People v. Maury

2013 IL App (1st) 110735

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.ROBERT MAURY, Defendant-Appellant.

No. 1-11-0735

No. 1-11-0736

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

MARCH 11, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal form the

Circuit Court of

Cook County.

Nos. 04 CR 5284, 04 CR 5285

Honorable

Mary Margaret Brosnahan,

Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court.

Justices Rochford and Delort concurred in the judgment.

ORDER

¶ 1 Held: The plain error doctrine does not apply to reach the forfeited issues that the trial court improperly denied the defendant's request for self-representation and that prosecutorial comments made during closing arguments improperly bolstered the victims' testimony. The trial court properly declined to appoint new counsel after conducting a Krankel inquiry.

¶ 2 Following a jury trial in the circuit court of Cook County, defendant Robert Maury was convicted of two counts of predatory criminal sexual assault and sentenced to mandatory life imprisonment. On direct appeal, the defendant argues that: (1) the trial court improperly denied his request to proceed pro se; (2) the State committed prosecutorial error during closing argument byimproperly presenting to the jury its own expert opinion to improperly bolster the victims' testimony; and (3) the trial court erred in declining to appoint substitute counsel after conducting a Krankel inquiry. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 3 BACKGROUND

¶ 4 Prior to 2003, Tashnia M. (Tashnia) placed her six¹ minor children, including daughter T.M. and son A.M., in the custody of the children's grandmother, Tashnia's mother, Catherine M. (Catherine),² who lived at 56th and Carpenter Streets in Chicago, Illinois. Sometime in 2003, the defendant moved into Catherine's home. During the summer of 2003, the defendant sexually assaulted T.M. and A.M. on separate occasions. At that time, T.M. was 11 years old and A.M. was 10 years old. Thereafter, the defendant was arrested.

¶ 5 On February 26, 2004, the defendant was charged with multiple counts of predatory criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse and criminal sexual abuse, with regard to his conduct towards T.M. under case No. 04 CR 5284, which was presided over by Judge Mary Brosnahan (Judge Brosnahan). The defendant was also charged with multiple counts of predatory criminal sexual assault, aggravated criminal sexual assault and criminal sexual assault, with regard to the defendant's conduct towards A.M. under case No. 04 CR 5285, which was initially presided over by Judge Matthew Coghlan (Judge Coghlan).

¶ 6 On November 1, 2006, in a jury trial for T.M.'s case (case No. 04 CR 5284), the defendant was convicted of one count of predatory criminal sexual assault and sentenced to a term of natural life imprisonment.

¶ 7 On January 8, 2008, while T.M.'s case (case No. 04 CR 5284) was pending on appeal, a hearing on the State's motion to allow other-crimes evidence (725 ILCS 5/115-7.3 (West 2006)) was held before Judge Coghlan in A.M.'s case (case No. 04 CR 5285), during which the trial court denied the defendant's request to proceed pro se and granted the State's motion to allow other-crimes evidence.

¶ 8 On March 31, 2009, this court reversed and remanded the defendant's conviction and sentence in the case involving T.M. (case No. 04 CR 5284). We ordered a new trial, holding that the prejudicial effect of the cumulative other-crimes evidence presented by the State during case No. 04 CR 5284 outweighed its probative value. People v. Maury, No. 1-07-0142 (2009) (unpublished order under Supreme Court Rule 23).

¶ 9 On remand, on August 26, 2009, the State filed a motion for joinder of the two cases (case Nos. 04 CR 5284 and 04 CR 5285), which the trial court granted. Thereafter, the State elected only to proceed against the defendant on one count of predatory criminal sexual assault upon T.M., and one count of predatory criminal sexual assault upon A.M.

¶ 10 On December 6, 2010, during a status hearing before Judge Brosnahan, the defendant requested to proceed pro se. The trial court reminded the defendant of the seriousness of the charges against him, the potential sentence that would be imposed if convicted, and admonished him that,if he were to proceed pro se, he would be treated like an attorney by the court and would not receive standby counsel or extra help from the court during the proceedings. The trial court then ordered defense counsel and his supervisor at the public defender's office to meet with the defendant in order to explain the seriousness of the charged offenses. The court continued the matter to allow the defendant time to reconsider his request to proceed pro se. At the next status hearing date, which was December 22, 2010, the defendant agreed to continue to be represented by defense counsel.

¶ 11 On January 25, 2011, a jury trial³ commenced before Judge Brosnahan. The State presented the testimony of T.M., who testified that she was 18 years old and that in the summer of 2003, she and her siblings were temporarily living with their grandmother, Catherine, at 56th and Carpenter Streets in Chicago. In the summer of 2003, T.M. was 11 years old when the defendant, Catherine's then boyfriend, moved into Catherine's home. The defendant and Catherine shared a bedroom on the first floor of the home, while T.M.'s older brother, Tremaine, occupied a second bedroom on the same floor. T.M. and her younger siblings shared a bedroom on the second floor. The home's only full bathroom was located across the hallway from Catherine's bedroom. Early one morning in July 2003, T.M. was awakened by the then 46-year old defendant, who ordered T.M. to go to the bathroom shower and get undressed. The defendant also removed his clothes and stepped into the shower, where he started kissing and touching T.M. After kissing T.M., the defendant ordered her to get down on her knees and "suck his dick," to which she complied until "sperm" came into hermouth and the defendant commanded her to "swallow it." T.M. did not tell her grandmother, Catherine, about the incident because she feared that Catherine would not believe her nor take any appropriate action. This fear was based on an earlier incident (the first incident), about a month prior to the July 2003 incident at issue, when Catherine refused to believe T.M. that the defendant had asked T.M. to perform oral sex on him. During the first incident, she had refused to comply with the defendant's request and had run away to a neighbor's home. T.M. then testified that the defendant threatened to kill T.M. if she told anyone about the incident, and that she was afraid of him. On the next day following the July 2003 incident, T.M. reported it to her mother, Tashnia. At trial, T.M. described the defendant's penis as hard, hairy and circumcised. On cross-examination, T.M. could not recall the exact date or day of the week of the sexual assault. T.M. also testified that, during the first incident, she was home alone but that everyone was playing outside. On redirect examination, T.M. testified that the defendant had physically beat her in the past, and that he gave her money and candy to keep quiet about his conduct.

¶ 12 A.M. testified that he was 17 years old and that, during the summer of 2003, he was 10 years old and living with his siblings in Catherine's home. During that time, the defendant had moved into Catherine's home and shared a bedroom with Catherine. One Wednesday evening in the summer of 2003, A.M. stayed home while the rest of the family attended Bible study. Catherine had told him to stay home because he had forgotten his coat. The defendant, who was also in the home, summoned A.M. into Catherine's bedroom, slapped him across his eye, "whopped" him with a belt and asked A.M. to "suck [his] dick." The defendant told A.M. that he had a knife on the side of thebed. The defendant then forced A.M. onto his knees, pulled down the defendant's shorts, put one hand on the wall and put his penis into A.M.'s mouth, where he ejaculated. A.M. described the defendant's penis as circumcised and "long, hard and [hairy]," and the defendant's semen as "liquidy" "white sperm." The defendant then threatened A.M. that he would stab A.M. and throw him out a window if he told anyone about the defendant's conduct. A.M. testified that he never informed Catherine of the incident because he was afraid that she would not believe him, and that A.M. was afraid of the defendant. He further stated that the defendant had hit him and his siblings multiple times in the past. A.M. later reported the incident to his mother, an aunt and the police. A.M. testified that the incident occurred around 5 p.m., but that Bible Study began at 7 p.m.

¶ 13 Tashnia testified that in the spring and summer of 2003, she lacked steady employment and income, and was unable to care for her children in her own residence. As a result, she placed her children in the custody of Catherine, by signing a statement reflecting the guardianship agreement. The statement was notarized and signed by Tashnia, Catherine and a social worker. Catherine provided financial support to the children with the aid of government welfare assistance. In the summer of 2003, the defendant moved into Catherine's home, where the children resided. Tashnia described her relationship with the defendant as "[r]ocky." Tashnia testified that it was her intention to regain custody of her children when she became financially secure. In July 2003, Tashnia's father brought the children to see her, at which point she had conversations with the children, including T.M. and A.M. After speaking with her children, Tashnia went to Catherine's home to confront her about the...