People v. Barner, 1-04-3131.

• Court: United States Appellate Court of Illinois
• Citation: 871 N.E.2d 849
• Docket Number: No. 1-04-3131.,1-04-3131.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BARNER, Defendant-Appellant.
• Decision Date: 29 June 2007

871 N.E.2d 849

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BARNER, Defendant-Appellant.

No. 1-04-3131.

Appellate Court of Illinois, First District, First Division.

June 29, 2007.

Michael J. Pelletier, Deputy Defender, and Kathleen M. Flynn, Assistant Appellate Defender, of Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James F. Fitzgerald, Michelle Katz and Whitney Bond, Assistant State's Attorneys, of counsel), for Appellee.

Justice CAHILL delivered the opinion of the court:

Defendant John Barner was convicted by a jury of aggravated criminal sexual assault. 720 ILCS 5/12-14(a)(2) (West 1998). He represented himself at trial and testified in his own behalf. He was sentenced to natural life imprisonment. Defendant appeals, arguing: (1) the State distorted the burden of proof in its rebuttal closing argument; and (2) he was denied a fair trial when the trial court allowed the State to impeach him with his earlier conviction of failure to register under the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 1998)). We affirm.

G.W., the victim, testified that defendant had sex with her without her consent on March 23, 2002. She was walking home in the early morning hours when defendant, whom she did not know, attempted to talk to her near 49th Street and Michigan Avenue. He then hit her on the head with a bottle and forced her into the basement of an abandoned building. He pushed her down some stairs. She fell, landing on her tailbone and arm. He had nonconsenual oral and vaginal sex with her repeatedly and held her for four to five hours. When defendant left, the victim went to a pay telephone and called the police. On May 22, 2003, she identified defendant in a police lineup as her attacker.

When called to testify at trial, G.W. admitted she was then in custody for unlawful use of a credit card and that she had earlier convictions for a drug-related offense and forgery. She denied on cross-examination that she had used false social security numbers or birth dates.

Officer Barry Bryant testified that on March 23, 2002, he responded to a call about a criminal sexual assault. He spoke with the victim shortly after 8 a.m. She said she had just been raped. She was upset and crying and her clothes were dirty. Bryant went to the location identified by the victim where he saw an abandoned building.

Caridad Luna, a registered nurse at Provident Hospital, testified that she spoke to the victim around 9:25 a.m. on March 23, 2002. The victim said she was raped "by an unknown person."

Dr. Vietta Johnson testified that she examined the victim on March 25, 2002. The victim had a broken wrist and coccyx or tailbone fracture. Dr. Johnson said "significant energy force has to be delivered for a coccyx fracture to occur."

F.M. testified that she was attacked by defendant in 1999. She said defendant had sex with her repeatedly without her consent in a condemned building near 54th Street and Michigan Avenue. When cross-examined by defendant, F.M. denied taking drugs with or partying with him. When asked how long she had known defendant, she replied, "I don't know you from nowhere, nowhere on earth, except when you raped me."

Sharon Smith testified that on March 14, 1999, she was working in the emergency room at Provident Hospital when F.M. told her "she was repeatedly sexually assaulted with oral and vaginal penetration." Smith said she gave the police F.M.'s sexual assault evidence collection kit.

Detective Paula Wright testified that on March 14, 1999, she met with F.M. at the hospital. In July 2002, F.M. chose defendant from a lineup. Wright said defendant told her that he did not go into abandoned buildings because he likes clean places and he did not know how his DNA could have been found in F.M.

The parties stipulated that the testimony of nine witnesses would show that the DNA found in G. W.'s vagina and the DNA recovered from F.M. matched defendant's DNA profile.

The trial judge then asked defendant if he was going to testify. The following took place:

"DEFENDANT: If that is the right decision to do after I ask you a question. What would be allowed?

THE COURT: State, what would you seek to offer against the defendant should he choose to testify * * *?

MR. BUNTINAS [assistant State's Attorney]: We seek to admit his conviction for violation of the Sex Offender Registration Act, case number 99 CR 6469, in which he pled guilty on May 11 of 1999 and received 18 months [in prison] * * *.

THE COURT: Okay. Do you want to say anything about that Mr. Barner, and why that shouldn't be admitted if you choose to testify?

THE DEFENDANT: Yeah, because it has nothing to do with truthfulness and it tells the jury I have a prior sexual conviction.

THE COURT: The mere fact impeachment [method] is found to be not appropriate. * * * But in this particular instance—let me see. It's a tough one. * * *

Illinois does not authorize the mere fact impeachment of prior convictions under which the jury is informed the defendant is previously convicted of a felony but is not told the nature of that conviction. That is People [v]. Atkinson [, 186 Ill.2d 450, 457-58, 239 Ill.Dec. 1, 713 N.E.2d 532 (1999)]. The court held the mere fact method of depriving the jury of knowledge of the nature of past convictions undermines the Montgomery rule [People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971)] and inhibits the jury's evaluation of credibility. And it goes on to say that in the absence of any evidence of the prior conviction, there is potential danger the jury would speculate [that] the defendant was previously convicted of a more serious crime. See also People [v]. Cox [,] 195 Ill.2d 378[, 254 Ill.Dec. 720, 748 N.E.2d 166 (2001)].

The trial court does not have discretion to use the mere fact method. * * * [T]he question is whether the conviction comes in or it does not come in. And I think that using the balancing test that is called for by the appropriate case law that when * * * you, the defendant, choose to testify, the State has the right to establish a prior conviction which occurred during the appropriate time period. Clearly 1999 is within the appropriate time period and I find that the evidence and the prior conviction that the State would seek to offer, that evidence has sufficient probative value to outweigh any prejudice that it might cause for it to be admitted against you. So I am going to allow the State to offer that prior conviction for violation of the Sex Offender Registration Act. So does that mean you are or are not going to testify, Mr. Barner?

MR. SMITH [counsel appointed to assist pro se defendant]: Judge, could we have two minutes to discuss this? I can explain to him what it means.

THE COURT: Okay. I think he knows what it means.

MR. SMITH: I don't know if he understands the full ramifications, if he doesn't testify that if there is error, it's waived. If he does testify, it is error. The Court's decision if it is in error, it's not waived. I don't think he quite understands what that ramification is. If I could have a minute to explain it to him.

THE COURT: Fine. * * *

* * *

THE DEFENDANT: Yes, I want to testify definitely."

Defendant testified in narrative form. He said the victim approached him on the street and asked if he was dating. He and the victim then went to a housing project where defendant bought drugs. The victim asked defendant if she could get high with him. She placed the drugs in her vagina to avoid detection by the police. They went to the basement of a building where they used the drugs. The victim then said she needed more drugs and would "take care of [him]" in exchange for the drugs. He gave her the drugs and she performed oral and vaginal sex with him. Defendant then fell asleep. He was awakened by the sound of footsteps and saw the victim running upstairs with his drugs. She fell down the stairs. Defendant retrieved the drugs and helped up the victim. She then left the basement. Defendant said he had met the victim many times before but this was the first time they had gotten high together.

The court then admitted a certified copy of defendant's 1999 conviction for failure to register as a sex offender.

Defendant in his closing argument said he had consensual sex with the victim. He argued that after G.W. testified against him, a warrant for her arrest when she "jumped bond" had been "cleared up in one day." Assistant State's Attorney Buntinas objected. The trial judge sustained the objection, saying "No evidence of that." Defendant claimed that the State's witnesses said only what the victim told them to say. He said the witnesses "are motivated by getting their needs taken care of." He acknowledged that the State's burden of proof was "beyond a reasonable doubt" but later argued "[t]here is a shadow of a doubt here." (Emphasis added.) The court sustained the State's objection to defendant's reference to "a shadow of a doubt."

The State argued in its rebuttal closing argument, "The defendant talks about reasonable doubt. * * * That most certainly is the burden of proof in this case. * * * [Is that] something [new] that was created for him? The burden of proof in criminal cases for over 100 years[;] it's a burden of proof in each case in this courtroom. * * * The [b]urden of proof is beyond a reasonable doubt." The State also contradicted defendant's claim that G.W. testified in exchange for the withdrawal of a warrant: "We are not here because of a conspiracy. We are here because he sexually assaults women."

In instructing the jury, the judge said, "Evidence of the defendant's previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged."

The jury found defendant guilty of aggravated criminal sexual...