People v. Mooney
| Decision Date | 13 November 2014 |
| Docket Number | No. 1-12-3588,1-12-3588 |
| Citation | 2014 IL App (1st) 123588 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEOPHUS MOONEY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
Honorable Brian Flaherty, Judge Presiding.
¶ 1 Held: Alleged hearsay statement was admissible as an excited utterance and, therefore, counsel's failure to object did not constitute ineffective assistance of counsel; defendant failed to show that he was prejudiced by counsel's alleged deficient representation because the evidence overwhelmingly supports his guilt. Defendant's sentence is affirmed where the trial court judge considered defendant's youth in sentencing him to 16 years' imprisonment.
¶ 2 Following a jury trial, defendant Cleophus "CC" Mooney was convicted of two counts of aggravated criminal sexual assault and was sentenced to two consecutive terms of eight years' imprisonment. Defendant now appeals his conviction arguing that the trial court judge improperly admitted certain hearsay statements and defendant's counsel was ineffective in his representation of him. Defendant also appeals his sentence arguing that the exclusive jurisdiction and automatic transfer provisions violate his federal and state constitutional rights. For the reasons that follow, we affirm the trial court's conviction and sentence.
¶ 4 Based upon events occurring on November 25, 2009, defendant Mooney, who was 17 years old at the time, was charged with various offenses related to the alleged sexual assault of 20-year-old A.N. The State proceeded to trial on: (1) two counts of aggravated criminal sexual assault, alleging the use or threat of force, and involving penetration between defendant's penis and A.N.'s vagina and anus, both of which caused bodily harm, and (2) two counts of criminal sexual assault, alleging contact between defendant's penis and A.N.'s vagina and anus when defendant knew that A.N. was unable to understand the nature of the act. The following testimony was elicited at trial.
¶ 5 A.N. testified that prior to the incident, she knew of defendant from her driver's education class that she took in 2007. She had said hi to him once in class. At that time, she thought he was cute and was attracted to him. Following driver's education, the next time she saw defendant again was after she was transferred to defendant's school and began taking the regular bus because they got off at the same stop. A.N. testified that she was in a special education program at school. The transition coordinator at the school A.N. was attending in 2009 testified that A.N. was in a special education program because "she functioned around a 40 I.Q."
¶ 6 A.N. testified that on November 25, 2009, defendant was riding the bus home with her and told her that he would come over. She did not respond to this. After getting off the bus, A.N. testified that defendant followed her home. Defendant asked her if she had a boyfriend, and she said no. When A.N. went to open her front door, defendant pushed her inside, said he was "going to smack that thing," and pushed her on her butt up the stairs and into a bedroom. Defendant then closed the door, pulled down his pants and asked A.N., "Do you want to touch this?" A.N. said no, but defendant told her she was fine. A.N. testified that she was holding onto her pants tightly, but defendant pulled them off and then took off his clothes. A.N. told defendant to close the blinds or else people would see him naked. A.N. testified that defendant closed the blinds, pushed A.N. onto the bed and then put his penis inside her vagina.
¶ 7 A.N. testified that she cried when defendant inserted his penis into her vagina as it was very painful. Defendant eventually turned A.N. over and put his penis into her anus, pulled her hair, and put his hand on her neck causing A.N. to believe that he was trying to choke her and snap her neck. A.N. saw "white stuff" on the sheets and told defendant that she needed to go to the bathroom. Defendant said she was fine. A.N. told defendant she had to go to the bathroom again, pushed defendant off the bed and went to the bathroom. In the bathroom, A.N. noticed she was bleeding. A.N. left the bathroom because she thought defendant might come and get her. When she returned, defendant asked her if her "momma wants some of this too," and said he felt bad for her mom because she was lonely. A.N. said "no," and defendant told her he might be her boyfriend and left. A.N. then called her mother.
¶ 8 Pauline J., A.N.'s mother and a registered obstetrics and gynecology nurse, testified that A.N. lost oxygen to her brain during birth and was once given a diagnosis of mild mental retardation with a profound learning disability. Pauline testified that A.N. learned by example,took care of several animals, and performed some tasks for her own; however, she would never be able to live on her own. Pauline drove A.N. to school every day and A.N. took the bus home from school. While A.N. used to ride the "special ed bus," she began taking the regular bus because it was hard for her to always be with profoundly handicapped children and A.N. strived to be "normal." Before A.N. was allowed to ride the regular bus, Pauline and A.N.'s father secretly watched A.N. get on the regular bus, sit behind the bus driver, and get into her house on her own.
¶ 9 Pauline testified that on November 25, 2009, she received about 15 pager messages from A.N. around two o'clock p.m. When Pauline called A.N., A.N. was hysterical and screamed, "CC has been here and had sex with me and I am bleeding." Pauline drove herself home after receiving this call and when she got there, A.N. was still crying and was upset. Pauline then asked A.N. what had happened. Before Pauline answered, defendant's counsel interjected, "Judge, we would object." The trial court judge overruled this objection, and Pauline testified that A.N. told her that on the bus defendant told A.N. that he was coming home with her and followed her to her house. When A.N. unlocked the front door, defendant pushed her inside and into a bedroom where he pulled down his pants and touched her. A.N. held onto her trousers tight, but defendant pulled them down and had sex with her. When A.N. told defendant that someone was going to see him, defendant pulled down the blinds, grabbed her by the throat and hair and had sex with her. A.N. kept telling defendant she had to go to the bathroom, but defendant kept telling her she was alright. Pauline testified that she "guess[ed]" that defendant eventually let A.N. go to the bathroom, where A.N. noticed she was bleeding.
¶ 10 When the police arrived, Officer Barnes spoke with Pauline and A.N. Pauline showed the officers the blood in the upstairs toilet that A.N. had shown her. Officer Barnes thencollected A.N.'s clothes, and Pauline took A.N. to a hospital where she was examined by a nurse.
¶ 11 Pauline testified that A.N. was "panicked" for a few days, and went into "panic attacks" she had never experienced before. A.N. was eventually placed on Shaltapron, an anti-anxiety medication. Pauline stated that she and A.N. had just painted the room where the sexual assault occurred so A.N. could move into it, but A.N. ended up moving into a different room after the incident.
¶ 12 Pauline further testified that defendant came to her house the following Sunday. Pauline knew who defendant was because she had given him a ride to school on two occasions. Defendant asked if A.N. was home, but left when Pauline grabbed her phone.
¶ 13 Nurse Nancy Healy, an expert in sexual assault nurse examinations, testified that she owned a private business that contracted out sexual assault examinations. Healy performed the examination on A.N., collecting swabs from her lips, neck, vaginal area, and anal area. The parties stipulated that the male DNA identified on A.N.'s neck matched that of defendant. Semen was identified on A.N.'s vaginal swab and her underwear, but there was insufficient human male DNA for analysis. Healy testified that A.N. had bruising and discoloration on both sides of her hymen, a tear to her hymenal wall, and a large amount of bleeding on the hymenal shelf. Healy observed a tear to A.N.'s anus and an opening in the cervix. Healy opined that A.N.'s injuries were consistent with what A.N. had told her. Healy testified that she has performed approximately 1,200 sexual assault examinations, and that "maybe ten percent of patients that [she had] seen out of those 1,200 [] had the level of injury that [A.N.] had."
¶ 14 Defendant testified that on November 25, 2009, after he and A.N. got off the bus, A.N. asked him if he wanted to come over. Defendant said yes and they hung out in the living room for a while. A.N. asked defendant what he wanted to do, and he said "it don't matter."
Defendant then followed A.N. upstairs and waited for her while she went to the bathroom. When A.N. returned from the bathroom, she and defendant hugged and kissed. Defendant then pulled down his pants, and A.N. told him to close the blinds. Defendant then sat A.N. on the bed and pulled down her pants. Defendant testified that he believed A.N. wanted to have sex with him. Defendant stood between A.N.'s legs and tried to put his penis into her vagina, but it would not go in. Defendant then laid A.N. on her back and put his penis into her vagina "a little bit." A.N. then got on top of defendant, and he again put his penis into her vagina. Defendant then turned A.N. on all fours, and they continued to have sex. Defendant removed his penis from A.N.'s...
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