People v. Boand
| Decision Date | 16 November 2005 |
| Docket Number | No. 2-04-0387.,2-04-0387. |
| Citation | 838 N.E.2d 367 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joshua BOAND, Defendant-Appellant. |
| Court | Illinois Supreme Court |
Ronald D. Menaker, John F. Grady, Arnstein & Lehr, Chicago, for Joshua Boand.
Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Following a jury trial, defendant, Joshua Boand, was convicted of the drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2004)) and involuntary manslaughter (720 ILCS 5/9-3(a) (West 2004)) of Nicole Levin and the criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2004)) of Tavia Shepherd. The trial court sentenced defendant to concurrent prison terms of 20 years for drug-induced homicide, 5 years for involuntary manslaughter, and 11 years for criminal sexual assault.
Defendant appeals, alleging that several trial errors entitle him to a new trial or a reversal of his convictions. He contends that (1) the trial court erroneously declined to sever the criminal-sexual-assault count from the homicide counts; (2) the trial court erroneously admitted evidence of other uncharged sex offenses that he committed before the night of the incident; (3) the trial court denied him the right to confront Shepherd and Paul Hoerer, his codefendant, about their motives to testify for the State; (4) the State failed to prove him guilty beyond a reasonable doubt of criminal sexual assault; (5) the trial court erroneously permitted the State to cross-examine another witness, Becky Goldman, about her telephone conversation with Shepherd three days after the incident; (6) the trial court erred in refusing to instruct the jury that suicide qualifies as an intervening cause of death that would relieve defendant of criminal liability for a homicide; and (7) the drug-induced-homicide statute is unconstitutionally vague and overly broad. The State addresses each of these issues and raises another, asserting that we must remand the cause for the trial court to impose mandatory consecutive sentences. We conclude that the trial court erred in denying the motion to sever the criminal-sexual-assault charge from the drug-induced-homicide and involuntary-manslaughter charges. This error was compounded by the erroneous admission of evidence of defendant's other sex crimes and the corresponding jury instruction. Therefore, we reverse defendant's convictions and remand the cause for further proceedings consistent with this opinion. This disposition also considers other issues raised in this appeal that might arise again on remand.
Defendant was charged by indictment with "committ[ing] the offense of drug-induced homicide in that he violated subsection (a) of section 401 of the Illinois Controlled Substances Act [(720 ILCS 570/401(a) (West 2004))] by knowingly delivering methadone, a controlled substance, to Nicole Levin and Nicole Levin thereafter died as a result of the ingestion of a portion of that methadone into her body, in violation of 720 ILCS 5/9-3.3(a) [(West 2004)]." Defendant was also charged with involuntary manslaughter in that he, "acting in a reckless manner, performed an act likely to cause death or great bodily harm to Nicole Levin, in that [he] failed to request emergency medical assistance for Nicole Levin, knowing Nicole Levin was suffering from a possible overdose of drugs, in violation of 720 ILCS 5/9-3(a) [(West 2004)]." Finally, defendant was charged with committing criminal sexual assault, in that he, "knowing Tavia Shepard [sic] was unable to give knowing consent, committed an act of sexual penetration with Tavia Shepard [sic], in that [he] placed his penis in the vagina of Tavia Shepard [sic], in violation of 720 ILCS 5/12-13(a)(2) [(West 2004)]."
By the date of her death, May 26, 2002, Levin was 19 years old and had a history of abusing antidepressants and street drugs including cocaine. In February 2002, Levin's relationship with her boyfriend ended and she suffered a miscarriage. From February 17, 2002, to April 2, 2002, Levin was hospitalized four times for attempting suicide and intentionally overdosing on alcohol and prescription medication.
Two days before her death, Levin, Shepherd, Paul Hoerer, and a person named Jason went to a drug party, where they ingested cocaine, marijuana, and muscle relaxers. Levin and Hoerer left to purchase more drugs, but Levin veered off the road and struck a tree, destroying her new car. Levin was treated for chest and back pain and released from the hospital. Hoerer also was treated.
On May 26, 2002, the date of the incident, Levin and Shepherd retrieved some of Levin's personal belongings from the car and returned to Levin's home, where they prepared to go out for the evening. Shepherd testified that Levin was noticeably upset about her recent breakup with her boyfriend and the damage to her car. Shepherd testified that Levin declared that "[s]he had nothing left to live for." In contrast, Levin's father testified that his daughter did not appear suicidal on the night of her death and, in fact, she expressed enthusiasm for her recent decision to enroll in nursing school.
Later that evening, Levin, Shepherd, and Hoerer went to the home of Hoerer's cousin where they all smoked marijuana. Levin also ingested Vicodin that Hoerer had been prescribed for injuries suffered in the car accident. Defendant and Jennifer Donfris, with whom he lived, arrived at the party a short time later. Defendant and Shepherd had dated briefly two years earlier. Defendant testified that, while they dated, he and Shepherd shared drugs and engaged in consensual sexual intercourse. Hoerer, who had been friends with defendant since childhood, testified that defendant told him that he planned to have sex with Shepherd that night and would "make it happen if he could get her back to his house." Hoerer waited approximately one year before disclosing defendant's statement to the police.
Shepherd, Levin, defendant, and Hoerer went to defendant's home between 8 and 9 p.m. Hoerer testified that the group went to defendant's home because Levin was "expressing * * * in rather strong terms" that she wanted cocaine and defendant told her that he could provide it. Shepherd testified that she, not Levin, wanted drugs.
There is further dispute as to what occurred next. Shepherd testified that the four sat in defendant's living room, where defendant walked to a bookshelf and retrieved a hollowed-out book and a gray lockbox. Defendant removed some small bottles from the lockbox, placed them on a glass table, and told the group that the bottles contained methadone and that methadone is a safer form of heroin. According to Shepherd, she drank only half of her bottle because she disliked the taste. The other three each drank an entire bottle, and when Shepherd placed her half-full bottle on the table, Levin grabbed it and ingested the remaining methadone in that bottle as well. Hoerer corroborated this portion of Shepherd's testimony.
Defendant admitted that he had been prescribed methadone to treat his heroin addiction and that he stored the bottles in the lockbox and the book. Defendant testified that he provided the group pills, but he denied providing any of the methadone that was ingested on the night of Levin's death. Defendant explained that he always left the key in the lock of the box and that Levin must have taken the methadone without his knowledge or permission.
Shepherd and Hoerer testified that Levin was disappointed and angry because the methadone was not getting her high enough. Levin became irate and demanded more drugs, including crack cocaine. Shepherd became uncomfortable with Levin's demands, so she left the party with defendant and went to the west side of Chicago, where they traded some of Hoerer's marijuana for cocaine. Shepherd admitted that she and defendant "might have kissed and touched each other" while in Chicago, but she denied engaging in sexual intercourse. Detective Raymond Peters testified that, the day after Levin's death, Shepherd told him that she engaged in a sex act with defendant while in Chicago. At trial, Shepherd denied making such a statement.
Defendant testified that he and Shepherd drove around Chicago using the cocaine, and at one point, Shepherd attempted to perform oral sex on defendant but did not because he could not achieve an erection. Defendant believed that Levin found and took the methadone at some point during the five hours that he and Shepherd were driving around Chicago.
Hoerer testified that, while he was alone with Levin, they had sexual intercourse on defendant's living room couch. Soon thereafter, Levin became agitated and wanted defendant and Shepherd to "hurry up" and return from Chicago with the cocaine. To appease Levin, Hoerer called defendant to inquire about the cocaine. Approximately one hour after placing the first call, Hoerer called defendant again to inform him that Levin was passing out from the methadone. Hoerer testified that defendant was not concerned with Levin's condition and did not instruct him to summon medical assistance. Defendant denied receiving any phone calls from Hoerer about Levin's condition while he and Shepherd were in Chicago.
Shepherd testified that, upon returning to defendant's home, she saw Levin sitting on the living room couch. Levin was unresponsive, but Hoerer and defendant told Shepherd that Levin would be "fine" and was merely sedated from the methadone. The group attempted to revive Levin by placing her in a cold shower, but when she remained unresponsive, they returned her to the couch. Shepherd saw that Levin was unconscious but breathing....
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