2019 IL App (1st) 162108
Ill. App. Ct.2020Background
- Defendant Kerwinn Cross was tried by jury for multiple sex offenses arising from a June 25, 2013 assault of C.C. (age 15); two other women (N.L., age 16, and L.F., age 27) testified about separate assaults by Cross days earlier. Cross admitted sexual contact but insisted it was consensual or transactional.
- State introduced other-crimes evidence (testimony from N.L. and L.F.), a neck-swab DNA match to Cross, surveillance and 911 evidence, and emergency-room findings; Cross testified in his own defense. Jury convicted on multiple counts and the trial court sentenced Cross to 70 years.
- Cross raised numerous appellate challenges (grand-jury testimony, prosecutorial remarks in opening and rebuttal, admission of prior-conviction impeachment, other-crimes evidence, Zehr voir dire, one-act/one-crime, and sentencing). He also sought relief regarding prior weapon convictions.
- Appellate court affirmed most convictions, vacated the aggravated criminal sexual abuse conviction under the one-act/one-crime rule (double-counting same penetration), vacated Cross’s prior AUUW and derivative UUWF convictions per In re N.G., and remanded for resentencing.
- The court found a Rule 431(b)/Zehr error (court asked jurors whether they "agree and accept" rather than whether they "understand and accept" the Zehr principles) but held the evidence was not closely balanced, so the error did not require reversal.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Cross) | Held |
|---|---|---|---|
| Grand-jury testimony supporting aggravated kidnapping was false/misleading | Detective Watkins's grand-jury testimony accurately reflected his investigation and victim statements | Watkins's later police report contradicted his grand-jury testimony, so indictment should be dismissed | No due-process violation; no substantial prejudice; indictment stands (Wright standard) |
| Prosecutor’s opening calling defendant a “rapist” and other inflammatory remarks | Remarks framed theory of the case; defense strategically adopted same language in opening | Remarks undermined presumption of innocence and were inflammatory | Forfeited (no objection); defense used the wording strategically; no plain error or prejudice found |
| Admission of prior UUWF conviction wording (“by a felon”) for impeachment | State may identify the nature of prior conviction for impeachment; wording is accurate and permissible | Reference to “felon” improperly exposed prior felony status and prejudiced jury | No clear or obvious error; consistent with precedent (Williams/Catchings); not reversible |
| Admission of other-crimes evidence (L.F., N.L.) and facts about dogs/stairs | Testimony relevant to propensity, modus operandi, lack of consent, and aggravated kidnapping elements | Some testimony (dogs, stairs) was prejudicial other-crimes evidence beyond scope | Trial court did not abuse discretion; testimony corroborated key facts and was admissible for limited purposes |
| Rebuttal closing comments (demeanor, "prey", profile, prostitutes, pit bulls) | Argument was fair comment, inferences, or based on evidence/testimony; some hyperbole urged justice for victims | Comments were improper, inflammatory, and prejudicial | Most remarks were permissible or harmless; preserved objections were overruled reasonably; no reversible prosecutorial error |
| One-act, one-crime (duplicate convictions for same penetration) | State agrees only one conviction should stand on single act of penetration | Convictions for both aggravated criminal sexual assault and aggravated criminal sexual abuse are duplicative | Aggravated criminal sexual abuse vacated; mittimus corrected (one-act/one-crime) |
| Rule 431(b)/Zehr voir dire (asked jurors if they "agree and accept" not whether they "understand and accept") | Proper preliminary instruction and asking for acceptance was sufficient; any error harmless given evidence strength | Failure to ask whether jurors “understand” is error requiring reversal | Court found clear and obvious Rule 431(b) error but evidence was not closely balanced; error not reversible under plain-error doctrine |
| Prior AUUW / UUWF convictions challenged after N.G. | State agreed to vacate the unconstitutional AUUW and derivative UUWF per N.G. | Cross sought vacatur of those priors and relief impacting impeachment and sentencing | Court vacated prior AUUW and UUWF convictions (In re N.G.) and remanded for resentencing to permit reconsideration without those priors |
Key Cases Cited
- In re N.G., 2018 IL 121939 (facially unconstitutional AUUW convictions are void and must be treated as if they never existed)
- People v. Wright, 2017 IL 119561 (limits on grand-jury challenges; standard for prosecutorial misconduct before grand jury)
- People v. Belknap, 2014 IL 117094 (failure to ask jurors whether they "understand" Zehr principles is error but not reversible where evidence not closely balanced)
- People v. Wilmington, 2013 IL 112938 (trial court must ask jurors whether they understand Zehr principles)
- People v. Sebby, 2017 IL 119445 (plain-error doctrine framework; burden on defendant)
- People v. McFadden, 2016 IL 117424 (treatment of UUWF convictions pre-N.G.; later overruled by N.G.)
- People v. Aguilar, 2013 IL 112116 (invalidated certain AUUW statutory application)
- People v. Burgess, 2015 IL App (1st) 130657 (application of one-act, one-crime rule)