People v. Garcia

• Decision Date: 22 March 2017
• Docket Number: No. 1-13-3398,1-13-3398
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ivan GARCIA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 133398

74 N.E.3d 1058

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Ivan GARCIA, Defendant-Appellant.

No. 1-13-3398

Appellate Court of Illinois, First District, THIRD DIVISION.

March 22, 2017

Michael J. Pelletier, Alan D. Goldberg, and Aliza R. Kaliski, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Following a jury trial, defendant Ivan Garcia was found guilty of the aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)) of his 15-year-old niece, when he was nearly twice her age, and sentenced to a total of 20 years in prison. He appeals raising a number of contentions relating to the court's compliance with Illinois Supreme Court rules, the denial of his pretrial motions challenging the search warrant, his right to a lawyer and right to self-representation, as well as the use of propensity evidence and other trial errors. We address each in turn as we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant was arrested and then charged with multiple counts of the above-stated sex offense after police executed a search warrant of his home and discovered a black fireproof safe box under defendant's bed containing a journal, memory card, letters, and a vibrating ring enclosed in a separate box. Police flipped through the journal discovering gang writing, drawings, and photographs of defendant, apparently with his niece. Defendant moved to suppress these items, which were seized and later used to establish his guilt for sexual abuse. He argued the box and its items were outside the scope of the warrant, which authorized the seizure of only drugs, drug paraphernalia, records of illegal drug transactions, money, and residency documents.

¶ 4 Police, however, testified at the motion to suppress hearing that the black box had an attached key inside the keyhole, which they used to open it, and they flipped through the journal in search of possible drug transaction records. This was because, in addition to the black box, officers had actually discovered drugs and $1750 of cash in defendant's bedroom. On seeing that the journal contained photos of defendant with his niece, police then appropriately obtained consent from K.M.'s mother to search the rest of the box's contents, as they had determined the journal belonged to K.M. The State argued the seizure of these items and review of them was consistent with the search warrant, which authorized officers to search the bedroom and the lockbox, and to peruse the journal. The State noted that officers had testified narcotics transactions can sometimes be embedded in codes. The court denied the motion to suppress the lockbox items, finding that it could have reasonably contained objects which were the subject of the search warrant. Likewise, the journal could have contained drug transaction records notwithstanding that its handwritten prose was described as visually feminine. Additionally, the police had obtained valid consent.

¶ 5 While the public defender's office represented defendant on his motion to suppress, defendant requested to act pro se in this case and two other pending cases, and he posed further challenges to the warrant's validity. He ultimately filed a motion for a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which gives a defendant a limited right to attack the veracity of search warrant affidavits. The trial court denied defendant's pro se motion for a Franks hearing, and defendant then once again requested counsel. These matters will be discussed in further depth as we address defendant's arguments, but suffice it to say, a public defender was eventually appointed to represent defendant at trial and at sentencing.

¶ 6 At trial, K.M. testified that defendant, then age 29, sexually abused her over a nine-month period starting when she was 15 years old. Trial evidence showed defendant repeatedly preyed on K.M. when no other adult was present, grabbing her or carrying her while she was asleep to his bedroom, where he touched her breasts and vagina. K.M. would push him away, but he persisted in these actions and eventually told her that she "couldn't be doing that to him," at which time he placed her hand on his erect penis. Some weeks after the initial violation, defendant again took K.M. to his bed. K.M. "pushed him away and then * * * just kind of gave up" because it "was happening for awhile," and she "didn't know what else to do." Defendant then penetrated K.M.'s vagina digitally, performed oral sex on her, and then had sex with her. He continued to have sex with her daily for months.

¶ 7 During this period, defendant meanwhile acted as a father-like, boyfriend-like figure to K.M., teaching her to drive, attending her orchestra concerts along with K.M.'s siblings, and celebrating her birthday along with her siblings. Her mother, Virginia, was largely absent and thus defendant was the caretaker to Virginia's four children and also two of his own children.¹ K.M. did not tell anyone about the abuse because she was scared of getting into trouble since she was only 15, and defendant was her uncle. K.M. identified lubricant tubes and a vibrating ring that defendant used while penetrating her. Defendant took photographs and videos of K.M., including videos of them having sex, on his cell phone. These images were recorded on a memory card stored in the lockbox. Both defendant and K.M. had a key to the box, and the two watched videos of them having sex on the computer. Some of these images and the video were published to the jury, with K.M. giving a graphic description of what occurred during their sex acts.

¶ 8 K.M. was not his only victim. Her younger sister, D.M.² testified that she slept in defendant's bed when she was only seven years old. He touched her vagina both over and under her clothes. He took her clothing off and digitally penetrated her. On about five separate occasions, he took off D.M.'s clothes and performed oral sex on her. D.M. also did not tell her mom or sister because she was afraid she would get in trouble, and defendant had instructed her not to tell anyone.

¶ 9 As stated, the sexual abuse eventually came to light when police executed the search warrant, and discovered the lockbox evidence. When confronted, K.M. told police the lockbox was hers, even though it was not. Initially, she attempted to hide the truth of their relationship because she did not want her uncle going to jail, she "cared for him," and thought she "loved him." A physical examination of K.M. revealed she was missing hymenal tissue, indicating there was an injury from penetrating trauma. The examining doctor testified K.M.'s injuries were consistent with a history of being sexually abused. K.M. eventually acknowledged what defendant did to her when she "found out he was raping" her sister.

¶ 10 The jury found defendant guilty on all four counts of aggravated criminal sexual abuse. Defendant filed a motion for a new trial, which was denied. At sentencing, a cousin of K.M. testified that defendant digitally penetrated her several times when she was only seven or eight years old. Defendant was sentenced to consecutive terms on the multiple counts, totaling 20 years in prison. This appeal followed.

¶ 11 ANALYSIS

¶ 12 Defendant does not challenge the sufficiency of the evidence against him. Rather, he raises a number of claimed errors, but all save one have been forfeited by failure to raise a contemporaneous and/or posttrial objection. See People v. Enoch , 122 Ill.2d 176, 186-87, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) (holding that generally to preserve an error, a defendant must raise both a contemporaneous and written posttrial objection); see also People v. Almond , 2015 IL 113817, ¶ 54, 392 Ill.Dec. 227, 32 N.E.3d 535 (reaffirming Enoch ). Defendant nonetheless relies on two exceptions to the forfeiture rule. One exception is the plain error doctrine, which permits a reviewing court to consider unpreserved error in exceptional circumstances where the evidence is closely balanced or the alleged error was so prejudicial that it deprived defendant of a fair trial. People v. Piatkowski , 225 Ill.2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) ; People v. Easley , 148 Ill.2d 281, 323, 170 Ill.Dec. 356, 592 N.E.2d 1036 (1992). The initial step in any plain error analysis is to establish that there was error in the first place. People v. Johnson , 218 Ill.2d 125, 139, 299 Ill.Dec. 677, 842 N.E.2d 714 (2005). Defendant does not argue the evidence was closely balanced such that any alleged error threatened to tip the scales of justice against him. Indeed, he cannot argue that because the evidence in this case was quite simply overwhelming given K.M.'s testimony, the videotape, the lockbox evidence, the supporting medical testimony, and D.M.'s testimony showing defendant's propensity for sex crimes against minor females. Defendant therefore largely argues second-prong plain error.

¶ 13 Defendant also cites the constitutional exception to the forfeiture rule, relying on the supreme court's recent case, Almond , 2015 IL 113817, ¶ 54, 392 Ill.Dec. 227, 32 N.E.3d 535, and argues the interests of judicial economy favor addressing on direct appeal certain claims, like those relating to his suppression motion and the warrant affidavit, since these constitutional issues were raised at trial and can later be raised in a postconviction petition. See also Enoch , 122 Ill.2d at 190, 119 Ill.Dec. 265, 522 N.E.2d 1124. Like the plain error rule, this is yet another exception to forfeiture, but instead results in reviewing a claim on its merits. Almond , 2015 IL 113817, ¶ 54, 392 Ill.Dec. 227, 32 N.E.3d 535 ; People v. Cregan , 2014 IL 113600, ¶¶ 18-19, 381 Ill.Dec. 593, 10 N.E.3d...