People. v. T.R. (In re T.R.), NO. 4-19-0051

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
• Citation: 127 N.E.3d 1157,431 Ill.Dec. 624,2019 IL App (4th) 190051
• Decision Date: 28 May 2019
• Docket Number: NO. 4-19-0051
• Parties: IN RE T.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.R., Respondent-Appellant).

2019 IL App (4th) 190051
127 N.E.3d 1157
431 Ill.Dec. 624

IN RE T.R., a Minor

(The People of the State of Illinois, Petitioner-Appellee,
v.
T.R., Respondent-Appellant).

NO. 4-19-0051

Appellate Court of Illinois, Fourth District.

Filed May 28, 2019

James E. Chadd, John M. McCarthy, and Salome Kiwara-Wilson, of State Appellate Defender’s Office, of Springfield, for appellant.

Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

431 Ill.Dec. 626

¶ 1 In April 2017, the State filed a petition for adjudication of wardship, alleging respondent, T.R. (born April 3, 2001), committed criminal sexual assault (penis to vagina) ( 720 ILCS 5/11-1.20(a)(1) (West 2016)), criminal sexual abuse (in that he used force to touch the vagina of I.P.-V. (born March 31, 2002)) (id. § 11-1.50(a)(1)), and criminal sexual abuse (in that he committed an act of sexual penetration with I.P.-V. when she was between the ages of 13 and 17 years old and respondent was less than 5 years older than I.P.-V.) (id. § 11-1.50(b)). In July 2018, after a bench trial, the trial court adjudicated T.R. to be a delinquent minor. In December 2018, the court made T.R. a ward of the court, sentenced him to 36 months' probation, and imposed 30 days of detention to be stayed pending completion of probation.

¶ 2 Respondent appeals, arguing (1) the trial court erred by considering evidence not presented at trial, (2) respondent's counsel gave ineffective assistance by stipulating to the introduction of deoxyribonucleic acid (DNA) evidence that supported the State's case, (3) the trial court should have conducted a hearing pursuant to People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), (4) the trial court erred by admitting testimony regarding statements respondent made during a polygraph examination for the purpose of impeachment, and (5) respondent's convictions for criminal sexual abuse should merge with his criminal sexual assault conviction pursuant to the one-act, one-crime doctrine. We agree with respondent's third argument and remand for a Krankel hearing.

¶ 3 I. BACKGROUND

¶ 4 A. The Petition for Adjudication of Wardship

¶ 5 In April 2017, the State filed a petition for adjudication of wardship, alleging respondent was a delinquent minor and should be made a ward of the court. The State alleged that in March 2017, T.R. committed three sex crimes against I.P.-V. Specifically, the State contended T.R. (1) committed criminal sexual assault by placing his penis in I.P.-V.'s vagina by the use of force, (2) committed criminal sexual abuse by knowingly and through the use of force touching I.P.-V.'s vagina for the purpose of sexual gratification, and (3) committed

127 N.E.3d 1160

431 Ill.Dec. 627

criminal sexual abuse by placing his penis in I.P.-V.'s vagina when she was between the ages of 13 and 17 years old and respondent was less than 5 years older than I.P.-V.

¶ 6 B. The Bench Trial

¶ 7 In June 2018, the trial court conducted a bench trial. The State presented testimony from I.P.-V. and her cousin, X.P., that in March 2017, the two went to meet X.P.'s boyfriend, Devan, and ended up going to respondent's apartment. I.P.-V. testified that while X.P. and Devan were in a separate room, respondent, with whom she had been "laughing" and "playing around," picked her up and took her to another bedroom, where he held her down and put his penis in her vagina for "maybe a minute." I.P.-V. left shortly thereafter and went to the hospital, where a rape kit was administered. The State then stipulated that the court could consider a report that indicated "[t]he DNA profile obtained from the sperm fraction (SF) of [the vaginal swab sample] is consistent with a mixture of two individuals including the victim and one male contributor." The report concluded that the "deduced male component DNA profile matches the DNA profile obtained from [respondent's] sample."

¶ 8 Respondent testified that when X.P. and Devan left the room, he and I.P.-V. continued to flirt. Respondent stated that, eventually, I.P.-V. put her hand down his pants and touched his penis. Respondent said he placed his hand down her pants and touched her vagina but did not touch "inside the hole."

¶ 9 On cross-examination, the trial court permitted the State to use statements respondent gave during a polygraph examination to impeach his testimony. Respondent objected to the use of these statements as impeachment evidence, but the trial court overruled the objection and permitted respondent to file a memorandum in support of his objection after the conclusion of the hearing. Respondent denied making a particular statement to the polygraph examiner, and the State called the polygraph examiner in rebuttal to complete its impeachment of respondent regarding that statement.

¶ 10 In closing argument, respondent's counsel's contended that (1) the DNA testing did not demonstrate that respondent's sperm was present and (2) the match could have been from skin cells left by respondent's hand. The State argued that the "DNA profile is sperm fraction," which could only be determined from testing "because you cannot tell it is sperm without doing a test." The trial court took the matter under advisement and set the case over for a hearing on respondent's objection to the polygraph impeachment and for the court to issue a ruling.

¶ 11 C. The Trial Court's Ruling

¶ 12 In July 2018, the trial court resumed the proceedings. Before addressing the testimony and the evidence, the court stated that it received an envelope from respondent's mother but had not opened it. The following discussion then took place:

"THE COURT: Before the Court gives its ruling, Court would note first that on late Thursday afternoon, I received an envelope from [respondent's mother] addressed to me that I did not open.

Mr. Feldman [ (respondent's counsel) ], I'm going to provide that to you.

Ms. [respondent's mother], I cannot receive correspondence from parents with respect to a case. I had received correspondence in times past from parents, for example, who are incarcerated and want to be brought to court. But I did not want to open that and review any of that information, so I'm giving that to Mr. Feldman who is [T.R.'s]

431 Ill.Dec. 628

127 N.E.3d 1161

attorney and let him review it and for you to discuss that with him.

Mr. Feldman, do you need some time to review it and talk with [respondent's mother]?

MR. FELDMAN: I'm reading it right now, Your Honor. Your Honor, if we could have a sidebar a moment.

(The following conversation was held at the bench.)

MR. FELDMAN: This is sort of a mixed bag. Some of it I don't think the Court would probably consider at this point. I think it is argument by the mother on the minor's behalf. Some of it is an issue [in] that she has complaints about my performance. I think the Court ought to be aware of it. Obviously, I would have to let you know and provide copies to the State as well. I think the Court can review it. Probably parts the Court may consider, may not consider. I think it should be at least made to supplement the record. But I don't think we need anything additional as far as argument at this point in time. Because of the issue she's raised, I think the Court has to take a look at it.

MS. LAWSON [ (ASSISTANT STATE'S ATTORNEY) ]: I haven't seen it yet, Your Honor. I think that what Mr. Feldman is representing is for appeal, not what's important to the Court to review before giving a ruling for today's purposes. So, I think that if the Court wanted to review it, it probably should not be done until after a ruling has been made. And if ineffective assistance of counsel is a reason for appeal, it's not a reason not to give a ruling on a case.

THE COURT: Any response, Mr. Feldman?

MR. FELDMAN: I don't have much of a response at this point, Your Honor. Again, I think the Court needs to be made aware of that. She also inquired if the Court received correspondence from another individual, Mr. Dunson, D-U-N-S-O-N. I don't believe the Court has or the Court would have made us aware of that.

THE COURT: I have not.

MR. FELDMAN: All right. Then what I'm going to do is hang on to this. Have a ruling pending, and I can supplement the record if necessary.

THE COURT: All right.

(Sidebar concluded.)

THE COURT: Before the Court begins, Court would note that it was also provided with a memorandum regarding the State's use of the polygraph information as impeachment that was filed by Mr. Feldman."

¶ 13 The trial court did not again refer to the envelope or its contents. Instead, the trial court addressed respondent's argument regarding the polygraph evidence. The trial court concluded the testimony was admissible for the purpose of impeachment as a prior inconsistent statement.

¶ 14 The trial court then recounted the testimony of the witnesses at trial in some detail. The court believed that, based on the conflicting testimony of respondent and I.P.-V., the question was "was it consensual or nonconsensual?" The court...