People v. Guajardo

• Decision Date: 17 May 1994
• Docket Number: No. 1-90-0029,1-90-0029
• Citation: 262 Ill.App.3d 747,636 N.E.2d 863
• Parties: , 201 Ill.Dec. 431 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mario GUAJARDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 863

636 N.E.2d 863

262 Ill.App.3d 747, 201 Ill.Dec. 431

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mario GUAJARDO, Defendant-Appellant.

No. 1-90-0029.

Appellate Court of Illinois First District, Second Division.

May 17, 1994.

Rehearing Denied June 21, 1994.

As Modified June 28, 1994.

Michael J. Pelletier, Deputy Defender, Debra R. Salinger, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, Janet Powers Doyle, of counsel), for appellee.

MODIFIED ON DENIAL OF REHEARING

Presiding Justice DiVITO delivered the opinion of the court:

Following a jury trial, defendant Mario Guajardo was convicted of aggravated criminal sexual assault (Class X), two counts of criminal sexual assault (Class 1), and aggravated criminal sexual abuse (Class 2). He was sentenced to imprisonment for 18 years. On appeal, he raises issues of improper admission of hearsay evidence, improper closing argument on the part of the prosecution, and violation of the one-act, one-crime doctrine; he also challenges his sentence. For reasons that follow, we affirm in part, vacate in part, and remand for action consistent with this opinion.

Defendant was charged with sexually assaulting minor J.S. on or about December 23, 1987. Prior to his October 1989 trial, the court held a hearing pursuant to section 115-10 of the Code of Criminal Procedure (Ill.Rev.Stat.1989, ch. 38, par. 115-10, now codified as 725 ILCS 5/115-10 (West 1992)), which became effective on January 1, 1988. The court heard defendant's arguments regarding limiting the testimony of three prosecution witnesses. The issues discussed included hearsay statements, applicable exceptions, and the extent of descriptive testimony where a witness was allowed to testify. The circuit court contacted Springfield for legislative history on the issue of whether details of the assaults could be repeated by outcry witnesses. The court concluded that the legislature intended to expand the perimeters of the hearsay exception to allow witnesses to identify defendants and include facts of the assault in their testimony. It outlined the requirements and restrictions of an evidentiary hearing and determined which witnesses would be required to testify. The court heard argument as to whether the victim's mother, Judy S., could testify under the admission exception regarding statements made to her by defendant, ruling that she could because defendant's acts and deeds could be construed as an admission. The court also made its ruling subject to change if defendant could produce caselaw stating that an admission had to be unequivocal.

On October 18, 1989, a jury was empaneled. The next day, outside the presence of the jury, the court held an evidentiary hearing for potential witness Tarik Dwiek. Dwiek testified that he was 15 years old, and that his grandmother lived in the apartment above the juvenile complainant, J.S., on 72nd Street in Summit. J.S. lived with his mother, defendant, and his twin sisters in the downstairs apartment. Dwiek identified defendant in court.

Dwiek stayed with his grandmother over the Christmas holiday in 1987. On one after noon, on or near Christmas day, he and J.S. talked and played board games in the grandmother's living room, while she slept. Dwiek saw a piece of mail addressed to defendant on the coffee table, and told J.S. that the mail belonged downstairs. Dwiek "asked [J.S.] how he liked [defendant], if he was cool." J.S. then made statements implicating defendant.

On cross-examination Dwiek stated that J.S. told him "he didn't like [defendant] very much." He told Dwiek that "he didn't like [defendant] because he made him suck his pecker." Dwiek told J.S. to tell his mother.

The circuit court found Dwiek to be a reliable witness, and stated that 13-year-old boys do not keep diaries. The date provided by Dwiek was sufficiently close in time and place in relationship to the event charged, and Dwiek's statement was reliable.

The court also examined J.S. outside the presence of the jury. J.S. stated that he was nine years old and attended the fourth grade at Wilkens Grammar School. He understood the difference between the truth and a lie, and knew that if he lied he would get into trouble. He also knew that the prosecutor was there to help him, and that defense counsel was there to help defendant. The court found J.S. competent to testify.

Following opening statements, J.S. testified for the State. He was nine years old, and in 1987 he had been seven years old and in the second grade. He lived in Summit, Illinois. In 1987 he lived with his mother, twin sisters, and defendant, whom he identified in court.

On December 23, 1987, defendant picked him up at about 8 p.m. and drove him to a nearby Zayre store to buy a present for his friend Connie Alousch. J.S. stated,

"[Defendant] stopped the car and we were on a stop sign, I mean stoplight, and he took out his pecker and he said, 'Do you want it?' And I said, 'No,' and he pulled my hair and started--he pushed--he pushed it on it and he moved my head up and down and then he said, 'Yeah,' and then we drove to Zayre."

J.S. clarified the term "pecker" to mean penis.

J.S. was unsure how long the incident took, but he remembered it happened in the car. He was sitting with his head over defendant's penis. Following the incident, defendant dropped J.S. off at home.

There was another incident involving defendant that took place in J.S.'s mother's bedroom, where defendant "put white stuff in [J.S.'s] mouth." The "white stuff" came from defendant's penis. Defendant told J.S. that the incident was to be a secret.

There were five or six other such incidents as well. Defendant once told J.S. to kneel down while in the bathroom, and asked him, "Do you want it?" When J.S. replied that he did not and moved backwards, defendant "pulled [him] back by [his] head and he put--pushed [his] head on to it." There was no semen during that incident.

Another incident occurred when defendant was sitting on the couch in his shorts and J.S. went into the living room to watch television. Defendant again asked J.S., "Do you want it?" J.S. answered no, and defendant pushed J.S.'s head down towards his penis and told J.S. to "lick it like it was a lollipop."

J.S. told Dwiek about the incidents. He told Dwiek, "I don't like [defendant] anymore because he made me suck his pecker." J.S. told Dwiek instead of his mother because she often took defendant's side in disagreements between them. Shortly after he told Dwiek about the latest incident, J.S. told his mother. When J.S. told his mother, she called and told defendant that J.S. "wouldn't do it anymore." Defendant then came to the house, J.S. told him that he "wouldn't do it anymore," and J.S. ran to his room.

Although J.S. no longer trusted defendant, they had gotten along well in the past. On the day he told his mother about the incidents, he talked to the police. Later that day he went to the hospital and stayed there for two months.

On cross-examination, J.S. stated that he did not tell two of his friends about the incidents because he did not share secrets with them. He later told another friend, Tony, with whom he does share secrets. His mother had slapped him once when he lied and she had hit him once on the behind with a curtain rod. Those two punishments were the most physical his mother had ever administered. The hit on the behind with the curtain rod was at least two years prior to the incidents involving defendant.

The last incident occurred on December 23, 1987, and J.S. told Dwiek about it a few days later. J.S. further described how defendant had laid on top of him and "stuck his pecker up [his] butt" while J.S. was lying on his mother's bed. It made him cry, but he could not remember any pain and did not remember if his "butt" was sore the next day. Defendant had once made him "suck his pecker" while J.S.'s mother was on the telephone talking to his grandmother.

When defendant put J.S.'s head on his pecker in the car, there were other cars around; defendant had repeated the act while in the store parking lot. Prior to telling his mother about the incidents, she had taken defendant's word over his own where their two stories conflicted, and he was punished. This was the first time his mother believed him over defendant. When he told her about the incidents, he told her everything.

When questioned about baths he used to take with his friend Tony, J.S. stated that he always did so, and that they played with their "He-Man" toys together. They did not touch one another, but simply played in the tub.

On redirect examination, J.S. explained that he was five or six years old when he took baths with Tony, and that they played in the bathtub. The prosecutor had told him to tell the jury that defendant frequently hit him and his mother, and that he was afraid to tell his mother because defendant had a gun and always hit him on the back of the head. He was also told to stay calm and tell the truth.

At first he did not know what was happening to him, because he was young and didn't know what defendant was doing. He never fought defendant because defendant was bigger than he was.

Dwiek testified that he was 15 years old, and that in 1987 he spent most of his Christmas vacation with his grandmother. He and J.S. played board games and talked. He asked J.S. whether he liked defendant, "if he was cool." J.S. told him that "he didn't like him because he made him suck his pecker." Dwiek told J.S. to tell his mother.

On cross-examination Dwiek stated that J.S. was like a little brother to him. He was afraid for J.S., and believed him because a "little kid like that wouldn't tell a lie like that." He did not tell his grandmother because he felt it was best that J.S. tell his mother.

Judy S., J.S.'s mother, testified that she had lived with defendant for...