People v. Pope

2020 IL App (4th) 180773

157 N.E.3d 1055

441 Ill.Dec. 698

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.John A. POPE, Defendant-Appellant.

NO. 4-18-0773

Appellate Court of Illinois, Fourth District.

May 22, 2020

Gary W. Wangler, of Belleville, for appellant.

Zachary P. Boren, State's Attorney, of Pittsfield (Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In January 2017, the State charged defendant, John A. Pope, with seven counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2016)).

¶ 2 In December 2017, the State charged defendant with two counts of indecent solicitation of a child (id. § 11-6(a)), three counts of aggravated criminal sexual abuse (id. § 11-1.60(b)), and two additional counts of predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)). The juvenile victims were E.E.P. (11 years old at the time of the alleged offense), M.E.P. (12 years old), and E.M.P (14 years old).

¶ 3 In April 2018, at defendant's jury trial, the three juvenile victims testified as State's witnesses by videoconferencing from chambers outside the presence of defendant and the jury. The jury ultimately found defendant guilty of four counts of predatory criminal sexual assault of a child (E.E.P.), guilty of aggravated criminal sexual abuse (E.E.P.), guilty of indecent solicitation of a child (M.E.P.), guilty of aggravated criminal sexual abuse (M.E.P.), guilty of predatory criminal sexual assault of a child (M.E.P.), guilty of indecent solicitation of a child (E.M.P.), guilty of aggravated criminal sexual abuse (E.M.P.), not guilty of one count of predatory criminal sexual assault of a child (E.E.P.), and not guilty of three counts of predatory criminal sexual assault of a child (M.E.P.). The trial court later sentenced defendant to two consecutive natural life prison terms for predatory criminal sexual assault of a child and concurrent terms for the remaining counts.

¶ 4 Defendant appeals, arguing (1) the trial court improperly applied the rape shield statute ( 725 ILCS 5/115-7 (West 2016) ), (2) the trial court erred by allowing the juvenile victims to testify in chambers with multiple support persons present, (3) the trial court gave an improper deadline instruction to the jury, which caused them to return a rushed verdict, (4) he received ineffective assistance of counsel, and (5) he was prejudiced by "cumulative error." We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Charges

¶ 7 In January 2017, the State charged defendant with seven counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2016)).

¶ 8 In December 2017, the State charged defendant with two counts of indecent solicitation of a child (id. § 11-6(a)), three counts of aggravated criminal sexual abuse (id. § 11-1.60(b)), and two additional counts of predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)).

¶ 9 B. The Trial

¶ 10 Prior to defendant's trial, defendant filed a motion in limine in which he argued that section 115-7 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-7 (West 2016) ), commonly known as the rape shield statute, should not prevent him from presenting evidence of the victims' prior sexual assaults. The trial court denied the motion.

¶ 11 In April 2018, defendant's jury trial commenced. In his opening statement, defense counsel stated the evidence would show that a witness, Leonard Jason Bullock, had a prior sex offense. Prior to Bullock's testimony, the State notified the trial court that it had discovered Bullock's prior sex offense was a misdemeanor conviction committed more than 10 years ago. Defense counsel noted that both he and the State were operating under the misunderstanding that the offense could be used to impeach Bullock. Counsel feared that he told the jury he would "demonstrate this guy is a sex offender. To cut me off now looks like I told the jury something untrue." The court noted that this was a "mutual mistake made by counsel on both sides" but decided that, because the offense was easily explainable, the court would allow defense counsel to inquire about the offense. During cross-examination, Bullock confirmed that he was convicted of a misdemeanor sex offense but was no longer required to register as a sex offender.

¶ 12 The State introduced the testimony of multiple police officers and personnel from the Illinois State Police forensic lab. The three juvenile victims also testified but did so by videoconferencing from chambers outside the presence of defendant and the jury. The trial court allowed the presence of support persons while each victim testified but instructed the parties prior to the victims testifying, as follows: "You need to make sure that your support people are clear. They are not to shake their head, they are not to nod. I would prefer no expression from them one way or the other." The court further stated that the support persons should give "no indication as to how those little girls should answer questions."

¶ 13 On Monday April 16, 2018, the State rested its case. On Tuesday, following the testimony of several defense witnesses, defense counsel stated outside the presence of the jury that he thought "we'll get done with evidence today," and the trial court replied, "Marvelous." That afternoon, defendant chose to testify in his defense. After defense counsel completed his direct examination of defendant, the trial court informed the jurors that it would dismiss them for the day. The court further informed the jurors that they would begin "a little later" the next morning because the court had committed to performing a wedding "a long, long time ago." The court also told the jurors that it "told counsel—we have to—I think [defense counsel] and I both need to be out of town Thursday so we're gonna [sic ] finish tomorrow so do not plan anything tomorrow night. I'm hoping this will move along fairly quickly but we'll go as late as is necessary tomorrow night."

¶ 14 The next morning, the trial court resumed proceedings, stating:

"THE COURT: Ladies and gentleman, I appreciate your patience in letting me do this wedding this morning. I committed to this a long time ago and I know this young couple appreciates that I didn't make them wait. At that point, I had no idea I was gonna [sic ] be in jury trial in this matter.

At this point, we're going to resume [defendant's] testimony and then we will just keep going. As far as I'm concerned, we are going to rock and roll today so that we can get this done."

¶ 15 Defendant concluded his case, and the State offered rebuttal testimony. Following closing arguments, the jury deliberated for approximately 3 hours and 20 minutes before reaching a verdict. Ultimately, the jury found defendant guilty of 10 counts and not guilty of 4 counts, as detailed above.

¶ 16 C. Posttrial Motion and Sentencing

¶ 17 In May 2018, defendant filed a motion for a new trial, and in October 2018, defendant filed an addendum to the motion. Defendant sought to supplement the record with two affidavits from individuals who attended the trial. Both affidavits asserted the trial court rushed the jury to a verdict. In support of that assertion, each affidavit referred to statements the trial court allegedly made to the jury; however, the alleged statements were not in the record except for the trial court's remark, "marvelous," which we discuss below.

¶ 18 At the hearing on the motion, the trial court disputed the contents of the affidavits. The court stated, "I can tell you with absolute certainty, not one word was uttered in front of the jury that was not in that record, not a word." The court said it remembered clearly having conversations with defense counsel "about where we needed to be and when we needed to be finished. None of that was ever communicated to the jury." And, in fact, the record shows the court's statement was correct.

¶ 19 Immediately following the hearing on the posttrial motion, the trial court sentenced defendant to two consecutive natural life prison terms for predatory criminal sexual assault of a child and concurrent terms for the remaining counts.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 Defendant appeals, arguing (1) the trial court improperly applied the rape shield statute (id. ), (2) the trial court erred by allowing the juvenile victims to testify in chambers with multiple support persons present, (3) the trial court gave an improper deadline instruction to the jury which caused them to return a rushed verdict, (4) he received ineffective assistance of counsel, and (5) he was prejudiced by "cumulative error." For the reasons that follow, we affirm.

¶ 23 A. The Trial Court Properly Applied Section 115-7 of the Code

¶ 24 First, defendant argues that the rape shield statute (id. ) was improperly interpreted and applied by the trial court.

¶ 25 1. The Applicable Law

¶ 26 The rape shield statute states as follows:

"In prosecutions for predatory criminal sexual assault of a child, * * * [and] aggravated criminal sexual abuse, * * * the prior sexual activity or the reputation of the alleged victim * * * is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim * * * with the accused when this evidence is offered by the accused upon the issue of whether the alleged victim * * * consented to the sexual conduct with respect to which the offense is alleged; or (2) when constitutionally required to be admitted." Id. § 115-7(a).

¶ 27 "[U]nder proper circumstances, evidence of a child witness's prior sexual conduct is admissible to rebut the inferences that flow from a display of unique sexual knowledge." People v. Hill , 289 Ill. App. 3d 859, 864, 225 Ill.Dec. 244, 683 N.E.2d 188, 192 (1997). "The rebuttal of inferences created by age-inappropriate sexual knowledge is...