People v. Brothers, s. 4–13–0644

39 N.E.3d 1101

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Eddie BROTHERS, Defendant–Appellant.

Nos. 4–13–0644

4–13–0650.

Appellate Court of Illinois, Fourth District.

Sept. 18, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of State Appellate Defender's Office, Chicago, for appellant.

Jason Chambers, State's Attorney, Bloomington (Patrick Delfino, David J. Robinson, and James C. Majors, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice STEIGMANN delivered the judgment of the court, with 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.

¶ 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 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 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.

[DISPATCHER]: * * * 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.?

[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.

[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 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

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