People v. Butler

1

2024 IL App (1st) 211175-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY BUTLER, Defendant-Appellant.

No. 1-21-1175

Court of Appeals of Illinois, First District, Fourth Division

July 18, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 15 CR 9154 Honorable Alfredo Maldonado, Judge, presiding.

JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Ocasio concurred in the judgment.

ORDER

MARTIN, JUSTICE

¶ 1 Held: (1) Child victim's out-of-court statements in recorded interview were admissible when child victim testified at trial and was available for cross examination. (2) Failure to request redactions did not amount to ineffective assistance of counsel when defendant expressly consented to have the jury view the full interview. (3) Trial court was not required to give instruction on defendant's pretrial statements sua sponte. (4) Prosecutor's remarks in closing arguments did not deprive defendant of a fair trial.

¶ 2 Sidney Butler was charged by indictment with two counts of predatory criminal sexual assault, two counts of aggravated criminal sexual assault, and three counts of aggravated criminal sexual abuse. Each charge alleged that the crimes were perpetrated against Butler's younger sister K.P., when she was under the age of 13. A jury found Butler guilty on all seven counts and he was sentenced to an aggregate term of 21 years' imprisonment. Butler appeals claiming that (1) K.P.'s out-of-court interview was improperly admitted into evidence when her trial testimony was not accusatory, (2) trial counsel was ineffective for failing to request that certain portions of the video interview not be published to the jury, (3) the trial court should have instructed the jury on how to consider evidence of Butler's pretrial statements, and (4) the prosecutor made improper remarks in closing argument, depriving him of a fair trial. For the reasons that follow, we affirm.^[1]

¶ 3 I. BACKGROUND

¶ 4 A. Pre-trial Matters

¶ 5 Before trial, the State requested a hearing, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10(b)(1) (West 2016)), on the admissibility of a video recorded victim sensitive interview (VSI). At the hearing, forensic interviewer Ali Alstott testified that she interviewed K.P. one-on-one at the Chicago Children's Advocacy Center (CAC) on November 10, 2014. After reciting her credentials, Alstott explained that she followed a protocol for the interview that uses open-ended non-suggestive questioning. Alstott did not review any police reports or other information regarding K.P.'s case before the interview.

¶ 6 A recording of the interview was played at the hearing. K.P. stated that she was age nine and she lived with her mother, sister, and brother. Her father, Roland, stays at their house. K.P. said her dad is "mean" and "always hits me." K.P. went on to discuss the latest occasion when her dad hit her. She explained that he was angry because her little sister told him K.P. had "touched on [her] little sisters." When confronted by him, K.P. told her dad that her brothers and cousin had been "touching on" her. Alstott asked K.P. who had been "touching on" her. K.P. identified her cousin, Matthew, brothers, Kevon and Sidney, and her mom's "old boyfriend," Tyree. K.P. explained that she had not told anyone before because her brothers told her to "be quiet about it."

¶ 7 K.P. stated that Sidney began "doing stuff' to her when she was four years old on occasions when her parents were not home. When asked to specify, K.P. said he "pulled his private part out of his clothes," made her "suck his private part," pulled her "panties down," and put his "private part" in her "butt." K.P. stated that she and Sidney were both standing when she sucked on his private part. K.P. then said she was "like this" when Sidney put his private part in her butt, demonstrating by bending her torso forward. She also demonstrated Sidney's action by thrusting her pelvis. She explained that Sidney put his "private part" in the "line" but not the "hole," and it hurt. Sidney made K.P. "pinky promise" not to tell anyone. K.P. said Sidney did these things to her "more than five times" and as recently as 2013, before he moved out of her home. She went on to describe an incident when she was age five. Sidney tried to make her "suck his private part and [she] didn't want to." Sidney placed his right hand behind her head and pushed her head back and forth. K.P.'s sister pulled her away. K.P. ran to a bathroom and feigned sickness to deter Sidney from entering. K.P. described in detail other instances when her cousin and other brother did similar things to her.

¶ 8 Later, K.P. relayed that her father is violent toward others in her home. Specifically, he has hit and thrown items at her mom, "slammed" her brother into a wall, and hit her little sisters, turning their skin red. On the most recent occasion, K.P.'s mom tried to intervene when Roland was beating K.P., but he pushed her mom and threw her mom into a wall.

¶ 9 At the conclusion of the interview, Alstott asked K.P. if she knew the difference between the truth and a lie. K.P. replied that the truth is when "you tell what really happened" and a lie is when "you don't tell what really happened, you tell a different story." K.P. confirmed that everything she had talked about was the truth and no one had told her what to say or not say. K.P. also confirmed that no one had spoken with her about being interviewed at the CAC beforehand. She was only told that she was "going to walk to another building."

¶ 10 Butler submitted a handwritten statement from K.P.'s father, Roland, which he had given to police on December 30, 2014. In the statement, Roland explains that K.P. is his daughter with K.P.'s mother, T.P., and he has three other children with a different mother, including a daughter, R.P. Roland had been living with T.P. and her four children, which included K.P., another daughter, and T.P.'s two sons, Kevon and Sidney. On November 5, 2014, Roland received a call from R.P.'s mother, informing him that R.P. said, "smell my breath it smells like [K.P.]'s tutu." Roland went to T.P.'s home and confronted K.P. about "what she had been doing to his little kids." T.P. screamed and smacked K.P. when she stood silent. K.P. then admitted she had been "making her sisters eat her stuff' and said she "deserved to die." Roland told T.P. he was going to give K.P. a "whooping" and began whipping her with his belt. T.P. began whipping K.P. with an orange extension cord. Throughout the "whooping," K.P. turned, twisted, and screamed, "I deserve to die." The next day, K.P. was "welted up pretty good." She was kept home from school as her parents wanted to conceal her welts.

¶ 11 The State argued that the VSI exhibited sufficient safeguards of reliability to be admissible under section 115-10. The State noted that K.P. gave detailed descriptions of her abusers' genitals and of sexual conduct beyond the knowledge of a normal nine-year-old. In addition, she gave specific and unique details of different incidents involving different abusers. Butler's counsel argued that K.P.'s statements were coerced by the "vicious beating" she endured a few days before the VSI, and it was not sufficiently reliable to justify its admission.

¶ 12 The court found that the VSI provided sufficient safeguards of reliability and would be admissible at trial if K.P. testifies. The court observed that K.P. had not been forced to "give up" or accuse Butler. Rather, K.P.'s outcry was "a tangent out of the original family incident."

¶ 13 The State later informed the court that it intended to introduce the entirety of K.P.'s VSI at trial, which included discussion of collateral matters, such as K.P.'s admission to sexual conduct with her younger siblings. Defense counsel indicated that Butler wanted the VSI played in full. Butler confirmed his agreement when asked directly by the court.

¶ 14 Additionally, the State indicated that it planned to introduce evidence of Butler's statements to detectives admitting that he was K.P.'s brother and had babysat her. Defense counsel objected based on the rule of completeness. He argued that the statements should not be admitted unless Butler's other statements in the same interview denying he assaulted or abused K.P. were also admitted. The court overruled the objection, reasoning that the rule of completeness pertains to distinct topics, not an entire interview.

¶ 15 B. Trial

¶ 16 K.P. was the first witness called. She testified that she was 13 years old and in the seventh grade.^[2] The prosecutor began asking K.P. about her family. K.P. nodded her head in response to a few questions and then became unresponsive. The prosecutor asked K.P. whether she understood the questions or was refusing to answer. K.P. gave no response. The jury was excused from the courtroom. The parties agreed that K.P. was refusing to answer questions. The prosecutor explained "I didn't really know what to anticipate in this case. I haven't had the opportunity to speak with her. Her mother would not let me speak with her." The parties agreed to recall K.P. after another witness testified.

¶ 17 Chicago Police Detective Ian Barclay testified that he met K.P.'s grandmother on November 10, 2014, when she brought K.P. to the CAC. Detective Barclay learned that K.P. was born in 2005 and was nine years old at that time. Ali Alstott, a forensic interviewer, met with K.P. in a "pod," which consists of an interview room equipped with recording devices and an observation...