People v. Pelo

• Decision Date: 06 October 2010
• Docket Number: No. 4–08–0758.,4–08–0758.
• Citation: 404 Ill.App.3d 839,347 Ill.Dec. 260,942 N.E.2d 463
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jeffrey PELO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 839

942 N.E.2d 463

347 Ill.Dec. 260

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

v.Jeffrey PELO, Defendant–Appellant.

No. 4–08–0758.

Appellate Court of Illinois, Fourth District.

Oct. 6, 2010.

Michael J. Pelletier, State Appellate Defender, Gary R. Peterson, Deputy Defender, Ryan R. Wilson (argued), Assistant Appellate Defender, Office of the State Appellate Defender, Springfield, for Jeffrey Pelo.William A. Yoder, McLean County State's Attorney, Bloomington, Patrick Delfino, Director, Robert J. Biderman, Deputy Director, David E. Mannchen (argued), Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice STEIGMANN delivered the opinion of the court:

[347 Ill.Dec. 265 , 404 Ill.App.3d 841] In June 2006, the State charged defendant, Jeffrey Pelo, a Bloomington police sergeant, with 37 counts of criminal conduct originating from two separate cases (McLean County case Nos. 06–CF–581 and 06–CF–679). Specifically, the State alleged that between December 2002 and June 2006, defendant committed a series of crimes involving the stalking, intimidation, home invasion, residential burglary, unlawful restraint, and aggravated criminal sexual assault of five women from the Bloomington–Normal community.

In June 2008, a jury convicted defendant of all 37 counts. Following an August 2008 sentencing hearing at which the trial court (1) merged several of defendant's convictions pursuant to the one-act, one-crime rule and (2) imposed several statutorily mandated sentencing enhancements, the court sentenced defendant to a series of consecutive terms of imprisonment, totaling 440 years.

Defendant appeals, arguing that (1) the trial court erred by (a) allowing the State to introduce into evidence dozens of exhibits involving, among other things, graphic pornographic images and text, including depictions of rape, found in defendant's home computer, (b) denying his motion for change of venue, (c) excluding the testimony of his expert witness, and (d) failing to question jurors regarding the presumption that he was innocent until proven guilty; (2) the State failed to prove beyond a reasonable doubt that he sexually assaulted one of the victims, A.M.; and (3) his sentencing enhancements for the aggravated criminal sexual assaults against victims K.H., A.L., and S.K. violate the proportionate-penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11). Because we agree only that defendant's last argument requires remand, we affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

A. The Charges in This Case

1. Case No. 06–CF–581

In June 2006, the State charged defendant with (1) attempt (residential burglary) (720 ILCS 5/8–4, 19–3(a) (West 2006)), alleging that defendant attempted to gain entry into J.P.'s residence with the intent to commit a felony or theft and (2) stalking (720 ILCS 5/12–7.3(a)(2) (West 2006)), alleging that defendant “followed and/or surveilled” J.P. on at least two separate occasions, placing her in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint. These offenses allegedly occurred in 2005 and 2006.

2. Case No. 06–CF–679

In August 2006, the State charged defendant with 35 counts involving crimes it alleged that he committed against S.K., A.L., K.H., and A.M., which took place between December 2002 and June 2006.

a. The Counts Involving S.K.

The State charged defendant with home invasion (720 ILCS 5/12–11(a)(1), (a)(3) (West 2006)), in that he entered S.K.'s home with a firearm and knife, threatening S.K. with the imminent use of those weapons (counts I and II); aggravated criminal sexual assault (720 ILCS 5/12–14(a)(1), (a)(8) (West 2006)), in that he sexually penetrated S.K.'s vagina and anus by the use of force, while armed with a firearm and knife (counts III through XX); (3) residential burglary (720 ILCS 5/19–3(a) (West 2006)), in that he entered S.K.'s home with the intent to commit a felony (count XXI); (4) aggravated unlawful restraint ( 720 ILCS 5/10–3.1(a) (West 2006)), in that he unlawfully detained S.K. with a

[347 Ill.Dec. 266 , 942 N.E.2d 469]

firearm or knife (count XXII); and (5) intimidation (720 ILCS 5/12–6(a)(1) (West 2006)), in that he threatened to harm S.K.'s family if she reported the sexual assault (count XXIII).

b. The Counts Involving A.L.

The State charged defendant with (1) home invasion (720 ILCS 5/12–11(a)(1) (West 2006)), in that he entered A.L.'s home and threatened her with a knife (counts XXIV); (2) aggravated criminal sexual assault (720 ILCS 5/12–14(a)(1) (West 2006)), in that he penetrated A.L.'s vagina, while threatening her with a knife (count XXV); (3) residential burglary (720 ILCS 5/19–3(a) (West 2006)), in that he entered A.L.'s home with the intent to commit a felony (count XXVI); and (4) aggravated unlawful restraint (720 ILCS 5/10–3.1(a) (West 2006)), in that he detained A.L. at knifepoint (count XXVII).

c. The Counts Involving K.H.

The State charged defendant with (1) aggravated criminal sexual assault (720 ILCS 5/12–14(a)(1), (a)(8) (West 2006)), in that he sexually penetrated K.H.'s vagina by the use of force, while armed with a firearm and an object that he led K.H. to believe was a dangerous weapon (counts XXVIII through XXXI).

d. The Counts Involving A.M.

The State charged defendant with (1) aggravated criminal sexual assault (720 ILCS 5/12–14(a)(1) (West 2006)), in that he sexually penetrated A.M.'s vagina by the use of force, while armed with a knife and an object he led A.M. to believe was a dangerous weapon (counts XXXII through XXXV).

In October 2006, the State filed an amended motion for joinder and consolidation in both cases (case Nos. 06–CF–581 and 06–CF–679), which the trial court later granted.

B. Pretrial Issues in This Case

Prior to defendant's jury trial, which began in May 2008, the trial court addressed, in pertinent part, (1) defendant's request (a) for a change of venue and (b) to limit the State's evidence and (2) the State's request to bar defendant's eyewitness-identification expert.

1. Defendant's Request for a Change of Venue

In February 2008, defendant filed a motion for change of venue, asserting that the “substantial publicity * * * in the local print and electronic media, circulated [and] broadcast [in the] county, * * * aro[used] and incite[d] the passions of the community to [his] prejudice.” Following a March 2008 hearing, the trial court denied defendant's motion without prejudice, explaining its ruling as follows:

“[T]he [c]ourt has a duty to * * * ensure that * * * defendant receives a fair trial. That * * * includes a trial in front of a fair and impartial jury. * * *

[However], the mere fact that there has been potentially harmful publicity in the community in and of itself * * * does not establish that there is community prejudice sufficient to warrant a change of [venue]. * * * [The court] think [s] it is * * * clear * * * that jurors are not required to be completely ignorant of the case; but rather, * * * it must be shown that the jurors may set aside any impressions or opinions that they may have * * * and render a verdict based only on the evidence presented at trial.

* * *

The other principle * * * [that] the [c]ourt is required to be guided by * * * is that * * * examination of the prospective jurors is the best way, the most valuable [way to] determin[e] whether * * * pretrial publicity has rendered a

[347 Ill.Dec. 267 , 942 N.E.2d 470]

fair trial in a certain location to be impossible.

* * * [T]he [c]ourt's belief [is] that voir dire is intended to do just that, [which] is to ensure that those jurors who are selected and sworn to hear the evidence are not going to be influenced by any pretrial publicity. * * *

* * *

The [c]ourt does not believe that the subject matter of publicity [that] has been presented in this case * * * indicates that it would be impossible to find 12 jurors and several alternatives * * * from this county, but of course [,] the [c]ourt can't hold that because we haven't begun the selection of the jurors yet. * * *

For all those reasons, the [c]ourt does not believe that the granting of a motion for a change of [venue] is appropriate at this time. The motion for change of [venue] is denied. With regard to that motion, of course, * * * defendant has the right to renew that motion * * *.”

2. Defendant's Request To Limit the State's Evidence

In November 2007, the State filed a motion in limine, seeking to use evidence of defendant's “other misconduct,” which included pornography recovered from defendant's home computer, to show defendant's identity; motive; intent; modus operandi; the existence of a common scheme, plan, or design; or continuing narrative. Specifically, the State sought permission to introduce evidence related to case Nos. 06–CF–581 and 06–CF–679—that is, evidence of all the charges against defendant and other related misconduct—interchangeably because all of the incidents (1) involved (a) similar victims; (b) restraint of the victim; (c) prior surveillance; (d) the use of similar equipment, tools, and habiliments; (e) a linear progression of time spent at the crime scene; and (f) a suspect who was wearing similar clothing, and (2) occurred at approximately the same time of day.

Defendant broached the other-bad-acts evidence issue at a hearing on several pending motions, as follows:

“[The State] * * * filed a motion to let it in. [T]he first thing I was going to address here was that [the State] need[s] to identify what information they are going to try to bring in to show identity, motive, intent, modus operandi, [and] common scheme, plan[, or] design. * * *

I don't know how looking [at] pornography is going to tend to identify [defendant] as the attacker of these women, how it shows motive, intent, modus operandi, or any other existence of a common scheme, plan, or design. I think this motion needs to be addressed...