People v. Smith

• Citation: 429 Ill.Dec. 641,124 N.E.3d 1151,2019 IL App (3d) 160631
• Decision Date: 18 March 2019
• Docket Number: Appeal No. 3-16-0631
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Danyel B.J. SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 160631
124 N.E.3d 1151
429 Ill.Dec. 641

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Danyel B.J. SMITH, Defendant-Appellant.

Appeal No. 3-16-0631

Appellate Court of Illinois, Third District.

Opinion filed March 18, 2019

JUSTICE CARTER delivered the judgment of the court, with opinion.

429 Ill.Dec. 643

¶ 1 Defendant, Danyel B.J. Smith, appeals his convictions for predatory criminal sexual assault of a child and aggravated kidnapping. Defendant argues the admission of a recording of the victim's interview at a child advocacy center (CAC) violated his right to confrontation. Specifically, defendant argues that the victim was unavailable for cross-examination because she testified that she did not remember the events constituting the offense of predatory criminal sexual assault of a child. Defendant also argues that his mandatory sentence of life imprisonment was unconstitutional as applied to him because he is intellectually disabled. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014) ) in that he placed his penis in the mouth of J.H. The information alleged that defendant was 17 years of age or older at the time of the offense and J.H. was under 13 years of age. Defendant was also charged with aggravated kidnapping (id. § 10-2(a)(2) ) in

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124 N.E.3d 1154

that he knowingly and secretly confined J.H. against her will.

¶ 4 The State filed a motion for a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2014) ). The State sought a ruling that J.H.'s recorded interview at the CAC would be admissible if J.H. testified and was subject to cross-examination. After a hearing, the court ruled that the recording of the interview would be admitted into evidence as an exception to the hearsay rule pursuant to section 115-10 of the Code.

¶ 5 The matter proceeded to a bench trial. James Bina testified that he was at an auction on the date of the incident with his granddaughter, J.H., and his grandson, A.H. J.H. was seven years old, and A.H. was eight years old. Bina lost sight of J.H. and A.H. while he was looking at lumber. J.H. and A.H. were playing near some campers at that time. Bina began looking for the children and found A.H. hiding. A.H. told Bina that J.H. was in a camper with "some guy." Bina touched the doorknob of the camper, and he heard a man say not to come inside. Bina entered the camper. Bina saw a man lying on a bed inside the camper. Bina identified defendant as the man. J.H. was lying alongside defendant's left leg. J.H. was not wearing any clothing. Defendant had his left hand behind J.H.'s head, and he was holding her head down. Bina could only see J.H.'s hair and defendant's hand on the back of her head, but Bina said that J.H.'s head "had to have been down on him, on his privates." Bina pulled J.H. off defendant, and he saw that defendant's pants were down. Defendant's penis was exposed and erect. Bina told defendant not to move. Bina grabbed some of J.H.'s clothing and told her to get dressed. While Bina was trying to help J.H. find her clothing and call 911, defendant exited the camper.

¶ 6 Defendant began running away, and Bina chased him. Bina stopped because he did not want to get too far away from the children. Bina was speaking to a 911 operator on the phone while he was chasing defendant. A recording of the 911 call was admitted into evidence and played in court. On the recording, Bina was yelling at people to stop defendant. Bina told the 911 operator that a man had molested his granddaughter, and he described the man's appearance. Eventually, Bina met with a police officer. The officer asked Bina to identify defendant. Bina had no doubt that defendant was the man he saw in the camper.

¶ 7 J.H. testified that she was at the auction with Bina and A.H. on the date of the incident. While Bina was looking at things, J.H. and A.H. walked around and looked at "stuff." When they were looking at something, a man approached them and said that they could not play on it. The man started following J.H. and A.H. He asked if they knew where the bathroom was. He then went to the bathroom. He returned to where J.H. and A.H. were located. He asked J.H. and A.H. if they " ‘want[ed] to see something cool,’ " and they said yes. The man showed them a camper. The man said that the thing in the camper was just for J.H., and he made A.H. wait outside.

¶ 8 Inside the camper, the man showed J.H. around. He then covered her mouth and told her to remove her clothes. She told the man that she was scared. J.H. removed her clothing. The prosecutor asked J.H. what happened next. J.H. replied, "I don't remember that stuff." The prosecutor asked J.H. if she had ever talked about it with someone else, and J.H. said no. The prosecutor asked J.H. if she remembered talking to a lady about what happened, and J.H. said yes. The prosecutor asked J.H. if she remembered what

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124 N.E.3d 1155

happened next after the things she did not remember. J.H. said that her grandfather came in, said a bad word, and called the police. The man ran out of the camper. The police came, and they all looked for the man. J.H. said defendant looked like the man from the camper.

¶ 9 Defense counsel requested to wait to conduct his cross-examination of J.H. until after the recording of J.H.'s interview at the CAC had been played. The court admitted the recording over defense counsel's objection, and it was played in open court.

¶ 10 In the recorded interview, J.H. said that she and her brother were looking at stuff. A man approached them and told them that they should not be on something. The man kept following J.H. The man asked where the bathroom was. He left and then returned. The man asked J.H. if she wanted to see something "cool." The man took J.H. into a trailer attached to a truck. The man said that the cool thing was only for J.H., so her brother waited outside. The man showed J.H. around the trailer. He put his hand over her mouth and told her that she was dead if she screamed. She did not know if he would kill her, so she did what he told her to. The man brought J.H. to a bed. The man told J.H. to remove her clothing. She told the man she was scared, but he said it would be okay. J.H. removed her shirt, and the man removed the rest of her clothing. The man unzipped his pants and exposed his penis. The man tried to insert his penis into J.H.'s "privates." She told him it hurt. He asked if it was inside of her, and she said no. The man also tried to insert his penis into J.H.'s "butt." The man then told J.H. to "suck on his d***," and she did. J.H.'s grandfather entered the trailer, said a bad word, and called the police. The man ran away. J.H. saw him later and recognized him.

¶ 11 During cross-examination, defense counsel asked J.H. questions about watching the recording of the interview previously, whether she had discussed the case with anyone, what defendant was wearing at the time of the incident, and whether J.H. saw defendant getting in trouble with his mother after the incident. Defense counsel did not ask any questions about the incident itself. J.H. answered all of defense counsel's questions.

¶ 12 Four witnesses testified that they were at the auction on the day of the incident. They all saw a man running and heard another man yell to stop him. They all later identified defendant as the man they saw running.

¶ 13 Detective Jim Kessinger testified that he interviewed defendant in connection with the instant case. The interview was recorded. The recording was admitted into evidence, but it was not played in court. The judge said that he had listened to the interview at a pretrial hearing and he did not need to hear it again.

¶ 14 In the recording, defendant said that he, his mother, and his stepfather were at the auction on the day of the incident. They had looked at the recreational vehicle (RV) where the assault occurred, and they were considering purchasing it for defendant to live in. Defendant later returned to the RV to look for a book that he had lost. As he exited the RV with his book, he saw a little girl enter the RV with another man. The girl appeared to be approximately five or six years old. Defendant also saw a child that appeared to be the girl's brother. Defendant said that he did not touch the girl. Defendant denied speaking to any children at the auction. Defendant said that he tried to stay away from children because he did not want his parole to be revoked. Defendant said that he did not run at any point at the auction. He explained

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429 Ill.Dec. 646

that he was in bad physical shape and had asthma.

¶ 15 Maureen Hofmann testified that she was a nurse at a children's hospital. Hofmann performed a sexual assault evaluation on J.H. on the date of the incident. Hofmann observed that J.H. had bruising on her genitals and a small abrasion on her anal area. J.H. told Hofmann that a man with a semi...