People v. Rivera

• Decision Date: 25 April 2011
• Docket Number: No. 1–09–2472.,1–09–2472.
• Citation: 349 Ill.Dec. 805,947 N.E.2d 819,409 Ill.App.3d 122
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jose RIVERA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

409 Ill.App.3d 122
947 N.E.2d 819
349 Ill.Dec. 805

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Jose RIVERA, Defendant–Appellant.

No. 1–09–2472.

Appellate Court of Illinois, First District, Fourth Division.

April 7, 2011.Rehearing Denied April 25, 2011.

[947 N.E.2d 823]

Donna Hickstein–Foley, Foley & Foley, Chicago, IL, for Defendant–Appellant.Anita Alvarez, State's Attorney, Alan Spellberg, Peter Fischer, ASA's of counsel, Chicago, IL, for Plaintiff/Appellee.

[409 Ill.App.3d 123] OPINION Justice LAVIN delivered the judgment of the court, with opinion.

[349 Ill.Dec. 809] After a jury trial, defendant Jose Rivera was convicted of three counts of predatory criminal sexual assault, three counts of criminal sexual assault, and five counts of aggravated criminal sexual abuse arising out of conduct with his 13–year–old stepdaughter and her middle school classmate. Defendant was also convicted of one count of possession of child pornography. The trial court sentenced defendant to 75 years' imprisonment. On appeal, defendant contends that: (1) his motion to suppress custodial statements was improperly denied; (2) certain plea-related statements were improperly admitted; (3) the evidence was insufficient to sustain his convictions; (4) the trial court failed to comply with Supreme Court Rule 431(b) ( ill.s.ct. r. 431(b) (eff. may 1, 2007)); (4) his defense counsel was improperly disqualified; (5) his right to a public trial was violated; (6) certain evidence and testimony lacked proper foundation; (7) certain prior consistent statements were admitted to improperly

[349 Ill.Dec. 810 , 947 N.E.2d 824]

bolster the credibility of witnesses; (8) a fatal variance existed between his indictment and the proof offered at trial; (9) defense counsel was ineffective; and (10) statements made during the State's closing argument were improper. For the reasons discussed at length below, we reverse and remand for a new trial.

I. BACKGROUND

Edys Rivera testified that when she married defendant in 1993, she already had a two-year-old daughter, J.M. Defendant had two other daughters, Evelyn and Maria, from a prior relationship who would visit every other weekend. Mrs. Rivera and defendant had a son together and, along with J.M., they lived in three different towns in the west suburbs of Chicago. During this period, she worked as a receptionist from 8:30 a.m. to 5 p.m. every weekday and 8 a.m. to 6 p.m. every other Saturday, while defendant was a computer technician and worked from 4 a.m. to 12 p.m. during the week.

In the fall of 2004, Evelyn came to live with her father and his “second” family. Shortly thereafter, on October 22, 2004, Mrs. Rivera [409 Ill.App.3d 124] was driving home from work when she received a phone call from the Franklin Park police. She was told that her two daughters were at the station and Mrs. Rivera was told to go to the police station alone. She immediately phoned her husband at that time to inform him of the situation. After arriving at the police station, Mrs. Rivera was informed of a police investigation which involved allegations of a sexual nature between defendant and her 13–year–old daughter, J.M. She signed a consent form permitting the police to search the family apartment.

Mrs. Rivera accompanied the police to the apartment for the search and, upon entering, she noticed a burning smell in the kitchen and “burned stuff” in the sink, even though the sink was in normal condition in the morning. She also noticed that the living room computer, which was assembled and “in working order” in the morning, was on the floor and disassembled. Mrs. Rivera admitted that she only occasionally used the computer and only defendant knew the password to access the computer. During the search, the police recovered, among other things, parts of a computer, a camcorder, a camera, and various digital storage media. Later that day, condoms were recovered from defendant's jacket pocket. She testified that defendant had never used condoms in their intimate relationship.

Defendant's stepdaughter, J.M., testified that she was born on October 21, 1990. J.M. stated that in the spring of 2002, when she was 12, she had several unusual conversations with defendant in his room while her mother was at work. During these conversations, defendant told J.M. that he could help her start a modeling career and form a band with his daughters and another daughter of a friend. He said J.M. would make “a lot of money.” Defendant told J.M. not to tell her mother because he wanted to “surprise her.” Defendant also told J.M. that he signed a modeling contract for her and that an individual named Cindy would arrange for photo shoots and get J.M. clothing. Apparently to that end, defendant took several measurements of J.M. in his room.

After several conversations, defendant eventually persuaded J.M. that, as a part of her contract, she needed to test condoms and some lotion. J.M. indicated that the lotion was intended to be put on her body and defendant would lick it off. As for the condoms, defendant would put one on and J.M. would perform oral sex on him. Although J.M. did not want to test the products, defendant told her it was necessary in order to launch her modeling

[349 Ill.Dec. 811 , 947 N.E.2d 825]

and music career. J.M. testified that she told defendant she did not want to test the lotions because she did not want defendant touching her, but would test the condoms if she had to. As a demonstration, defendant retrieved a plastic grocery [409 Ill.App.3d 125] bag, put it over his penis, and told J.M., “What you do now is the exact same thing you're going to do when we have the condom on.” Defendant instructed J.M. to kneel and to put her mouth on his penis and “move [her] head backward and forward.” J.M. complied and defendant continued to instruct her. After approximately 10 minutes, defendant removed the bag and J.M. left the room.

J.M. testified that although she was disgusted, she felt she did not have a choice because her career depended on it. The next day, J.M. was in defendant's room again and was told to do the same thing she did before with the grocery bag and she complied. After that day, J.M. testified that defendant would have her perform oral sex on him while he wore a condom once or twice a week. J.M. did not inform her mother because defendant told her that if she ever told her mother, she would disown J.M. and she would be placed into foster care.

In the summer of 2003, J.M. and her family were in the process of moving to Hillside, Illinois. J.M. and defendant continued to have conversations about modeling and her band, with defendant stating that they just had to give it time. At one point, J.M. was told by her mother that if she continued to misbehave at school and in the house, J.M. would be sent to “boot camp.” Defendant later took J.M. to see their new house at Hillside. Once there, he told J.M. that if she did not want to go to boot camp, she could perform oral sex on him at that time and he would later talk to her mother. Defendant drove to a nearby drug store and purchased condoms, and the two went into the basement of the Hillside house where J.M. performed oral sex on defendant. After moving to Hillside, J.M. would perform oral sex on defendant throughout the summer according to defendant's requests. J.M. testified that the frequency of the acts varied from one to three times a week, depending on whether her brother or mother was home and defendant's work schedule. Defendant's advances also changed during this time, as he began performing oral sex on J.M., touching and licking her breasts, recording videos of the acts, as well as taking photos of J.M. unclothed.

On one occasion in the summer of 2003, defendant initiated vaginal intercourse with J.M., with the penetration lasting a minute and her screaming in pain. Defendant then abandoned his attempt and made J.M. perform oral sex on him instead. In July 2003, J.M. told defendant she was “sick and tired of everything” and she was “not going to do anything anymore.” Defendant then informed J.M. that Cindy was going to sue J.M. and her mother for $200,000. J.M. told defendant that she “would rather be touched by a girl,” and in response, defendant told her that if she could find another girl to make a video with, he would “let [J.M.] off the hook for a good two [409 Ill.App.3d 126] weeks.” J.M. spoke to a close friend, J.T., and told her she needed help. After hearing an explanation of the situation, J.T. agreed to help but told J.M., “ make sure he doesn't talk to me, make sure he doesn't touch me.” J.M. then testified as to one distinct occasion when J.T. came over, where defendant had J.M. and J.T. perform oral sex on defendant and how the acts were recorded with a camcorder. J.M. could not remember if sexual acts occurred on other occasions that J.T. visited.

Once J.M. started seventh grade, she stated that the sexual acts had increased

[349 Ill.Dec. 812 , 947 N.E.2d 826]

up to five times a week. Defendant would have J.M. feed her brother and put him in his room, after which J.M. would perform sexual acts for defendant. J.M. testified she continued to perform sexual acts because defendant informed her that if she stopped, Cindy would continue to sue J.M. and her mother. After seventh grade, J.M. and her family moved to Franklin Park. Defendant continued to have J.M. perform oral sex on him approximately three or four times a week, telling J.M. that Cindy was requiring J.M. to do so to “pay off what you owe [Cindy].” At the Franklin Park residence, defendant would use a webcam to make recordings of the sexual acts to, under J.M.'s belief, send to Cindy. J.M. testified that on one occasion, when she was unwilling to accede to defendant's demand for oral sex, she was told to speak to a woman on the phone whom defendant said was Cindy. “Cindy” told J.M., “listen to your stepfather, he is a good man, just listen to what he says and do what he is...