People v. Hemphill

1

2024 IL App (2d) 230050-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEAN HEMPHILL, Defendant-Appellant.

No. 2-23-0050

Court of Appeals of Illinois, Second District

May 10, 2024

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

Appeal from the Circuit Court of Kendall County. No. 12-CF-299 Honorable John F. McAdams, Judge, Presiding.

JUSTICE KENNEDY delivered the judgment of the court. Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.

ORDER

KENNEDY JUSTICE

¶ 1 Held: The trial court did not err in summarily dismissing defendant's postconviction petition seeking relief from his convictions of sex offenses against his daughter. First, the actual innocence claim was frivolous because it was based on evidence that was (a) not newly discovered, (b) cumulative of evidence on the issue of the victim's credibility, and (c) not likely to change the result on retrial. Second, the claim that the State withheld exculpatory evidence failed to show that the evidence in question-relating to the victim's credibility-was suppressed by the State or would likely change the result on retrial. Finally, defendant's claim that trial counsel was ineffective for failing to present certain evidence at trial was frivolous because the evidence was either inadmissible (e.g., defendant's prior consistent statements) or would not likely change the result on retrial (e.g., evidence relating to the victim's credibility).

¶ 2 On October 10, 2012, defendant, Sean Hemphill, was indicted on four counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b), (c)(1)(i) (West 2012)). The indictment alleged that, on or about January 1, 2012, defendant committed an act of sexual conduct with his daughter, A.P.H., who was under 18 years of age, in that he had A.P.H. touch his penis for the purpose of his sexual gratification.

¶ 3 On March 19, 2014, following a jury trial, defendant was found guilty of all counts. Defendant filed a motion for a judgment notwithstanding the verdict or a new trial. The trial court granted defendant's motion and ordered a new trial. Defendant then filed a motion to dismiss the indictment based on double jeopardy, which the court denied. Defendant appealed, and we affirmed. See People v Hemphill, 2016 IL App (2d) 151196-U, ¶ 2 (Hemphill I).

¶ 4 On July 31, 2017, before the second trial began, the State charged defendant with an additional four counts of aggravated criminal sexual abuse (for a total of eight counts) and six counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)).

¶ 5 On November 7, 2018, following a bench trial, the trial court found defendant guilty of all charges. The trial court sentenced defendant to an aggregate term of 45 years in prison. Defendant appealed, and we affirmed. See People v. Hemphill, 2021 IL (App) 2d 190473-U, ¶ 2 (Hemphill II).

¶ 6 On October 24, 2022, defendant filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)), seeking relief from those convictions. The trial court summarily dismissed the petition, and defendant now appeals. We affirm.

¶ 7 I. BACKGROUND^[1]

¶ 8 A. First Trial and Appeal

¶ 9 On March 6, 2013, before defendant's first trial, the State gave notice under section 11510 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)) of its intent to introduce out-of-court statements made by A.P.H. The trial court ruled that the State could introduce certain statements that A.P.H. made to (1) her mother, Ryan Hemphill (Ryan), (2) an interviewer during A.P.H.'s Victim Sensitive Interview (VSI) at the Children's Advocacy Center, and (3) personnel at Long Beach Elementary School.

¶ 10 Defendant's first jury trial began on March 17, 2014. A.P.H. testified that she was born on January 4, 2004, and was currently 10 years old. In 2012, she lived with both parents in a three-bedroom house. She was afraid to sleep in her own bed because she once saw an ant crawling on it. She slept instead with one of her parents, who slept in separate bedrooms. One day, she heard from some other children that if a boy kissed a girl, the girl would get pregnant. That did not make sense to A.P.H. because her parents frequently kissed, yet her mother did not become pregnant. On January 5 2012, she was going to sleep in defendant's bed and asked him about what she had heard. Defendant told her what it meant to be pregnant, and he talked about girls' and boys' "body parts."

¶ 11 The assistant state's attorney asked A.P.H., "Did you ask him to do something?" A.P.H. replied "No." She stated that defendant told her not to tell anyone, but she told Ryan and "Mr. Lipke." When asked, "The thing that you told your mom and the other people, did that really happen?", A.P.H. replied in the affirmative. A.P.H. was asked if she wanted "to tell these people what happened to you in bed with" defendant, and she stated, "He just told me what it meant." The assistant state's attorney again asked, "Now, when he told you what it meant, did you ask him to do anything else?" A.P.H. replied, "No."

¶ 12 On cross-examination, defense counsel asked if there were times when A.P.H. heard her parents argue or yell. A.P.H. replied, "Not yell, but they argued about a few things." Counsel asked A.P.H. what she did when her parents argued, and she replied, "I don't really know. Probably ignore it or go down there and like try to get them into a conversation." A.P.H. was not worried about her parents divorcing. She stated, "My mom always thought that she would never get a divorce because she was happy with what she had."

¶ 13 Next, three officers collectively testified that they were dispatched to A.P.H.'s home on the evening of January 5, 2012. They observed A.P.H. alternating between excitement because she had just had a birthday and being upset and crying. Ryan provided a written statement, and defendant left the house voluntarily.

¶ 14 When the trial resumed the next day, defendant orally objected to A.P.H.'s out-of-court statements being admitted into evidence. Defendant argued that A.P.H. did not testify as to any criminal conduct by him, so the hearsay statements were inadmissible. The trial court denied the motion.

¶ 15 Erin Buddy testified that, on January 30, 2012, she was substitute teaching at Long Beach Elementary School, as she had been doing every Wednesday. On that day, she worked with three second-grade students, including A.P.H., on literacy skills. A.P.H. looked unusually tired, and Buddy asked if she was all right. A.P.H. said that she did not sleep well the previous night, and Buddy asked if she was out doing something fun. A.P.H. replied that she was not sleeping well because-as Buddy understood it-A.P.H.'s father was either asking her to come into his bed or asking if he could join her in her bed. Buddy reported the conversation to the school social worker and Assistant Principal Dawn Marmo. For the rest of the academic year, whenever Buddy asked A.P.H. how she was doing, A.P.H. would say that she was fine.

¶ 16 Marmo testified as follows. On January 30, 2012, A.P.H. visited Marmo's office and told her that she was upset and sad because her parents were divorcing and she really wanted a brother or sister. A.P.H. said that when she and Ryan were bathing together, she talked to Ryan about her father. A.P.H. told Marmo that the divorce was her fault because she had asked defendant about sex and about boys' and girls' "parts," and that he had shown her "his parts." Marmo asked the principal, Mr. Lipke, to come into the room, and A.P.H. repeated the statement. Marmo contacted the Department of Children and Family Services. Later that day, A.P.H. approached Marmo on the playground during recess. A.P.H. asked if Marmo was married, had children, and knew what it meant to be "hard." Marmo responded in the affirmative, and A.P.H. said that defendant had shown her what being "hard" meant. A.P.H. then said that there was "a lot more" but that she did not want to talk about anything else. A.P.H. said Marmo could tell Mr. Lipke about their conversation but not her mother.

¶ 17 Ryan testified that she married defendant in 2003 and that A.P.H. was their daughter. In January 2012, she worked from home. The household's atmosphere was "mostly pretty good," though "[f]rom time to time" she and defendant did not get along. Ryan loved defendant and believed that he loved her.

¶ 18 A.P.H.'s room had a twin-size bed, and the master bedroom and guest room each had queen-size beds. Ryan would get up around 4:30 or 5 a.m. to start work so that she could spend more time with her family later in the day. Ryan would sleep in the guest room three or four nights per week because defendant was a light sleeper and Ryan's alarm would wake him up. Ryan snored, which also interfered with defendant's sleep. A.P.H. did not like to sleep in her bed because one night she saw an ant in her bed, and she was convinced that an ant would be in her bed every time she slept there. A.P.H. began sleeping in whatever room Ryan was in. However, a few months before January 2012, defendant said that A.P.H. should be able to choose wherever she slept, with the thought that, eventually, she would choose her own bed.

¶ 19 On January 4, 2012, Ryan and A.P.H. planned to meet defendant for A.P.H.'s birthday dinner. Ryan was helping A.P.H. wash her hair, and A.P.H. said she knew the difference between girls' and boys' parts. Ryan replied that she knew that A.P.H. had seen her male baby cousin's diaper changes. A.P.H. then said that she had seen and touched defendant's private parts. Ryan asked if she had...