People v. Holmes

• Decision Date: 18 June 2008
• Docket Number: No. 1-06-1601.,1-06-1601.
• Citation: 383 Ill.App.3d 506,890 N.E.2d 1045
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Andre HOLMES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

890 N.E.2d 1045

383 Ill.App.3d 506

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Andre HOLMES, Defendant-Appellee.

No. 1-06-1601.

Appellate Court of Illinois, First District, Third Division.

June 18, 2008.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Mary L. Boland, Jessica Pipersburgh, Assistant State's Attorney, Chicago, IL, for Plaintiff-Appellant.

Edwin A. Burnette, Public Defender, Eileen T. Pahl, Assistant Public Defender, Chicago, IL, for Defendant-Appellee.

Justice THEIS delivered the opinion of the court:

The State appeals from the denial of its motion to reconsider an order excluding evidence of defendant's prior convictions in a sexual assault case.¹ The State argues that (1) the trial court erred as a matter of law because it concluded that the prior convictions were per se inadmissible to show propensity, in contravention of section 115-7.3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West 2004)); and (2) the trial court abused its discretion in refusing to admit the prior convictions. For the following reasons, we affirm in part and reverse in part and remand for further proceedings.

Defendant was charged by indictment with nine counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1), (a)(2), (a)(3) (West 2004)) and three counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2004)) in connection with an attack that occurred on December 28, 2002. The State indicated that if defendant was convicted, it would seek to have him imprisoned for natural life pursuant to section 5-8-1(a)(2) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(2) (West 2004)) and article 33B of the Code (720 ILCS 5/33B-1 et seq. (West 2004)).

The details of the assault were taken from the parties' filings and transcripts of the hearings. Defendant and J.B. were former high school classmates. They arranged to meet each other at about 3:30 p.m. on December 28, 2002, while defendant was in town for the holidays. J.B. alleged that she drove to the home of defendant's aunt and the two sat in her car and talked. During their conversation, J.B. told defendant that she did not want to have a romantic relationship with him.

At that point, J.B. alleged, defendant became "enraged." He grabbed her by the neck and began to punch and choke her. He then ordered her to take off her clothes and move to the backseat of the car. He pushed her onto the floor, threatened her with a knife, and raped her. Following the attack, defendant drove J.B. to his father's house. He told her that he wanted her to meet his father and tell him that they were getting married. Defendant again brandished the knife and threatened to kill her if she disobeyed him. Sometime later, defendant let J.B. leave.

After she left, she immediately drove to a police station, reported that she had been sexually assaulted by defendant, and was taken to the hospital. The physician determined that she suffered multiple contusions and abrasions, consistent with being beaten, and vaginal tears, consistent with sexual assault. The police arrested defendant the next day and J.B. identified him in a lineup as her assailant. Additionally, the DNA evidence recovered after her assault matched defendant's.

In the course of the prosecution, the State filed a motion to admit evidence of other sexual offenses that defendant had committed for the purpose of showing his propensity to commit sexual assault, pursuant to section 115-7.3 of the Code, or to prove intent, motive, or lack of consent under the common law rules of admissibility. Specifically, the State sought to introduce evidence of two of defendant's prior convictions for similar sexual assaults in Louisiana and the victims' testimony in those cases.

Defendant's first conviction occurred in 1994. He and the victim, K.S., had been dating for three years and had been living together in defendant's mother's home. Eventually, K.S. ended the relationship and moved out of the home. Defendant called K.S. repeatedly, urging her to reconcile with him and telling her he could not live without her. As K.S. was on her way to work a few days later, defendant approached her, wielding what he said was a gun wrapped inside a shirt. He punched her in the stomach, pushed her into her car, and drove her to his mother's house.

While defendant and K.S. were in his bedroom, defendant's mother entered the room to check on them. K.S. tried to signal that she was in distress, but was unable to communicate that to defendant's mother before she left the room. Defendant then displayed a kitchen knife, pushed K.S. onto the bed, and raped her. After K.S. left the room, defendant's mother saw that she was injured and crying. K.S. told defendant's mother what happened, and they called the police. K.S. made a police report and was treated for her injuries at the hospital. Although defendant argued that K.S. consented to having sex with him, he pled guilty to a reduced charge of sexual battery and was sentenced to five years' probation.

The second conviction occurred in 1996. Defendant, then age 30, had been dating A.S., then age 17, for three months when he attempted to sexually assault her. A.S. and her cousin were at defendant's house. Defendant invited A.S. into the bedroom intending to become intimate with her. They began kissing but A.S. resisted when defendant climbed on top of her and began to initiate intercourse with her. He then forced her hands behind her back, covered her mouth, and threatened to kill her if she said anything. As defendant started to remove his pants, A.S. bit and scratched defendant. She kicked a dresser in an effort to get her cousin's attention. After several minutes, her cousin came to the door and she was able to escape from defendant. A.S. went to the police and reported the attempted rape and defendant was later arrested. He pled guilty to attempted forcible rape, along with several other unrelated charges, and was sentenced to five years' imprisonment.

The State argued that the convictions were admissible under section 115-7.3 because (1) excluding the time that defendant was in prison, all three assaults occurred within a relatively short span of time; (2) the details of each assault or attempted assault were similar; and (3) other crimes evidence is relevant to rebut a consent defense, which defendant likely would assert in this case.

In response, defendant argued that admitting his prior convictions would be unduly prejudicial and of minimal, if any, probative value. The incidents occurred too far apart in time to bear any relevance to the present case and, moreover, the circumstances of each case varied widely. Specifically, defendant and K.S. were involved in a long-term relationship before the assault and have since married and divorced. In fact, they were involved in a contentious child custody dispute, which defense counsel suggested would influence her testimony in this case. In the case of A. S., not only was there no sexual penetration, but that conviction was part of a plea deal that resolved outstanding charges against defendant, unrelated to the assault on A.S.

Additionally, at the hearing on the motion, defense counsel claimed that J.B. "had a previous false outcry of rape against a Cleveland Browns NFL football player" from whom she was currently receiving child support payments. The court then addressed counsel's allegation.

"THE COURT: Wait a minute, wait a minute. It's a false allegation of rape against someone who settled? Is that what you said?

DEFENSE: We have records— again, Judge, I'm just getting up to speed on this case.

PROSECUTION: That's interesting because we have no discovery from the defense yet, so they have the records, we don't.

DEFENSE: There's some type of civil settlement for child support through this NFL football player. I don't know what [the State] has or doesn't have, it doesn't matter."

On June 10, 2004, the trial court denied the State's motion to admit the other crimes evidence and provided the following rationale:

"It is alleged that at the time of the attack against [K.S.] the defendant threatened to be in possession of a handgun; it is also alleged that he did brandish a knife there and these are all allegations; the defendant was supposed to have punched [K.S.] and pushed her into her own vehicle. In the case before us there's no suggestion of a knife being brandished or threatened and [the] complaining witness in this matter complains of having been choked. [K.S.] was taken to the home of the defendant's mother. In our 2003 case[,] it's alleged that that complainant was taken to the defendant's father's home. And in the case of [A.S.] which occurred in [19]96, there is a resolution of that case by conviction to the charge of attempt[ed] forcible rape, there was no sex act consummated in that matter.

I believe that the passing of the nine years between the [19]94 case and the case that brings us here is such that any evidence in that regard should be barred and so ordered and there is no similarity between the [19]96 case where [A.S.] was the complaining witness and the matter that brings us here today. Both matters will be barred."

Approximately three months later, defendant filed a motion for additional discovery, specifically requesting the location and dates of any reports of assault, sexual assault, battery, or rape made by J.B. in Illinois, Ohio, or elsewhere, where she was a witness or the victim. The State filed a supplemental answer to discovery wherein J.B. disclosed that "there has been only one previous incident" in which she has made a police report alleging any of those crimes. At some time between 1989 and 1992, her boyfriend at the time, D.C., punched her in the face during an argument. She made the police report in Cleveland Heights, Ohio. D.C. was arrested and she later appeared in court on the matter, but the case was never called. She ended her...