People v. Albarran, 1-15-1508

Citation116 N.E.3d 319,426 Ill.Dec. 470,2018 IL App (1st) 151508
Decision Date24 September 2018
Docket NumberNo. 1-15-1508,1-15-1508
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ullysses ALBARRAN, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

2018 IL App (1st) 151508
116 N.E.3d 319
426 Ill.Dec.
470

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Ullysses ALBARRAN, Defendant-Appellant.

No. 1-15-1508

Appellate Court of Illinois, First District, FIRST DIVISION.

September 24, 2018


Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Christine Cook, Assistant State’s Attorney, of counsel), for the People.

JUSTICE PIERCE delivered the judgment of the court, with opinion.

426 Ill.Dec. 475

¶ 1 Defendant Ullysses Albarran was charged with criminal sexual assault and predatory criminal sexual assault of a child for allegedly engaging in sexual conduct with his daughter while she was under the age of 13 years old. A jury found defendant guilty of one count of predatory criminal sexual assault and one count of aggravated criminal sexual abuse, and the circuit court of Cook County sentenced him to a total of 37 years' imprisonment. Defendant appeals. On appeal, defendant challenges certain pretrial rulings, asserts that his trial counsel provided ineffective assistance, and argues that the circuit court's noncompliance with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) warrants plain error relief. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 In November 2011, a grand jury indicted defendant on seven counts of criminal sexual assault, two counts of predatory criminal sexual assault of a child, two counts of aggravated criminal sexual abuse, and one count of sexual relations within families. The indictment alleged that defendant committed the offenses in Cook County between November 24, 2003, and November 24, 2008, against his daughter, T.A., who at all relevant times was under the age of 13 years old.

¶ 4 Prior to trial, defendant made an oral request to subpoena T.A.'s mental health records. Defendant asserted a belief that T.A. suffered from emotional issues such as depression and antisocial behaviors and that she had exhibited making untrue and make-believe statements that would affect her credibility at trial. Additionally, defendant requested that the circuit court conduct an in camera inspection to determine whether any of T.A.'s mental health records contained relevant information. After the parties briefed the issue,1 the circuit court conducted a hearing, heard oral argument, and denied defendant's request to subpoena T.A.'s mental health records.

¶ 5 Defendant also filed a motion requesting a bill of particulars. He requested the "exact date(s) or the date(s) within close proximity, that the predatory criminal sexual assault and criminal sexual assault

426 Ill.Dec. 476
116 N.E.3d 325

charged are alleged to have occurred" and "the number of times the charged conduct is alleged to have occurred." In a written response, the State asserted that the alleged incidents took place between November 24, 2003, and November 24, 2008, "approximately six times." The circuit court held a hearing on defendant's motion. The State argued that it provided defendant with all of the discovery it had, including interviews with the victim and police reports, which listed the dates and times of the alleged incidents, all of which allegedly occurred when T.A. was approximately between the ages of 6 and 11 years old. The circuit court stated, "I'm at a loss as to how [the State] could more particularize" the information sought by defendant. The circuit court did not order the State to provide any additional information in response to defendant's request for a bill of particulars. At no time did defendant seek to dismiss or quash the indictment or otherwise assert that the indictment itself was insufficient.

¶ 6 During jury selection, the circuit court asked the first panel of potential jurors, "Does everyone accept the principle that the defendant is not required to offer evidence on his own behalf?" The record reflects that the potential jurors answered in the affirmative. The circuit court, however, did not ask the first panel of potential jurors whether they understood that principle. The circuit court asked the first panel of potential jurors whether they both understood and accepted the principles that the defendant is presumed innocent of the charges against him, that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt, and that the defendant's failure to testify cannot be held against him. All of the potential jurors responded in the affirmative. Eight jurors were selected from the first panel. The circuit court properly polled the remaining panels of prospective jurors on each of the four questions.

¶ 7 At trial, T.A. testified that she was born in November 1997, that defendant was her father, and that Jeanette S. was her mother. T.A. lived with both of her parents before they separated. She testified that during the summer when she was either six or seven years old, she and defendant were in her parents' bed while her mother was at work. T.A. was in her nightgown and underwear, and defendant was just in his underwear. Defendant was on his back and pulled T.A. on top of him and began moving around and rubbing his erect penis against her vagina without removing his or her underwear. When T.A. tried to get away, defendant held her down. She did not scream while it occurred because she was scared. T.A. said that defendant smelled of alcohol that night. At some point, defendant stopped and went to the bathroom. T.A. did not tell anyone because defendant told her not to. T.A. further testified that before she turned nine years old, she was again in her parents' bed with defendant while her mother was sleeping downstairs on the sofa. Defendant pulled down T.A.'s underwear and put his penis in her vagina. She did not scream because she was scared. She testified that defendant stopped abusing her before she turned nine years old.

¶ 8 T.A. described a time when she was in a vehicle with defendant and he told her that if a family member did anything illegal that she should not turn them in because she would be a traitor. She also testified that she made tally marks on the side of her bedroom dresser with a knife tallying the incidents of abuse by her father. The State introduced photographs of the dresser showing 19 tally marks. T.A. admitted that she did not tell the police or anyone else about the tally marks on the dresser until one week before trial. She

426 Ill.Dec. 477
116 N.E.3d 326

further stated that the tally marks were just an "estimation," that she made the tally marks "on separate occasions in groups," and that she could not recall which tally marks were the most recent.

¶ 9 T.A. testified that she first disclosed the sexual abuse in September 2011 to her then boyfriend Jeffrey. Both T.A. and Jeffrey were 13 years old at the time. T.A. did not identify defendant as the person who sexually abused her. Jeffrey then told a teacher at their school about the abuse. On October 21, 2011, T.A. went to school and disclosed the abuse. She testified that the police arrived and took her to the police station where she told the police about the abuse.

¶ 10 Jeanette, T.A.'s mother, testified that she moved herself and her children out of defendant's house in June 2010 due to marital issues and defendant's alcohol use. In October 2011, Jeanette received a phone call from T.A.'s school asking her to come to the school. While there, Jeanette learned for the first time of T.A.'s allegations of abuse against defendant. Jeanette testified that when defendant would visit their children after they moved out, T.A. would give her a hard time about having to spend weekends with him and would say that she did not want to go. Jeanette acknowledged that she had not told the police about T.A.'s feelings about having to spend weekends with her father. On October 25, 2011, Jeanette learned that defendant had attempted to commit suicide. Jeanette spoke with defendant while he was in the hospital and asked him about T.A.'s allegations, to which defendant responded, "I don't know unless I was drunk."

¶ 11 Danielle Komen, a social worker at Illinois Masonic Hospital, testified that she spoke with defendant on October 26, 2011, after he was admitted on October 25, 2011, due to multiple self-inflicted stab wounds. Komen stated that defendant had been given morphine that day. She asked defendant why he hurt himself and he responded that he was "feeling guilty about things in life" and that his daughter was in the hospital. During the course of their conversation, defendant stated that he touched T.A.'s butt and that he had touched her vagina underneath her clothes, but he denied having sexual intercourse with T.A. or ever exposing himself to her. When Komen told defendant that she was a mandatory reporter and that she would have to report his statements, defendant asked if he was going to jail and if Komen was going to tell his mom. Komen stated that defendant could not remember the time frame in which he touched his daughter, but he said that it happened "multiple times." Komen testified that she clearly remembered defendant's statements because it was...

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