People v. Bobo, 1-05-2510.

Citation874 N.E.2d 297
Decision Date24 August 2007
Docket NumberNo. 1-05-2510.,1-05-2510.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bennie BOBO, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Richard A. Devine, Cook County State's Attorney, Chicago (James E. Fitzgerald, Mary L. Boland, of counsel), for Appellee.

Justice O'MARA FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Bennie Bobo was convicted of aggravated kidnapping and aggravated criminal sexual abuse and sentenced to consecutive 20- and 5-year terms in the Illinois Department of Corrections. Defendant argues that the trial court deprived him of his right to a fair trial by erroneously: (1) admitting approximately 30 irrelevant photographs of women's feet as impermissible propensity evidence; (2) allowing the State to renege on an agreement not to introduce defendant's statements; and (3) allowing the State to use a prior statement made by defendant that was not disclosed in discovery. Defendant also contends that his trial attorney provided ineffective assistance of counsel by requesting a jury instruction that included the "great bodily harm" element for aggravated kidnapping. Furthermore, defendant alleges that the trial court improperly denied his request for new counsel to assist him in his pro se posttrial allegations of ineffective assistance of counsel as required by People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). In addition, defendant contends that the trial court erred in finding no prima facie case of racial discrimination in the State's use of its peremptory challenges. Finally, defendant argues that the 20-year sentence imposed for aggravated kidnapping is excessive.

BACKGROUND

On July 27, 2003, 26-year-old J.L. was sexually assaulted. At trial, J.L. testified that she arrived home at about 4 a.m. She parked her car in front of her house. As she was walking inside, she heard a crash and saw another car hit her car from behind. J.L. identified Bennie Bobo as the driver of the car that crashed into hers. As she was writing down defendant's information, he grabbed her from behind and forced her into his car. She struggled, and he asked her, "Don't you think I have a gun? I could kill you." Defendant punched J.L. numerous times. At one point, he choked her with both hands and demanded that she stop screaming. Defendant drove off, then stopped suddenly at an intersection. J.L. slid into the footwell of defendant's car and started screaming. Defendant hit and punched J.L. several more times, then grabbed her by her hair so she could not move. When defendant stopped the car, he grabbed J.L.'s foot. J.L. struggled with the defendant and managed to pull a necklace off his neck. The defendant began licking and biting J.L.'s foot and toes. Then, he ordered J.L. to hold her foot on his penis and wiggle her toes. This lasted for approximately 10 minutes. After defendant sexually gratified himself using J.L.'s foot he took J.L. home.

When J.L. got out of the car, she immediately called her boyfriend. Her boyfriend and her sister's boyfriend took her to the police station. At the station, J.L. gave a description of her attacker, a description of his car, and several digits of his license plate number. From there, she went to Glenbrook Hospital, where she underwent various tests including a DNA swab of her feet. When she was released from the hospital, J.L. showed Detective Metrick of the Northbrook Police Department where defendant had sexually assaulted her.

On July 30, 2003, Northbrook Officer Michael Terry stopped a maroon Dodge car that matched the description of the car driven by J.L.'s attacker. The driver of the car, Bennie Bobo, was arrested. J.L later viewed a six-person lineup and identified Bobo as her attacker. DNA was obtained from a buccal swab of defendant's cheek. An officer collected samples of blood on the dashboard and hairs on the floor of the car driven by defendant. J.L.'s earrings were also found in the car. On defendant's cell phone, officers found approximately 30 pictures of women's feet.

Forensic scientist Kenneth Pfoser from the DNA section of the Northern Illinois Police Crime Lab testified as an expert in the field of forensic biology DNA analysis. He tested the swabs, blood samples and buccal samples for DNA. He determined the saliva from J.L.'s left foot was consistent with defendant.

Later, defendant gave three statements. These statements were contradictory to each other. In the first statement, defendant told the police he had consensual sex with J.L. In the second statement, defendant did not admit to any sexual contact; however, he admitted hitting J.L.'s car with his car, striking J.L. with his two closed fists, telling her to get into his car and "tussling" with her in his car as he drove around. In his third statement, he again admitted hitting J.L.'s car with his car, but added that he grabbed her and she got into his car. He further admitted striking J.L. while she was in his car and described sucking on her toes and licking her feet which he admitted he liked to do sexually. At trial, the defense presented the theory that J.L.'s boyfriend had beaten her, and defendant came to her rescue. Defendant denied having any sexual contact with J.L.

Four motions relevant to this appeal were raised throughout defendant's trial: a motion in limine to preclude admission of approximately 30 photographs of women's feet; a motion in limine seeking to bar the prosecution from using an oral statement the State produced in violation of discovery requirements; a motion for mistrial based on the State reneging on its agreement not to use defendant's statement at trial, and a motion for new trial alleging a Batson violation in jury selection. The trial court denied all four motions.

Before sentencing, defendant submitted a pro se motion, alleging ineffective assistance of counsel. After hearing defendant's concerns, the trial court decided that this motion was without merit and denied it. Defendant was subsequently sentenced to a total of 25 years in prison. This appeal followed.

ANALYSIS
I. Cumulative Impact of Alleged Trial Errors

Defendant argues that the cumulative impact of three alleged trial errors deprived him of his right to a fair trial. These alleged errors were: (1) admitting approximately 30 irrelevant photos of women's feet as impermissible propensity evidence; (2) allowing the State to renege on its promise not to introduce defendant's statements; and (3) allowing the State to use a prior statement that was not disclosed in discovery. We address each alleged error in turn.

A. Photographs

Defendant contends that he was denied a fair trial because the State improperly introduced approximately 30 highly prejudicial and irrelevant photographs of women's feet at trial.

To be admitted, evidence must have the tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. People v. Peeples, 155 Ill.2d 422, 455-56, 186 Ill.Dec. 341, 616 N.E.2d 294 (1993). The primary requirements for the admissibility of photographs are accuracy and relevancy. People v. Myles, 131 Ill.App.3d 1034, 1042, 87 Ill.Dec. 341, 476 N.E.2d 1333 (1985). It is the trial court's function to decide the admissibility of evidence, and such findings will not be disturbed absent a showing of abuse of discretion. People v. Kirchner, 194 Ill.2d 502, 539, 252 Ill.Dec. 520, 743 N.E.2d 94 (2000). Relevant photographs are admissible to prove a person's identity. People v. Gerecke, 45 Ill. App.3d 510, 514, 4 Ill.Dec. 226, 359 N.E.2d 1178 (1977).

Generally, evidence of offenses, acts, and wrongs other than those for which defendant is being tried is inadmissible. People v. Baptist, 76 Ill.2d 19, 27, 27 Ill.Dec. 792, 389 N.E.2d 1200 (1979). This is because such evidence has too much probative value. People v. Romero, 66 Ill.2d 325, 330, 5 Ill.Dec. 817, 362 N.E.2d 288 (1977). "`The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime.'" People v. Romero, 66 Ill.2d 325, 330, 5 Ill.Dec. 817, 362 N.E.2d 288 (1977), quoting People v. Lehman, 5 Ill.2d 337, 342, 125 N.E.2d 506 (1955). Evidence of other offenses or bad acts is admissible to prove any material fact other than defendant's propensity to commit a crime. People v. Donoho, 204 Ill.2d 159, 170, 273 Ill.Dec. 116, 788 N.E.2d 707 (2003). Such evidence can be admitted to show motive, intent, identity, absence of mistake or accident, modus operandi or the existence of a common plan or design. People v. Wilson, 214 Ill.2d 127, 135-36, 291 Ill.Dec. 615, 824 N.E.2d 191 (2005); People v. Hansen, 313 Ill.App.3d 491, 500, 246 Ill.Dec. 283, 729 N.E.2d 934 (2000). Moreover, other extrinsic acts evidence may include acts which are not crimes. People v. Davis, 260 Ill.App.3d 176, 190-91, 197 Ill.Dec. 389, 631 N.E.2d 392 (1994) (evidence of defendant's noncriminal sexual activity with consenting adults was relevant and admissible in prosecution for sexual activity with minors).

In the instant case, the court allowed approximately 30 pictures of women's feet to be admitted in evidence during defendant's trial for aggravated kidnapping and aggravated criminal sexual abuse. These pictures were found on defendant's cell phone at the time of arrest. In resolving defendant's motion in limine to preclude the admission of these photographs, the court found that the pictures were relevant and that their probative value was not outweighed by their prejudicial impact. Thus, the court allowed the pictures to be admitted into evidence, published to the jury, and sent back to the jury room. The State referenced these pictures in both its opening and closing statements to show...

To continue reading

Request your trial
31 cases
  • People v. Boston
    • United States
    • United States Appellate Court of Illinois
    • 31 Diciembre 2018
    ...instruction is considered a tactical decision, within the discretion of defense counsel.’ " (quoting People v. Bobo , 375 Ill. App. 3d 966, 977, 314 Ill.Dec. 387, 874 N.E.2d 297 (2007) ) ). Our supreme court has instructed its appellate courts to "be highly deferential to trial counsel on m......
  • People v. Jocko
    • United States
    • United States Appellate Court of Illinois
    • 30 Marzo 2009
    ...our supreme court, the appellate court has enacted, in effect, pleading requirements for the defendant. People v. Bobo, 375 Ill.App.3d 966, 985, 314 Ill.Dec. 387, 874 N.E.2d 297 (2007) (no inquiry by the trial court was required where "defendant failed to identify relevant facts" and "raise......
  • People v. Reeves
    • United States
    • United States Appellate Court of Illinois
    • 5 Septiembre 2008
    ...116, 788 N.E.2d 707 (2003). This rule applies to noncriminal conduct or "bad acts," as well as crimes. People v. Bobo, 375 Ill.App.3d 966, 971, 314 Ill.Dec. 387, 874 N.E.2d 297 (2007). "Courts generally prohibit the admission of this evidence to protect against the jury convicting a defenda......
  • People ex rel. City of Chi. v. Le Mirage, Inc.
    • United States
    • United States Appellate Court of Illinois
    • 11 Diciembre 2013
    ...his or her discretion. People v. Mims, 403 Ill.App.3d 884, 890, 343 Ill.Dec. 342, 934 N.E.2d 666 (2010); People v. Bobo, 375 Ill.App.3d 966, 977, 314 Ill.Dec. 387, 874 N.E.2d 297 (2007). The instruction Hollins tendered based on Black's Law Dictionary was considerably more favorable to the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT