: And did she give you great detail or not?
[LONGFELLOW]: Very great detail. We went over the
entire incident twice.
***
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[THE STATE]: And what did she tell you happened?
[LONGFELLOW]: When—
[DEFENSE COUNSEL]: Object, hearsay.
THE COURT: Counsel?
[THE STATE]: You Honor, at this point in time, we'd like
to use this, because the victim has made a prior inconsistent
statement and this is to be used as impeachment and substantive
evidence.
THE COURT: [Defense counsel], anything else?
[DEFENSE COUNSEL]: Judge, I think she testified she
didn't remember the substance of any statement that she made. I
don't recall whether she was confronted with the details of the
statement, alleged statement.
[(At this point, the trial court excused the jurors from the
courtroom and directed Longfellow to wait in the hallway.)]
THE COURT: All right, counsel for the State, I need you
to tell me specifically[,] under what section are you offering this[?]
[THE STATE]: You Honor, [section 115-10.1 of the
Code] 725 ILCS 5/115-10.1.
THE COURT: [Section 115-]10.1 [of the Code], all right,
thank you.
All right, [defense counsel], your objection is? Here is just
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a straight hearsay objection, is that correct?
[DEFENSE COUNSEL]: Yes, it is a hearsay objection. I
think that the witness testified that she didn't have a specific
recollection, but I don't believe she was questioned about a detailed
interview that she gave with Sergeant Jeffrey Longfellow, and she
wasn't given an opportunity[,] or I don't believe that *** her lack
of memory is necessarily inconsistent, having not been confronted
with these alleged statements. So that's the substance of my
objection.
THE COURT: Counsel, anything else?
[THE STATE]: Your Honor, she testified under oath that
she believed that she had talked to the officers, that she does not
remember what she told the officers. And she did say that what
she told the officers would have been truthful, basically saying that
she would not have lied to the officers.
THE COURT: All right. And just so I understand, and
perhaps you were going to ask some more questions, but given the
discovery you have and what you expect this witness to testify to,
is this an oral statement simply?
[THE STATE]: It is, Your Honor.
THE COURT: So this is not a recorded statement?
[THE STATE]: Correct.
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THE COURT: All right. [Defense counsel], anything
else?
[DEFENSE COUNSEL]: No thank you, Judge.
THE COURT: All right, the concern that the court has, I
will tell you that I'm going to overrule the objection. I'm going to
allow the officer to testify under [section] 115-10.1 [of the Code].
I think the weak point here is [section 115-10.1 of the Code] does
require that the witness who made the out of court statement
acknowledge the making of the statement, since it's not written and
signed by the witnesses and since it was not recorded. The witness
did acknowledge, that being [A.W.], that she spoke with officers.
She could not recall which ones, but she indicated she did speak
with someone. She just couldn't remember who it was. In the
court's view, that's somewhat sketchy, but it is an
acknowledgement under oath that she made statements.
This witness had now testified, at least preliminarily, that
he spoke with her and that she gave him statements that were based
on her personal knowledge, events that she had personal
knowledge of[,] and gave some great detail on it. So, the court
finds that it is admissible under [section 115-10.1 of the Code], and
I will allow the witness to testify as to the content of the statement
over objection."
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Following the trial court's ruling, the State elicited the following testimony from Longfellow.
¶ 18 Longfellow testified that after he spoke with A.W. inside her grandparents' trailer
at Royal Acres, he walked with A.W. to her trailer, which was approximately 100 yards away.
There, in the early morning hours of September 7, 2012, A.W. walked Longfellow through her
trailer to explain the sequence of events and identify potential evidence. When the State asked
Longfellow what A.W.'s demeanor was like as she was explaining what happened, Longfellow
gave the following response:
"She was still in shock. I mean it was just a very blank
stare. She was scared, you know, talking about it, still trembling
but very believable, very credible."
¶ 19 A.W. told Longfellow that after she arrived home shortly after 10:45 p.m. on
September 6, 2012, defendant emerged from behind her shower curtain while she was urinating.
Defendant was gritting his teeth and appeared angry. Defendant told A.W. that he had seen her
texting someone in her car before she came inside. A.W. became scared and attempted to flee
from the trailer through the back door. Defendant grabbed A.W. by her hair and throat and
brought her into the kitchen. Defendant then took A.W.'s cell phone and began looking through
the text messages. Defendant told A.W. that he was going to use her phone to text his brother,
Gregory, while posing as A.W., to determine whether A.W. and Gregory were having an affair.
After defendant accused A.W. of having relations with Gregory, he punched her in the right side
of her lower back, causing a bruise.
¶ 20 A.W. told Longfellow that defendant pushed her onto the kitchen floor and
grabbed a knife, which he "held in a threatening manner" and "used it to sort of control her as
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they moved around the trailer." (Although Longfellow found two kitchen knives in A.W.'s
trailer, A.W. did not recall which of the knives defendant used.) Next, defendant gestured with
the knife for A.W. to enter the bedroom. Once in the bedroom, defendant told A.W. to take off
her clothes and get on the bed. As Longfellow explained, defendant then "placed the knife to the
side, and he had vaginal intercourse with [A.W.] against her will." A.W. was crying, and she
told defendant to stop several times. She did not fight back because she thought he would attack
her with the knife.
¶ 21 A.W. told Longfellow that after defendant had intercourse with her, he made her
take a shower because she was menstruating. Defendant told A.W. that he would hurt her if she
tried to run away. Before going into the shower, A.W. saw defendant use a towel to wipe
menstrual blood from his genitals. A.W. showed Longfellow that towel, which was laying in her
living room. A.W. also showed Longfellow defendant's underwear, which was laying on the
bedroom floor, stained with menstrual blood.
¶ 22 Once A.W. got out of the shower, defendant used A.W.'s cell phone to record
nude video images of her. Defendant told A.W. that he was going to post the videos on
Facebook. Defendant was drinking gin at the time. He continued to send text messages to
Gregory from A.W.'s phone. In a text message to A.W.'s cell phone, Gregory asked for the
return of his digital video disc (DVD) player, which A.W. had in her trailer. Defendant,
apparently still posing as A.W., arranged for Gregory to come retrieve the DVD player from the
front porch, which would avoid the need for Gregory to enter A.W.'s trailer or otherwise interact
with defendant and A.W. When Gregory came to retrieve the DVD player, defendant forced
A.W. into the bedroom and placed tights in her mouth to prevent her from yelling.
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¶ 23 After Gregory retrieved the DVD player from the porch, defendant sexually
assaulted A.W. again. As A.W. described to Longfellow, defendant removed A.W.'s underwear
(which she had apparently put back on), bent her over the bed, and attempted to have anal sex
with her. After A.W. told defendant that this hurt her, defendant had A.W. lie on her side.
Defendant then had vaginal intercourse with A.W., who was crying and telling him to stop.
(Longfellow testified that he "assumed" defendant had vaginal intercourse with A.W. while she
was on her side because defendant's attempt to perform anal sex was "apparently" unsuccessful.)
Again, A.W. did not physically resist because she was afraid that defendant would use the knife
against her. During this second instance of intercourse, defendant punched A.W. in the chest
above her right breast.
¶ 24 After the second instance of sexual intercourse, defendant and A.W. took a
shower together. Longfellow believed that the purpose of this second shower was to clean off
menstrual blood, although A.W. never told Longfellow this. By the time of the second shower,
A.W. was becoming increasingly fearful and trying to think of a way to escape. She began to
"sweet talk" defendant to calm him down. This made defendant angry.
¶ 25 A.W., who is a diabetic, convinced defendant to accompany her to her car so that
she could retrieve her insulin. A.W. and defendant, both wearing only towels, went outside to
A.W.'s car. While defendant was bending over into A.W.'s car looking for the insulin, A.W.
took off running down the street toward her mother's trailer. She fell several times while
running, scraping her knees on the pavement.
¶ 26 Defendant chased A.W., who began screaming loudly. Once A.W. began
screaming, defendant retreated back to A.W.'s trailer, and A.W. was able to reach her mother's
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trailer. A.W. banged loudly on her mother's door, but no one answered. She then went to
Gregory's trailer, which was also in Royal Acres. Gregory let her inside and provided her with
clothing. Shortly thereafter, defendant began knocking on the door of Gregory's trailer, looking
for A.W. Gregory told A.W. to hide in the back of his trailer. After Gregory spoke to defendant,
Gregory told A.W. that he did not "want to be in the middle of all this," and he made A.W. leave
his trailer through the back door. A.W. left Gregory's trailer and attempted to go back to her
mother's trailer. However, as Longfellow explained, defendant "kind of stepped out of the
shadows and confronted her again."
¶ 27 A.W. began running again. She fell on the pavement, at which point defendant
"began kicking her in the butt and the legs and the back area." A.W. started screaming. Gregory
exited his trailer and pulled defendant away. A.W. was able to get up and continue running, but
she fell again, and defendant broke free from Gregory. Defendant again kicked A.W. in the
buttock, legs, and back. (Longfellow was unable to find any bruises on A.W.'s buttock, legs, or
back.) Again, Gregory pulled defendant off A.W., and A.W. got up and ran away. A.W. finally
made it to the safety of her mother's trailer. (We note that A.W. testified on direct examination,
and stated during the 9-1-1 call, that she went to her grandfather's trailer.)
¶ 28 C. Defendant's Arrest
¶ 29 A few hours after the incident, officers located and arrested defendant, who was
shirtless and attempting to enter Gregory's trailer through the back door. A search of defendant's
person revealed (1) two cell phones in defendant's pocket (one of which was A.W.'s) and (2) a
crumpled up, bloodstained white shirt, which had been stuffed into defendant's pant leg.
Defendant had blood on his pants and hands as well.
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¶ 30 D. Physical Evidence and Photographs
¶ 31 Detectives searched A.W.'s cell phone. Among the media files were two short
videos, each only a few seconds long and recorded just before midnight on September 6, 2012.
The videos depicted A.W. standing naked in her trailer and crying. The trial court admitted the
videos into evidence.
¶ 32 Detective Brian Williams, an evidence technician for the Normal police
department, testified that he arrived at A.W.'s trailer on September 7, 2012, and collected the
following pieces of physical evidence: (1) a pair of women's panties lined with a menstrual pad;
(2) a pair of tights; (3) a white towel containing bloodstains; (4) a pair of men's boxer shorts
containing bloodstains on the crotch area; (5) a tan towel found next to the boxer shorts; and (6)
a white towel, which another officer recovered from Gregory's trailer. The trial court admitted
the aforementioned exhibits into evidence.
¶ 33 Williams also took photographs inside A.W.'s trailer, focusing on things that
A.W. identified as being "out of place." In addition to the aforementioned pieces of physical
evidence admitted at trial, the images also showed (1) a small bloodstain on A.W.'s bedspread
and (2) two kitchen knives—one serrated steak knife with a plastic handle and one slightly
larger, straight-bladed chef's knife with a wooden handle—which Williams pulled from dirty
dishwater in the sink—sitting side by side on the kitchen counter. The trial court admitted the
photographs into evidence.
¶ 34 E. Defendant's Police Station Interview
¶ 35 Detective Brian Larimore of the Normal police department testified that he
interviewed defendant at the Normal police station on the morning of September 7, 2012. The
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trial court admitted an audio and video recording of that interview, which was shown to the jury.
We note that defendant's explanation of the sequence of events did not remain consistent
throughout the 40-minute interview. In fact, it is impossible to piece together a single, coherent
timeline of events based upon defendant's statements. As Larimore asked additional questions
and sought clarification as to the order in which certain things happened, pieces of defendant's
story would shift places or fall away altogether. Accordingly, although we do our best to
summarize defendant's version of what happened, the sequence of events is unclear.
¶ 36 Defendant stated that A.W. invited him to her trailer to talk. The pair had been
together for 2 1/2 years, and A.W. left the back door of her trailer unlocked for defendant, as she
would often do. After being dropped off by his cousin, defendant smoked a blunt (cannabis
rolled in a cigar wrapper) on the back porch of A.W.'s trailer. Defendant then went inside the
trailer through the back door, entering just as A.W. returned from work through the front door.
Defendant and A.W. talked and argued, apparently throughout the entire night and into the
morning. Although defendant gave several explanations as to why the argument occurred, he
ultimately admitted that the argument concerned A.W.'s relationship with Gregory.
¶ 37 A.W., who was pleading with defendant not to argue, took defendant by the hand
and led him into the bedroom. There, A.W. told defendant to sit on the bed, then climbed on top
of him and began having intercourse. (At a different point in the interview, defendant stated that
he was on top of A.W. during this first instance of sex.) Throughout the sex, defendant was
texting Gregory from A.W.'s cell phone, pretending to be A.W. After the first instance of sex,
the couple argued more. Defendant "grabbed" A.W. during the argument, leaving a bruise on her
back. A.W. cried. A.W. initiated a second round of consensual sex, beginning with her
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performing oral sex on defendant, followed by vaginal intercourse.
¶ 38 During the interview, Larimore asked defendant, "at what point did a knife come
into play tonight?" Defendant, after pausing for several seconds and appearing perplexed by the
question, eventually stated that he held a "butter knife" to his abdomen and threatened to stab
himself so that A.W. would "get [his] point." Defendant acknowledged that this probably scared
A.W. and may have influenced her willingness to engage in sexual acts. Defendant could not
remember what he did with the knife after he put it to his abdomen.
¶ 39 At certain points in the interview, defendant stated that he and A.W. showered
together after the first instance of sex. At other times, he stated they showered after the second
instance of sex. Later in the interview, defendant stated that A.W. showered alone before any
sex occurred, followed by a mutual shower after sex. The shower (or showers) took place
because A.W. was menstruating during sex.
¶ 40 According to one version of defendant's story, after the second instance of sex,
A.W. told defendant to leave. Defendant refused to leave, and, following some additional
arguing, A.W. left. In another version, defendant and A.W. got out of the shower together (after
the second instance of sex) and defendant found a text from Gregory on A.W.'s cell phone,
which prompted A.W. to flee the trailer.
¶ 41 After A.W. left her trailer, defendant remained inside for a while before going to
Gregory's trailer, where he saw A.W. exiting from the back door. When A.W. saw defendant,
she began running. She fell on the pavement and started yelling. Defendant grabbed at A.W.,
leaving a mark. Gregory came out of his trailer and told defendant to leave A.W. alone.
¶ 42 Midway through the interview, Larimore made the following statement to
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defendant:
"There's a couple of things that aren't making sense to me.
Some of the things you're saying, I believe you're being honest
about. But you are not being honest about everything.
***
I've interviewed more people than I can count, okay? And
I've talked to people that have been 100% honest with me. I've
been—I've talked to people that have been 0% honest with me.
Everything that came out of their mouth was a lie. And I've—most
of the people that I've talked to tell some truth and some
dishonesty, okay?
***
For something that happened this recently, you seem to not
remember anything. Every question I ask you, you're taking
forever to remember."
After Larimore made those remarks, defendant suggested the marijuana he smoked before A.W.
came home (at approximately 10:45 p.m.) was to blame for his difficulty answering questions.
Larimore pointed out that it was 6 a.m. and defendant might just be tired. Defendant disagreed
and told Larimore that he was "wide awake." Defendant then purported to retell his story "from
step one."
¶ 43 Defendant admitted to "putting [his] hands on" A.W., specifically, "hitting her in
the side." He also admitted to "holding her against her will" by standing in the doorway to
- 22 -
prevent her from leaving and saying, "you ain't going nowhere." However, defendant adamantly
denied committing home invasion or any type of sexual assault. Referring to the sex, defendant
told Larimore, "this was something she wanted to do too, man. *** You don't know her like I
do. *** This was her doing." Defendant told Larimore that A.W. enjoyed having sex while she
was on her period, stating, "that's her best time." A.W. never told defendant to stop or said "no."
She told defendant, "Baby, I'll do whatever you want me to do."
¶ 44 F. Defendant's Jailhouse Phone Calls to A.W.
¶ 45 Larimore testified that he planned to interview A.W. on the morning of September
7, 2012, after she completed a sexual assault examination at a local hospital. However, a
shooting at a local high school drew Larimore away from the investigation in this case.
Thereafter, Larimore made several unsuccessful attempts to contact A.W. to complete an
interview. Larimore, suspecting that defendant had contacted A.W. to dissuade her from
speaking with detectives, inspected jailhouse phone-call recordings. The trial court admitted 13
audio recordings of phone calls defendant made from the McLean County detention center to
A.W. between September 10, 2012, and September 21, 2012. (By stipulation, typed transcripts
of those phone calls were provided to the jury. We set forth the pertinent portions of those phone
calls, in detail, exactly as they appeared in the typed transcripts.)
¶ 46 The following pertinent conversation took place on September 10, 2012, at 2:43
p.m.:
"[DEFENDANT]: Man *** they said I was in your house
and when you walking in there I had a knife in my hand and put
the knife up to you. Come on man I didn't do that to you.
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[A.W.]: That aint what I told em. *** I didn't tell em you
was in the shower with a knife. I told em you got them later. ***
I'm gonna do what I'm gonna do to try and get you out of it.
***
[DEFENDANT]: *** I never put once put it put it up to
you. I never once did that put in on your skin.
[A.W.]: [Y]ou didn't when we was layin in here on the
bed? You didn't put that knife up to me?
[DEFENDANT]: No. No. Not once. *** [B]ut you you
didn't say that though?
[A.W.]: Say what?
[DEFENDANT]: I do whatever you want me to do? You
didn't say that?
[A.W.]: Yeah, cause you had a knife to me.
[DEFENDANT]: Oh man don't do that over this phone.
Like you just gonna—
[A.W.]: *** [O]kay well don't talk about that then cause
you already know. I'm not gonna lie about it. But like I said I'll do
what I can to get it took off. *** I'll do whatever I can.
***
[DEFENDANT]: I don't wanna talk about it over this
phone man. My whole life's gone.
- 24 -
[A.W.]: So what do you want me to say?
[DEFENDANT]: Just tell em you lied about all of it that
you were just mad and you lied about everything.
***
[A.W.]: Well, that's what I'll tell the lady but if they're
talkin about doin this and this to me I'm not doin it.
[DEFENDANT]: Then what else can you do then? Just let
me go.
[A.W.]: Tell her I don't wanna press no charges. *** I'll
call her back.
[DEFENDANT]: Well, go do it now, and I'll call you
back. *** Do it for me girl, don't let me rot up in here man.
[A.W.]: Yeah okay."
¶ 47 The following conversation took place about 25 minutes later:
"[DEFENDANT]: *** What they say?
[A.W.]: The lady wasn't there to talk to me right now.
***
[DEFENDANT]: You gotta get on that for me man. Come
on man don't let me do 60 man don't let me do all them mother
fuckin years behind these bars man.
[A.W.]: I told you I was.
[DEFENDANT]: What's up though man you hate me now?
- 25 -
[A.W.]: No.
[DEFENDANT]: I know you don't love me no more but.
[A.W.]: I hate what you did.
[DEFENDANT]: I apologize for what I did.
***
[A.W.]: Just know what you did is crazy.
[DEFENDANT]: What?
[A.W.]: I said you just know what you did is bogus.
[DEFENDANT]: Come on man I'm in (inaudible) took
you through that and I ain't never did shit to you man. I ain't never
did shit. *** Come on man I just blacked out for a minute ***."
¶ 48 The following conversation took place about 1 hour and 20 minutes later:
"[DEFENDANT]: [W]hy you doin me like this girl?
***
[A.W.]: So this is my fault?
[DEFENDANT]: No *** you don't deserve nothin cause I
really didn't do nothin but kick ya. That's all I did was kick ya and
hit ya and punch ya ***.
[A.W.]: I got a bruise on my chest, 2 bruises on my chest I
got one on my back my feet and knees are all scratched up.
[DEFENDANT]: Don't talk about all that on the phone.
[A.W.]: Well you started talkin about it actin like you ain't
- 26 -
did nothin."
¶ 49 The following conversation took place about one hour later:
"[DEFENDANT]: I apologize to you. I'm sorry for
everything girl. I just didn't know how to express how much I
wanted you to know that how much I loved you. That's all that
was girl.
***
[A.W.]: You know you don't have to say that to get me to
drop the charges. I'm gonna do it anyway. *** You about had me
pee on myself when you opened that shower curtain.
[DEFENDANT]: I ain't even know you was in there.
***
[A.W.]: *** [H]ow long was you in the house before I
even got there[?]
[DEFENDANT]: You don't understand the front door was
unlocked how you think because I was gonna sit on the porch. But
the front door was unlocked I just walked in the mother fucker.
[A.W.]: Well I didn't leave it unlocked.
[DEFENDANT]: And then I got home invasion. Huh?
I'm like wow.
[A.W.]: I didn't leave it unlocked cause I just got the locks
changed. So what was I gonna leave it unlocked for?
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[DEFENDANT]: It was unlocked man. It was unlocked
cause real talk that mother fucker was unlocked. How else I'm a
get in there?
[A.W.]: Cause you're you."
¶ 50 The following conversation took place two days later, on September 12, 2012, at
12:48 p.m.:
"[DEFENDANT]: *** I was just gonna wait til you come
home but I just went on opened the door was the front door was
unlocked all I did was turn the knob it just came open. I walked
straight back there I set up in there I'm like man what I'm thinkin
bout was she gonna hit me with this or she man these people these
bitches talkin bout they got charges on me rapin an anal. Rapin.
I'm like huh come on man you the one that that said man I do said
come on let's go in the room and we went in the room and we did
that. Didn't we or didn't we not but didn't you or didn't you not do
that?
[A.W.]: No not that first and second time.
[DEFENDANT]: The second time right?
[A.W.]: *** Don't do that. You know I didn't want to.
[DEFENDANT]: Man but you you aint—
[A.W.]: *** [A]nd of course I'm gonna say I'll do anything
you want me to do. You know how scared like I said you know
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how scared I was?
[DEFENDANT]: Man but you just you you really tryin to
bury me man. *** And then it's like you ain't tryin to show no
effort of really goin up there. *** Go on call up there man and see
what they sayin man and tell them that you really need to get get
somebody to drop this shit cause you don't wanna go through it no
more. You're not comin to court or none of that. Just call em real
quick and I'll just call you back."
A.W. told defendant that she wished Gregory would have been with her when she arrived home
on the evening of the incident. Defendant responded, as follows:
"[DEFENDANT]: You know what girl I'm a be straight up
with ya what I had on my mind if I would of seen that it was gonna
be an ugly sight man. It was gonna be an ugly sight man and I ain't
talkin bout just no no no it was just gonna be ugly that's all I gotta
say.
[A.W.]: *** [W]orse that what already happened?
[DEFENDANT]: Yeah it would have been worser than
that man because I cause I was really tryin to get down to the nitty
gritty of that shit man. So thank God I didn't."
¶ 51 The following conversation took place later in the evening of September 12, 2012,
at 9:11 p.m.:
"[A.W.]: [T]he sheriff just came and served me with a
- 29 -
subpoena.
[DEFENDANT]: Oh that's for the Grand Jury. *** When
you go just say you plead the fifth. No this didn't happen and that
didn't happen man. You just wanna drop all the charges all you
gotta do. They can't do nothin to ya. Okay?
[A.W.]: What about all the stuff they got from the house?
[DEFENDANT]: Don’t worry bout that that ain't nothin
that can be throwed away man. I tell you how it gonna go. ***
Just make sure you just do plead the fifth on everything. Tell them
you don't even want to go through it with. Okay?
[A.W.]: Yeah."
¶ 52 The following conversation took place three days later, on September 15, 2012:
"[DEFENDANT]: So what you gonna do in court then?
*** [W]hat you gonna say?
[A.W.]: *** I been runnin things through my head I
thought about sayin you know maybe things got a little out of hand
and I just get scared too easy and I blew it out of proportion and I
don't know.
[DEFENDANT]: *** I'll take the domestic charge man.
*** I take the 6 years on that man. If you wanted to say man drop
the uh the home invasion and the uh rape man.
[A.W.]: Yeah. "
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¶ 53 The following conversation took place six days later, on September 21, 2012:
"[DEFENDANT]: Yeah man just leavin me out there in
the cold huh?
[A.W.]: *** I've been sittin here cryin all day.
[DEFENDANT]: Bout what? What's wrong with ya?
What's wrong?
[A.W.]: Because of what they're tryin to get you.
[DEFENDANT]: I know man I'm fucked. It'll be over
with for me man. *** I'm fucked but I'm good though.
[A.W.]: I've been lookin up stuff about how much time I
get about filing a false police report and everything. I don't know
what to do.
[DEFENDANT]: All they'll do is hit you with it's perjury
and that ain't nothing but a misdemeanor and they ain't ain't really
gonna do shit to ya.
[A.W.]: I don't know what to do. I'm sorry.
***
[DEFENDANT]: *** [O]nly thing I can tell you to do is
just call up here and just tell em you want do I mean it was just a
false police thing and *** I ain't do none of that shit to ya. ***
[T]hey can't get you for nothin."
¶ 54 After the jailhouse phone calls were played for the jury, the State rested its case.
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Defendant did not present evidence.
¶ 55 G. Closing Arguments and Jury Deliberation
¶ 56 During its closing argument, the State discussed Longfellow's testimony about
what A.W. told him, as follows:
"[T]he things that [A.W.] told Officer Longfellow matched the
things that were at that scene, bloody towels, bloody boxer shorts,
her underwear with a pad still in it, the tights that he shoved in her
mouth when Greg came to pick up the DVD player. It was all
there.
***
And you heard what Officer Longfellow said. [A.W.] told Officer
Longfellow that night that the defendant was gritting his teeth and
looked—looked angry, and when he stepped out of the shower, he
came at her.
Now, as I described before, the scene, back to what she told
Officer Longfellow, the blood on the bed, the underwear on the
floor, the tights that he made her shove in her mouth when Greg
came to get the DVD player, the knives that were found in her
apartment readily accessible to the defendant, a bloody towel,
another towel and a pair of boxer shorts with blood on them, a
close-up of the towel and the boxer shorts *** it matches exactly
what she told the officers."
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The State also argued that defendant's admissions regarding text messages confirmed the story
that A.W. told Longfellow.
¶ 57 Defense counsel conceded in closing argument that defendant committed the
charged domestic batteries, but he argued that the State failed to prove defendant guilty of the
remaining charges.
¶ 58 During deliberations, the jury requested a transcript of Longfellow's testimony,
which the trial court provided after defense counsel stated that he had "no particular objection to
[the jury] reviewing a transcript."
¶ 59 The jury found defendant guilty on all counts: (1) one count of home invasion; (2)
three counts of aggravated criminal sexual assault with a weapon (two involving vaginal
penetration and one involving anal penetration); (3) three counts of domestic battery; and (4) one
count of aggravated unlawful restraint. In March 2013, the trial court sentenced defendant to an
aggregate prison term of 95 years for those convictions (consecutive sentences of 20 years for
home invasion and 25 years each for the three aggravated criminal sexual assaults, to be served
concurrently with a 5 year sentence for aggravated unlawful restraint and 3 year sentences for
each of the three domestic batteries). The court also sentenced defendant to 6 years in prison in
case No. 12-CF-1020 (in which he pleaded guilty to harassment by telephone and violation of a
bail bond), to be served consecutively to the aforementioned sentences in case No. 12-CF-891,
resulting in a total of 101 years in prison.
¶ 60 These appeals followed, which we consolidated. (We note that defendant raises
no issues on appeal regarding his convictions or sentences in case No. 12-CF-1020.)
¶ 61 II. ANALYSIS
- 33 -
¶ 62 On appeal, defendant argues that he was denied a fair trial because (1) the trial
court improperly admitted, as substantive evidence under section 115-10.1 of the Code, A.W.'s
hearsay statements to Longfellow; (2) the State presented improper opinion testimony from
Longfellow and Larimore regarding A.W.'s and defendant's credibility; and (3) the State failed to
present sufficient evidence to sustain defendant's conviction for home invasion. We address
these claims of error in turn.
¶ 63 A. Section 115-10.1 of the Code
¶ 64 Section 115-10.1 of the Code provides as follows:
"Admissibility of Prior Inconsistent Statements. In all criminal
cases, evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony
at the hearing or trial, and
(b) the witness is subject to cross-examination
concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing,
or other proceeding, or
(2) narrates, describes, or explains an event
or condition of which the witness had personal
knowledge, and
(A) the statement is proved to have
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been written or signed by the witness, or
(B) the witness acknowledged under
oath the making of the statement either in
his testimony at the hearing or trial in which
the admission into evidence of the prior
statement is being sought, or at a trial,
hearing, or other proceeding, or
(C) the statement is proved to have
been accurately recorded by a tape recorder,
videotape recording, or any other similar
electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent
statement inadmissible for purposes of impeachment because such
statement was not recorded or otherwise fails to meet the criteria
set forth herein." 725 ILCS 5/115-10.1 (West 2012).
¶ 65 The purpose of section 115-10.1 of the Code is to " 'protect parties from turncoat
witnesses' " who, while on the stand at trial, disown a prior statement by testifying differently or
professing inability to remember the subject matter. People v. Fauber, 266 Ill. App. 3d 381,
390-91, 640 N.E.2d 689, 695 (1994) (quoting Robert J. Steigmann, Prior Inconsistent Statements
as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 640-41 (1984)). If the enumerated statutory
conditions are met, the statute allows a witness's prior inconsistent statement to be admitted as
substantive evidence.
- 35 -
¶ 66 More than 15 years after the General Assembly enacted the statute, the author of
this opinion noted that "even experienced trial courts face serious uncertainties when applying
section 115-10.1 of the Code." People v. Edwards, 309 Ill. App. 3d 447, 457, 722 N.E.2d 258,
265 (1999) (Steigmann, J., specially concurring). Now, more than 30 years after the statute's
enactment, seasoned attorneys and trial judges still regularly mishandle section 115-10.1 issues
when they come up at trial. To help clear up the confusion about the appropriate use of section
115-10.1(c)(2)(B) of the Code, which addresses a witness's acknowledgement of her prior
inconsistent statement, we provide the following detailed explanation regarding the proper
procedure to be followed under subsection (c)(2)(B).
¶ 67 1. Admitting a Prior Inconsistent Statement Under
Subsection (c)(2)(B)—the "Acknowledgement" Provision
¶ 68 Proper admission of a prior inconsistent statement under section 115-10.1 of the
Code requires the proponent to first lay a foundation. "Laying the foundation for the admission
of a prior inconsistent statement as substantive evidence under section 115-10.1 of the Code is
essentially the same as laying the foundation to impeach a witness with his prior inconsistent
statement." Id. The Second District has explained the purpose of the confrontation requirement,
as follows:
"The witness must have an opportunity to explain the
inconsistency before the introduction of extrinsic evidence of the
statement; this requirement prevents unfair surprise and gives the
witness an opportunity to explain any inconsistency. [Citations.]
Through this process, the opponent to admission of the statement is
properly alerted to the existence of the statement and thus is able to
- 36 -
cross-examine the witness regarding it." People v. Hallbeck, 227
Ill. App. 3d 59, 62, 590 N.E.2d 971, 972-73 (1992).
¶ 69 Before the proponent of a prior inconsistent statement can begin to lay a
foundation, however, he or she must make the following determination: how can I ultimately
present the prior inconsistent statement to the jury? If the prior statement cannot be presented to
the jury in the form of (1) the witness's sworn testimony from an earlier proceeding (725 ILCS
5/115-10.1(c)(1) (West 2012)), (2) a statement written or signed by the witness (725 ILCS 5/115-
10.1(c)(2)(A) (West 2012)), or (3) an electronic recording (725 ILCS 5/115-10.1(c)(2)(C) (West
2012)), then the proponent's only remaining option is to present the prior inconsistent statement
to the jury by having the witness acknowledge, under oath, having made the prior statement (725
ILCS 5/115-10.1(c)(2)(B) (West 2012)). (We note that, as with all prior inconsistent statements
under subsection (c)(2), a prior inconsistent statement may not be admitted under subsection
(c)(2)(B) unless it "narrates, describes, or explains an event or condition of which the witness
had personal knowledge." 725 ILCS 5/115-10.1(c)(2) (West 2012); see also People v. Simpson,
2015 IL 116512, 25 N.E.3d 601, wherein the supreme court recently explained what the term
"personal knowledge" under section 115-10.1(c)(2) means.)
¶ 70 When counsel seeks to offer a prior inconsistent statement by way of
acknowledgement under subsection (c)(2)(B), the following general procedure should be
followed.
¶ 71 a. "Acknowledgement Hearing" Outside the Presence of the Jury
¶ 72 To avoid potential prejudice, the jury should not be present when the party
- 37 -
seeking to offer the statement under subsection (c)(2)(B) first confronts the witness with the prior
statement for purposes of obtaining the witness's acknowledgement that she made the statement.
This is because if the proponent recites the prior statement in front of the jury for the purpose of
asking the witness whether she made the statement, the jury will hear the statement before the
acknowledgement requirement of subsection (c)(2)(B) has been satisfied. However, if the
witness does not acknowledge making the statement after being confronted with it, the statement
is inadmissible as substantive evidence. In this scenario, the jury has nonetheless heard the
potentially damaging contents of the statement, and depending upon its prejudicial effect,
reversible error may have occurred.
¶ 73 Further, we note that if a witness's prior inconsistent statement is incriminating to
the defendant, it is not admissible for mere impeachment of the witness. See People v. Cruz, 162
Ill. 2d 314, 362, 643 N.E.2d 636, 659 (1994) ("Now that a party can admit into evidence a
'turncoat' witness' prior inconsistent statement by complying with section 115-10.1, the
introduction of oral inconsistent statements under the guise of impeachment should be
foreclosed."). The only exception to this rule is if the witness's trial testimony affirmatively
damages the State's case. See People v. Donegan, 2012 IL App (1st) 102325, ¶ 57, 974 N.E.2d
352. On this point, we emphasize that "a witness's professed lack of memory, standing alone,
does not 'affirmatively damage' a party's case for the purpose of impeaching one's own witness."
People v. Wilson, 2012 IL App (1st) 101038, ¶ 45, 966 N.E.2d 1215. "It is insufficient that a
witness merely disappoints the State by failing to incriminate the defendant." People v.
McCarter, 385 Ill. App. 3d 919, 933, 897 N.E.2d 265, 278 (2008).
¶ 74 To avoid letting the jury hear a prior inconsistent statement before the witness
- 38 -
renders the statement admissible by acknowledging making it, the better practice is to conduct
what we will refer to as the "acknowledgement hearing" outside the presence of the jury. At the
acknowledgement hearing, the proponent of the prior statement should confront the witness with
the prior statement. This court has explained the basic component of such confrontation, as
follows: "Normally, when a prosecutor attempts to lay the foundation for the admissibility of a
prior inconsistent statement under section 115-10.1(c)(2)(B) of the Code, the prosecutor would
establish the time, place, and date of the statement and then ask the witness whether she made
the statement at issue." People v. Sykes, 2012 IL App (4th) 100769, ¶ 37, 968 N.E.2d 174.
Importantly, this process must be repeated for all of the witness's specific prior statements that
the proponent may wish to offer as substantive evidence under subsection (c)(2)(B). In other
words, the witness must be confronted with, and acknowledge making, each of the specific prior
statements sought to be admitted as substantive evidence. Further, this acknowledgement must
be linked to the contents of a specific statement. It is not sufficient, for example, if the witness
merely acknowledges the subject matter of a prior conversation that she had with another person.
¶ 75 After the witness has been confronted with, and given an opportunity to
acknowledge making, her prior statements at the acknowledgement hearing, the proponent will
know which, if any, of the prior statements may be admissible under subsection (c)(2)(B) based
upon the witness's acknowledgement.
¶ 76 b. The Witness' Trial Testimony Is Inconsistent With an Earlier
Statement That the Witness Acknowledges Making at the Acknowledgement Hearing
¶ 77 Assuming that at the acknowledgement hearing the witness acknowledges making
a certain statement, the acknowledged statement is still not admissible until the witness testifies
inconsistently with it in the presence of the jury once the trial resumes. 725 ILCS 5/115-10.1(a)
- 39 -
(West 2012). Once that happens, the proponent can repeat, in the presence of the jury, what he
had just done outside the presence of the jury at the acknowledgement hearing—namely,
confront the witness with the specific prior inconsistent statement and ask the witness whether
she made the statement.
¶ 78 If the witness acknowledges in the presence of the jury having made the prior
inconsistent statement, that acknowledgement constitutes the evidence of the prior inconsistent
statement for purposes of subsection (c)(2)(B), and nothing more need be done for the prior
inconsistent statement to be admitted as substantive evidence. In that instance, the prior
inconsistent statement has been admitted as substantive evidence through the witness's
acknowledgement in open court of having made the statement, and the jury has heard it.
However, in the unlikely event that the witness changes her answer once the jury comes back
into the courtroom, and, contrary to what she had just said at the acknowledgement hearing,
denies having made the prior inconsistent statement, the pertinent portion of the transcript of the
acknowledgement hearing needs to be presented to the jury as evidence of the prior inconsistent
statement, which is then admissible substantively.
¶ 79 c. Trial Surprises—Testimony Inconsistent With Prior Statement:
The Midtrial Acknowledgement Hearing
¶ 80 Although counsel will usually know ahead of time which witnesses are likely to
testify inconsistently with their prior statements, it is possible that a witness may surprise counsel
at trial. If no acknowledgement hearing had been held prior to the witness's testifying in the
presence of the jury and the witness surprises the questioner by testifying inconsistently with a
prior statement, the questioner may ask the trial court (at a sidebar) to excuse the jury for the
purpose of holding an acknowledgement hearing. To avoid shuffling the jury back and forth
- 40 -
each time a new inconsistency arises during the witness's testimony, the court may direct the
proponent of the prior inconsistent statement to complete his examination of the witness before
the acknowledgement hearing takes place. That way, the acknowledgement hearing can be
targeted at only the witness's prior statements that were inconsistent with the witness's testimony
at trial. If, after confrontation at the acknowledgement hearing, the witness acknowledges
making a prior inconsistent statement, the jury can be brought back into the courtroom, at which
time the proponent can again confront the witness with the prior statement and ask the witness
whether she made that prior statement. Again, if the witness does not acknowledge making the
prior inconsistent statement when the jury is present, the transcript of the acknowledgement
hearing can provide the evidence of her prior inconsistent statement, which is then admissible
substantively.
¶ 81 d. Procedural Concerns Regarding Acknowledgement Hearings
¶ 82 Contrary to what happened in this case, in which Longfellow's testimony
provided the evidence of A.W.'s prior inconsistent statements, a witness's prior inconsistent
statements should not be admitted under subsection (c)(2)(B) through the testimony of another
live witness. Instead, the declarant witness's acknowledgement of having made the prior
inconsistent statement is the means by which the statement comes in as evidence, which is then
admissible substantively. Accordingly, having another witness testify about the same prior
inconsistent statement will simply be cumulative. Put another way, once the jury hears the
witness acknowledge that she made a specific prior inconsistent statement, no need exists for
another witness to repeat that same statement as he remembers hearing it.
¶ 83 We also note that whether the acknowledgement hearing occurs before or after the
- 41 -
witness testifies in front of the jury will depend mostly upon practical considerations. If the
proponent, in advance of trial, has reason to believe that a witness will testify at trial
inconsistently with the witness's prior statements, holding the acknowledgement hearing before
the witness is examined in the presence of the jury may be advantageous. That way, assuming
the proponent has then obtained the witness's acknowledgement as to certain specific prior
statements, the proponent can offer those prior statements as substantive evidence if the witness
testifies inconsistently with the prior statements in the presence of the jury. As already
explained, offering the acknowledged prior inconsistent statement simply entails repeating what
was done at the acknowledgment hearing—namely, confronting the witness with the prior
inconsistent statement and asking the witness whether she made the statement. Again, if the
witness refuses to acknowledge making the statement in the presence of the jury, the transcript of
the acknowledgement hearing can serve as the means of offering the witness's acknowledgement
of the statement into evidence.
¶ 84 The quantity of prior statements at issue will also affect the planning of the
acknowledgement hearing. If, as in the present case, the proponent has reason to believe that a
witness will testify at trial inconsistently with an entire narrative of events that the witness
previously provided to another person (in this case, A.W.'s prior statements to Longfellow about
what happened in the trailer over the course of several hours), a lengthy acknowledgement
hearing will likely prove necessary.
¶ 85 As a last matter regarding acknowledgement hearings, we note the Practice Tip
for how to conduct acknowledgement hearings, which can be found at the beginning of section
10:43 of volume 2 of the 2014-2015 Cumulative Supplement of Robert J. Steigmann and Lori A.
- 42 -
Nicholson, Illinois Evidence Manual, § 10:43 (4th ed. 2006).
¶ 86 2. The Errors in This Case
¶ 87 In this case, while A.W. was under oath on the witness stand in the presence of
the jury, the State asked her the following questions:
"[THE STATE]: [Y]ou talked to an officer on September
7th, [2012,] is that correct?
[A.W.]: Yes, I believe I talked to several of them.
[THE STATE]: Okay. You actually even walked an
officer through your house. Is that right?
[A.W.]: I might have. I don't remember that neither.
[THE STATE]: And when you talked to that officer and
walked them through, you even pointed out certain evidence about
things that happened that night. Is that right?
[A.W.]: I—I guess so. I don't recall it[.]
***
[THE STATE]: Now, when you talked to the officer, you
gave him details about what happened between you and the
defendant that night, correct?
[A.W.]: If I would have did it that night, then I probably
would have remembered that night if I did give him details. I just
don't remember what happened now.
[THE STATE]: Did you tell him that night what
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happened?
[A.W.]: I guess so. I can't say for sure because I don't
remember."
¶ 88 Later in the trial, when the State began asking Longfellow about statements that
A.W. made to him, defense counsel objected on the ground that A.W. was neither "questioned
about a detailed interview that she gave with [Longfellow]" nor "confronted with these alleged
statements." The State responded to that objection, as follows:
"Your Honor, she testified under oath that she believed that
she had talked to the officers, that she does not remember what she
told the officers. And she did say that what she told the officers
would have been truthful, basically saying that she would not have
lied to the officers."
The trial court overruled defense counsel's objection, finding that A.W. had acknowledged
making the prior statements at issue:
"The witness did acknowledge, that being [A.W.], that she spoke
with officers. She could not recall which ones, but she indicated
she did speak with someone. She just couldn't remember whom it
was. In the court's view, that's somewhat sketchy, but it is an
acknowledgement under oath that she made statements."
¶ 89 In Sykes, this court held that "[t]he term 'acknowledged' in [section 115-
10.1(c)(2)(B) of the Code] is not a term of art, having only one precise meaning. Instead,
whether a witness's testimony constitutes an acknowledgement within the meaning of section
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115-10.1(c)(2)(B) is a matter left to the trial court's sound discretion ***." Sykes, 2012 IL App
(4th) 100769, ¶ 35, 968 N.E.2d 174. In this case, however, we agree with defendant's claim that
the trial court erred by finding that A.W. acknowledged the statements at issue.
¶ 90 Although A.W. arguably acknowledged talking to police officers about the
incident, her testimony came nowhere close to satisfying the acknowledgement requirement of
subsection (c)(2)(B) of the statute. Even if A.W. had unambiguously acknowledged that she
gave Longfellow a detailed account of what happened inside the trailer, such an
acknowledgement would still be insufficient because section 115-10.1 of the Code speaks in
terms of statements, not references. That is, A.W. needed to be confronted with what she
actually said to Longfellow, not just a reference that she spoke with him. Because A.W. was
never confronted with the contents of a single specific statement that she allegedly made to
Longfellow, her testimony at trial completely failed to meet the acknowledgement requirement
of section 115-10.1(c)(2)(B) of the Code. Accordingly, Longfellow's testimony about what
A.W. told him was not admissible under section 115-10.1(c)(2)(B) of the Code.
¶ 91 The State argues in its brief to this court that because A.W. claimed to not
remember speaking with Longfellow, "the State was not required to engage in the superfluous
task of confronting her with her specific statements she made to Longfellow." We disagree. By
its plain terms, subsection (c)(2)(B) provides that a prior inconsistent statement is not admissible
unless "the witness acknowledged under oath the making of the statement." 725 ILCS 5/115-
10.1(c)(2)(B) (West 2012). Under subsection (c)(2)(B), a witness can acknowledge under oath
the making of a particular statement only when the witness has first been confronted with the
actual contents of that statement. In other words, what the proponent asserts that the witness had
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actually said.
¶ 92 We recognize that properly admitting a prior inconsistent statement under
subsection (c)(2)(B) may be a somewhat laborious procedure for the parties, witnesses, and trial
court to undertake in the midst of a jury trial. However, section 115-10.1 permits no shortcuts
for prior inconsistent statements to become admissible substantively. Further, we note that, as in
the present case, the need to conduct acknowledgment hearings will usually arise only because
police officers in the field have failed to preserve a witness's statements by using one of the
methods set forth in section 115-10.1 of the Code, such as obtaining a written or signed
statement or creating an electronic recording. As already mentioned, when Longfellow
interviewed A.W. mere hours after this incident, she willingly provided him with a detailed
narrative of what happened inside the trailer. But Longfellow did not record that narrative or
obtain a written or signed statement from A.W. setting forth what happened. Perhaps
unsurprisingly in this domestic violence case, A.W.'s willingness to cooperate with the
prosecution did not last. By the time of trial, no extrinsic evidence of A.W.'s prior statements
existed, which meant that if A.W. testified at trial inconsistently with her earlier statements to
Longfellow, the State could seek admission of those prior inconsistent statements only through
appropriate use of section 115-10.1(c)(2)(B) of the Code. Thus, when A.W. testified at trial
inconsistently with what she told Longfellow, the State's only remaining option to get her
statements to Longfellow before the jury was to conduct a proper acknowledgement hearing, as
we discussed previously in this opinion. But the State failed to do so, arguing instead that A.W.'s
reference to her having talked to Longfellow about the incident somehow met the foundational
requirements of section 115-10.1(c)(2)(B) of the Code. The State's argument was wrong, and the
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trial court erred by accepting it.
¶ 93 Neither Longfellow nor any of the other experienced police officers involved in
this case sought to operate a recording device while A.W. walked them through her trailer and
gave a detailed description of the alleged offenses that defendant had committed just hours
earlier. This omission illustrates the continuing need for the training of Illinois law enforcement
personnel so they will become familiar with the requirements of section 115-10.1 of the Code.
State's Attorneys' offices should foster a close working relationship with their local law
enforcement agencies to provide guidance on the effective use of section 115-10.1. That statute
provides a valuable tool in the administration of criminal justice, but the State's Attorneys'
offices will have difficulty wielding that tool effectively unless law enforcement personnel first
do their part.
¶ 94 For the foregoing reasons, we conclude that Longfellow's testimony about what
A.W. told him was inadmissible under section 115-10.1 of the Code, and the trial court erred by
admitting that testimony.
¶ 95 3. Harmless Error
¶ 96 The State contends that Longfellow's testimony about what A.W. told him, even if
erroneously admitted, was harmless. We agree in part. Regarding defendant's conviction for
aggravated criminal sexual assault based upon anal penetration, we conclude that the error was
not harmless because the only evidence of anal penetration came from Longfellow's improper
recitation of hearsay testimony. As to defendant's remaining convictions, we agree with the
State that the error was harmless.
¶ 97 "The improper admission of evidence is harmless where there is no reasonable
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probability that, if the evidence had been excluded, the outcome would have been different."
People v. Brown, 2014 IL App (2d) 121167, ¶ 28, 11 N.E.3d 882. We note that defendant argues
that we should consider the erroneous admission of Longfellow's testimony harmless only if it
appears beyond a reasonable doubt that the error did not contribute to the verdict. However, this
beyond-a-reasonable-doubt standard applies only when the erroneous admission of evidence
implicates a constitutional protection (such as the confrontation clause, for example), whereas
the reasonable-probability standard applies to evidentiary errors that are not constitutional in
dimension. People v. Stull, 2014 IL App (4th) 120704, ¶ 104, 5 N.E.3d 328; In re E.H., 224 Ill.
2d 172, 180, 863 N.E.2d 231, 235 (2006). We apply the reasonable-probability standard in this
case because the erroneous admission of Longfellow's testimony violated a rule of evidence—
namely, the State presented an insufficient foundation for the admission of A.W.'s prior
inconsistent statement under section 115-10.1(c)(2)(B) of the Code.
¶ 98 "When deciding whether error is harmless, a reviewing court may (1) focus on the
error to determine whether it might have contributed to the conviction; (2) examine the other
properly admitted evidence to determine whether it overwhelmingly supports the conviction; or
(3) determine whether the improperly admitted evidence is merely cumulative or duplicates
properly admitted evidence." In re Rolandis G., 232 Ill. 2d 13, 43, 902 N.E.2d 600, 617 (2008).
We view Longfellow's improper testimony about A.W.'s statements as largely cumulative in
nature. Except for the anal penetration element of one of defendant's aggravated criminal sexual
assault convictions, the necessary elements of all the remaining convictions were established by
other admissible evidence. Based upon our review of the record, we conclude that (1) the other
admissible evidence overwhelmingly supported defendant's remaining convictions and (2) no
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reasonable probability exists that the jury would have acquitted defendant if Longfellow's
improper testimony had been excluded.
¶ 99 a. Defendant's Remaining Convictions
¶ 100 The jury found defendant guilty of the following offenses, as set forth in the grand
jury indictments and described in the jury instructions. (We note that defendant does not
challenge his domestic battery convictions, which we need not discuss.)
¶ 101 The jury convicted defendant of home invasion in that he, not being a police
officer acting in the line of duty, without authority, knowingly entered A.W.'s dwelling place and
remained in such dwelling place until he knew or had reason to know that one or more persons
were present, and, while armed with a dangerous weapon, he used force or threatened the
imminent use of force upon any person within the dwelling place. 720 ILCS 5/12-11(a)(1) (West
2010).
¶ 102 The jury convicted defendant of two identical counts of aggravated criminal
sexual assault in that he committed an act of sexual penetration by placing his penis in A.W.'s
vagina and used force or the threat of force by displaying, threatening to use, or using a
dangerous weapon in a manner that led A.W. to reasonably believe, under the circumstances, that
the object was a dangerous weapon. 720 ILCS 5/11-1.30(a)(1) (West 2010).
¶ 103 The jury convicted defendant of aggravated unlawful restraint in that he, while
using a deadly weapon, knowingly and without authority detained A.W. 720 ILCS 5/10-3.1(a)
(West 2010).
¶ 104 b. The Admissible Evidence Supporting
Defendant's Remaining Convictions
¶ 105 The 9-1-1 call alone provided sufficient evidence to sustain defendant's
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convictions for home invasion, two counts of aggravated sexual assault based upon vaginal
penetration, and aggravated unlawful restraint. A.W. reported to the 9-1-1 dispatcher that
defendant (1) was "hiding" in her shower when she arrived home; (2) "got the knives out of the
drawer"; (3) "followed [A.W.] around everywhere [she] went so [she] couldn't leave"; (4) "made
[A.W.] have sex with him twice" while she was menstruating; and (5) "punched [A.W.] in [her]
back and then punched [her] in [her] chest." The physical evidence recovered from the scene, as
well as A.W.'s bodily injuries, corroborated her 9-1-1 report.
¶ 106 Defendant's statements during the police station interview confirmed, among
other things, that he (1) entered A.W.'s trailer, where he and A.W. remained for several hours;
(2) held A.W. "against her will"; (3) physically battered A.W. inside the trailer; (4) had sexual
intercourse with A.W. multiple times; (5) picked up a knife, which probably scared A.W. and
influenced her willingness to engage in sex acts; and (6) chased A.W. down the street while she
was wearing only a towel, hitting her when she was on the ground. Defendant also admitted that
A.W. attempted to leave the trailer, but he physically blocked her from doing so.
¶ 107 Defendant's claim that he and A.W. had consensual sex makes no sense in light of
the undisputed evidence that (1) defendant physically battered A.W. multiple times throughout
the night, (2) defendant admitted in his interview that he held A.W. "against her will," (3) A.W.
was crying throughout the night (as can be seen on the video that defendant recorded from
A.W.'s cell phone, in which A.W. was standing naked and crying), and (4) A.W. fled from
defendant in a panic after she was able to escape her trailer. Additionally, we note that A.W. (1)
hid in Gregory's trailer while defendant looked for her, (2) testified at trial that she would not
have willingly engaged in sexual intercourse while she was menstruating, and (3) mentioned to
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defendant over the phone that she engaged in sex acts because defendant held a knife to her and
she was scared.
¶ 108 The jailhouse phone calls between defendant and A.W. provide perhaps the
strongest evidence of defendant's guilt. In discussing the State's charges and brainstorming how
to defeat the prosecution's case, neither defendant nor A.W. ever entertained the idea of simply
telling the truth about what happened. Instead, defendant's singular focus was to convince A.W.
to either lie or say nothing. For example, defendant gave A.W. the following instructions for her
grand jury testimony:
"When you go just say you plead the fifth. No this didn't happen
and that didn't happen man. You just wanna drop all the charges
all you gotta do. They can't do nothing to ya. Okay?
***
[J]ust say you plead the fifth about everything. Every every
question they ask you just say you plead the fifth."
¶ 109 We also note that at the time of the phone calls, defendant had been fully apprised
of the State's allegations against him. The jury even listened to defendant recite some of the
State's charges to A.W. over the phone. However, aside from some quibbling with A.W. over
whether her trailer door was unlocked, defendant had very little to say in dispute of the overall
truth of the State's allegations. At one particularly revealing moment in a phone call, defendant's
question about a factual detail inadvertently prompted A.W. to openly discuss what actually
happened:
"[DEFENDANT]: I do whatever you want me to do? You
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didn't say that?
[A.W.]: Yeah, cause you had a knife to me.
[DEFENDANT]: Oh man don't do that over this phone.
Like you just gonna—
[A.W.]: *** [O]kay well don't talk about that then cause
you already know. I'm not gonna lie about it. But like I said I'll do
what I can to get it took off."
The jailhouse phone calls bolstered the credibility of the State's case by revealing that defendant
and A.W. shared knowledge of defendant's guilt.
¶ 110 We further note that defendant responded to the State's charges by cajoling A.W.,
his victim, to refuse to participate in this criminal case. He largely succeeded in his efforts, and,
in so doing, deliberately sabotaged the mechanism by which the courts search for truth and
dispense justice. For this reason, we have little sympathy for defendant's claim that he was
denied a fair trial. The centerpiece of a fair trial for defendant would have been direct testimony
from A.W., the only other person who knew exactly what happened inside the trailer on the night
in question. By convincing A.W. to withhold that information, defendant demonstrated that he
was not actually interested in a fair trial—he was interested in no trial at all. His efforts to
prevent the truth from coming out bolstered the credibility of the evidence supporting the State's
factual allegations. Longfellow's testimony, albeit improper, was a direct consequence of
defendant's efforts to thwart the criminal justice system's search for truth. Our conclusion that
the jury would have convicted defendant even without Longfellow's testimony is based, in part,
upon the natural inference that the jury could have drawn from defendant's efforts to silence the
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only other person who could have revealed what actually happened.
¶ 111 c. Forfeiture by Wrongdoing
¶ 112 Indeed, an argument could be made that the admission of A.W.'s statements
through Longfellow's testimony was not error at all because defendant deliberately sought to
make A.W.'s direct testimony unavailable for the jury to hear. Illinois Rule of Evidence
804(b)(5) provides as follows:
"(b) Hearsay Exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a witness:
***
(5) Forfeiture by Wrongdoing. A
statement offered against a party that has engaged
or acquiesced in wrongdoing that was intended to,
and did, procure the unavailability of the declarant
as a witness." Ill. R. Evid. 804(b)(5) (eff. Jan. 1,
2011).
¶ 113 Illinois Rule of Evidence 804(a)(3) defines " '[u]navailability as a witness' " as
including situations in which the declarant "testifies to a lack of memory of the subject matter of
the declarant's statement." Ill. R. Evid. 804(a)(3) (eff. Jan. 1, 2011). In the present case, the
"subject matter" of the statement of the declarant (A.W.) is the sexual assaults and other harm
she suffered at the hands of defendant. Defendant's cajolery succeeded in persuading A.W. not
to testify at trial beyond the point at which she discovered defendant in her shower. After that
point, she claimed to be unable to remember what defendant did to her.
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¶ 114 We acknowledge that forfeiture by wrongdoing has typically been used in murder
cases (see, e.g., People v. Hanson, 238 Ill. 2d 74, 97, 939 N.E.2d 238, 252 (2010); People v.
Coleman, 2014 IL App (5th) 110274, 24 N.E.3d 373; People v. Peterson, 2012 IL App (3d)
100514-B, 968 N.E.2d 204), but we see no reason why that doctrine should not apply in any case
in which a defendant has succeeded in undermining the criminal justice system by preventing the
trier of fact from hearing all pertinent testimony regarding the case on trial. Certainly,
defendant's repeated jailhouse phone calls to A.W. leave no doubt in this case of either his intent
or his success in getting her not to testify. See People v. Hampton, 406 Ill. App. 3d 925, 940,
941 N.E.2d 228, 240 (2010) (in a case involving charges of aggravated criminal sexual assault
and home invasion in which the defendant and his mother colluded to convince a witness to
" 'plead the fifth' " at trial, the appellate court affirmed the trial court's application of the doctrine
of forfeiture by wrongdoing).
¶ 115 However, the State has not argued that the doctrine of forfeiture by wrongdoing
applies in this case. Accordingly, because this issue has not been raised, and because we
conclude that the admission of Longfellow's hearsay testimony was harmless error, we need not
address whether defendant's wrongful efforts to keep A.W. quiet estop him from challenging
Longfellow's testimony.
¶ 116 Based upon the strength of the admissible evidence of defendant's guilt, we
conclude that the erroneous admission of Longfellow's testimony was harmless error as to
defendant's convictions for home invasion, aggravated criminal sexual assault based upon
vaginal penetration, domestic battery, and aggravated unlawful restraint.
¶ 117 B. Opinion Evidence on Credibility
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¶ 118 Defendant next argues that the State solicited improper opinion testimony from
(1) Longfellow regarding A.W.'s credibility and (2) Larimore regarding defendant's credibility.
¶ 119 Initially, we note that defendant forfeited his claims of error regarding this
evidence by failing to object at trial. See People v. Korzenewski, 2012 IL App (4th) 101026, ¶ 7,
970 N.E.2d 90. However, defendant contends that we should consider the merits of these claims
because (1) the admission of the improper opinion evidence constituted plain error and (2) in the
alternative, defense counsel rendered ineffective assistance by failing to (a) object to
Longfellow's and Larimore's statements and (b) request a limiting instruction that Larimore's
statements, if admissible, could be considered only for purposes of lending context to the
statements that defendant made during the interview. We disagree with each of these
contentions.
¶ 120 1. Plain Error
¶ 121 "The plain-error doctrine is a narrow and limited exception." People v. Hillier,
237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187 (2010). Under this doctrine, we will consider an
unpreserved error if "(1) a clear or obvious error occurred and 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) a clear or obvious error occurred and that 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." People v. Sargent, 239 Ill. 2d 166,
189, 940 N.E.2d 1045, 1058 (2010). "In both instances, the burden of persuasion remains with
the defendant." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005).
¶ 122 Defendant proceeds under the first prong of the plain-error analysis, arguing that
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the evidence was closely balanced because "[t]he trial was a credibility contest." Specifically,
defendant asserts that (1) Longfellow's testimony improperly bolstered the credibility of the
inculpatory statements A.W. apparently made to Longfellow and (2) Larimore's comments
improperly diminished the credibility of the exculpatory statements that defendant made during
the police station interview. We choose to begin our plain-error analysis by first addressing
whether any error occurred at all. See Sargent, 239 Ill. 2d at 189, 940 N.E.2d at 1059 ("As a
matter of convention, our court typically undertakes plain-error analysis by first determining
whether error occurred at all.").
¶ 123 a. Longfellow's Comment on A.W.'s Credibility
¶ 124 Regarding A.W.'s credibility, defendant argues that Longfellow gave the
following improper testimony when the State asked him to describe A.W.'s demeanor:
"She was still in shock. I mean it was just a very blank
stare. She was scared, you know, talking about it, still trembling
but very believable, very credible."
¶ 125 We agree with defendant that Longfellow's testimony—in which he stated that
A.W. was "very believable, very credible" when she told Longfellow what defendant had done—
was clear and obvious error. This court has described it as a "fundamental rule that one witness
should not be allowed to express his opinion as to another witness's credibility." (Emphasis
added.) People v. Henderson, 394 Ill. App. 3d 747, 754, 915 N.E.2d 473, 478 (2009).
"Questions of credibility are to be resolved by the trier of fact." People v. Kokoraleis, 132 Ill. 2d
235, 264, 547 N.E.2d 202, 216 (1989). Accordingly, " 'it is generally improper to ask one
witness to comment directly on the credibility of another witness.' " People v. Boling, 2014 IL
- 56 -
App (4th) 120634, ¶ 121, 8 N.E.3d 65 (quoting People v. Becker, 239 Ill. 2d 215, 236, 940
N.E.2d 1131, 1143 (2010)).
¶ 126 We recognize that in this case, Longfellow volunteered his opinion as to A.W.'s
credibility without the State's directly asking him to do so. (The State had simply asked
Longfellow to describe A.W.'s demeanor.) This does not affect our conclusion. In Boling, a
child sexual assault victim's out-of-court statements to a sexual assault nurse examiner were
admitted pursuant to section 115-13 of the Code (725 ILCS 5/115-13 (West 2012)), which
creates a hearsay exception in certain cases for a victim's out-of-court statements that are made
for purposes of medical diagnosis or treatment. The nurse in Boling, while under direct
examination by the State, was testifying about her medical interview of the victim when she
stated, " '[the victim] gave me a really good—what I felt was a credible history.' " Boling, 2014
IL App (4th) 120634, ¶ 57, 8 N.E.3d 65. The State had not asked the nurse about the victim's
credibility. However, this court noted that "the State was responsible for adequately preparing
its witnesses to ensure that [the nurse] did not volunteer improper and prejudicial testimony."
(Emphasis in original.) Id. ¶ 122, 8 N.E.3d 65 (citing People v. Rice, 234 Ill. App. 3d 12, 19,
599 N.E.2d 1253, 1259 (1992) ("It is axiomatic that prosecutors have a certain amount of control
over their witnesses; in the instant case, the State neglected to keep [the witness's] testimony
within the bounds delineated by the court.")). Similarly, in this case, the State was responsible
for preparing Longfellow to ensure that he would not volunteer improper and prejudicial
testimony regarding A.W.'s credibility.
¶ 127 We note that although Longfellow's testimony about what A.W. told him was
inadmissible hearsay (as we discussed in the previous section of this opinion), our plain-error
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analysis does not focus on the overall prejudicial effect of that improper hearsay testimony.
Instead, we focus narrowly on Longfellow's comment that A.W. was "very believable, very
credible." The question before us is whether the evidence was so closely balanced that
Longfellow's improper comment on A.W.'s credibility alone threatened to tip the scales of justice
against defendant. Sargent, 239 Ill. 2d at 189, 940 N.E.2d at 1058. We conclude that it did not.
¶ 128 Before Longfellow commented that A.W. was "very believable, very credible,"
the jury heard the 9-1-1 call, which occurred shortly before A.W. spoke with Longfellow. In that
call, A.W. provided the 9-1-1 dispatcher with the same general report that she gave Longfellow.
Namely, A.W. told the dispatcher that defendant (1) hid in A.W.'s shower and waited for her to
come home, (2) grabbed A.W. by the hair and dragged her into her kitchen, (3) looked through
A.W.'s cell phone, (4) took hold of a knife (or knives), (5) held A.W. against her will, (6) made
A.W. disrobe, (7) forced A.W. to have sex with him twice while she was menstruating, (8) struck
A.W., and (9) chased A.W. when she tried to escape. The physical evidence recovered from the
scene corroborated that account. Although the jury could not visually observe A.W.'s
appearance as she made the 9-1-1 call, the audio recording provided a solid foundation for the
jury to make its own credibility determination as to the veracity of A.W.'s report. The 9-1-1
recording clearly revealed A.W.'s trembling voice, deep sobs, and prompt, definitive answers to
the dispatcher's specific questions. A.W. sat on the witness stand, listening as that recording was
played for the jury in open court. After the recording was played, A.W. testified that although
she did not remember the call, she would not have "made something up" to the dispatcher.
¶ 129 The jury also learned that defendant had successfully convinced A.W. to not
cooperate with the police or the State's Attorney's office. The jailhouse phone calls revealed (1)
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defendant coaching A.W. on how to thwart the prosecution and (2) A.W. keeping defendant
apprised of her efforts. A.W. and defendant also talked about the incident, although most of the
details remained unspoken. Even after A.W. told defendant that she would help him avoid
prosecution, she never said anything—either to defendant over the phone or at trial—to indicate
that her initial report was untruthful. A.W. even testified at trial that although she could not
remember what happened, she would not have fabricated a story to the police.
¶ 130 Although A.W.'s credibility was undoubtedly a central issue in this case, we
conclude that the admissible evidence upon which the jury could have judged A.W.'s credibility
was so voluminous that Longfellow's improper comment alone could not have threatened to tip
the scales of justice against defendant. Accordingly, Longfellow's statement regarding A.W.'s
credibility was not plain error.
¶ 131 b. Larimore's Comment about Defendant's Credibility
¶ 132 Regarding defendant's credibility, defendant contends that the jury should not
have heard the following statements, which Detective Larimore made to defendant during the
police station interview:
"There's a couple of things that aren't making sense to me.
Some of the things you're saying, I believe you're being honest
about. But you are not being honest about everything.
***
I've interviewed more people than I can count, okay? And
I've talked to people that have been 100% honest with me. I've
been—I've talked to people that have been 0% honest with me.
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Everything that came out of their mouth was a lie. And I've—most
of the people that I've talked to tell some truth and some
dishonesty, okay?
***
For something that happened this recently, you seem to not
remember anything. Every question I ask you, you're taking
forever to remember."
¶ 133 Larimore clearly remarked on defendant's credibility by accusing defendant of
"not being honest about everything." However, as one Illinois evidence scholar has noted,
"[c]ontext is critical in the determination of whether otherwise inadmissible opinion and fact
statements will be received." Michael H. Graham, Graham's Handbook of Illinois Evidence
§ 611.25, at 105 (Supp. 2015). Viewed in the context of the entire 42-minute police station
interview in this case, we conclude that Larimore's statements to defendant were properly
admitted as part of the interview recording.
¶ 134 Larimore directed his statements to the lone suspect in an ongoing criminal
investigation. The jury knew that Larimore's interview with defendant took place in an
interrogation room at the police station shortly after defendant had been arrested. The jury also
knew that, prior to the interview, A.W. had called 9-1-1 to report that defendant entered her
trailer without permission, threatened her with a knife, held her against her will, and sexually
assaulted her. A.W. repeated this story to the investigating detectives, whom she walked through
her trailer and showed physical evidence that appeared to corroborate her story. Based upon the
information available to him, Larimore had strong reason to believe that defendant had
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committed aggravated criminal sexual assault, domestic battery, unlawful restraint, and home
invasion. Viewed in that context, it was hardly surprising that Larimore did not believe that
defendant "was being honest about everything" when defendant initially denied any wrongdoing.
Accordingly, given the context, the prejudicial effect of Larimore's statements was minimal.
¶ 135 Larimore's statements also had probative value in that they provided context for
the remainder of the interview, which continued well beyond defendant's first recitation of his
story. Had Larimore's statements expressing his skepticism of defendant's story simply been
edited out of the interview recording, the jury would have been left wondering why Larimore
continued questioning defendant about the same factual details after defendant had already
provided an initial set of answers. Of course, even if Larimore's statements had been redacted,
most jurors would have likely figured out that Larimore continued questioning defendant
because he did not believe defendant's initial story. Defendant's version of events changed
constantly throughout the interview, and his difficulty answering even the simplest of Larimore's
questions was unmistakable. By the time Larimore made the statements at issue (approximately
20 minutes into the 42-minute interview), defendant's credibility was already in doubt.
Defendant appeared so bewildered by Larimore's simple, straightforward questions that no
reasonable juror could have thought he was "being honest about everything." (Perhaps some
things, but certainly not everything.) Simply put, the jury did not need Larimore's statements to
figure out that defendant was not telling the whole truth.
¶ 136 To the extent that Larimore's statements carried any prejudicial effect, their
probative value far outweighed any prejudice. Viewed in the context of the entire 42-minute
interview at issue in this case, we conclude that the inclusion of Larimore's statements in the
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interview recording was not error.
¶ 137 2. Ineffective Assistance of Counsel
¶ 138 Defendant also contends that his trial counsel was ineffective for failing to (1)
object to Longfellow's and Larimore's statements and (2) request a limiting instruction that
Larimore's statements, if admissible, could be considered only for purposes of lending context to
the statements that defendant made during the interview.
¶ 139 "To show ineffective assistance of counsel, a defendant must demonstrate that 'his
attorney's representation fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel's errors, the result of the proceeding would have been
different.' " Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601 (quoting People v. Patterson, 192 Ill.
2d 93, 107, 735 N.E.2d 616, 626 (2000), citing Strickland v. Washington, 466 U.S. 668, 687, 695
(1984)). "Further, in order to establish deficient performance, the defendant must overcome the
strong presumption that the challenged action or inaction may have been the product of sound
trial strategy." People v. Smith, 195 Ill. 2d 179, 188, 745 N.E.2d 1194, 1200 (2000).
¶ 140 This court has held that "[c]laims of ineffective assistance of counsel are usually
reserved for postconviction proceedings where a trial court can conduct an evidentiary hearing,
hear defense counsel's reasons for any allegations of inadequate representation, and develop a
complete record regarding the claim and where attorney-client privilege no longer applies."
People v. Weeks, 393 Ill. App. 3d 1004, 1011, 914 N.E.2d 1175, 1182 (2009) (citing People v.
Kunze, 193 Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296 (1990)). Based upon these
considerations, we decline to reach the merits of defendant's ineffective-assistance-of-counsel
claim in this direct appeal.
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¶ 141 C. Defendant's Conviction for Home Invasion
¶ 142 Last, defendant contends that the State's evidence failed to prove him guilty of
home invasion beyond a reasonable doubt. Specifically, defendant asserts that the State failed to
prove that he entered A.W.'s trailer "without authority" because (1) A.W. acknowledged in her
testimony that it was possible she left her door unlocked for defendant and (2) the State
presented no evidence that defendant forced entry or possessed criminal intent when he entered.
We are not persuaded.
¶ 143 Initially, we note that the offense of home invasion does not require proof of (1)
forced entry or (2) the defendant's intent at the time of entry. See 720 ILCS 5/12-11(a)(1) (West
2010). Proof that the defendant forced entry or had a criminal intent could serve, at most, as
circumstantial evidence of the defendant's lack of authority to enter the dwelling. The lack of
such particular circumstantial evidence is not dispositive in this case.
¶ 144 Although defendant told Larimore during the police station interview that A.W.
invited him into her trailer, this self-serving statement was the only evidence to support
defendant's claim that he had authority to enter A.W.'s trailer. Not only was defendant's
credibility virtually nonexistent, but the remaining evidence overwhelmingly supported the
conclusion that defendant entered and remained in A.W.'s trailer without authority. A.W.'s
statements to the 9-1-1 dispatcher, her trial testimony, and the jailhouse phone calls
unambiguously revealed that defendant entered A.W.'s trailer and waited for her in the shower
stall without her knowledge or permission. In the jailhouse calls, A.W. specifically refuted
defendant's claim that the front door of the trailer was unlocked. (We note that although
defendant told A.W. that he entered through the unlocked front door, defendant told Larimore
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that he entered through the unlocked back door after smoking a blunt on A.W.'s back porch.)
Simply put, the State's evidence overwhelmingly supported defendant's conviction for home
invasion.
¶ 145 D. Defendant's Retrial for Aggravated Criminal Sexual Assault
Based Upon Anal Penetration Does Not Violate the Double Jeopardy Clause
¶ 146 For the reasons stated, we reverse defendant's conviction and sentence for
aggravated criminal sexual assault based upon anal penetration, and we remand for further
proceedings on that charge. In doing so, we note that the double jeopardy clause does not
prohibit retrial on the anal-penetration count even though the State presented no admissible
evidence of that offense. The supreme court has explained the pertinent rules, as follows:
"The double jeopardy clause forbids a second, or
successive, trial for the purpose of affording the prosecution
another opportunity to supply evidence it failed to muster in the
first proceeding. (Burks v. United States (1978), 437 U.S. 1, 11,
*** 98 S. Ct. 2141, 2147.) As this court acknowledged in People
v. Mink (1990), 141 Ill. 2d 163, 173, [565 N.E.2d 975, 979], for
purposes of double jeopardy the United States Supreme Court has
distinguished between judgments reversing convictions on account
of trial error and judgments reversing convictions on account of
evidentiary insufficiency. Reversal for trial error is a
determination that the defendant has been convicted by means of a
judicial process defective in some fundamental respect, whereas
reversal for evidentiary insufficiency occurs when the prosecution
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has failed to prove its case, and the only proper remedy is a
judgment of acquittal. (Mink, 141 Ill. 2d at 173[, 565 N.E.2d at
979].) Although the double jeopardy clause precludes the State
from retrying a defendant after a reviewing court has determined
that the evidence introduced at trial was legally insufficient to
convict, the double jeopardy clause does not preclude retrial of a
defendant whose conviction has been set aside because of an error
in the proceedings leading to the conviction. (Mink, 141 Ill. 2d at
173-74[, 565 N.E.2d at 979-80].) Moreover, retrial is permitted
even though evidence is insufficient to sustain a verdict once
erroneously admitted evidence has been discounted, and for
purposes of double jeopardy all evidence submitted at the original
trial may be considered when determining the sufficiency of the
evidence." (Emphasis added.) People v. Olivera, 164 Ill. 2d 382,
393, 647 N.E.2d 926, 931 (1995).
¶ 147 The supreme court has reiterated these principles in subsequent decisions. See
People v. Lopez, 229 Ill. 2d 322, 367, 892 N.E.2d 1047, 1073 (2008); People v. McKown, 236 Ill.
2d 278, 311, 924 N.E.2d 941, 959 (2010) ("If the evidence presented at the first trial, including
the improperly admitted evidence, would have been sufficient for any rational trier of fact to find
the essential elements of the crime proven beyond a reasonable doubt, retrial is the proper
remedy.").
¶ 148 III. CONCLUSION
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¶ 149 We reverse defendant's conviction and sentence for aggravated criminal sexual
assault based upon anal penetration and otherwise affirm defendant's remaining convictions and
sentences in McLean County case Nos. 12-CF-891 (our case No. 4-13-0644) and 12-CF-1020
(our case No. 4-13-0650). As part of our decision, we award the State its $50 statutory
assessment against defendant as costs of this appeal.
¶ 150 No. 4-13-0644, Affirmed in part and reversed in part; cause remanded.
¶ 151 No. 4-13-0650, Affirmed.
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