*1 Three of exculpated defendant. and that of his best friend however, consistently that defendant testified companions, residence intend- he went to Godels’s looking to rob someone and witnesses, defendant’s former one of which was ing to rob him. Two killing admitted to Godels. testified that defendant girlfriend, in defendant’s car. DNA was found Godels’s Supreme under Court nonpublishable H are through E Sections 23). (166 Ill. 2d R. Rule 23
III. CONCLUSION judgment and stated, the trial court’s we affirm For the reasons judgment of sentence be cor- that the written with directions remand VI, and sentenced for count was convicted of rected to show murder, justification performed lawful in that he without degree first commit a attempting to the death of Godels while the acts that caused 1(a)(3) of of section burglary, violation felony, residential forcible 9— 1(a)(3) (West 1998)). (720 of 1961 ILCS the Criminal Code 5/9 — directions. remanded with Affirmed as modified and J., McCULLOUGH, TURNER, EJ., concur. ILLINOIS, Plaintiff-Appellee, v. OF OF THE STATE
THE PEOPLE RANDALL, Defendant-Appellant. ROBERT No. 4 - 05-0350 Fourth District Opinion filed March 2006.
COOK, J., specially concurring. Gilsdorf, Sterling, appellant. of for
Jesse R. Mt. (Norbert Barnard, Attorney, Goetten, Quincy H. J. Jonathan State’s Biderman, McClain, Attorneys Appel- Robert J. and Linda Susan all of State’s Office, counsel), People. late Prosecutor’s delivered the of the court: opinion JUSTICE McCULLOUGH defendant, Randall, jury found Robert On October abuse) (720 (aggravated ILCS guilty attempt criminal sexual 5/8— 2002)). 16(d) (West 2, 2004, the trial court sentenced On December 12— (1) appeals, arguing him in years prison. to five Defendant the State (2) selection, during discrimination gender he was engaged “wailing” heard denied a fair trial because the the victim outside testimony, grant- the court erred following of the courtroom *3 ing motion exclude that defendant did not the State’s pedophile allegations of or that the victim’s exhibit characteristics (4) dream, he should have could been the result of a vivid and have newly evidence that the been a new trial based on discovered granted victim We affirm. lied. 2004, aggravated charged with
On June the State defendant (720 2002)). 16(d) (West abuse ILCS Defendant criminal sexual 5/12— jury set trial. On October pleaded guilty and the matter was information, 12, 2004, adding charge of State filed an amended the (720 abuse) ILCS 12— (aggravated criminal sexual attempt 5/8— 16(d) 2002)). (West Later, original aggravated-criminal-sexual- motion, and the matter charge on the State’s abuse was dismissed charge. charge, proceeded attempt Regarding on than the al- defendant, years at least older alleged State who was K.S., step toward commis- leged victim, performed a substantial an act of he committed sexual abuse when aggravated sion criminal age but under K.S., years was at least 13 sexual conduct with who knowingly alleged placed the State defendant age Specifically, of 17. vaginal area. and moved it toward upper thigh K.S.’s hand on to exclude the trial, a motion in limine the State filed Prior testimony of defense Froman, witness Dr. Frank alleging the matters to which he testify irrelevant, would highly speculative, and would province invade the jury. 13, 2004, of the On October a hearing on the State’s motion was held and presented defendant (1) Froman, of Dr. who testified he interviewed defendant and saw no (2) indication of pedophilia allegations possibly KS.’s could have been the result of a vivid dream. After considering the evidence presented and parties’ arguments, granted the trial court State’s motion to exclude Dr. Froman’s testimony. 14, 2004,
On October jury began. trial During jury selection, the State exercised four peremptory challenges. Defendant objected, arguing the engaged State in purposeful discrimination peremptory because its challenges were only potential directed at male jurors. The trial court preliminary made a finding purposeful discrimination and the State given the opportunity gender- to offer explanations neutral for each of challenges. its The court accepted the explanations State’s and concluded it did engage in purposeful gender discrimination.
During trial, the course of mistrial, alleging moved for a he prejudiced jury because the heard “wailing” K.S. outside of the courtroom after she finished testifying. The trial court noted K.S. started cry and, as she left the although courtroom it was later reported collapsed, that she the court did jurors not believe the saw happen. Instead, it determined the occurrence was not disruptive and did jury. not affect the The court denied defendant’s motion for a mistrial. 15, 2004,
On October the jury returned a guilty verdict of and the trial court set the matter for sentencing. 15, 2004, On November defendant filed a motion to set aside trial, verdict and for new (1) alleging, in part, that the court erred when it granted the State’s (2) motion to exclude Dr. testimony, Froman’s denied his motion for a outburst, mistrial based on KS.’s determined the State offered gender-neutral explanations for its peremptory challenges use of against only Later, male members venire. February 2005, defendant filed an amended motion to set aside the verdict and for a new trial. The amended previous motion included all of his argu- ments and added request for a trial newly new based on discovered evidence. Specifically, who, defendant alleged he located a witness trial, after the “discussed the allegations [K.S.]” of the case with *4 K.S. admitted up” she “set defendant and in jail “he was something he did not do.” 2, 2004,
On December the trial court sentenced defendant to five years in prison. 24, 2004, On December defendant a filed motion to
1128 4, 2005, April hearing his On a was conducted reconsider sentence. the and for new trial amended motion set aside verdict hearing, presented During and his motion reconsider. the defendant C.E, the who she attended the same school as testified got K.S. tell students that she defendant K.S. and overheard other The “put away” get revenge stepdaughter, on his A.J. court newly and the continued defendant’s motion reconsider sentence hearing but denied his discovered evidence issue for further otherwise the and for trial. amended motion to set aside verdict new K.S., 21, 2005, presented the April On the State who C.E trial court stated making denied testified to The statements consideration, It that, careful C.E was not credible. then after found portion posttrial requesting motion a denied both of defendant’s evidence and his motion to newly trial based on discovered new his reconsider sentence. appeal
This followed. trial first court erred when appeal, On defendant contends during engaged gender find the discrimination failed to State its maintains the State utilized Specifically, selection. gender to discriminate on basis of peremptory challenges jury. improperly from He the court of- exclude men also contends explanation for the State. gender-neutral fered a 79, 89, 69, 82-83, L. v. 476 90 Ed. 2d 106 Kentucky, In Batson U.S. 1712, (1986), Supreme Court held that S. 1719 United States Ct. prohibits equal-protection clause of the fourteenth amendment In v. Alabama ex rel. during racial selection. J.E.B. discrimination 98, 1419, 127, 130-31, 89, 1422 B., T. 128 L. Ed. 2d 114 S. Ct. 511 U.S. (1994), holding gender-based it extended to include intentional discrimination. discrimination, alleging gender prevail
To intentional when showing the State exercised prima defendant must make a facie Blackwell, gender. on the basis of v. 171 peremptory challenges People (1996). 338, 348, showing Ill. If the requisite 2d N.E.2d 786 665 explana made, gender-neutral give “the burden shifts to the State to Blackwell, 2d jurors.” 171 Ill. dismissing potential tions for 665 at 786. need not rise to level explanation N.E.2d “The State’s cause, juror must be based on justifying challenge for but gender pretextual.” People other than cannot be v. characteristic (2001). 117, 127-28, Hudson, Ill. N.E.2d 1253 The 195 745 his burden and trial court decides whether defendant carried discrimination, proved findings its of fact will not be purposeful Blackwell, 348-49, 2d at clearly reversed unless erroneous. Ill. at 786-87. N.E.2d
Here, clearly the trial court’s decision is not erroneous. peremp correctly points Defendant out that the State exercised four venire; tory challenges jury only directed at male members however, gender of response allegations to defendant’s intentional discrimination, for each its chal explanations the State offered of juror gender. lenges that were based on characteristics unrelated to Specifically, challenged potential jurors the State maintained it Nor Thompson, Wardlow, Rakers, man Tony Hays Robert and James (1) recently prosecuted because it had Thompson’s nephew for murder (2) nephew and manslaughter, the was convicted of Wardlow twice indicated that his the understanding proof of State’s burden of was proof guilt any doubt,” of “without was the foreman jury Rakers on previous day’s verdict, the jury not-guilty that had returned a and (4) Hays previous day’s jury was also on the old bud “good and was up dies” with another jury. man who ended on defendant’s Further, contrary assertions, proffered defendant’s the State’s explanations pretext were argues not a for discrimination. Defendant the State’s that it jurors previous contention did not want from the day’s jury merely pretext was for discrimination because it challenged men First, for that reason and not women. defendant has argument. misconstrued the State’s The State never maintained that it any jurors did not want who had previous day served the but that it did not specific jurors want two had previous day who served the and possessed who gender-neutral other characteristics the State found Specifically, undesirable. been jury previ- Rakers had the foreman the day ous the and State was he a leadership concerned could take role in Hays and good juror defendant’s was friends with another male who was selected for jury. defendant’s The was Hays State concerned and his friend would follow one challenge Hays another and decided to because he was on previous day’s jury the jury already defendant’s jurors contained who also previous day. had served the Defendant notes that did challenge State female members the jury previous day’s of venire who served jury. had on the true, While this there were the jury also several male members of venire had previous day’s who been on the jury and who the State also did challenge. jurors, Defendant’s jury, including the two alternate composed eight of jurors, men and six women. Of those selected four men and four had previous day’s jury. women been The juror solely State did not challenge any potential based on his previous Instead, stated, jurors service the day. the two were who reason, challenged Hays, for that also found undesir- Rakers and by able gender-neutral Thus, the State for other reasons. the State’s challenges rationale for its Hays pretext Rakers not a for discrimination. the trial court erred because offered contends
gender-neutral assertion, explanations support for the State. To his acknowledgment during to the of that defendant cited court’s error hearing posttrial on defendant’s motion. The State maintains the mistakenly acknowledged improperly court the error because never portion The supplied any gender-neutral explanation. State with detailing objection peremptory record the State’s proceedings followed, supports challenges, and the the State’s events, i.e., supplied gender-neutral version of that it its own rationale peremptory challenge. each The record does not indicate State court, any part prompted defendant failed cite did evidencing alleged Although sup- the record court’s he error. error, argument port acknowledgment with the court’s acknowledgment *6 allegedly was made months after error occurred is, itself, supported by the not record. provided gender-neutral explanations for each of
Here the State peremptory challenges and the record refutes defendant’s conten- its merely pretext the a for discrimina- explanations tion that State’s were the also refutes contention that Additionally, tion. record defendant’s supplied gender-neutral improperly the trial court the State with reasons, challenges. peremptory its For those the explanations for engage gender the in determination that State did not court’s during jury clearly selection was not erroneous. discrimination argues Defendant next he denied a fair trial because the was following the courtroom her trial jury “wailing” heard K.S. outside a that event and new testimony. prejudiced by He maintains he was trial is warranted. giving a vent to natural genuine by
“A emotional outburst witness People a mistrial.” v. feeling always grounds granting (1976). 468, 696, 463, 700 Whether Bradley, App. 43 Ill. 3d 357 N.E.2d Bradley, 43 Ill. the is within trial court’s discretion. grant mistrial 468, at N.E.2d at 700. App. 3d 357 trial, the case, requested day
In this on the second before, K.S. that, day left testifying a record after the trial court make *** court, earshot of the wailing within the courtroom and “started After counsel[,] also for mistrial. jurors.” and all of the He moved as considering arguments, the court stated follows: parties’ the power. I under her own “[K.S.] did walk out of the courtroom courtroom, cry. I not see her her, did heard she left the start so I am comfort- down, anybody, I than go and had a better view fact, actually [not] In I did jurors collapse. her able that no saw *** bailiff morning talking to the collapsed in know until this she emotionally being upset crying, I did hear proceedings. in these
1131 courtroom, go [the bailiff] outside the and I did ask to make sure *** got away she from the courtroom. fact, disruptive. proceeded I did not find it to be In we have would proceed proceedings having and in fact did the she was with while her emotional situation. I don’t believe that it affected the all, I denying [motion for] and am mistrial.” instance, In this the trial court did not err when it denied request for a mistrial. K.S. testified without incident. The court in position the best to determine effect of K.S.’s listening emotional outburst on the After jury. to KS.’s cries hav- ing the opportunity jury, observe reaction the court concluded the disruptive event and had effect. The record no does not reaching reflect that court abused its discretion these conclusions. argues granted
Defendant further the trial court erred when it the State’s motion in prevent limine to Dr. testifying Froman from that defendant not a pedophile significant prob and there awas ability allegations that KS.’s result of vivid dream. He contends Dr. Froman’s negatively would have affected K.S.’s and, credibility by excluding Dr. testimony, Froman’s the court denied him right present a defense.
A trial grant deny court’s decision to or a motion in limine allow ing or excluding certain evidence will not be overturned on review absent an abuse People Owen, of discretion. v. 299 Ill. App. (1998). Further, N.E.2d expert testimony should permitted be only if:
“(1)
proffered
expert
knowledge and qualifications
has
laypersons
uncommon to
distinguish
expert;
him as an
expert’s testimony
help
would
aspect
understand an
*7
understand,
evidence
might
that it otherwise
invading
not
without
the province
credibility
of the
to determine
and assess the
case;
and
expert’s
facts
testimony
gener
would reflect
ally accepted
People Simpkins,
scientific or
principles.”
technical
v.
(1998).
668,
App.
681,
302,
Ill.
297
3d
697 N.E.2d
310
Generally, a defendant may
good
introduce evidence of his or her
personality
character
through “general
or
reputation” evidence but
expert
opinion
personal
B.J.,
re
testimony.
193,
In
316 Ill.
App.
(2000).
735 N.E.2d
1065
to
Additionally, attempts
use
purported expert testimony
credibility
to bolster or attack the
of wit
B.J.,
nesses
be rejected.
App.
should
316 Ill.
3d at
At hearing motion, a on the State’s Dr. Froman and testified parties stipulated that he psychology expert. was a clinical Dr. Froman limited, defendant and
stated he conducted a one-hour interview with history He also a sexual legal, personal, took and social histories. took complete history usually that not as as the sexual taken was inclusive interview, during During Dr. Froman sexual-offender evaluations. nothing pedophile any to was or had devi- saw indicate defendant a girl. ance him to a Dr. Froman also 14-year-old that would lead molest prior if the ac- asleep making testified that defendant’s accuser was to sexually provocative going and movie before cusations watched bed, possibility” reasonable that she dreamed there was “some if in abuse. he testified that the accusations arose at four Additionally, Further, suggest asleep. she morning, the accuser was would (REM) eye during in possibly rapid sleep, could have been movement likely which a dream is more to occur. vivid cross-examination, acknowledged he did know On Dr. Froman only opinion asleep whether defendant’s accuser was and was his could be explanation allegations against that one for the However, if he interviewed experienced that the accuser a vivid dream. sleep, be his stated she never went to it would not accuser she Additionally, Dr. Froman reiter- opinion she event. dreamed the nothing during he saw the interview with defendant ated that acknowledged diagnosis pedophilia would him make a but allow pedophiles. offense are that not all individuals who commit a sex Finally, possessed information he was Dr. Froman admitted examination, Dr. On redirect Froman provided. what defendant had generally morning, at four in the people asleep testified that are time, pedophile is question allegedly in at that incident occurred who is not young molest a child than someone likely sexually more pedophile. highly testimony would be trial concluded Dr. Froman’s The court regarding facts of the case speculative and not based on the was It immediately prior alleged to the incident. asleep whether K.S. essence, would, testifying as to be determined that Dr. Froman truthful, did the court not believe being defendant was which whether did Dr. Fro- stated it not believe appropriate. the court testimony be value or benefit to man’s would granted the State’s motion in limine. not an Dr. Froman’s decision to exclude
The court’s not a First, stated, opinion abuse of its discretion. B.J., good character. a defendant’s to admit evidence of proper way B.J., Ill. 3d at App. In 201, 735 at 1065. App. 316 Ill. 3d at N.E.2d uphold rule 1065-66, applied that 200-01, this court 735 N.E.2d at defendant, who testimony that the expert the trial court’s exclusion child, fit did not young touching inappropriately was accused of
1133 case, Similarly, sought in profile sex offender. this defendant indicating to from Dr. defendant not a introduce evidence Froman B.J., pedophile. expressed the same in the trial court For reasons as by excluding testimony. did not abuse its discretion Dr. Froman’s Second, allegations could have Dr. Froman’s K.S.’s been the result of a dream are not based on the facts of this case. vivid Dr. Froman never interviewed K.S. and did not whether she had know Further, asleep allegations. been her no prior making to there was presented any evidence trial was asleep at defendant’s that K.S. at point night question. Thus, proffered testimony on the in Dr. Froman’s highly speculative, would not have with provided information, province useful and would have invaded the to credibility determine the of witnesses and assess the of the case. facts reasons, For those the trial court did not its in abuse discretion exclud- ing testimony. this granted defendant contends he should have been a new newly
trial based on the discovered evidence that K.S. set stated she jail defendant up and “he was in something for he did not do.” Specifi- cally, he alleges necessary requirements evidence meets all the grant and, aof new trial because the State’s evidence K.S., by newly consisted statements made discovered evidence [Sjtate’s story changed her conclusively “would defeat the case.” (1) Newly discovered evidence warrants new trial it when is of such probably conclusive character that it change will the result on (2) retrial, (3) merely cumulative, material the issue and not trial, discovered after of such character that the in diligence exercise of due could not have People discovered earlier. (2001). v. Orange, 437, 450-51, Ill. 195 2d 749 N.E.2d 940 “[T]he regarded recantation of inherently unreliable, and a grant court will not a new trial except extraordinary on that basis Steidl, 239, 260, People circumstances.” v. Ill. 2d 177 685 N.E.2d (1997). 1345 A grant deny court’s decision to or a motion for a new trial newly based on discovered evidence will be overturned reviewing Beard, court absent an abuse of discretion. v. Ill. People 356 (2005). App. 236, 242-43, 825 N.E.2d trial, testified, At 16, 2004, defendant’s K.S. on April she intended spend night time, her friend A.J.’s house. At that A.J.’s mother was girlfriend and defendant also lived in the movies, watching home. After attempted K.S. on a asleep fall futon bed next to A.J. but sleep. point, could not At some defendant entered A.J., futon and laid between K.S. and whom K.S. believed asleep. said, K.S. “I testified defendant you [A.J.] know what doing you secret, and if want me keep your you then best let me turn, he speaking,
have a too.” While defendant was had hand right thigh rubbing it back and forth. K.S. stated K.S.’s and was up put legs defendant also his hand between moved toward *9 vagina. her talking know
After told defendant she did not what he was K.S. him, about, away from left the futon and and twice scooted defendant edge nearby got up, sat in a chair. K.S. testified she sat on the of the minutes, futon, like be a she going and felt she was to sick. After few belong- her went to the bathroom and then to A.J.’s room to collect later, wrong. ings. A time to her and asked what was short A.J. came leave. stay help K.S. told A.J. she did not want to and asked A.J. her much noise K.S. testified the door to house made too when it front prevent did defendant to hear and her opened was and she not want K.S. on the back leaving. suggested from A.J. climb out a window window, After K.S. asked A.J. to leave with porch. climbing out of a lived her but A.J. refused. K.S. then went to the home of friend who her away reported or the incident to friend’s six seven blocks and mother. on hearing motion for a new trial based
At the on defendant’s evidence, newly the same school discovered C.E testified she attended K.S., and January In C.E was at locker overheard K.S. locker, from C.E’s state that K.S. standing who around the corner was revenge C.E also heard K.S. got “put away” get on A.J. defendant get just it it all to say did not “do and that was not see K.S. when the statements payback [A.J.].” C.E could people C.E did not know the shortly made but did see her thereafter. they except say speaking K.S. to and could not describe them girls. Additionally, C.E boys two and two were tall and there were because, although K.S. C.E she friends with A.J. but not testified friend, a chance to give K.S. did not C.E become wanted to be K.S.’s motion, hearing testified she At a on defendant’s K.S. one. second alleged by C.E made statements never and, carefully considered the matter The trial court stated it he had located it motion stated witness initially, noted defendant’s motion, C.E K.S.; however, hearing at on the directly to spoke who Further, to others. statements K.S. made testified she overheard to when the state- speaking identify C.E whom K.S. could not but friends with A.J. court also noted C.E was ments were made. The lying K.S. that C.E testified admitted pointed out K.S. found this revenge on A.J. The court get defendant to about that K.S. trial established remarkable evidence defendant’s because fact, night In on the at the time of the offense. and A.J. were friends help house, sought K.S. A.J.’s offense, staying at A.J.’s K.S. was leaving advances, leave, the home after helped defendant’s A.J. K.S. with her. The had K.S. asked A.J. leave court concluded K.S. no revenge reason to seek on A.J. It then found C.E was not credible and request denied for a new trial. case,
In by this the trial court did not abuse its discretion deny newly ing Specifically, defendant’s motion trial. new discovered evidence was not of such conclusive character that it would changed have the result on retrial. an C.E’s concerned al leged K.S., recantation making. carefully which K.S. denied After considering evidence, including C.E’s testimony, the court stated did not C.E believe determined that a find could her not cred above, ible. As detailed supports record findings. court’s opportunity The trial court had the to observe C.E hear her testimony. It determined she was not credible and it did stated believe her. The supports findings record the court’s and its denial of defendant’s motion for a new trial was not an abuse of its discretion. stated,
For the reasons we affirm the trial judgment. court’s *10 Affirmed.
KNECHT, J., concurs.
COOK,
JUSTICE
specially concurring:
I dissented in Beard because the trial court refused to consider
recantation,
evidence
the witness’s
on the basis that it
hearsay,
and the witness was not called at the posttrial
Beard,
hearing.
356 Ill.
App.
246-47,
(Cook, P.J.,