People v. Stevens

2018 IL App (4th) 160138

115 N.E.3d 1207

426 Ill.Dec. 285

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

v.Billy J. STEVENS, Defendant-Appellant.

NO. 4-16-0138

Appellate Court of Illinois, Fourth District.

FILED November 20, 2018

James E. Chadd, Patricia Mysza, and Gavin J. Dow, of State Appellate Defender’s Office, of Chicago, for appellant.

Andrew L. Killian, State’s Attorney, of Paxton (Patrick Delfino, David J. Robinson, and Erin Wilson Laegeler, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 In February 2015, the State charged defendant, Billy J. Stevens, with two counts of predatory criminal sexual assault of a child. In July 2015, the trial court conducted the first jury trial, which resulted in a deadlocked jury and a new trial. The second jury trial took place in October 2015. The jury found defendant guilty, and he was sentenced to 25 years' imprisonment.

¶ 2 On appeal, defendant argues the trial court erred in (1) admonishing the prospective jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (2) giving Illinois Pattern Jury Instructions, Criminal, No. 3.01 (4th ed. 2000) (hereinafter IPI Criminal 4th); and (3) not giving IPI Criminal 4th No. 11.66. Additionally, defendant argues the State committed error by (1) improperly bolstering the credibility of the victim, M.S., through the testimony of a witness; (2) questioning defendant about M.S.'s motivation to lie; (3) asking the jury about the message its verdict would send; and (4) bringing up details not in evidence at trial during closing arguments. We reverse and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 Around November or December 2014, defendant was separated from his wife and was living in his mother's home. During that time, his daughter, M.S., born in 2003, went to visit him at this residence. One night, while M.S. was watching a movie in her cousin's room, she said defendant came in and hugged her. After hugging her, defendant put his hand in her vagina and then did the same with his penis. M.S. testified defendant had done this repeatedly throughout M.S.'s life since she was three or four. After the most recent occurrence in November or December 2014, M.S. told her school's social worker, who notified the guidance counselor and the police.

¶ 5 As a result, in February 2015, the State charged defendant by information with two counts of predatory criminal sexual assault of a child, alleging defendant, who was 17 years of age or older, committed an act of sexual penetration with M.S., who was under 13 years of age, in that defendant placed his penis (count I) and his finger (count II) in the vagina of M.S on or about November 2014 through December 2014 ( 720 ILCS 5/11-1.40(a)(1) (West 2014) ).

¶ 6 The first trial was conducted in July 2015 and resulted in a hung jury. Defendant was retried on the same charges in October 2015. At the second jury trial, the State called four witnesses, M.S., Kristina Schuler, Mary Bunyard, and Sergeant Chad Johnson. Defendant was the sole witness in his case-in-chief.

¶ 7 A. M.S.

¶ 8 M.S. testified in detail about the night she was at her grandmother's house and what her father did to her, stating she was 11 years old at the time. She described the house she lived in with her mother and brother as a two-story home, with her room being upstairs. She stated, on some occasions when she would fight with her mother, defendant would come to her room to calm her down and then molest her, which began around the age of three or four. After the most recent occurrence at her grandmother's house, M.S. told her school's social worker, Schuler.

¶ 9 B. Kristina Schuler

¶ 10 Schuler is the social worker at M.S.'s school and has served in that capacity for the past nine years. Schuler knew M.S. from working with her on an individualized education plan, beginning in August 2014. They would meet weekly for about 20 minutes each session. She described M.S. as "very quiet, very shy" when she first met her, but as the year progressed, M.S. became more comfortable. She also testified that as time went on she had to do less prodding to get information from M.S. and never had a problem with M.S. lying. On February 5, 2015, M.S. came to her regular session with Schuler and said she wanted to tell her and the school guidance counselor, "Mrs. Johnson," something. The guidance counselor was unavailable, so Schuler asked if M.S. wanted to just speak to her. M.S. said her father "sexually abused" her and touched her, pointing to her private area. Schuler did not ask any follow-up questions in order to avoid interfering with any criminal investigation and contacted "the authorities." She told M.S. she was sorry to hear about these allegations and she would contact people to make sure M.S. was safe.

¶ 11 C. Mary Bunyard

¶ 12 Bunyard is a forensic interviewer with the Children's Advocacy Center, where she has worked for two years. Prior to that, she was in law enforcement for 20 years, 10 years as a patrol officer and 10 years as a detective. She interviewed M.S. while representatives from the Department of Children and Family Services and law enforcement watched from another room. She testified that she asked mostly open-ended questions in the interview. The interview with M.S. was audio recorded and played to the jury as an exhibit during Bunyard's testimony. After playing the audio recording, the State asked where M.S. said she was touched, and Bunyard said M.S. indicated she was touched in her ‘private area.’

¶ 13 D. Sergeant Chad Johnson

¶ 14 Sergeant Johnson is a sergeant with the Paxton Police Department and was the lead investigator in this case. He interviewed defendant and stated defendant would have been 34 years old at the time of the alleged conduct. In the interview, defendant denied the allegations but never said M.S. was lying. When asked if defendant had an explanation for the allegations, defendant referenced a conversation with his daughter about whether the new bras she bought with her mother fit, but he claimed he did not touch her. Sergeant Johnson also observed the interview with M.S. The details of her timeline and defendant's timeline were "right on track," meaning the timelines "were exactly the same."

¶ 15 E. Defendant

¶ 16 Defendant testified on his own behalf and stated he had been living with his mother for the past three months or so since he was separated from his wife. He testified about his convictions for theft and driving with a revoked license. He described his relationship with his daughter as good and said M.S. would come to him if she had problems. He described the family home before the separation as a two-story home where he and his wife shared a bedroom on the first floor and the two children each had their own bedroom on the second floor. He denied each of the specific allegations in his testimony. He also admitted, when M.S. came over to visit while defendant was living in his mother's home, they would sleep in the same room, with M.S. on one bed and defendant on another. He also admitted on cross-examination that he would go to M.S.'s room at times to calm her down. On cross-examination, he was unable to give any reason why his daughter was making up these "horrible accusations."

¶ 17 The jury found defendant guilty on both counts, and the trial court sentenced defendant to 25 years' imprisonment in the Illinois Department of Corrections.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 A. Voir Dire Admonishments

¶ 21 Defendant argues the trial court erred by failing to properly inquire of the jury pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), commonly referred to as the four Zehr principles (see People v. Zehr , 103 Ill. 2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984) ). Specifically, defendant contends the court failed to ask prospective jurors whether they understood the State's burden of proof or that defendant was not required to present evidence. The State concedes error on this contention, and we accept the State's concession.

¶ 22 Rule 431(b) requires the trial court to ask each potential juror

"whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's decision not to testify when the defendant objects." Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

"The language of Rule 431(b) is clear and unambiguous," mandating "a specific question and response process." People v. Thompson , 238 Ill. 2d 598, 607, 345 Ill.Dec. 560, 939 N.E.2d 403, 409-10 (2010). A trial court "must ask each potential juror whether he or she understands and accepts each of the principles in the rule," and "the rule requires an opportunity for a response from each prospective juror on their understanding and acceptance of those principles." Thompson , 238 Ill. 2d at 607, 345 Ill.Dec. 560, 939 N.E.2d 403. We review de novo whether the trial court followed Rule 431(b). People v. Wrencher , 2011 IL App (4th) 080619, ¶ 37, 355 Ill.Dec. 279, 959 N.E.2d 693.

¶ 23 Here, the trial court asked the prospective jurors whether they were "unable and unwilling to accept and embrace" that "all persons charged with a crime are presumed to be innocent." Second, it asked the jurors whether they were "unable or unwilling to accept or embrace and apply the principle" that "it is the burden of the State who has brought the charge to prove the Defendant guilty beyond a reasonable doubt." Regarding the third principle that "defendant has no obligation to testify on his...