People v. Lopez

• Decision Date: 22 June 2012
• Docket Number: No. 1–10–1395.,1–10–1395.
• Citation: 974 N.E.2d 291,362 Ill.Dec. 770,2012 IL App (1st) 101395
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Alex LOPEZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 101,395

974 N.E.2d 291

362 Ill.Dec. 770

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

v.Alex LOPEZ, Defendant–Appellant.

No. 1–10–1395.

Appellate Court of Illinois, First District, Fifth Division.

June 22, 2012.

Michael J. Pelletier, Alan D. Goldberg, Benjamin Wimmer, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chivago (alan J. Spellberg, Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice EPSTEIN delivered the judgment of the court, with opinion.

[362 Ill.Dec. 774]¶ 1 After a jury trial, defendant Alex Lopez was convicted of criminal sexual abuse and unlawful restraint. He was sentenced to four years in prison. Defendant argues on appeal that: (1) the trial court denied his right to a trial by an impartial jury by making numerous comments before the jury conveying the impression that his “defense counsel was incompetent and his defense a waste of time”; (2) the trial court violated his right to due process of law by indicating, prior to closing argument, that it might impose unequal time limits on defense and State closing arguments; and (3) the State improperly vouched for the credibility of the complaining witness and suggested irrelevant considerations during closing. We affirm.

¶ 2 BACKGROUND

¶ 3 On November 12, 2008, defendant was charged with attempted criminal sexual assault, criminal sexual abuse, and unlawful restraint. Defendant pleaded not guilty and his jury trial commenced on March 8, 2010.

¶ 4 I. State's Case in Chief

¶ 5 A. MS

¶ 6 The State first called the complaining witness, MS, who testified to the following version of events. In October 2008, MS was a 17–year–old junior in high school and lived at home with her mother and her brother. Her uncle, Jose Avalos, and his family lived in the same building. Another uncle, Nicholas Hurtado, lived across the street with MS's aunt, Rosa. On October 16, 2008, at approximately 6 p.m., Uncle Nicholas called MS and asked her to come over to help him set up his iPod. MS went out the front door. It was still sunny outside. While standing on her front porch, she saw defendant across the street, masturbating in the gangway by her aunt and uncle's house. She had never seen him before. He was wearing a black spaghetti strap undershirt and black basketball shorts that were pulled down to his mid-thigh. She could not remember what color shoes defendant wore or whether defendant had facial hair or tattoos. MS also saw a girl walking in front of her uncle's house across the street. MS had never seen the girl before. The “suspicious” girl kept walking, looking back at defendant, and looked worried. MS focused her attention on the girl. When MS looked back to where defendant had been, he was gone. MS did not call out to her uncle or call the police. She waited a few minutes on her porch, “in shock.”

¶ 7 MS then went across the street to her Uncle Nicholas's house. She walked to the rear door because her aunt did not like people to use the front door. The rear entrance to her uncle's house had two small stairwells. One led up to the rear door, and the other went down to the basement. MS went up the stairs and, as she knocked on the rear door, she saw defendant hidden at the bottom of the steps to the basement. She was approximately five feet away from defendant, who was still masturbating. In a “calm voice,” she told defendant he was not supposed to be there and he nodded his head with a smirk. MS knocked harder on the door but did not scream for help because she was in shock. She did not run because she would have had to run past him. Defendant then came up the stairs and grabbed MS's left wrist; his grip was hard and painful. MS kept pushing him away, but was unsuccessful. She was unable to pull herself away from defendant. As defendant held her by the wrist, he pushed MS against the wall and, with his right hand, pulled down her sweat pants and underwear “[r]ight beneath the pubic hair.” MS testified “I felt his hand on my vagina.” She stated that “ [b]asically everything” was exposed.

¶ 8 As defendant was restraining her, MS stated she was scared and panicking. She may or may not have screamed. MS heard the locks unlocking on the rear door. Defendant then ran out of the stairwell toward the front of the house. When Uncle Nicholas opened the door, defendant was gone. MS pointed toward where he had run. Uncle Nicholas ran, and MS followed him, to the end of the gangway. MS then saw her Uncle Jose get in his van and chase defendant down the street. Uncle Nicholas ran back down the gangway and MS went inside the house. Family members called the police and they arrived in a few minutes.

¶ 9 The police and MS went into the alley behind Uncle Nicholas's house, where there was an unfamiliar car parked. MS testified that she told the police that she saw defendant masturbating and that he had rubbed her vagina with his hand. At trial, she testified that he did not insert his fingers in her vagina.

¶ 10 MS went to the police station with her mother and identified defendant in a lineup. She testified that the shirt defendant was wearing during the attack was different than the one he was wearing during the lineup. MS denied telling the police that defendant had been wearing white shoes.

¶ 11 B. Nicholas Hurtado

¶ 12 MS's uncle, Nicholas Hurtado testified that he lived with his wife, Rosa, and their baby daughter, across the street from MS. MS came to visit them almost every day and would always use the back door, where there was one stairwell going up to the back door and another going down to the basement.

¶ 13 On October 16, 2008, at approximately 6 p.m., Nicholas was home. Rosa had just had foot surgery and was unable to move around easily. Nicholas had called MS and asked her to come over to his house to help him with his iPod. After a few minutes, he heard a “pretty loud” knock at the back door. He heard a series of knocks. It took him a few seconds to get to the back door and unlock the top and bottom locks. He did not hear voices or screams. As he opened the back door, he found MS crying loudly and pointing down the stairs into the gangway. He tried to calm her down. After 10 to 15 seconds, she was still crying loudly but told him that a man tried to grab her and that she did not know who the man was. Nicholas ran to the front of the house and MS followed. He saw a man, wearing black, running a half block down the street but he was unable to see the man's face. Nicholas also saw his brother-in-law, Jose Avalos, run and jump into his van and follow in the same direction the man in black was running. Nicholas went back to get his shoes and went into the alley but did not find the man. He did see an unfamiliar car parked by the neighbor's garage. The police then arrived in less than 10 minutes.

¶ 14 C. Jose Avalos

¶ 15 Jose Avalos testified that on October 16, 2008, at approximately 6:15 p.m., he looked out his living room window. He saw a man across the street coming out of the gangway of his sister's house. The man was clean shaven and was wearing a sleeveless black shirt and underwear that was “like shorts like boxers.” Jose identified defendant in court as that individual. Jose testified that he came out of his house onto the porch and saw his niece and brother-in-law Nicholas coming out of the gangway. His niece was crying. When Jose saw defendant running, he knew defendant had done something wrong, so Jose got into his car and chased defendant down the street.

¶ 16 Jose drove between 10 and 20 miles an hour down several streets following defendant who was approximately two car lengths away. When they came to a one-way street, Jose did not want to drive down it, so he parked his car and started chasing defendant on foot. At that point, he was no more than 10 feet from defendant. Defendant ran into a gangway, turned around, faced Jose, and said, “I'm sorry. I'm sorry.” Jose had a clear view of defendant's face. Defendant then turned around and ran down an alley. He eventually ran into another gangway and Jose lost him.

¶ 17 Jose returned to his car and drove back home. He then left again and drove around trying to find defendant, but was unsuccessful. Jose spoke to the police at the scene. Later that same evening, he was contacted by the police. The detectives picked up Jose, his sister Martha, and his niece MS. Jose viewed a lineup at 12:40 a.m. on October 17, 2008 and identified defendant.

¶ 18 D. Officer David Mullany

¶ 19 Chicago police officer David Mullany testified that, on October 16, 2008, he was working with a partner in plain clothes in an unmarked car. At around 6:15 p.m., they received a report of a criminal sexual assault in the 6100 block of School Street. The call included a description of the offender as being a male Hispanic, 5 feet 10 inches to 5 feet 11 inches tall, 190 pounds, wearing a black sleeveless shirt and black shorts. They toured the area on foot for about an hour.

¶ 20 At around 8:30 p.m., the officers were parked on School Street. Sergeant Mullins was in a marked car directly to their left. A purple van pulled up and the back door opened. A male Hispanic, about 5 feet 10 inches to 5 feet 11 inches tall, wearing black shorts and a black shirt got out of the van. He fit the description of the offender heard on the flash message. Officer Mullany made an in-court identification of defendant as that man. As the officers approached, defendant told them that his car was parked in the alley. Officer Mullany testified that they were looking for an Alex Lopez. They asked defendant his name and arrested him after he told them his name was Alex Lopez. The purple van had left immediately after defendant exited and the officers did not get a good look at the driver.

¶ 21 E. Detective Emiliano Leal

¶ 22 Detective Emiliano Leal testified that, during the evening hours of October 16, 2008, he responded to a...