People v. Risper

2020 IL App (1st) 160707

175 N.E.3d 1146

448 Ill.Dec. 236

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

v.Broderick RISPER, Defendant-Appellant.

No. 1-16-0707

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filing Date November 25, 2020

James E. Chadd, Patricia Mysza, and Michael H. Orenstein, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, and Ashlee Cuza, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Broderick Risper was convicted of predatory criminal sexual assault of a child and sentenced to natural life imprisonment pursuant to section 11-1.40(b)(2) of the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/11-1.40(b)(2) (West 2016)) because this was his second conviction for predatory criminal sexual assault of a child. On appeal, defendant contends that the trial court erred in barring the lay opinion testimony of the victim's mother that the victim was coached and further that, in light of the abolition of the death penalty in Illinois, section 11-1.40(b)(2) is facially unconstitutional because it mandates the same sentence, life without parole, for a nonhomicide offense as the harshest sentence for the most serious homicide offenses, thus violating the principle of proportionality of sentences and the eighth amendment's ban on cruel and unusual punishment ( U.S. Const., amend. VIII ). For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 According to the evidence presented at trial, 47-year-old defendant sexually assaulted four-year-old N.S.¹ multiple times in 2011, until she reported the abuse to her mother, Jillian K., on December 2, 2011. Defendant was arrested shortly thereafter and indicted for two counts of predatory criminal sexual assault of a child. After a bench trial, defendant was convicted on both counts and sentenced to mandatory natural life imprisonment. As defendant's issues on appeal are confined to the pretrial proceedings, we shall confine our recitation of the facts primarily to those proceedings.

¶ 4 A. Pretrial Proceedings

¶ 5 Prior to trial, the State moved to admit other crimes evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Procedure Code) ( 725 ILCS 5/115-7.3 (West 2012) ). In its motion, the State argued that evidence of defendant's sexual assault of five other victims was admissible to prove that he had a propensity to commit sexual assaults. The State also sought to admit evidence of outcry statements N.S. made to a social worker and an aunt.

¶ 6 Specifically, with regard to the other crimes evidence, the State sought to introduce evidence of the following: (1) defendant's sexual assault of his ex-girlfriend's daughter C.J. from 1986 when she was 6 years old until she was 13; defendant threatened to kill or impregnate C.J. if she reported the abuse; (2) defendant's physical and sexual assault of K.P., the daughter of another ex-girlfriend, from 1994, when she was 8 years old, until the summer of 1995; he was convicted of predatory criminal sexual assault of K.P. in 1998 and sentenced to 25 years' imprisonment; (3) defendant's digital and oral molestation of 5-year-old H.F. in 2011 (H.F. is the niece of another of defendant's ex-girlfriends and the cousin of the victim in this case); (4) defendant's sexual assault of his 9-year-old cousin T.W. while she was alone with him in his car in 1989; and (5) defendant's sexual assault of his 11-year-old niece J.R. while she was alone with him in his car in 2009.

¶ 7 The trial court partially granted and partially denied the State's motion regarding other crimes evidence, finding that admission of the evidence of all five victim assaults would be more prejudicial that probative. The court indicated that "[a]ny rational thinking individual who heard five incidents would be convicting [defendant] based on the five incidents, and not on the trial or the evidence presented." The trial court granted the State's motion to admit evidence of the crimes involving K.P. and H.F., finding the evidence to be sufficiently reliable.

¶ 8 The trial court also partially granted and partially denied the State's motion regarding prior outcry statements of N.S. that were made to several witnesses in which she identified defendant as the perpetrator of the sexual abuse under section 115-10(b)(1) of the Procedure Code ( 725 ILCS 5/115-10(b)(1) (West 2012)). Specifically, the State sought to admit two outcry statements that N.S. made to her mother on December 2 and 3, 2011, regarding the abuse, a statement to a social worker, and a statement to her aunt.

¶ 9 Defendant raises an issue on appeal related to Jillian's testimony during the hearing on the motion. At the hearing, Jillian testified that N.S. approached her on December 2, 2011, and said "My tutu hurts," explaining that "tutu" was the word N.S. used to refer to her vagina. When Jillian asked why her vagina hurt, N.S. stated that defendant "put his privacy in her privacy." N.S. repeated these statements to Jillian the following day.

¶ 10 On cross-examination, defense counsel asked Jillian if she believed that N.S. was coached to accuse defendant of her sexual abuse:

"MS. KEENAN [(ASSISTANT PUBLIC DEFENDER)]: Ma'am, you had a conversation with an investigator from the Public Defender's Office on June 13, 2012, is that correct?

JILLIAN K.: Correct.

MS. KEENAN: And during that conversation, isn't it true that you told that investigator * * * that your daughter told you that your sister [Cherice] told her to say that [defendant] licked her?

JILLIAN K.: No. * * *

MS. KEENAN: What did you say?

JILLIAN K.: That [N.S.] told me that [Cherice] said to say that [defendant] licked [H.F.]. He never licked [N.S.].

MS. KEENAN: When did [N.S.] tell you that?

JILLIAN K.: Maybe in February or March [of 2012]."

¶ 11 On redirect, the State asked Jillian whether the statement N.S. made to her regarding licking was about a separate victim, her cousin H.F., to which Jillian replied "Yes." The State then asked whether that had anything to do with N.S., and Jillian responded that it did not.

¶ 12 At the conclusion of the hearing, the trial court granted the State's motion to admit the out-of-court statements that N.S. made to her mother over defendant's objections. The court also allowed the State to introduce statements N.S. made to a social worker.

¶ 13 Defendant also moved for a competency hearing to determine whether N.S. was competent to testify, asking the trial court to view N.S.'s video recorded victim sensitive interview to determine her competency. The trial court granted defendant's request and subsequently found N.S. competent to testify at trial.

¶ 14 Just prior to trial, on November 11, 2015, the State moved to bar testimony related to the statement that Jillian made to the investigator from the public defender's office that she believed her sister Cherice told N.S. to say that defendant also abused H.F. The State argued that this statement was not only hearsay but was also irrelevant as it did not relate to defendant's abuse of N.S. Defendant argued for admission of the statement, contending that it showed that N.S. was coached to accuse defendant of sexual abuse. The trial court noted that there was no showing that N.S. was coached to accuse defendant of abusing her, only that some other adult in the household tried to get N.S. to say something about defendant having molested another child. The trial court found that there was no coaching going on with respect to the abuse of N.S., and the evidence did not seek to establish that. The trial court then granted the State's motion to bar the statement.

¶ 15 Additionally, defendant made an oral motion to admit evidence at trial of Jillian's opinion that her sister put N.S. up to this because it shed light on N.S.'s credibility. Defendant argued that Jillian believed that her sister put her up to it because of the statement made regarding her sister telling N.S. to say that defendant also abused H.F.

¶ 16 The trial court noted that beliefs were not admissible and further that even if the victim was questioned as to whether someone put her up to it, the defense would be unable to prove it up; however, it noted that defendant would be allowed to ask because it was a bench trial.

¶ 17 B. Trial Proceedings

¶ 18 Defendant's bench trial proceeded, with the State presenting live testimony from N.S., who testified that she was born on May 3, 2007, and was eight years old at the time of trial. Her testimony was consistent with her prior outcry statements that defendant penetrated her vaginally with his penis several times before she told her mother that her vagina hurt because of it. The State also presented as a video-record victim sensitive interview (VSI) of N.S. that took place at the Chicago Children's Advocacy Center on December 6, 2011, and live testimony from the victim's brother Marshawn S., Jillian, emergency room physician Dr. Alicia Sanders, and Dr. Marjorie Fujara. Dr. Sanders testified that her medical examination of N.S. indicated multiple abrasions and lesions inside her vagina. The parties stipulated that H.F.'s testimony would be consistent with her testimony from defendant's July 9, 2015, trial for his charges of predatory criminal sexual assault against H.F. The parties also stipulated that K.P.'s testimony would be consistent with her testimony from defendant's July 9, 2015, trial for his charges of predatory criminal sexual assault against H.F. The State also presented a certified copy of defendant's birth certificate, showing his date of birth as April 14, 1964.

¶ 19 Defendant did not testify but entered a stipulation that Assistant State's Attorney (ASA) Tracy Senica would testify that on January 3, 2014, N.S. informed her that the abuse took place in the bedroom and not the bathroom of defendant's...