People v. Reveles-Cordova

2019 IL App (3d) 160418

125 N.E.3d 410

429 Ill.Dec. 704

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

v.Alejandro REVELES-CORDOVA, Defendant-Appellant.

Appeal No. 3-16-0418

Appellate Court of Illinois, Third District.

Opinion filed January 17, 2019

Modified Upon Denial of Rehearing March 27, 2019

James E. Chadd, Patricia Mysza, and Brian W. Carroll, of State Appellate Defender’s Office, of Chicago, for appellant.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Mark A. Austill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 A jury found defendant, Alejandro Reveles-Cordova, guilty of criminal sexual assault and home invasion. 720 ILCS 5/12-11(a)(6) (West 2010); id. § 12-13(a)(1) ). On direct appeal, defendant argues this court should reverse his convictions, remand for further proceedings, or modify his convictions because (1) the trial court committed plain error by failing to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), where the evidence was closely balanced, (2) trial counsel denied defendant effective assistance of counsel, (3) the trial court did not adequately address defendant's pro se claims of ineffective assistance as required by People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and (4) defendant's conviction for criminal sexual assault should be vacated under the one-act, one-crime rule. We affirm in part, reverse in part, and remand.

¶ 2 BACKGROUND

¶ 3 On November 22, 2010, the State charged defendant with home invasion ( 720 ILCS 5/12-11(a)(6) (West 2010) ), criminal sexual assault (id. § 12-13(a)(1) ), aggravated domestic battery (id. § 12-3.3(a-5) ), and violation of an order of protection (id. § 12-30(a)(1) ). The charging instrument alleged defendant committed these acts against his former girlfriend and mother of his children, J.B., on November 20, 2010.

¶ 4 In July 2012, the State tried defendant for the first time. Defendant took the stand in his defense. The jury found defendant guilty on all four counts. Defendant appealed that conviction. This court reversed and remanded for a new trial, finding defendant received ineffective assistance of counsel. People v. Reveles-Cordova , 2014 IL App (3d) 120887-U, ¶ 38, 2014 WL 6989883.

¶ 5 In February 2016, the State retried defendant. In opening statements, defense counsel told the jury "[t]he issue in this case is going to be consent." He also told the jury that the State has the burden of proof; the defendant is presumed innocent. He informed the jury:

"I don't have to present any evidence. I may do so. I may not. Either way, please wait until I have had a chance to make my closing argument."

He assured the jury that the State could not meet their burden in proving defendant guilty beyond a reasonable doubt.

¶ 6 I. The State's Case-in-Chief

¶ 7 The State called J.B. as its first witness. J.B. testified she had a 15-year relationship with defendant. J.B. and defendant ended their romantic relationship in January 2010. J.B. remained in the Grassy Knolls house the two shared with their children. J.B. obtained an order of protection against defendant in October 2010 that was to remain effective until May 2011. The order of protection covered their formerly shared residence.

¶ 8 On November 20, 2010, J.B. was home alone getting ready for a date with Ben Marshall. She testified she locked the door to her bedroom and took a shower. While drying off, J.B. heard someone coming up the stairs. She heard the person trying to open the door. Defendant kicked open the door. He began rummaging through the room as if he was looking for something.

¶ 9 J.B. repeatedly told defendant to leave because of the order of protection. Defendant grabbed and pushed her. He took her phone when she received a text message. Defendant asked J.B. who Marshall was. J.B. said defendant called Marshall and said, "I'm going to kill you, motherfucker." J.B.'s phone records do not show a call was placed to Marshall in the time frame J.B. described.

¶ 10 Defendant took a vase of roses Marshall bought for J.B. and threw them on the floor. He pushed J.B. onto an ottoman. There was conflicting evidence as to whether she was on her back or her stomach. Defendant pulled a tampon out of J.B.'s vagina and penetrated her with his penis. J.B. did not consent to having intercourse with defendant. Defendant finished and began choking J.B. She tried to push defendant away. J.B. testified she felt her body becoming "weak and warm." She said things were "going dark." J.B. lost her breath and stopped fighting back. J.B.'s cell phone began to ring; defendant released his hands from around her neck. J.B.'s neighbor called. J.B. told defendant her neighbor knew to call if she saw defendant's truck at J.B.'s house because of the order of protection. Defendant became nervous and left.

¶ 11 J.B. got dressed and called Marshall. Marshall told her to call the police. J.B. called 911. The audio recording of this call was played for the jury. J.B. can be heard coughing and crying throughout the call. She is unintelligible at points as she tried to speak in between sobs. J.B. told the 911 dispatcher that she was calling because her ex-boyfriend broke into her house. J.B. said she did not need an ambulance; she was calling to make a report that he raped her. In response to the dispatcher's questions regarding the rape allegation, J.B. stated, "he didn't touch me physically, like punch me or anything." The dispatcher asked if J.B. was coughing because she was strangled. J.B. responded that defendant tried grabbing her by the neck but she could also be coughing because she was scared. After the State played the call, J.B. said she did not initially say defendant choked her because she was confused and nervous. J.B. went to the hospital; she submitted to a rape kit.

¶ 12 The State called Marshall to the stand. Marshall testified he received a call from J.B.'s cell phone on the night of November 20, 2010. A man called and said he was going to kill Marshall. He said he could hear J.B. in the background screaming "leave me alone." Marshall testified J.B. called him back to explain what defendant had done. She sounded "very fearful, very afraid." He told her to call the police.

¶ 13 Romeoville police officer Christopher Swiatek testified he responded to J.B.'s 911 call. He described her as crying and shaking. He did not observe any visible injuries. He noted the vase on the floor of the bedroom, as well as a bloody tampon by the bed. Swiatek testified that J.B. said her ex-boyfriend assaulted her. She did not mention being strangled.

¶ 14 Romeoville police officer Brandon Helton testified that he took photographs of the Grassy Knolls home. He said a first floor-window was unsecured; someone could have come in and out of that window. He said the door to the master bedroom appeared to have been forced open. He noted the door frame seemed to be dislodged. Helton saw paint chips on the floor surrounding the door. Helton took pictures of the vase, tampon, and flowers strewn on the floor. He observed the master bedroom was disheveled but the rest of the house was neat and orderly.

¶ 15 Romeoville Detective Kelley Henson testified he met J.B. at the hospital on November 20, 2010, to discuss her claims of sexual assault. He said J.B. looked like she had been crying. He did not notice any markings on J.B. J.B. never told him that defendant struck her.

¶ 16 Firefighter paramedic William O'Connor testified that he treated J.B. on the night of November 20, 2010. He said J.B. reported being raped and choked but denied sustaining any injuries. O'Connor examined J.B.'s neck. He reported no signs of injuries. He testified it is not uncommon for victims of choking to show no injuries.

¶ 17 The parties stipulated that J.B. completed a sexual assault kit. The attending doctor found no injuries to J.B.'s vagina, vulva, or cervix. A lab technician identified defendant's deoxyribonucleic acid (DNA) from samples taken from J.B.'s vagina. The parties stipulated forensic reports showed defendant's fingerprints on the vase and J.B.'s phone.

¶ 18 II. Defendant's Case-in-Chief

¶ 19 Defendant called only Alejandro Jr. to testify. He is defendant and J.B.'s eldest son. He testified that, to his knowledge, defendant had a key to the Grassy Knolls residence. He could not remember if J.B. changed the locks in 2010 following the order of protection. Alejandro Jr. testified that he often lost his key. J.B. left a window unlocked so that he could climb in and out. The family knew the window was unsecured.

¶ 20 Alejandro Jr. testified that the lock on J.B.'s door was not working; someone could push hard and open it. Alejandro Jr. found an envelope filled with cash sometime around November 2010. He did not know exactly how much was in the envelope. On November 20, 2010, defendant called Alejandro Jr. At this point, Alejandro Jr. had not heard from J.B. Defendant told him to tell J.B. not to press charges against him because she was lying. Alejandro Jr. described J.B. as having trouble getting the words out when she told him what happened on November 20.

¶ 21 Ultimately, defendant decided not to testify. Defense counsel sought a ruling on whether the State could impeach defendant with testimony regarding the money. During the first trial, defendant did not testify regarding the money Alejandro Jr. found. At this trial, defendant was going to maintain he went to the Grassy Knolls residence that night to get the money. Counsel argued defendant's lack of testimony regarding the money should not be available for impeachment purposes because it was part of first trial counsel's strategy to leave it out. Counsel also expressed concern about calling the first trial counsel as a witness. Counsel said he did not raise the issue in a motion in limine because he did not think the...