People v. Everhart
| Decision Date | 09 December 2010 |
| Docket Number | No. 1–08–3052.,1–08–3052. |
| Citation | 939 N.E.2d 82,405 Ill.App.3d 687,345 Ill.Dec. 353 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Tyrone EVERHART, Jr., Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Anita Alvarez, Cook County State's Attorney, Chicago (Alan J. Spellberg, Mary L. Boland and Stacia D. Weber, Assistant State's Attorney, of counsel), for Plaintiff–Appellee.Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County, Chicago (Erin E.G. McFeron and Robert Hirschhorn, Assistant Appellate Defenders), for Defendant–Appellant.Justice McBRIDE delivered the opinion of the court:
[345 Ill.Dec. 355 , 405 Ill.App.3d 688] Following a jury trial, defendant Tyrone Everhart, Jr., was found guilty of aggravated criminal sexual assault. The trial court subsequently sentenced him to natural life in prison.
Defendant appeals, arguing that: (1) his trial counsel was ineffective because he told the jury in opening statements that defendant would testify and tell them what really happened but defendant did not testify at trial; (2) the trial court improperly admitted evidence of defendant's prior conviction for aggravated criminal sexual assault; (3) section 115–7.3 of the Code of Criminal Procedure of 1963 (
[345 Ill.Dec. 356 , 939 N.E.2d 85]
725 ILCS 5/115–7.3 (West 2006)) violates defendant's due process rights; (4) the trial court erred in admitting evidence about a replica pistol lighter into evidence; (5) the State failed to prove defendant acted in a manner to threaten or endanger life as required under the aggravated criminal sexual assault statute (720 ILCS 5/12–14(a)(3) (West 2006)); and the cumulative effect of these trial errors deprived defendant of a fair trial.
In June 2006, prior to trial, the State filed a motion to allow evidence of defendant's previous conviction from 1994 for aggravated criminal sexual assault. The trial court found multiple factual similarities between the two offenses and held that the evidence of other crimes was admissible at trial to show defendant's propensity. Defendant filed a motion to reconsider the ruling in September 2008, but the motion was denied.
The following evidence was presented at defendant's September 2008 jury trial.
D.R. testified that on May 7, 2005, she worked part-time as a bartender at Danny T's, located at 159th and Markham in Markham, Illinois. She closed the bar between 2 and 2:30 a.m. and drove home around 3 a.m. She drove her silver Neon about three miles to her apartment at 16031 Laramie Avenue in Oak Forest. She did not see anyone follow her and did not see anyone else when she entered the parking lot of her building. There were no lights in the parking area, but a small light was on above the door to her building. D.R. parked in her assigned parking space behind her building near a wooded area and then walked to her door. She was carrying a purse and had her keys in her hand.
When she put her key in the door, someone grabbed her from behind and pulled her to the ground. She did not see the person's face. She tried to scream, but the offender's arm was over her mouth. The man told her to “shut up,” and not to scream. He asked if she had any money and she said to take her purse. The man placed an object to D.R.'s head and asked her if she knew what it was. He made her reach up and touch the object. D.R. stated that it was cold, hard metal and it felt like a gun. He said, “If you scream or fight, I'll blow your f–––ing head off.” D.R. stopped screaming. She testified that she believed the man held a gun to her head.
The man asked D.R. if she would cooperate, and she responded that she would. She described the voice as calm and clear, with no accent. He made her get up and walk back to where her car was parked. As they walked, the man kept his arm around her and the gun pressed to her head. At the car, the man bent D.R. over the hood of the car and again asked if she was going to cooperate. She said yes. The man told D.R. to take off her pants and underwear. The man then inserted his penis into her vagina. He asked her if she liked it and told her to say that she “liked it” and “wanted his f–––ing c––– in [her].” She estimated that the sexual assault lasted five to six minutes.
After the man finished, he pulled up his pants, but told D.R. not to touch hers. He lifted her from the hood of the car and told her “not to scream or make any noise or he would blow [her] f–––ing head off again.” The man then walked her into the trees behind her building, near a creek. She was facing the trees. He told her to stay there and count to 20, but if he heard her move or stop counting, then “he would blow [her] head off.” He let go and D.R. started counting.
D.R. stated that she heard him walking back toward the door and could tell that he had picked up her purse. She heard him
[345 Ill.Dec. 357 , 939 N.E.2d 86]
walk around to the front of the building. Then, she heard a car door slam and a car leaving. She pulled up her pants and walked toward her car. She looked for her cell phone, but could not find it. D.R. testified that her purse was gone, but her keys were still in the door. She went inside and woke her oldest son to use his cell phone. She called 911 and told the operator that she had been attacked outside her building. She did not tell the operator that she had been sexually assaulted because she did not want to say that in front of her son. The police arrived while she was still on the phone with the operator. D.R. told Officer James Morrissy what happened and he called for an ambulance. D.R. went to South Suburban Hospital for an examination.
D.R. testified that she does not know defendant's name and did not recognize anyone in the courtroom other than the prosecutors. She could not describe the offender and was unable to identify anyone from photographs.
Officer James Morrissy testified that he was a patrol officer with the Oak Forest police department on May 7, 2005. He received a dispatch at 3:21 a.m. to investigate a robbery at 16031 Laramie Avenue. When he arrived, Officer Morrissy heard a vehicle running and approached the vehicle. He determined that the man in the car lived in the building and was running an errand for his pregnant wife. Officer Morrissy concluded that the man was unrelated to the robbery.
Officer Morrissy went to D.R.'s apartment and D.R. came outside. She was sobbing. She told Officer Morrissy what happened, including the sexual assault. He advised his supervisor of the sexual assault and called for a detective and an ambulance. He observed that she was wearing pants and a t-shirt and that her clothes were not ripped or dirty. D.R. took him to the location where the sexual assault occurred. He saw that the hood of D.R.'s car was dirty, except for one spot that was “unusually clean.” He also noticed a milky substance on the ground and informed the detective about it.
Officer Morrissy testified that D.R. told him that the offender put an object to her head, but she did not tell him that she reached up and felt the object. D.R. was unable to tell him how long the attack lasted. D.R. did not tell him that she tried to scream, but the offender covered her mouth. Officer Morrissy stated that D.R. told him that she pulled up her pants immediately after the assault and did not tell him that she walked into the woods with her pants down.
Officer Morrissy followed the ambulance transporting D.R. to South Suburban Hospital. He waited outside the room while the medical personnel collected evidence for the sexual assault kit. He was later given the sealed kit, two sealed envelopes with D.R.'s bra and underwear, and a paper bag with her pants. He gave D.R. a ride home and then took the sexual assault kit and other items to the police station. He placed them in a locked evidence locker for the investigating detective.
Nancy Healy testified that on May 7, 2005, she was training to be a sexual assault nurse examiner (SANE) at South Suburban Hospital. Healy assisted a SANE certified nurse in treating D.R. She stated that D.R. appeared “distraught,” “trembling,” “quiet,” and “upset.” Healy and the SANE nurse collected evidence for the sexual assault kit, including mouth, vaginal and anal swabs, a blood sample, fingernail specimens, public hair combings, a swab from D.R.'s right ear and D.R.'s clothing. Healy stated that D.R. had “an abrasion to the 7:00 o'clock position” outside the vaginal opening, which Healy explained was a common injury with vaginal
[345 Ill.Dec. 358 , 939 N.E.2d 87]
penetration. Healy testified that D.R. had no other bruises or injuries to her body.
Officer Dwayne Pulchinski testified that he was on patrol for the Tinley Park police department on May 7, 2005. He recovered a blue checkbook cover with a checkbook from the intersection of 159th Street and Oak Park Avenue at approximately 4:40 a.m. The checkbook contained checks belonging to D.R. Officer Pulchinski photographed the checkbook and notified his dispatch about the recovered checkbook. The Oak Forest police department was notified and Officer Pulchinski turned it over to Detective Rich Belcher of the Oak Forest police department.
Sergeant Scott Durano testified that on May 7, 2005, he was a street supervisor and a K–9 handler with the Oak Forest police department. He heard the dispatch regarding an armed robbery at 16031 Laramie and responded to the scene. Sergeant Durano used the K–9 unit dog attempt to locate the suspect, but was unsuccessful. Later, he heard about the discarded checkbook and went to look for other discarded objects. While driving north on Oak Park Avenue near 156th Street, Sergeant Durano saw a reddish change purse. He notified Detective Belcher, who came to the scene and recovered the item.
Detective Rich Belcher testified that he was called to respond to South Laramie Avenue at approximately 3:30 a.m. on May...
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