THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM A. ROUSE, II, Defendant-Appellant.
No. 1-11-1302
Appellate Court of Illinois, First Judicial District
FEBRUARY 19, 2014
2014 IL App (1st) 111302-U
JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Hyman and Justice Mason concurred in the judgment.
Appeal from the Circuit Court of Cook County. No. 10 CR 17598 Honorable Thomas P. Fecarotta, Jr., Judge Presiding.
O R D E R
¶ 1 HELD: Defendant‘s aggravated criminal sexual assault conviction upheld where he received effective assistance of trial counsel and where the State proved him guilty of the charged offense beyond a reasonable doubt.
¶ 2 Following a jury trial, defendant William Rouse was convicted of three counts of aggravated criminal sexual assault and was sentenced to three consecutive terms of 6 years’ imprisonment, for a total sentence of 18 years’ imprisonment in the Illinois Department of Corrections. On appeal, defendant challenges his conviction and the sentence imposed thereon,
I. BACKGROUND
¶ 3 ¶ 4 In 2010, defendant was charged with three counts of aggravated criminal sexual assault. Specifically, he was charged with using force or threat of force to penetrate, the victim, G.K.,1 vaginally, anally, and orally.
¶ 5 Defendant retained private counsel and elected to proceed by way of a jury trial. During the jury selection process, defense counsel exercised six peremptory challenges to strike six potential jurors from the jury pool. After the sixth challenge was made, the court subsequently informed counsel that he had one peremptory challenge left. Counsel interjected and expressed his mistaken belief that he was entitled to 10 challenges “per statute.” The court however, reiterated: “You got seven, you got seven. You don‘t have more than that.” As the voir dire process continued, defense counsel exercised his final peremptory challenge. After the seventh challenge, however, defense counsel attempted to make two additional peremptory challenges. Because defense counsel had used all seven of his peremptory challenges, his requests to strike two additional potential jurors were denied. Ultimately, twelve jurors and two alternates were selected to hear the evidence in the case. Two of the jurors that defense counsel had attempted to strike were seated on the jury.
¶ 7 On September 10, 2010, G.K. and Kelly left work together and drove to the Rouse residence. The plan was for G.K. to spend the night and for Kelly to drive them both to work the following morning. Once she and Kelly arrived, they began to drink wine and smoke cigarettes on the patio while defendant prepared the meal. G.K. recounted that she drank a glass of wine prior to dinner and another glass with her meal. Later that evening, Joseph Perez, a friend of defendant‘s, stopped by the house. Perez and defendant began drinking cocktails made with vodka and juice while G.K. and Kelly continued drinking wine. G.K. acknowledged that she had been prescribed various medications by a psychiatrist, including Adderall, Zoloft, Trazodone and Clonazepam, and was aware that she was not supposed to ingest her medication and drink alcohol. G.K., however, admitted that she took her prescribed Adderall dosage while she was drinking at defendant‘s house, but denied that she or anybody else snorted Adderall that evening.
¶ 8 Sometime between midnight and 1 a.m., on September 11, 2010, Kelly retired to her bedroom to sleep and G.K. continued to socialize with defendant and Joseph Perez for several more hours and until Perez left. Once G.K. was alone with defendant, they began watching television. G.K. explained that they initially both sat on opposite ends of the same couch in the Rouse‘s living room, but that she started leaning towards the center of the couch to get more
¶ 9 Defendant then grabbed G.K.‘s hair, pushed her head down toward his exposed penis, and rubbed his penis on her face. She testified that defendant‘s penis went into her mouth several times, and caused her to gag and choke. As she tried to get away from him, she pushed against defendant‘s “crotch area.” Defendant, however, was able to maneuver her so that she was bent over the couch with her face pressed against the couch‘s cushions. G.K. continued to struggle but stopped after defendant threatened to “break [her] fucking neck.” Defendant then pulled down her pants and touched the tip of his penis to her vagina and anus. When G.K. used her hands to cover her anus, defendant inserted his penis into her vagina.
¶ 10 After approximately 20 minutes, G.K. was able to free herself and she ran out of the Rouse residence and into their garage where she grabbed a pipe. Although she knocked on the doors of several nearby houses to get help, nobody answered and she continued running until she reached a busy street. After she fell to the ground, a man named Anthony DiCaro stopped to help her. G.K. told DiCaro that she had been attacked and DiCaro called for assistance and waited with her until police arrived. When emergency response crews also reported to the scene, G.K. acknowledged that she was “freaked out” and testified that she had to be strapped down in the ambulance. Although she recalled speaking to the police officers and the EMT‘s who arrived to help her, G.K. did not remember telling anybody that she was “unsure” as to whether defendant had penetrated her. After she arrived at the hospital, G.K. spoke to a nurse and relayed what defendant had done to her. She remained frightened during her hospitalization because she believed that she kept hearing defendant‘s voice.
¶ 12 Doctor John Ortinau, an emergency room physician at Alexian Brother‘s Medical Center, testified that he treated G.K. on September 11, 2010. When G.K. was brought into the emergency room, she was visibly upset and she reported that she had been sexually assaulted and was experiencing soreness to her vagina and neck. She told him that a man had forced his penis into her mouth and that he also attempted to penetrate her vaginally and anally. The attack happened on a couch and G.K. said that her face had been pushed into couch cushions. Because the attack happened so quickly, G.K. was unsure whether there had been full vaginal or anal penetration; however, she was certain that defendant had forced his penis into her mouth.
¶ 14 Elk Grove Village Police Officer John Suarez testified that he was dispatched to the intersection of Arlington Heights Road and Devon Avenue on September 11, 2010. When he arrived, he observed G.K., who was “crying, hyperventilating, and repeating that she was
¶ 15 Officer Suarez completed a police report about the incident. In the report, however, he did not include his observations that G.K. was crying and hysterical or that her hair and clothing appeared to be in disarray. Although Officer Suarez did indicate in his report that G.K. had admitted to drinking alcohol and that her eyes were glassy and that she smelled of alcohol, he did not include defendant‘s admission that he, too, had been drinking in the report.
¶ 16 Elk Grove Police Officer Brian Vivona testified that on September 11, 2010, he was dispatched to take photographs of G.K. while she was in the hospital and was assigned to complete a sexual assault kit. After doing so, Officer Vivona then went to defendant‘s residence to take photographs of the crime scene. Defendant‘s wife and mother-in-law were present in the residence while he took pictures and processed the scene. Officer Vivona denied manipulating anything in the home prior to taking any pictures.
¶ 17 Upon the conclusion of the aforementioned testimony, the State rested its case. Defense counsel made a motion for a directed finding, but the motion was denied. The defense then
¶ 18 Kelly Rouse, defendant‘s wife, confirmed that she and G.K. were friendly outside of work and that G.K. was intoxicated every time they socialized together. In addition, on multiple occasions, she and G.K. snorted Adderall together. On September 10, 2010, after finishing work, G.K. and Kelly arrived at Kelly‘s house around 3:30 p.m. and began drinking wine. Kelly estimated that she drank six glasses of wine that evening and testified that she and G.K. each snorted four Adderall capsules that night. She confirmed that she and G.K. both had prescriptions for the drug. Kelly could not recall if defendant or their friend Joseph Perez snorted any Adderall that night.
¶ 19 Kelly also confirmed that on September 11, 2010, police arrived at her residence to collect evidence and take pictures of the living room where assault was alleged to have taken place. She saw officers move some furniture around in her house prior to taking pictures. Thereafter, Kelly went to the police station where she spoke to several police officers and an Assistant State‘s Attorney. Although she signed a handwritten statement, Kelly acknowledged that she did not tell anybody investigating the matter that anyone had taken Adderall that night.
¶ 20 Doctor Alan Jaffe, a licensed clinical psychologist, testified that he was familiar with Adderall, which is a stimulant and an amphetamine. Because Adderall is a stimulant, Doctor Jaffe explained that someone who ingested 120 milligrams or more of Adderall would experience an increased heart rate. He further stated that people who ingest Adderall while drinking alcohol would likely experience some disorientation and would have difficulty in engaging in rational thinking. In addition, a person who consumes a combination of Adderall
¶ 21 Doctor Jaffe acknowledged that he did not speak to or treat G.K. and had no independent knowledge as to whether she was under the influence of Adderall at the time that the alleged attack occurred. He further acknowledged that G.K.‘s medical records did not contain any notations indicating that she was delusional or hallucinating when she arrived at the hospital on September 11, 2010. Moreover, because no toxicology tests were run on G.K., he had no knowledge as to what substances, if any, were in her system at the time she sought treatment for the alleged assault. After viewing pictures taken of G.K., however, Doctor Jaffe testified that her pupils appeared to have been dilated, which is a symptom one would expect to find in a person who is under the influence of a methamphetamine.
¶ 22 Joseph Perez testified that he arrived at defendant‘s home at approximately 8:30 p.m. on September 10, 2010. That evening, he saw both Kelly and G.K. drinking wine and snorting Adderall at defendant‘s house. He estimated that the women consumed an entire box of wine while he was there. Perez admitted that he also snorted Adderall that night and drank vodka. Although he did not remember how many drinks he had that night, he was certain that he was not intoxicated. When Perez left defendant‘s house at approximately 1 a.m. on September 11, 2010, G.K. was still drinking. She called him sometime after he left and he indicated that he believed that she was probably intoxicated when she made the call because she was slurring her words and could not hold a coherent conversation.
¶ 23 Perez received another phone call at approximately 6 a.m. on September 11, 2010, and was asked to report to the Elk Grove Village police station. After he arrived, Perez spoke to
¶ 24 Officer James Chmelik responded to a call for assistance at the intersection of Devon and Arlington Heights Road on September 11, 2010, and testified that he encountered G.K. when he arrived at that location. He observed that she was crying and barefoot and her hair was disheveled. She also smelled of alcohol and appeared to be intoxicated. G.K. reported that she had consumed four to six drinks at her manager‘s house and that her manager‘s husband, William, attacked her. When asked to provide further details, G.K. stated that she had been sitting on a couch with defendant and that he began rubbing his arm and shoulder against her. He then forcibly pulled her head towards his groin and put his penis into her mouth. Defendant then pushed her against the couch, pulled her pants down and attempted to insert his penis into her anus. When he was unable to do so, he then inserted his penis into her vagina. Officer Chmelik confirmed that G.K. did not mention using drugs that evening.
¶ 25 Lisa Romanski, a registered nurse at Alexian Brother‘s Medical Center, treated G.K. when she arrived in the emergency room on September 11, 2010. At the time, G.K. was alert and able to communicate; however, she spoke in a low voice and was tearful during their conversation. G.K. did not seem to be delusional or experiencing any hallucinations, but
¶ 26 G.K. then informed Romanski that her manager‘s husband had forcibly inserted his penis into her mouth, anus and vagina. She reported that he had held her face-down on the couch as he tried to penetrate her vagina and anus. G.K. was unsure if defendant penetrated her digitally. She was also unsure whether she had masturbated defendant or whether there had been any kissing, licking or sucking to other parts of the body prior to the attack. G.K., however, denied that she had engaged in any other sex acts that night. After hearing G.K.‘s account of the attack, Romanski drew blood from G.K. and completed a rape kit.
¶ 27 Detective George Winkler testified that he interviewed G.K. in the emergency room on September 11, 2010. She reported that she had consumed four to six glasses of wine the prior evening. Although G.K. did not tell him that she or anyone else had used drugs the night before, Detective Winkler acknowledged that he did not ask her about drug use. He also confirmed that neither Kelly nor Perez discussed drug usage when he interviewed them later that day and testified that he first became aware of potential drug usage when he was told so by defense counsel.
¶ 28 Detective Winkler confirmed that he also interviewed defendant prior to his arrest. Defendant was approximately 6 feet tall and weighed approximately 205 to 210 pounds. He did not observe any marks or signs of bruising on defendant‘s body at that time.
¶ 30 Jolie McGrath, another PetSmart employee, testified that she socialized with G.K. outside of work and that they had gone out to bars together. On multiple occasions, G.K. would “get pretty drunk.” McGrath estimated that she had seen G.K. experience a hangover on 10 to 15 occasions over the past two years. She had also seen G.K. come to work intoxicated on two occasions.
¶ 31 Defendant elected not to testify and the parties stipulated that the vaginal swabs that were taken from G.K. and included in the rape kit were tested, but did not contain a sufficient amount of DNA for analysis. Thereafter, the defense rested its case and the parties delivered closing arguments. Following deliberations, the jury returned with a verdict finding defendant guilty of three counts of aggravated criminal sexual assault. The trial court then presided over a sentencing hearing, and after hearing arguments advanced in aggravation and mitigation sentenced defendant to six years’ imprisonment for each of the three counts, the sentences to be served consecutively for a total of 18 years’ imprisonment. Defendant‘s posttrial motions were denied and this appeal followed.
II. ANALYSIS
¶ 34 On appeal, defendant argues that G.K.‘s testimony was unreliable because there was evidence that she was intoxicated at the time of the purported assault. In addition, defendant observes that there was no physical evidence to substantiate her account that she had been violently assaulted anally and vaginally. Accordingly, defendant maintains he was not proven guilty beyond a reasonable doubt.
¶ 35 The State responds that defendant‘s challenge to the sufficiency lacks merit “because the victim credibly testified regarding the sexual assault committed against her and her testimony was corroborated by the injuries documented at the hospital, evidence recovered at the crime scene, and her immediate and consistent outcries.”
¶ 36 Due process requires proof beyond a reasonable doubt to convict a criminal defendant. People v. Ross, 229 Ill. 2d 255, 272 (2008). In reviewing a challenge to the sufficiency of the evidence, it is not a reviewing court‘s role to retry the defendant; rather, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. People v. Ward, 215 Ill. 2d 317, 322 (2005); People v. Hayashi, 386 Ill. App. 3d 113, 122 (2008). The trier of fact is responsible for evaluating the credibility of the witnesses, drawing reasonable inferences from the evidence, and resolving any inconsistencies in the evidence (People v. Bannister, 378 Ill. App. 3d 19, 39 (2007)), and a reviewing court should not substitute
¶ 37 A person commits the offense of aggravated criminal sexual assault “if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense * * * (3) the person acts in a manner that threatens or endangers the life of the victim or any other person.”
¶ 38 Here, the jury heard G.K.‘s account of the assault and her ingestion of alcohol and Adderall prior to the assault. G.K. testified that after defendant‘s wife went to sleep, defendant attacked her in the living room. He pushed her head down and forcibly put his penis into her mouth. Defendant then bent her over the couch, pressed her face into the couch cushions, and touched the tip of his penis to her vagina and anus, before he was able to forcibly penetrate her
B. Ineffective Assistance of Counsel
¶ 40 Defendant next argues that counsel committed a number of errors during his trial and that, as a result, he was denied his constitutional right to effective assistance of counsel. He asserts that each of these errors, considered both singly and cumulatively, operated to deprive him of a fair trial. We will address each of his allegations of ineffective assistance in turn before turning to his cumulative error argument.
¶ 41 It is well-established that every criminal defendant has a constitutional right to receive effective assistance of counsel.
¶ 43 Here, there is no dispute that defendant was entitled to seven peremptory challenges rather than the ten challenges that counsel mistakenly believed were applicable during the voir dire process. See
¶ 44 Defendant next argues that counsel was ineffective for failing to lay the necessary foundation to allow Doctor Alan Jaffe and Joseph Perez to provide testimony regarding the effect that snorting Adderall had on G.K.‘s state of mind on the night of the alleged assault. Defendant argues that such testimony was necessary to support his theory of the case which was that “Adderall combined with alcohol, caused [G.K.] to experience is a psychotic event which rendered her recollection and her testimony unreliable.”
¶ 45 An attorney‘s failure to establish the requisite foundation necessary to admit relevant important evidence can, in certain circumstances, constitute ineffective assistance of counsel. People v. House, 141 Ill. 2d 323 (1990); People v. Vera, 277 Ill. App. 3d 130, 139 (1995). Here, it was not defense counsel‘s inability to lay a proper foundation to elicit testimony that G.K. suffered a psychotic episode that was triggered by Adderall and alcohol consumption, rather it was the fact that there was no evidence to substantiate that claim which prohibited counsel from eliciting such testimony. In accordance with the trial court‘s ruling, Perez was permitted to testify that he observed G.K. consume a substantial quantity of wine and saw her snort Adderall capsules. Doctor Jaffe, in turn, was able to testify that the combination of alcohol and Adderall can cause a person to experience disorientation, difficulties in engaging in rational thinking, and
¶ 46 In a related claim, defendant also argues that counsel was ineffective due to his “repeated inability to lay evidentiary foundations without the direct assistance of the [trial] [c]ourt.” The State acknowledges that counsel had difficulty laying foundations for witness testimony, but argues that defendant was not prejudiced since the trial court helped counsel to lay the necessary foundations. We agree with the State. As we have set forth above, counsel can be deemed ineffective for failing to familiarize himself with controlling legal authority and procedures. See Pugh, 157 Ill. 2d at 19; Steward, 295 Ill. App. 3d at 742. Here, it was evident that defense counsel repeatedly had difficulties laying proper foundations to elicit witness testimony from Doctor Jaffe and Joseph Perez about intoxication. In addition, counsel did not know how to properly refresh the memory of Nurse Lisa Romanski who treated G.K. in the emergency room after the assault. As a result, the circuit court interjected on multiple occasions to help counsel lay the proper foundations to elicit the testimony that he sought to present to the jury. Had it not been for the circuit court‘s intervention, the jury would not have been able to consider the testimony of the aforementioned witnesses. There is no evidence that the mere fact that counsel needed assistance from the circuit court to present certain evidence was so prejudicial that it
¶ 47 Defendant next suggests that counsel was ineffective for questioning certain witnesses in a manner that was damaging to his case. Specifically, counsel elicited testimony from Nurse Romanski that she had declined to speak with him prior to trial. In addition, counsel elicited testimony from Detective Winkler that neither Joseph Perez nor defendant‘s wife volunteered information about drug use at defendant‘s residence prior to G.K.‘s alleged attack. Finally, during counsel‘s examination of paramedic John Lodewyck, he permitted Lodewyck to testify that he had not noticed that G.K. was intoxicated when he arrived to provide assistance. The State responds that the manner in which defense counsel questioned these witnesses was reasonable trial strategy, and that counsel‘s representation did not prejudice defendant.
¶ 48 We note that the manner in which counsel elects to examine witnesses is regarded as a matter of trial strategy and will not support an ineffective assistance of counsel claim unless the chosen tactic is objectively unreasonable. See, e.g., People v. Pecoraro, 175 Ill. 2d 294, 326 (1997). Here, we are unpersuaded that the manner in which counsel questioned those witnesses was unreasonable. Moreover, even if counsel‘s tactics could be deemed unreasonable, defendant cannot show that he was prejudiced because the witnesses’ testimonies were not inconsistent with the theory of defense. Given that defendant suffered no prejudice, this ineffective assistance of counsel claim also fails.
¶ 49 Defendant next argues that counsel was ineffective for failing to perfect the impeachment
¶ 50 Finally, defendant suggests that the cumulative effect of counsel‘s errors deprived him of his right to a fair trial. This court has recognized that although a single error by counsel may not satisfy the two-prong Strickland test, counsel‘s cumulative errors may have rendered the proceedings unreliable under the standard enunciated in Strickland. See, e.g., People v. Vera, 277 Ill. App. 3d 130, 141 (1996); People v. Garza, 180 Ill. App. 3d 263, 270 (1989); People v. Bell, 152 Ill. App. 3d 1007, 1011 (1987). Here, there is no dispute that counsel was mistaken as to the number of peremptory challenges to which he was entitled. In addition, the trial court had to advise counsel how to lay proper foundation to elicit opinion testimony about intoxication and
III. CONCLUSION
¶ 52 We affirm the judgment of the circuit court.
¶ 53 Affirmed.