*1 a double plaintiff did not receive of remedies and that the of election injury. recovery for her Fees Attorney
E. has incurred note, that because she plaintiff alleges As a final judgment trial court’s attorney defending fees and costs additional peti fee plaintiff supplemental to file a appeal, in this we should allow Chrysler- affirmance. See Check v. upon tion in the trial court Clifford (2003) (find Grove, Inc., Plymouth Buffalo (1994)) §2301 et seq. Act U.S.C. ing Magnuson-Moss under the circuit Act, be remanded to the Fraud the case should the Consumer she had to for additional fees because plaintiff petition court for prevailing party). remained the judgment appeal on defend circuit court order the case is remanded to the Accordingly, Check. fees in accord with may petition for additional plaintiff III. CONCLUSION above, judgment affirm the explained reasons we For the for ad- plaintiff petition remand for court of Cook Court and circuit ditional fees. remanded.
Affirmed and TOOMIN, JJ., concur. FROSSARD and O’HARA ILLINOIS, Plaintiff-Appellee, v. OF THE STATE THE PEOPLE OF WALSTON, Defendant-Appellant. TIMOTHY L. District No. 2—05—1234
Second 12, 2008. Opinion filed November *2 GROMETER, J., specially concurring. Paschen, Appellate A. Lilien and Barbara R. both of State
Thomas Office, Elgin, appellant. Defender’s T. Logli, Attorney, (Terry Paul A. A. Mertel and Richard State’s Ottawa counsel),
Leonard, Office, Appellate Attorneys both of State’s Prosecutor’s People. for the of the court: opinion
JUSTICE O’MALLEY delivered the Defendant, Timothy Walston, judgment of the appeals L. Winnebago County finding guilty circuit court of him of two counts of (720 14(a)(2) (West aggravated criminal sexual assault ILCS 5/12 — 2004)). argues by On defendant that the trial court erred fail- appeal, ing grant charges his motion to sever the and that the trial court purportedly exculpatory should have allowed him to introduce a state- follow, ment he made to one of the victims. For the reasons that we af- firm the decision of the trial court. aggravated
Defendant was with four counts of criminal 14(a)(2) (West 2004)) against two sexual assault ILCS 5/12 — 27, 2004, that, placed I defendant alleged victims. Count on November force, causing the use of penis vagina his of the first victim second, third, counts, bodily respectively, her harm. The and fourth al- that, 11, 2004, placed penis on his leged November anus, force, through and mouth of the second victim the use vagina, causing bodily her Defendant moved to sever the first count harm. the motion on the basis from the other three. The trial court denied that, Procedure of under section 115—7.3 Code Criminal (Code) (725 (West 2004)), even if the counts ILCS 5/115—7.3 severed, regarding the other as- jury were each would hear and thus defendant would not be sault as other-crimes evidence together. if all counts were tried prejudiced exclude granted The trial court also the State’s motion in limine to defendant made when he exculpatory what it termed an statement morning alleged victim on the after the assault. confronted second *3 engaged he and the second victim had acknowledged Defendant confrontation, he night before this but in sexual relations victim consented. The second victim took contended that instead of her own when she left defendant’s phone defendant’s cellular she arrived at her morning after the incident. When house on home, there, exchange phones he wanted to already defendant was and phones both they exchanged phones, grabbed defendant with her. As Defendant phone ground. victim’s on the and smashed the second night, said, sucking fucking me all purportedly then “thanks sought to introduce doing this to me.” Defendant you’re and now that it indicated that he and ground of his statement on the relations, court but the trial victim had consensual sexual the second he convicted hearsay. After was excluded the evidence as inadmissable years’ imprison- terms of 30 and sentenced to two consecutive by jury ment, timely appealed. must be reversed his convictions argues
Defendant first charges for the trials of the improperly joined court because the trial in decid- substantial discretion A trial court has alleged both victims. be decision will not charges, and its separate to sever ing whether Boand, People v. of that discretion. absent an abuse appeal reversed on
601 (2005). 106, 116 An of discretion occurs 3d abuse ruling. where no the trial court’s person agree reasonable would (2007). Barner, here The trial court did joinder question directly, not address the but instead allowed charges joined any misjoinder to be because would have been harm Thus, application less. we have no of discretion to review for abuse. In event, however, agree charges against we with defendant that the joined him were not properly into one trial. may charges A court order “if together two or more be tried *** joined single charge.”
the offenses could in a have been ILCS (West 2004). charged “Two or more offenses in the 5/114—7 same [charging separate instrument] in a count for each offense if the *** offenses are based on the same act or on 2 or more acts (725 part which are of the comprehensive same transaction” ILCS 4(a) (West 2004)), appears unless it that the defendant will be 5/111— prejudiced by joinder separate charges ILCS 5/114—8 (West 2004)). (1993) People Patterson, See 245 Ill. App. 3d scheme). (describing statutory addressing
Before arguments regarding joinder, defendant’s we must appropriate determine the framework for our discussion. Our cases developed have a number of factors to be used to determine whether two or part more crimes are the “same transaction” so as to be susceptible joinder under the Code. Those (1) factors, they as are commonly phrased, proximity include “the (2) time and offenses”; location of the identity “the of evidence needed (3) to demonstrate a link offenses”; between the “whether there was a (4) common offenses”; method in the “whether the same or similar evidence would establish the elements of the offenses.” (1996). v. Gapski, Cases have also relied on factors, other such as “whether the position defendant is in a similar of authority in relation to victim,” each “whether the victims are similar,” and “whether the severance promote judicial efficiency.” will Patterson, 245 Ill. App. Unfortunately, many 3d at 588. of those factors are too often misstated or misapplied, simply wrong. or are We therefore examine each explain ap of the above factors and its correct plication. begin
We with the most obviously inappropriate factor —the last factor from Patterson that promote considers whether “will *4 judicial efficiency.” see no considering We warrant a court’s how joinder judicial affects efficiency in order to determine whether two part single incidents were of a comprehensive transaction. In McLemore, (1990), appears the case that to have originated factor, the efficiency argued the defendant that her trial for which failing to move to sever counts was ineffective for
counsel issue tried, analysis of the severance was and the court’s entire she since the joinder charges of the was reasonable was as follows: “The applicable [offenses] to both testimony arresting of the officers was judicially been inef additional trial would have require and to an McLemore, As McLemore did not 3d at 1057-58. ficient.” statute, factors used to any relevant relevant so much as cite the issue, support statute, joinder we take it as weak construe the for the to the factor should be added proposition for the that an additional As the court in Patterson comprehensive analysis. transaction” “same (Patter noted, judicial process joinder expedite will most cases thus, not a fac son, 589), and, judicial efficiency is Further, case. on the facts of each vary appreciably tor that will based bearing no judicial efficiency has important, the matter of and more part are of the multiple offenses controlling on the issue whether under joinder appropriate is transaction so that comprehensive same the statute. efficiency judicial tempted court is to invoke
To the extent that a policy regarding debates policy, respond any we as a matter legislature efficiency were settled when the significance judicial joinder provided has joinder legislature statute. The enacted *** single in a joined offenses could have been appropriate “if the (West 2004)), if the of- which can occur charge” ILCS 5/114—7 or on 2 or more acts which based on the same act fenses “are (725 ILCS comprehensive transaction” part are of the same 5/111— 2004)). 4(a) (West statute find some reason the Unless a court can policy it and substitute its disregard it is not free to apply, should not short, judicial ef- notions legislature. for that of the judgment are two incidents analysis in the of whether ficiency place have no transaction, disagree any and we comprehensive part of the same joinder applying considerations as a factor cases that use such statute. remaining two appropriateness question
alsoWe there is in Patterson. Whether identified supplemental factors operandi, but may bear on modus the victims” “similarity between were two events irrelevant to whether factor is itself otherwise whether “the Likewise transaction. comprehensive of the same part respect to the authority with position similar stood be used to demonstrate factors can somehow Unless those victims.” they should not part, was a each event scheme of which common analysis. transaction” comprehensive in the “same considered should these two factors asserts that concurrence special analysis transaction” of the “same part remain a *5 assessing prejudice extremely potential useful for “they because are potentially might 3d at 630. The two factors App. a defendant.” 386 Ill. defendant, to a but the assessing potential prejudice in have some use question from the separately considers to a defendant Code comprehensive transac part of whether two events are of the same into the fact, incorporates prejudice tion. In to a defendant Code from the section joinder analysis completely via a different section test we now comprehensive that articulates the “same transaction” 4(a) (West 2004) (“same comprehensive discuss. See 725 ILCS 5/111— defendant). (West 2004) transaction”); (prejudice ILCS 5/114—8 prejudice question into special bootstrap The concurrence would the “same transaction” test. view the “same comprehensive We comprehensive preliminary, require transaction” as and separate, a joinder. ment for Patterson,
Having in we addressed the additional factors listed factors, now consider the four most above quote often used which we factor, far, as stated in The first Gapski. probably helpful by the most asks joined whether the offenses to be were close in time and location. sense, because, This factor makes separated by as events become time distance, they may likelihood decreases that be considered part of the same required by transaction as is statute. The approach also consistent with the committee comments Code, to section 111—4 of the which indicate that the “same comprehensive transaction” joinder multiple test for offenses was meant to prosecutors allow to use charge multiple one indictment to single offenses based on a act. See 725 ILCS Ann. Commit- 5/111— (Smith-Hurd 2006) (“If tee at 653 separate offenses Comments— appear count, in single subject a the indictment is to charge duplic- a *** ity. If single offenses, they act causes joined several should be in otherwise”). one by separate indictment counts unless the court orders factor, To illustrate how courts should use this first we summarize apply several cases that it properly. (1993), example, People Quiroz,
For in 257 Ill. 3d 576 App. v. simultaneously shooting using defendant was tried two victims and gun listing to steal the car of a third victim. After the relevant fac tors, the to sever appellate upheld court the trial court’s decision not robbery charge shooting charges. the armed court noted from the shootings that the location of the two “two blocks” of the was within robbery location of the armed defense conceded that counsel “ ‘there is no in question proximity there is of time and location this ” Quiroz, App. case.’ 257 Ill. 3d at 586. Likewise, Ott, (1992), in 3d 119 defendant tried for possession was unlawful of cannabis with intent to delivery
deliver and unlawful of cannabis connection with an and, drugs police police to a informant when incident which he sold home, subsequent warrant at his was found to be in executed a search 5,000 Ott, marijuana. possession approximately grams appellate at 120-21. The court held that the trial court App. 3d within properly joined charges, because “the offenses occurred location, and, fact, was hours of each other at the same delivery while the offense oc committing possession offense Ott, curred.” 3d at 123. (1990), Harmon, the defendant
argued charges battery and mob action should not have been Harmon, charge against with the murder him. joined from an incident in which the defendant charges at 139. The stemmed *6 party fight and three associates attended a where a broke out between Harmon, gang. App. 194 Ill. members of the defendant’s and another party The defendant and his associates left the and walked 3d at 137. “ ” gang, they and ‘hangout’ toward a bar known as a for the rival sit up” gang and two members of the rival who were “jumped beat[ ] Harmon, group 3d at 137. After the ting App. outside the club. 194 Ill. (Har away” porch of a house “a few blocks then went to sit on mon, 140), they gang a car with two rival App. 194 Ill. 3d at saw (Har inside, the car they passengers attacked the inside members 137). mon, The defendant killed one of the rival App. 194 Ill. 3d at Harmon, App. 194 Ill. 3d at 137- ensuing members in the brawl. gang proper, court held that was because appellate 38. The crimes, from other all “only away” a few blocks place murder took (likely than period short of time less place the crimes took within a motive to hour), [the] from common “sprang one and all the crimes Harmon, App. 194 Ill. 3d at 140. gang.” attack members of a rival Marts, (1994), App. 266 Ill. 3d 531 the defendant In v. joined prosecutions against argued that the trial court should have places on different he had started at different multiple him for fires four related dates, only him for one arson and trying instead of not “[t]he [did] court noted that record manslaughters. appellate The distance; nor offenses were close time indicate that these other of a part were committed as indicate that the offenses [did] the record fact, only 543. In “the Marts, App. 266 Ill. 3d at common scheme.” [was] indicated in the record among the offenses similarity one during of fires regarding a number defendant made statements Thus, Marts, Ill. 3d at 543. App. police questioning.” session of arsons were the defendant’s other court concluded that appellate for which transaction as the arson the same part not Marts, Ill. 3d at 543. App. tried. he was Lewis, (1992), appellate 240 Ill. 3d 463 court App. failing held that trial counsel was to move to sever the ineffective for Lewis, trials charges against for two murder the defendant. Ill. App. 3d at The appellate 468. court noted that “there were different murders,” motives for the “the murders occurred at different loca tions,” Lewis, days.” the murders occurred “on different only 468-69. connections between the two murders identified by appellate court were that the victims’ bodies were discovered in the same location and that there were common wit Lewis, nesses to the two murders. 3d at 469.
Finally, People Holveck, (1988), 3d 38 argued that the court joined trial should have his trial for deviate sexual assault and unlawful restraint against young three children with another involving charges trial of his sexual offenses against Holveck, young another child. 171 Ill. App. ap 3d at 53. The pellate court noted that the apart, two sets of incidents were “weeks towns, occurred in separate Holveck, and involved different victims.” 171 App. Marts, Ill. 3d at 53. Just as in similarity between offenses identified the court was that the defendant was “al leged to have inculpatory made concerning statements the [last] incident at the same time as his statements concerning [one Holveck, Thus, first] incidents.” 3d at 53. the court held that the trial court did not abuse its discretion in refusing join Holveck, defendant’s trials. 171 App. 3d at 53.
The above cases implicitly that, hold no matter how similar two are, incidents incidents not occurring very within a close time and space to one another will most likely separate incidents. When we address defendant’s joinder argument below, we do so based on our understanding of the first factor as laid out above.
There is also some confusion in the case law regarding the second factor: “the identity of evidence needed to demonstrate a link between 942). the (Gapski, offenses” 283 Ill. App. be, 3d at This factor can been, has referring misunderstood as to the idea that evidence of the two offenses example, Patterson, identical. For in the court es sentially equated the second factor with the fourth factor —“whether the same or similar evidence would establish the elements of the of 942) fenses” (Gapski, App. 283 Ill. 3d at it described the second —when factor as identity “the of evidence needed to demonstrate a link between the offenses and to the establish elements the offenses.” added.) (Emphasis Patterson, App. 245 Ill. 3d at 588. This construction of the second factor is incorrect. The second factor asks not whether evidence of the two crimes is similar or identical but rather whether the court can identify linking Duncan, evidence the crimes. See People v. (1987) (“The provid evidence 429, 442 State has identified
115 Ill. 2d
offenses”),
Illinois v.
grounds,
vacated on other
ing a link between
(1987). (This
Duncan,
L. Ed. 2d
607 larger piece of a scheme,” supplies each of the offenses so that (three 586 crimes Quiroz, App. 257 Ill. 3d at criminal endeavor. Cf. last crime was committed of a common scheme where the part were 116 two); Reynolds, v. flee the scene of the first attempt an to (1983) (trial two offenses 328, properly joined court App. Ill. first). outgrowth where the second was an of the factor, question of “whether the same As for the fourth (Gapski, of the offenses” similar evidence would establish the elements 942) joinder analysis, in the but App. 3d at be considered target determining multiple if it is whether of directed at part single comprehensive fenses are of a transaction. that, by criticizing ap
The concurrence erroneous special chides above, plications comprehensive joinder of the “same transaction” test However, principles App. we violate of stare decisis. 386 Ill. 3d at 633. “fsjtare observes, special as the concurrence itself decisis counsels that ‘ a court by precedents should “stand and not disturb settled ’ ” 633, points.” 3d at quoting People Sharpe, v. (2005), 519-20 quoting George, 308-09 Neff (1936). (as Our above discussion well as the fact that both we and the
special concurrence precedent support positions) find our demon strates apply that our case law is littered with cases that correctly test inconsistency compounded cases do not. This is by the failure of acknowledge any these inconsistent cases to inconsistency. Thus, the only things “settled” within our case law on point inconsistency this are principles and confusion. of stare While may rightly decisis be invoked to “[t]he ensure that and the [may] rely bar of this State upon our decisions with assurance that (Moehle they lightly Corp., will not be overruled” Motors Chrysler (1982)), day Ill. 2d there to this no on position definitive anyone clarify which could have attempt relied. Our the matter does not offend stare decisis.
As for special phrase concurrence’s stance that the “same comprehensive 628-29), ambiguous transaction” is Ill. we respond implausible that we view as the idea that the word “comprehensive” meaning phrase. clouds the of the order for a phrase ambiguous, to be two reasonable there must be at least interpretations phrase, competing interpretation and the special special concurrence offers is not reasonable. The concurrence would phrase read the “same transaction” to mean “convenient 3d at 629. The two package trial.” phrases remotely equivalent. are not special comprehen- Illinois compares concurrence “same
sive upon transaction” test with the federal test which the Illinois
rule rule is based. See 386 Ill. 3d at 628-29. federal joined they It to be where expansive. charges is far more allows “are character, of the same or similar or are based on the same act or *9 transaction, parts or are connected with or constitute of a common added.) 8(a). plan.” (Emphases special scheme or Fed. R. P. Crim. “ ” that, concurrence since the Illinois rule is ‘based on’ the assumes (386 4, quoting federal rule Ill. 3d at 725 ILCS Ann. 5/111— (Smith-Hurd 2006)), the Illinois Committee at 653 Comments — Quite contrary, if rule must have been intended to be identical. to the identical, the Illinois rule were meant to be its drafters would have modified, the federal rule. Since the drafters of the quoted, instead opted Illinois consulted the rule and not to use the “same rule federal rule, in decision to omit language or similar character” the Illinois language or character” from the Illinois rule must “same similar LaFave, Israel, King, choice. See 5 J. N. & have been an intentional W. (3d 2007) Kerr, §17.1(b), (classify O. Criminal Procedure at 6 n.21 ed. or ing joinder Illinois statute as one which “the absence a ‘same If the category joinder quite conspicuous”). similar character’ legislature intentionally excised the “same or similar character” replace it.1 language, prerogative we have no joinder, understanding the above of the test we With part here be considered of the same conclude that the incidents cannot alleged The State observes that both comprehensive transaction. bedroom, testified that in defendant’s both victims incidents occurred bar, befriended both they in Rockford and defendant met defendant a these assaulting argues them. The State that allegedly victims before to demonstrate identity “the of evidence needed similarities establish method in offenses,” that “there was a common a link between the established the offenses,” and that “the same or similar evidence However, above, explained we offense[s].” as elements ques no relevance to the on which the State relies have similarities part were of the same question of whether the two incidents tion incidents anything to link these comprehensive transaction. Without scheme, hold that we cannot components grander of a criminal as days victims, occurring 16 against assaults different these two sexual position inexplicable 1Although special takes the concurrence “same “comprehensive” into the Illinois insertion of the word or a substitute for the “same may have been intended as transaction” rule (386 629), App. we language rule character” of the federal similar word the definition of the likely, more consistent with think it far more as “comprehensive” legislature intended the word “comprehensive,” that the parts of a with or constitute phrase “or are connected for the substitute plan.” common scheme transaction,
apart, single comprehensive constitute a no matter how Thus, might similar the assaults have been. we conclude that charges joined could not be under the statute. analysis our does not end there. Even where a trial court
improperly joins charges against defendant, the error will be deemed harmless where the evidence of all of the crimes would have separate place been admissible in the trials that would have taken if misjoinder. not for the See People King, (harmless-error (2008); Patterson, analysis ap 3d at 591 sever). plicable to denial of motion to As the trial court observed making ruling, below, its as explain charges and we even if the had been sought, severed as defendant section 115—7.3 of the Code (West 2004)) ILCS juries would have allowed the in the 5/115—7.3 separate regarding trials to hear evidence on attacks both victims. Therefore, though even we conclude part offenses were not comprehensive transaction, the same we find no reversible error in the trial court’s join charges, ultimate decision to because the joinder error did not defendant and was therefore harmless.
Before beginning analysis issue, our on this inject important we an *10 caveat that we will repeat later Even emphasis. though ap- we now ply analysis harmless-error to an error in joining charges against defendant, we do not mean to condone a trial allowing joinder court’s on the joinder basis that such prejudice will cause no to the defendant. A trial required by court is statute to make an independent assess- ment as to charges whether two joined single trial, should be for a based solely on the law surrounding joinder. not, A trial may court not, joinder should skip inquiry join charges where it decision, erroroneous, believes the even if will not constitute revers- ible practice, error. Such a circumventing aside from statute, may defendant, because, also have consequences for a even if misjoinder a may be considered appeal, harmless error on it will nevertheless affect the course of a defendant’s trial at least two ways. First, in joined crime, a trial of jury an unrelated receives not only crime, evidence of the second jury but also a instruction form regarding Second, the second crime. if two cases are but other- severed each, crimes evidence is allowed in defense may object counsel unduly cumulative may impose other-crimes evidence or the trial court stricter limits on the other-crimes evidence. Neither defense counsel nor the trial court would exercise the diligence misjoined same a trial. warning, With that we proceed analysis to our of whether the misjoinder here was harmless error.
Evidence regarding a other normally defendant’s crimes is inadmissible if offered to demonstrate the defendant’s bad character
610 Evans, to commit crime. v. propensity
or his (2007). result, evidence 948, generally, As a other-crimes 958 showing of “modus purpose a defendant for the against introduced *** mistake,” motive[,] “any or intent, identity, absence of operandi, crime.” propensity to commit purpose other than to show (1991). has 353, Supreme As the Court 145 Ill. 2d 364-65 Illgen, *** “not normally is inadmissible propensity evidence explained, too irrelevant; contrary, weigh it is said to is on because character prejudge one overpersuade them as to jury and to so much with opportunity him fair to defend deny record and a general with a bad such excluding charge. overriding policy against particular value, experi practical is the probative its admitted despite issues, confusion of unfair prevent tends to ence that its disallowance States, U.S. v. United prejudice.” undue Michelson surprise,2 and (1948) 174, 213, (explain 469, 475-76, 69 S. Ct. 218-19 93 L. Ed. Romero, rule); People v. see also ing rationale behind the common-law (1977) not objectionable evidence is (propensity Ill. 2d much). Thus, too but because it has probative it has no value because character propensity or bad other-crimes evidence against the rule otherwise relevant of the rule that essentially per application se outweighed by such value is probative “if its evidence is inadmissible Cruz, confusion, delay.” People prejudice, jury dangers as unfair (1994) on other-crimes (general prohibition Ill. 2d rule).3 this outgrowth is an exception to provides an 115—7.3 of the Code section evidence: against the rule other-crimes “(a) to criminal cases which: applies This Section (1) criminal sexual as- predatory the defendant is accused assault, criminal child, criminal sexual aggravated of a sault abuse, sexual assault, criminal criminal sexual aggravated sexual abuse, HIV; or criminal transmission poses propensity evidence a risk explain Supreme Court did not how 2The greater any other evidence. surprise than of unfair “potential weigh the commonly said that courts 3Though it is *** Holmes, (Peoplev. crimes evidence” probative value of the other against the *11 “prejudice” are and (2008)), “probative value” the terms 3d 506 effect, probative evidence purpose, of all technically synonymous. The and question The against it is introduced. party whom it the that will evidence, even the is whether must be excluded whether evidence that decides so, and, the prejudice, if whether improper undue or probative, if causes that it becomes outweighs probative value prejudice so improper undue or phrases “undue opinion, we use the Throughout this prejudice. unfair (or prejudice” with this “improper prejudice”) and “unfair prejudice” understanding.
^ ^^ (b) forth in paragraph If is accused of an offense set the defendant (1) (2) (a) is tried or retried or of subsection or the defendant (3) (a), any set of subsection paragraph of the offenses forth offense or of- commission of another evidence of the defendant’s (3) (a), (1), (2), subsection or or paragraph fenses set forth may proof, from that proof evidence rebut that or an inference to (if admissible under the be admissible that evidence is otherwise evidence) may bearing its on rules of be considered for it is matter to which relevant. (c) undue weighing probative against value of the evidence defendant, may court consider: prejudice to the (1) offense; charged predicate to the or proximity time (2) similarity degree predicate of factual to the or offense; or
(3) other relevant facts and circumstances.” 725 ILCS 5/115— (c)(1) (c)(3) (West 2004). 7.3(a)(1), (b), through Thus, despite general against rule other-crimes evidence of bad character propensity, “enable[s] section 115—7.3 courts to admit propensity evidence of other crimes to show defendant’s to commit [a] (2003). Donoho, People sex offenses.” v. 204 Ill. 2d exception created section 115—7.3 is not without limitation. Section rules of evidence incorporates general 115—7.3 7.3(b) (West 2004)) for the expressly provides ILCS 5/115— balancing probative evidence its undue against value of (see 7.3(c) (West 2004)). Therefore, prejudicial effect 725 ILCS 5/115— although section 115—7.3 the rule that other- provides exception an inadmissible, crimes evidence of propensity is it allows such evidence to be admitted where the trial court finds that its undue prejudicial substantially outweigh probative effect does not its value. (2007). question Suastegui, becomes, then, propensity how much evidence of to commit sex of outweighs may prejudicial fenses be admitted before its undue effect its probative value. question question this of whether evidence
We contrast 115—7.3 as particular other crime be admitted under section Here, being defendant does probative unduly prejudicial. more than been admissible challenge not that evidence of both crimes would have trial; of each argues only thorough in either he less crime would have been in the other trial. admissible blush, guidance point.
The case law offers scant
on this
At first
Walker,
(2004),
our
decision in
least reasons. binary inquiry is a a defendant is a felon or he not—without —either Thus, can be degree. propensity, measurement of unlike which thorough or lesser with more the fact greater shown to be greater be shown to be if the a defendant’s status as a felon will not establishing the is allowed to introduce additional evidence after State fact.
Second, susceptible to definite relatedly, status as a felon is innocence of proof: even a defendant who claims his and irrefutable of his dispute officially cannot memorialized fact prior crime Thus, prove must conviction. the case where the State prior unique situation where presents defendant’s status as a felon The court in present to full evidence. there is no need for the State (and Chief) emphasized in Old this second Supreme Walker Court point: Chief) note that its hastened to [Supreme
“The
Court Old
where
in those limited situations
reasoning
applicable
was
admitting
only evidentiary purpose for
felon status was the
proving
that,
general
reaffirmed
as a
evidence. The Court
prior-conviction
is entitled
matter,
prosecution
true’ that ‘the
‘unquestionably
it was
or,
exactly,
choice, more
of its own
its case
prove
way out
or admit his
stipulate
defendant
not
that a criminal
chooses
evidentiary
of the case as the Government
full
force
that,
ordinary
assured
under
present
[Citation.]
it.’
Court
circumstances,
prevent
not
stipulate
a defendant’s offer to
would
from
persuasion,
bears the
prosecution,
the
presenting
which
burden
”
‘evidentiarydepth.’
provides
its case in a manner that
186-87,
Walker,
Chief,
at
quoting
211 Ill. 2d at
Old
519 U.S.
591-92,
at 653.
hand, the he was may very well contest the assertion that acts, prior committing involved in bad even if he was convicted of Indeed, contemplates just those acts. the statute at issue here *13 outcome when it states that “evidence of the defendant’s commission *** of another offense or proof offenses or evidence to rebut that or an added) that proof’ (emphasis may be admissible in sex- inference from abuse cases. 725 7.3(b) (West 2004). Thus, in ILCS cases under 5/115— 7.3, Walker, section unlike cases compel such as the State has a 115— ling reason to thorough introduce evidence to establish a defendant’s propensity. This distinguishes feature section 115—7.3 cases from typical cases, other-crimes in which courts labor to avoid a “trial within a trial” regarding See, the other-crimes e.g., People evidence. (2006). 84, Boyd,
The third reason the holding in Walker does not extend to cases
under section
holding
premised
115—7.3 is that the
in Walker was
on
the idea that
the more thorough
highly
unduly
evidence was
prejudicial because it tended
to show not
that the defendant was
(a
a felon
proper purpose
evidence),
for the
but also that the defendant
(an
evidence).
was “of bad
improper
Walker,
character”
for
purpose
331,
211 Ill. 2d
citing
180-81,
at
Old Chief,
identity, “any purpose absence of other the propensity Illgen, than to show to commit crime.” 145 Ill. 2d at cases, in Chief, 364-65. those as Walker and Old evidence is admissible it considered within the bounds the rule that not be character, and, show in propensity introduced to or bad order avoid offending against propensity evidence, the rule or bad-character strictly evidence other-crimes that is admitted must be limited to the type it excess exception Any to which is tied. will cause the unfair under prejudice the other-crimes rule does not In a case section allow. 7.3, though, the is propensity restriction on evidence removed 115— (10th Enjady, whole. United States v. 134 F.3d Cir. Cf. 1994) 1998), quoting Cong. (daily September Rec. S12990 ed. (statements Dole) (in Representative passing allowing a federal rule cases, evidence in it propensity “Congress sex-abuse believed neces to lower the to admission of in a sary propensity obstacles evidence “ cases,” cases presumption ‘[t]he defined class those is that *** probative, relevant and and that its typically proba the evidence ”); by any tive value is not risk of United outweighed prejudice’ States (8th (federal 1997) allowing 131 F.3d rules LeCompte, Cir. *** supersede sex-abuse cases “will restric propensity general against other-crimes aspects” prohibition tive “strong legislative judgment and the rules reflect evidence of admissible”).4 ordinarily be prior sexual offenses should *14 analysis fourth reason in does not translate The the Walker directly determining to section 115—7.3 cases is that the method of in a case prejudice undue section 115—7.3 is much different from the It is the statute typical method in a other-crimes case. true that states admissibility type the test for the of the of evidence covered is, admissibility 115—7.3 like test for of all other-crimes section (and danger of undue general), evidence all evidence whether outweighs to the value of the prejudice probative However, the of from principal prejudice typi- source undue evidence. (1) tendency its to show defendant’s cal other-crimes evidence is 413 and 414 of the 115—7.3 of the Code was modeled after Rules 4Section 414), 174; (Donoho, Fed. R. Evid. Rules of Evidence 204 Ill. at Federal guidance interpreting section 115— persuasive and can therefore find we (Childress, Federal of Evidence interpreting 7.3 cases Rules from federal 553). at (2) the rule for character, propensity.5 the defendant’s Unlike bad cases, explicitly that section 115—7.3 mandates typical other-crimes of undue per not be considered se a source propensity evidence character, speaks the statute evidence of bad because prejudice. As for commission of “evidence of the defendant’s allowing in terms of 7.3(b) (West added) (emphasis ILCS another 5/115 — offense” al- evidence the section 2004)), propensity it is inevitable that concur- similar offenses —will past lows—evidence of a defendant’s Thus, sec- rently as evidence of the defendant’s bad character. work character in the tion 115—7.3 condones evidence of bad implicitly similar offenses introduced to past form of evidence of a defendant’s Accordingly, although propensity section 115—7.3 propensity. show resulting prejudice evidence not be admitted where the undue value, outweighs probative showing its neither a of the defendant’s showing nearly bad nor will the scales propensity tip character his heavily so other Unlike any typi- a section 115—7.3 case as case. cal other-crimes and unlike the other-crimes evidence in Walker, the undue prejudice that excludes evidence under section tendency 115—7.3 must come from some source other than its show propensity. drastically changes bad character or This fact measurement of undue in a section 115—7.3 case. Just as Walker and Old insight question offer us no into the Chief quantity
of how much thoroughness propensity are allowed for 7.3, evidence under section directly the cases that have to date 115— applied section 115—7.3 offer us limited direction. Of published applying 7.3, cases section many admissibility consider the either 115— of undescribed evidence or of testimony single previous from a victim defendant, without prejudicial discussion of the undue ef (as fect of the quantity thoroughness opposed type) of evidence (2008) presented. People See v. 3d 591 Taylor, (reversing trial court prior decision to disallow evidence of a conviction but not describing admitted); Butler, evidence to (2007) (affirming testimony 3d 1050 trial court decision to from allow (2005) victim); Reed, prior (affirming 3d 995 trial testimony court decision to allow from second victim from same danger concepts propensity
5The of bad are distinct. The character and jury may convict him that a defendant has bad character is that the regardless person deserving punishment, because it him deems a bad proven charged. danger guilty whether he has been of the crime propensity jury evidence of a defendant’s will use the evidence to is that *15 likely charged. infer that it is more that the defendant committed the crime However, related, concepts propensity are often will because evidence always, always, almost if not also constitute evidence of bad character. 616
incident); Boyd, App. (affirming 366 Ill. 3d 84 trial court decision victim); Childress, testimony People allow of one other-crime v. 338 Ill. (2003) (without introduced, App. describing 3d 540 the evidence to be crime); reversing prior trial court decision to exclude evidence of one Boand, App. (affirming see also 362 Ill. 3d at 123 trial court decision prior testify, discussing quantity to allow two evidence).6 victims to but not particular other crime These cases tell us when they shown but do not tell us how much evidence of an otherwise admissible other crime will be allowed.7 outright if not incor rely questionable,
Two additional cases
on
rect,
case, People
of section 115—7.3. In the first
v.
interpretations
(2004), the
Stanbridge,
App.
348 Ill.
3d 351
court ruled inadmissible
testimony
alleged previous
victims on the
from two of
defendant’s
10
ground
years prior,
thin
that one of the incidents had occurred
though
supreme
even
court in Donoho had ruled admissible
years prior. Compare Stanbridge,
evidence of an incident 12 to 15
348
357,
Donoho,
Stanbridge
Ill.
Yet two more cases include allusions to
thorough
more
other-
crimes
stop
but
short
articulating any
of
limits on the
amount
thoroughness
propensity
allowed for
evidence under section
case,
In
Donoho,
115—7.3.
the first
supreme
our
court addressed the
slightly different question of
allowing
whether
trial court erred in
the State to introduce testimony
police
from a
regarding
officer
previous incident involving
Donoho,
the defendant.
supreme court did not question address the of whether the introduc statement, tion of the testimony, addition to the would have constituted light reversible error in of the fact that the defendant challenged veracity of the other-crimes evidence. In the second case, Holmes, App. Ill. 3d at the court held that the trial court erred in allowing not [one State to introduce “evidence of two] of prior [the] defendant’s convictions of similar sexual assaults *** cases,” and the testimony victims’ in those but the court did so relying solely on proximity similarity the other offense’s in time and subject offense, and without discussion of the quantity evidence the sought State to introduce on the other crime. These two cases therefore do not aid us. cases, we are left with any help from the above-discussed
Without question of what decision that addresses published one crimes the otherwise admissible other regarding amount of evidence v. Car under section 115—7.3: State is allowed to introduce (2008). defendant, Cardamone, damone, 3d 462 students, his coach, sexually abusing gymnastics charged was least 158 instances the State introduced evidence of at Cardamone, 381 Ill. against alleged victims. uncharged conduct case Indeed, majority of the State’s 3d at 491-93. “the vast Cardamone, evidence.” consisted of other-crimes uncharged allegations The court in Cardamone noted that 491. to the in time and similar proximate concerned incidents that were incidents, quantity the sheer but it concluded the defendant. Car unfair propensity evidence caused of “how damone, question To answer the 3d at 493-97. 7.3,” the section evidence is allowed under propensity much 115— *17 principles. other-crimes applying to cases common-law court turned (Wenoted above in our discus Cardamone, 3d at 494-95. App. perfectly cases are not of Walker that common-law other-crimes sion cases, danger of undue 115—7.3 because analogous to section decreased under section greatly evidence is propensity from Nonetheless, we 7.3, acceptable. such evidence which deems 115— other-crimes cases to cite the common-law understand Cardamone 115— the contours of section illustration, directly defining and not for 7.3.) of “numerous” in which evidence cited one case Cardamone (People overkill” “prosecutorial held to have been other crimes was (1978)) testimony case in which Funches, and one App. 59 Ill. was deemed previous victims alleged from two of the defendant’s Wilson, 214 Ill. 2d (People v. principles under common-law admissible (2005)). large “a cases, drew the rule that these Cardamone From [unfairly] prejudi evidence may probative make other-crimes volume regarding large volume of evidence cial,” it concluded that the more undoubtedly “overwhelming and conduct there was uncharged Cardamone, 3d at probative.” than [unduly] prejudicial 496, 497.8 from Cardamone. on, clarify one statement moving we
Before there indicating that the evidence language Stanbridge from Based on made to statements response in curative evidence was inadmissible as (see Stanbridge, argument opening the defense’s during other-crimes stated that 358), in Cardamone the decision 3d at above, we but, stated Stanbridge, for the reasons cited 8Cardamonealso helpfulhere. that case do not consider “where it was may unduly prejudicial
evidence be considered more Cardamone, presented in the State’s case-in-chief.” Walker, articulated in our discussion of the State 496. For the reasons compelled to introduce may very in a section 115—7.3 case well be timing but the propensity evidence in its case-in-chief. It is not the render it evidence that can quantity propensity nature and unfairly the other-crimes evidence otherwise prejudicial. Whether misstatement) (or by cure a made be admissible to rebut a statement unfairly the evidence is bearing the defense has no on whether first under section 115—7.3. therefore take prejudicial place We pressing the statement from Cardamone to mean that the defendant’s during may give justification an issue his case the State further rebuttal, not that evidence propensity introduce additional evidence unduly prejudicial place is more in the first if it is introduced in the State’s case-in-chief. gives assessing
The discussion in Cardamone us a start limits imposed propensity require- on section 115—7.3 evidence 7.3(c) ment from section prejudicial that the undue effect of such 115— outweigh probative not its value. due to the extreme Cardamone, facts in the case instructs us on the outer bounds of rule; it nothing reveals of the rule’s more subtle inner striations. Because we find specific guidance applying no from cases section 7.3, general limiting we resort to more rules for quantity 115— prosecution may evidence the Generally, “[i]f introduce. other crimes admitted, evidence is it should not lead to a mini-trial of the collateral offense; the court should carefully limit the details to what is neces sary to illuminate the issue for which the other crime was introduced.” (1995). v. Nunley, (Here, propensity was the issue for which the other-crimes evidence would have been introduced.) Courts’ disinclination toward “mini-trials” of collateral is, course, offenses application principle another that evidence *18 should not be admitted it prejudice, jury where causes unfair confu (evidence sion, delay. Nunley, or See 3d at 431 should be probative danger excluded if its value of unfair outweighed is prejudice, confusion, jury delay). danger or of unfair case, prejudice opposed the context of a section 115—7.3 as to a case, greatly explained common-law other-crimes diminished. As we above, against the common-law rule other-crimes evidence is es sentially per application unfairly prejudicial a se of the rule that Cruz, evidence should not be admitted if 162 Ill. 2d probative. even Cf. (rule against outgrowth at 348 other-crimes evidence is “an of’ the inadmissible). principle unfairly prejudicial evidence is When the legislature 7.3, respect enacted section it rule upended this 115— section, types
to the of crimes listed in the so that not is other- longer unfairly to no se propensity per crimes evidence offered show result, prejudicial, actually proper. danger it is As a of unfair exist, prejudice may in a section 115—7.3 case still but it is much less than in pronounced a common-law other-crimes case. Cf. (1980) (“The Lindgren, 79 Ill. 2d erroneous admission of ordinarily crimes risk high prejudice evidence other carries reversal”). a “mini-trial” of a of Accordingly, calls while collateral case, fense can cause undue in a section 115—7.3 it is not “carefully necessary limit[ ] in such a case that a court the details of necessary the other crime to what is to ‘illuminate the issue for which ” (Boyd, quot the other crime was introduced’ 3d at 432) ing Nunley, required to the extent common- law other-crimes cases.
Nevertheless,
may
be
high quantities of other-crimes evidence
still
inadmissible under section 115—7.3 for reasons other than its
gratuitous
other-crimes
tendency
propensity,
to show
because
delay.
See
jury
unnecessary
evidence
also cause
confusion
(1983) (“We
McKibbins,
agree that it
People v.
96 Ill. 2d
186-87
***, and
necessary
[other crime]
was not
to conduct a mini-trial of the
time,
against
we advise
such
economy
judicial
for the sake of
offenses”). However, again, though
these
detailed evidence
other
cases,
by the
they
concerns exist in section 115—7.3
are weakened
contrary
typical
force of
Unlike the rule for
other-crimes
principles.
cases,
actually contemplates that the State and the
section 115—7.3
other crime.
present competing
regarding
will
defense
7.3(b) (West 2004) (“evidence of the defendant’s
See 725 ILCS 5/115—
***
or offenses
or evidence to rebut that
commission of another offense
added) may be admis
proof’ (emphasis
or an
proof
from
inference
cases).
peroration in McKib
supreme
sible in sex-abuse
Our
court’s
bins,
permissive
in the less
context of normal
though
even
stated
present
the State’s interest in
aptly
other-crimes
describes
in this context as well:
ing other-crimes evidence
that some number of convictions
“The
court indicated
appellate
impeach
introduced to
properly
than the total could have been
less
become
question
would then
the defendant if he testified.
admitted,
those nearest
of these convictions would be
which
Also,
most distant?
how
of time to the crime
or those
point
impeach
the defendant’s
many convictions would be sufficient
enough
be
credibility? may
single
theft convictionwould
It
be that
eyes
juror,
of one
whereas
in the
impeach
had
The defendant
required
for others.
something more would
dishonesty. He had furnished
overwhelming
an
record
compiled
*19
an
with substantial
ammunition. A trial
is
prosecution
adversary
right
obligation
to
proceeding. The State had the
destroy
impeaching
possessed
use all
it
in order to
of the
evidence
credibility
testify.
compiling
of the defendant if he were to
After
record,
to
expect
such a
the defendant should not now
court
utterly
showing
jury
from
to the
that he is
prevent
the State
unworthy
prevented
of belief. If the defendant in this case was thus
wrongdoing.”
testifying,
consequence
from
this is a
of his own
McKibbins,
See also obligated anticipate State is not to the avenue of defense and limit its proofs accordingly, though stipulates even defendant admits or to [the] facts”). the existence of louder rings certain The above statement even (1) cases, 7.3, in section 115—7.3 because under section 115— presenting light State’s interest is in propensity stronger evidence of the statutory challenge invitation to a defendant to the evidence (2) excluding defendant’s interest in the evidence weaker in light statutory reversal of the common-law presumption other-crimes per unfairly prejudicial. Any evidence is se limits under section judicial economy must, 115—7.3 on mini-trials based on therefore, defer largely prosecutorial discretion.
Although supreme our judges court has warned that trial should “be cautious in considering admissibility of other-crimes evidence to show propensity by engaging meaningful a assessment of the probative value versus the prejudicial impact [undue] of the evidence” (Donoho, 186), 204 Ill. 2d appears at it from our discussion above that the actual limits on the trial court’s decisions on the quantity propensity evidence to be admitted under section 115— 7.3 are relatively modest, especially when highly combined with the deferential abuse-of-discretion governs standard that review of such trial court 182).9 (see, Donoho, decisions e.g., reviewing 204 Ill. 2d at aWhile court will reverse the trial court’s decision to allow too much otherwise i.e., 9Weobserve that the limits propensity on the nature of evidence— proven what other type may crimes can be and what of evidence be may imposing be more than the limits discussed herein on the introduced— quantity First, thoroughness of that for at least two reasons. sec 7.3(c) explicitlyrequires tion that courts consider whether other crimes 115— are closein time and similar to the crime in order to meet minimum probative admissibility. question standards of value for of whether too particular much evidence of crime was introduced comes after the inquiry particular may probative. Second, of whether crime be considered question specific proven may of whether a other crime be could also raise questions regarding description whether a of the circumstances of that other in extreme situa propensity evidence under section 115 —7.3
relevant Cardamone, restrictions we the modest presented tions such as that cases dictate affirmance. Neverthe outlined above will in most other less, warning respect supreme in order to heed the court’s 7.3, under section courts proven other crimes what 115 — to admit should considering quantity of other-crimes *20 value and undue probative mindful of the balance between likewise be statutory factors directed Though explicit there are no prejudice. other-crimes prejudice thorough the undue of more assessing toward may prejudice consider the additional undue trial courts (even though that undue thorough the more evidence caused case), the typical other-crimes will be less undue than prejudice jury or will distract thorough the more evidence likelihood trial, improperly of less availability and the unduly prolong (or more limited suitability of alternative evidence prejudicial Falsetta, 21 Cal. 4th evidence) People v. propensity. to establish Cf. (1999) (listing 182, 190, 856 903, 917-18, Rptr. 89 Cal. 986 P.2d which, §1108, like the Il prejudice for under Cal. Evid. Code factors Evidence 413 and statute, Federal Rules of linois was modeled after 414). because, reading of section 115 —7.3 objects to a broad
Defendant longer no other crimes evidence limiting presentation the rules of “[i]f [sec- under propensity of involving in cases admission apply offense sex 7.3, then there can never be tion] 115 — disagree with defendant’s of severance.” We cannot purposes cases for it, when as we read of section 115 —7.3 point. basic The effect will reverse a convic- reviewing court with the rule that combined defendant, misjoinder prejudiced if misjoinder only tion in all for sex-offense cases joinder statute essentially to eviscerate As evidence. gratuitous other-crimes but the most extreme cases unintended effects.” notes, statutes have “[s]ometimes also Federal 413 and 414 of the after Rules Section 115 —7.3 was modeled rules, which allow joinder the federal Evidence. Rules of character, or similar “are of the same two or more crimes joinder when transaction, or are connected with or act or or are based on the same (Fed. added) plan” (emphases or of a common scheme parts constitute crime, undue causes crime, may heinous than the which be more how only the issue of to decide prejudice. intend the above discussion We if the other crimes thorough other-crimes evidence much or how proof. subject As we proper already deemed the have been which it relates question whether evidence above, question from this is a different noted be admissible. particular other crime should of a 8(a)), permissive joinder more than the dramatically R. P. are Crim. Illinois, which, above, joinder when two rules in as discussed allow Thus, comprehensive transaction. part more crimes are of the same appreciable Rules of Evidence had no Rules 413 and Federal already allowed crimes joinder system, effect on in the federal which character” and joined they to be where are of “the same or similar joinder pending thus of two sexual-assault trials. would have allowed (La. 1984) Celestine, (allowing joinder State v. So. Cf. the federal separate two sexual assaults under a rule that mirrors But, Rules of language). when Rules 413 and of the Federal Illinois, effectively transplanted they Evidence were into the Code in way affected the drafters of the federal rules joinder Illinois law a contemplated, by allowing expansive propensity would not have joinder under the Illinois joined evidence of crimes that cannot be again question point scheme. We do not defendant’s that the ramifica unforseen, joinder likely tions for were but those ramifications are an consequence interpretation inevitable of our of section 115—7.3. said, repeat That we the caveat we issued at outset of our analysis. harmless-error While the above discussion indicates that enjoy admitting trial courts wide latitude in evidence under section 7.3, section, courts should opinion, not read that or this as an 115— invitation ground to overlook the statute on the that even a *21 misjoinder not lead will to reversal. A trial court must consider separately, and completely, regardless of its assessment of the that, below, misjoinder. harmlessness of further note as discussed We challenged credibility defendant here of the complaining witnesses challenged evidence; and thus position the other-crimes defendant’s provided the State further justification to introduce additional evidence of each crime. The undue to a defendant who does not challenge misjoined the State’s other-crimes evidence in a case might greater here, and, case, opinion than we see in such a our today necessarily misjoinder. would not shield a trial court’s
The application principles of the above to the current case defeats argument presented defendant’s that the other-crimes evidence here admissible would not been To address have under section 115—7.3. argument, provide summary defendant’s we a brief of the evidence ad- respect complainants duced at trial with to each Both described victim. assaults; alleged their versions of the events defendant’s surrounding testified, both defendant for among things, they other that had known (both occasions) a short time had on before prior visited his house defendant and sexu- go physically forced them to to his home and then (Defendant ally now that dispute assaulted them. does not testimony of trials if each victim would have been admissible both severed; argument focuses on the additional evidence
they had been his crime.) regarding alleged support each To the first presented State testimony police introduced from a of- testimony, victim’s the State ficer, driver, nurse, police a cab and a doctor. The officer testified hysterical day alleged victim in a state the after her that he found the assault, sexually reported that the victim that defendant had assaulted her, injuries and that he saw various on the victim. He also testified custody establish a of the chain of of evidence from a sexual- portion driver, kit. The cab who drove the first victim home the morn- assault assault, shaky, testified that the victim was that ing alleged after the assaulted, reported sexually the victim to him that she had been home, that, angrily when he and the victim arrived at her defendant nurse, The regarding phones. confronted the victim their cellular who day alleged at- hospital was at the the victim went to on after tack, The biological samples she took from the victim. testified that victim, doctor, testified that victim’s who also treated the second first assaulted, he reported sexually that she had been the first victim victim, injuries he saw various on the samples took from the and that vagina). bruise in her The doctor also verified (including victim injuries. photographs depicting the first victim’s victim, supporting testimony presented As for the second the State victim, officer, nurses, and the same police from a two a friend of the The officer regarding police who testified the first victim. doctor regarding the how he found the second victim and testified described the victim reported evidence. He also custody chain of certain testify stated that distraught. to be The first nurse appeared sexually assaulted and that that she had been reported victim nurse testi- injuries story. consistent with her second victim bore saw the from the victim and that she samples fied that she took regarding a confronta- injuries. victim’s The victim’s friend testified alleg- night at a bar on the defendant tion between him and defendant testimony victim’s testimony His corroborated the edly assaulted her. Finally, treating the victim’s defendant’s. slightly contradicted sexually as- she had been reported doctor testified that the victim He also verified injuries on the victim. saulted and that he saw injuries.10 the victim’s photographs depicting cross-examination, chal- case-in-chief, and on In his *22 unfairly prejudicial, defendant summarizing testimony he deems 10In the However, the forensic testimony to both victims. also to forensic related refers matching samples chain-of-custody issues and to testimony limited to was prejudice profiles. no undue DNA We see defendant’s or the victims’ the also note that discuss it further. We testimony, and we do not from this testimony, lenged credibility testimony. of the victims’ his own he physically assaulting defendant denied the victims and stated that engaged in consensual intercourse with both. victim,
Aside testimony from the of each which even defendant argue does not not under separate would have been admissible trials 7.3, section supplemental testimony by offered the State was 115— relatively Much supplemental testimony limited. of the (and brought custody identifies was to establish the chain of foundation) for physical supplemental evidence. The remainder of the testimony portions testimony by corroborated of the victims’ establish- ing they injuries events, that bore by consistent with their versions of incidents, establishing they upset shortly were after the confirming that angry allegedly defendant had been at the bar before assaulting the second victim. The most salacious of this evidence —the evidence regarding injuries and the regarding evidence the victims’ emotional states after the important incidents —served the function of corroborating the victims’ testimony, testimony that defendant chal- lenged or grounds. above, refuted on several explained As we section 115—7.3 contemplates that a defendant will challenge propensity evidence implicitly and thus contemplates State offer more thorough evidence in anticipation impeachment. Given our expansive interpretation of the amount of evidence allowed under sec- (and tion high 115—7.3 level of deference afforded the trial court in making 7.3), decisions under section we do not conclude that 115— prejudice undue from the amount of detail contained this supplemental propensity outweighed probative its value. Again based on our interpretation unusually of the low level of undue prejudice attendant to 7.3, other-crimes evidence under section 115— we also conclude that the danger jury delay confusion or undue was not so strong that the trial court’s decision to allow the evidence in each trial would have (Indeed, been an abuse of discretion. with the exception of the testimony doctor, the direct examination of each comprised above-described witnesses 11 pages or fewer in the trial transcript.) Because we would find no reversible error trial court’s decision to allow all of the above other-crimes evidence pursuant trials, section 115—7.3 even in separate each two we conclude that misjoinder defendant suffered no from the charges against trials on the reject him. We therefore defendant’s presented police above, State testimony, additional not discussed that related specifically, police neither victim but instead to encounters with defendant. Like the forensic we do not deem this evidence relevant to our inquiry prejudiced by misjoinder. into whether defendant was *23 trial court’s convictions must be reversed for the
argument that his joined single him in a trial. charges against the to be decision to allow is that the trial court argument appeal second on Defendant’s victim, his statement to the second barring erred in admission of doing night, you’re and now sucking fucking for and me all “thanks statement would have Defendant asserts this this to me.” the second victim his that sexual relations between bolstered assertion him were consensual. prove to the statement offered “Hearsay an out-of-court asserted, People v. Sul generally inadmissible.” truth of the matter (2006). trial, stated At the defense livan, 3d the as evidence of sought that it to introduce the statement expressly therein, the defense of and the basis truth of the matter asserted exception the excited-utterance admitting the statement was fered for appeal. on reprises approach Defendant this hearsay to the rule. other, nonhear any evidence for defendant did not offer the Because guilt consciousness of defendant’s lack of say purpose, such as to show anger during the cause of defendant’s possible to demonstrate one instead confrontation, consider those issues.11 We we do not phone excited-utterance applicability to the of the confine our discussion the facts of this case. hearsay to the rule under exception under hearsay statement to be admissible In order for a referred to as sometimes also exception, excited-utterance 779), (Sullivan, exception spontaneous-declaration “(1) startling produce to sufficiently there must be an occurrence (2) absence statement, there must be an unreflecting spontaneous and (3) statement, and the state to fabricate the time for the declarant People v. of the occurrence.” must relate to the circumstances ment (2000). discre A court has broad Williams, trial appeal on will not be reversed ruling evidentiary issues and tion in on Kaczmarek, People v. abuse of that discretion. absent an (1993). type to the incident amounted assuming phone Even for the of the test prong the first required under startling event defendant that the statement we conclude exception, excited-utterance test. prongs and third still fails the second sought to introduce must have been the statement prong, second pass to In order as “the shocked brief, his statement defendant characterizes reply 11Inhis wronged by woman to have been believed himself of a man who reaction However,again, and here on at trial sex.” he had had consensual with whom admissibility to show the argued the statement’s has for appeal, asserted. of the matter truth to reflect on the contents
made without time for the declarant Here, he views as portion the statement. of defendant’s statement the events of the describing of the statement exculpatory portion —the describe, purported it previous night well after events —occurred the event his ample and defendant had time to fabricate between following morning. statement described and his statement the test for the excited- satisfy prong order to the third exception, utterance a statement must relate to the circumstances defendant, startling According startling occur occurrence. purported phone. portion rence here was the theft of his “thanks exculpatory, of defendant’s statement that could be seen as sucking fucking night,” purported me all does not relate to the night. phone, previous theft of his but instead to the incident of the *24 Thus, defendant’s statement did not relate to the circumstances of the Harrod, 96, startling occurrence. See v. 3d 106 People App. (1986) (assuming, arguendo, startling that disablement of car was a event, regarding having just lawyer’s nothing statement left office had disabled). to do with becoming car
Accordingly, we sought conclude that the statement defendant introduce into evidence did excep- not fall within the excited-utterance rule, tion to the hearsay reject and we argument defendant’s that the trial court abused refusing its discretion in to allow the statement into evidence. reasons,
For foregoing judgment we affirm the of the circuit court of Winnebago County.
Affirmed.
JORGENSEN, J., concurs. GEOMETER,
JUSTICE specially concurring: I agree comes, with the result to which the I majority fully endorse its discussion of 115—7.3 of section the Code Criminal (Code) (725 (West2004)) Procedure of 1963 ILCS as well as 5/115—7.3 not, hearsay however, agree its treatment of the I do its issue. (West 2004)). analysis the joinder statute ILCS The 5/111—4 majority’s discussion of the use to determine whether factors courts two charges may together be tried reveals a fundamental misunder- standing joinder. Accordingly, I write purpose nature and separately to address that issue.
The my disagreement majority heart of with the concerns what it is we are trying appropri- to assess when we ask whether it would be ate to try charges jointly. majority joinder ap- two The believes that
propriate only relationship if there is some actual between two crimes. is, it majority metaphysics That what the does looks more like to ask is some factual connection between the seems whether there trying question. Conversely, two events in I believe that what we are acceptable pack two crimes form an simply to determine is whether end, overarching To there are two concerns: age single for a trial. this Wilier, See v. judicial efficiency to the defendant. (1996); Karraker, 3d 281 Ill. 942, 3d v. (1994). developed years The factors that have over the in the analyzed propriety myriad cases where courts have assessing make much more sense if understood as tools for these factors, majority though concerns than the ascribes to them. These proximity are: “the in time and loca always identically, not set forth offenses, identity of evidence needed to demonstrate a tion of the offenses, link whether there was a common method between offenses, establish and whether the same or similar evidence would People Gapski, the elements of the offenses.” (1996). further, majority’s I must conten proceeding Before address from prohibits of section 111—4 a court language tion that considering policy interpreting matters in the statute. plain not from the generally depart
at 602. It is true that a court 194 Ill. 2d language unambiguous People Wright, of an statute. (2000). assumes, that section majority explanation, without I, however, unambiguous. nothing regard see clear 111—4 is clear and transaction.” 725 ILCS ing phrase comprehensive “same 5/111—4 (West 2004). differ does a “same transaction” How narrower ordinary transaction?” Is it a broader or from an “same *25 I that the “comprehensive” word add? believe concept? What does the phrase renders the “same inclusion of this word Therefore, necessary beyond to look [is] unclear. “it transaction” objectives prospective and remedial express words and to consider Seaman, by the statute.” Mack v. purpose to be served (1983). 151, 154 comments to Moreover, sentence in the committee very first on Rule 8 of the states, paragraph “This is based section 111—4 4, Ann. Com- Procedure.” 725 ILCS Federal Rules of Criminal 5/111— (Smith-Hurd 2006). reads, in 1963, Rule 8 at 653 mittee Comments— as follows: pertinent part, may charge a defendant information
“The indictment or charged— offenses if the offenses counts with 2 or more separate of the same or or both—are felonies or misdemeanors whether transaction, or character, the same act or or are based on similar parts are connected with or constitute of a common scheme or 8(a). plan.” Fed. R. E Grim. Rule 8 simply legislature states “same act or transaction.” Our must have meant something “comprehensive.” Perhaps when it added it “comprehensive” meaning intended to broaden the of “same transac tion” and replace language “same or similar character” of Rule 8. majority up here, The sets asserting arguing a straw man that I am “comprehensive” means “same or similar character.” 386 Ill. App. 3d My point at 608 n.l. is that it is difficult to ascertain what it is legislature meant. The legislature’s certainly intent is not clear to me. Additionally, state, the committee comments “[This] section is substantially a restatement and codification of former Illinois law.” (Smith 1963, 725 ILCS Ann. Committee at 653 5/111— Comments— 2006). Hurd Former Illinois law included Herman People, (1889), supreme case which our court rejected the against common-law rule joining felonies and misdemeanors because “embarrass, it would delay, prevent justice.” administration of years Over 100 ago, the notion judicial served efficiency already had been recognized state, in this and it was thus part of the law legislature that the codified when it enacted section 111—4.
The majority nevertheless contends that “comprehensive” does not cloud the meaning “same comprehensive transaction.” Despite its many protestations, the majority explains never “comprehen what sive” adds. Apparently, majority believes the word does not add anything to meaning This, phrase. course, violates a principle cardinal statutory Compton Ubilluz, construction. (2004) (a Ill. statute should not be construed so as to render any portion meaningless). of it majority charges that “same comprehensive transaction” “remotely is not equivalent” to package “convenient for trial.” 386 agree; 3d at 607. I however, as I explained, have I relying plain am not on the language of the statute to support my it, construction language for that ambiguous.
Accordingly, I will take policy-based approach Ias examine the factors courts are to consider in assessing propriety of joining multiple charges. This disregarding makes sense even Iwhat have set forth above. procedural Joinder is a device help available to courts to manage their crowded They dockets. should be able to use it to the extent that it unfairly does not prejudice a defendant. Judicial ef- ficiency to the paramount defendant are concerns. With mind, this in I will now turn to particular factors that have been articulated the courts.
I will start majority with what the deems the obviously “most *26 I factor,” efficiency. App. 386 Ill. 3d at 601. judicial inappropriate if concerned with majority’s assessment we were agree would ontological sense. That two relationship between two events an bearing has no on whether efficiently together can be tried charges However, it is of obvious relevance related as a matter of fact. they are pack charges appropriate of whether the two form an question to the try charges together if it is There is little reason to two age for trial. 601) App. Ill. and the majority to do so. As the not efficient (1993), note, Patterson, try App. 3d court in Thus, efficient. more charges together typically will be ing multiple given little not, be treated as a constant and often than it should circumstances, that, joinder would in certain weight. It conceivable linked, crimes, are multiple though otherwise Perhaps not be efficient. marshaling witnesses and evidence geographically that so removed a in one location. In such if the trial were held would be cumbersome v. American case, against joinder. Walker efficiency would militate Cf. (1996) (“None 87, 92 Transportation, 3d River affecting the ease and problems potential practical venues is free from crew, dispersion of the litigation. geographical expense of logistical a experts presents [sic] forensic treating physicians, and the case is no matter where this marshalling the evidence problem tried”). case, but represent a rare Admittedly, hypothetical this would efficiency out of the judicial to write I do not view this as a reason (2005), 106, 116 Boand, Indeed, test. severance, efficiency may weigh in favor recognizes that expressly judicial promote severance will this factor as “whether the articulating efficiency.” prejudice concern view, primarily rest of the factors my some underlying is a factor defendant, although judicial efficiency guid of shorthand is, they largely act as a sort as well. That
of them joinder. effect potential prejudicial inquiry regarding ing identi supplemental factors terms the “two majority Take what the are whether at 602. These factors fied in Patterson.” whether the the victims and any similarity between there is victims. respect to the authority with position of in a similar stood majority I with the Again, agree Patterson, 3d at 588. relationship between real bearing no on the factors have that these assessing useful for extremely they are multiple events. victims is held. If the joint if a trial to a defendant prejudice potential victim example, one exists. For dissimilar, potential are thefts, for two If is tried a defendant particularly sympathetic. may be citizen, from a senior man and another 35-year-old one from elderly person. targeting an outraged by the act very well be jury may Similarly, regarding the other theft. judgment That ire could affect its authority arising position from an abuse of a outrage moral regard to a defendant with against prejudicial one victim could be *27 hold over the defendant did not targeting crimes other victims whom have authority. “supplemental These two factors” position same place analysis. in the prejudice majority improper The states that it is to even consider joinder appropriate, in is for determining to the defendant whether joinder into the incorporates prejudice “the Code to a defendant analysis completely via a different section from the section articulates the ‘same transaction’ test we now discuss.” this App. majority goes por 386 Ill. 3d at 603. The then on to resolve by finding tion of the The appeal prejudiced. that defendant was not majority points prejudice out that in section 114—8 of the appears Code, governs severance, which motions for but not section 111—4. (West 2004). 8, See 725 agree ILCS 111—4 I that the text of 5/114— however, section 111—4 does not expressly prejudice; mention 4, committee comments to that section do. 725 ILCS Ann. 5/111— (Smith-Hurd 2006) (“The Committee at court Comments — separate any order a indictment for if each offense for reason the confused”). prejudiced Moreover, defendant would be or jury it would needlessly awkward require a trial court to make a determination regarding propriety joinder considering without prejudice, only to have to revisit the issue if a makes a motion party for severance.
I disagree majority’s also with the temporal assertion that (the 942)) spatial proximity (Gapski, App. first factor 283 Ill. at 3d “probably factor that is helpful by App. most far.” 386 Ill. 3d certainly at 603. It is an important factor. If events are linked in space time, likely it is overlap. overlaps, evidence will If evidence in presenting certainly Moreover, it one trial is more efficient. if much trials, the same evidence presented separate would be reduced, jury a defendant would be as the be hear would ing the overlapping regardless multiple of whether one or tri Nevertheless, give als were held. I see no reason to this factor elevated status, proximity may Wills, for also be coincidental. State v. Cf. (the (1994) 690, 691, Ohio St. 3d 635 N.E.2d “should serve time of his proximity no less because of the coincidental victims”). number two The majority discusses a of noncontroversial (386 603-05), apply App. cases that this factor Ill. 3d at and I have no quarrel out, however, I point with these cases. would that courts have found much appropriate proximate. circumstances less People Lewis, (1995), for App. example, 269 Ill. against occurring
court found that a series of assaults four victims joined. 22-month period properly over a were majority’s factor, I discussion of the second largely agree with link the of identity “the of evidence needed to demonstrate a between agree I further Gapski, App. fenses.” 3d at 942. majority that this factor has often been conflated with other factors. is, fact, identical, weigh If evidence it would 3d at 605. joinder, properly in favor of but this fact would be more considered factor, would under the fourth “whether the same similar evidence Gapski, of the offenses.” 3d at establish the elements 942. factor, third “whether there majority improperly narrows the at (Gapski,
was a common method in the offenses” 942), part it with the offenses were of a ‘common replacing “whether ” 606-07). object in mind that the Keeping scheme’ accept form inquiry of this is to determine whether two offenses an trial, this majority’s it is clear that the articulation of package able method, likely If there is a common then it is factor is too restrictive. *28 the need to joint it to conduct a trial to avoid that would efficient concerning impor that method. More present redundant evidence by diminished the likeli tantly, prejudice for would be potential the probably method are using that crimes committed a common hood reasons, For the same I believe that the turpitude. similar moral similar fourth factor —“whether the same or majority’s reading the (Gapski, the elements of the offenses” evidence would establish 942) not be limited to 3d too narrow. It should App. Ill. at —is part single compre offenses are of a “determining multiple whether (386 607), “single if by Ill. 3d at at least App. hensive transaction” as a matter of majority transaction” the means related comprehensive to Instead, be allowed to use this factor fact. trial courts should addressed in one trial ef multiple charges may be determine whether prejudicing without the defendant. ficiently considerations, grant if I to even were Turning general to more the language of point allegedly plain about the majority the its considerations, corollary that and the foreclosing policy legislature read as “same transac transaction” should be “same analysis. principle A venerable tion,” agree I still would not with its reading literal that, plain “where a statutory construction is yield.” results, reading should the literal produces statute absurd (2003). 486, majority’s The construc Hanna, v. 207 Ill. 2d People section of its construction of light 111—4 is absurd in tion of section (West 2004)). (725 majority The of the Code ILCS 115—7.3 5/115—7.3 (in that, noting though by 115—7.3 its discussion of section begins majority’s join charges, any it error error was opinion) was to harmless “the error did not defendant.” 386 prejudice because Thus, majority improper, Ill. holds that it was 609. harmless, though no join charges albeit in this case even Parenthetically, contrary accrued to defendant. this seems the committee comments to section 111—4: “The court order a separate indictment if reason the defendant for each offense 4, would be prejudiced jury or the confused.” 725 ILCS Ann. 5/111— (Smith-Hurd 2006). 1963, Conversely, Committee at 653 Comments — majority misjoinder finds it though even concludes that defendant prejudiced. Moreover, absurd, was not major this result is in that the ity expressly sanctions the admission of all of the evidence under sec tion 115—7.3 that was admitted under section 111—4 in this case. Thus, properly the trial court jury allowed the to hear all of this evidence; however, it erred jury because it allowed the to consider an additional count based on this differently, evidence. Put a mini-trial of the related offense had in the primary course of a trial on the offense fine, is but improper joint it is to hold I trial. cannot conceive of what value such a rule serves.
A
clearly
value it
does not
is stare
Accepting
serve
decisis.
majority’s
People McLemore,
1052,
assertion that
v.
(1990),
1057-58
“originated
efficiency
factor”
Ill. App. 3d at
601-02),
majority
overruling
McLemore,
is
18 years of law. Since
several cases have relied upon this factor when assessing
propriety
joinder.
Boand,
116; Willer,
See
App. 3d (listing “common method” and “common factors); type of victim” as People Terry, (1988) factor). (listing willing “common method” as a I am not disturb these decisions.
Finally, Harris, I note the case of 3d 891 (1986). Harris bears notable to this similarities case: two approximately occurred within
“In this cause the offenses offender In each instance the and within about 31 hours. blocks grabbed them around elderly apartments, women to their followed Both behind, apartments. forced them into their the neck from money. asked about Both were were beaten and robbed women removed and had all her clothes jewels. raped One victim was was too old to be stockings. The other was told she except her wearing consciousnessshe was regained but when she raped, included admis police defendant to the Statements made slip. factors, physical proxim attacks. Of these relating sions to both type of the common operation, method of ity, the common grant the determination to the trial court’s support victim all Harris, 3d at 894-95. motion.” State’s similarity the two to be the between key appears link in Harris clearly in this cause concluded that “the facts crimes. The Harris court comprehensive of a part series of offenses were that the two established Harris, 147 Ill. for trial.” permit their transaction so as a similar properly made The trial court in this case App. 3d at 895. determination. correct, “same it is because majority is
Ultimately, if the Essentially, reality.” means “related comprehensive transaction” thing the same transaction” mean comprehensive “same this makes word troublesome ignore I cannot “same transaction.” as Moreover, phrase. meaning which clouds “comprehensive,” metaphysics. not here and engaged procedure in criminal we are than “forms concept useful of fact” is a far less “Related as a matter not believe that Because I do for trial.” acceptable package an foreclose transaction” “same words legislature’s discussion of majority’s join I cannot inquiry policy, into judicial this issue.