People v. Tapley

• Citation: 450 Ill.Dec. 248,181 N.E.3d 248,2020 IL App (2d) 190137
• Decision Date: 18 December 2020
• Docket Number: 2-19-0137
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David J. TAPLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190137
181 N.E.3d 248
450 Ill.Dec. 248

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
David J. TAPLEY, Defendant-Appellant.

No. 2-19-0137

Appellate Court of Illinois, Second District.

Opinion filed December 18, 2020

Andrew S. Gable, of Chicago, for appellant.

Patrick D. Kenneally, State's Attorney, of Woodstock (Patrick Delfino, Edward R. Psenicka, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion.

181 N.E.3d 251

450 Ill.Dec. 251

¶ 1 Defendant, David J. Tapley, appeals his convictions of aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(c)(1), (d) (West 2012)). He argues that the trial court erred in allowing the victim, R.L., to testify with a dog under the Americans with Disabilities Act of 1990, as amended (ADA or Act) ( 42 U.S.C. § 12101 et seq. (2018) ), which is a matter of first impression in Illinois. Defendant also argues that the trial court erred in allowing testimony about R.L.'s suicidal thoughts. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On July 23, 2015, a grand jury indicted defendant on four counts of aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(c)(1), (d) (West 2012)). The charges alleged that defendant was 17 years of age or older and knowingly committed acts of sexual conduct against R.L. The first two counts alleged that R.L. was under 13 years old, and the last two counts alleged that she was over 13 but under 17 years old. Count I alleged that defendant touched her vagina and/or breasts between March 25, 2010, and March 24, 2012. Count II alleged that defendant touched her vagina between June 1, 2013, and August 31, 2013. Count III alleged that defendant touched her vagina on April 5, 2015. Last, count IV alleged that he touched her vagina and/or breasts on May 30, 2015.

¶ 4 In 2016, defendant sought to subpoena R.L.'s mental health records, and R.L.'s personal attorney filed a motion in opposition. On November 4, 2016, the trial court ordered that defendant could issue subpoenas for the records limited to the time period set forth in the bill of indictment. The subpoenas were to be returned to the trial court for an in camera inspection. On January 21, 2017, the trial court ordered that the records be limited to 2010 to 2015 and further limited to statements regarding defendant and the alleged abuse.

¶ 5 On March 7, 2017, the trial court entered an order stating that it had inspected the materials returned in camera and found them to be relevant and responsive to defendant's subpoenas. It stated that the records were to be disclosed only to defense counsel and the State and then returned to the trial court. On May 4, 2017, the trial court entered an order stating that defendant acknowledged receipt of the subpoenaed materials.

¶ 6 On May 17, 2017, defendant filed a motion to allow his expert witness to review R.L.'s medical records and conduct a psychiatric examination. He stated in the motion that R.L. had been diagnosed with post-traumatic stress disorder (PTSD) by her doctors, whom he named. He further stated that "[m]edical records and reports by the above referenced medical professionals regarding witness and alleged victim R.L. have been tendered to the Defendant."

¶ 7 On October 19, 2017, the trial court ruled that the defense was not entitled to have R.L.'s mental health records or have her examined by a mental health expert if the State was not seeking to have a mental health expert testify.

¶ 8 On November 28, 2017, the State filed a motion in limine to allow R.L., who was 16 years old at the time, to testify in the presence of her "facility dog."¹ The

181 N.E.3d 252

450 Ill.Dec. 252

State alleged that R.L. suffered from PTSD as a result of defendant's abuse and that R.L. had a facility dog that accompanied her everywhere. The State alleged that R.L. had previously suffered from PTSD episodes that affected her ability to go to school and communicate effectively but that the use of the facility dog had enabled her to attend school again. The State alleged that it had reason to believe that R.L. might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury. The State further alleged that the use of the facility dog and/or closed circuit television would help ensure that she would not have a PTSD episode during the trial and would limit any further emotional distress to her.

¶ 9 In defendant's response, he argued that there was no evidence that R.L. suffered from PTSD, and he denied that a facility dog would help her cope with PTSD. Defendant further argued that a 16-year-old could fully understand the nature of the court proceedings, that there was no evidence that the dog was a graduate of an assistance-dog organization, and that allowing R.L. to have a dog with her would prejudice the jurors against defendant and deny him the right to a fair trial.

¶ 10 The State withdrew its motion in limine on March 1, 2018. At a hearing on March 15, 2018, defense counsel stated that he learned that the State was planning to have R.L. testify with the dog present under the ADA. The trial court stated that it was aware that such a request had been made to James Wallis, the trial court administrator and disability coordinator. The trial court further stated:

"There are very few things that can be done from the Court's perspective pertaining to that. What I mean by that is if, in fact, there is a disability, you can't even ask what the disability is. The ADA does allow a service dog, and I think that's what you're getting to. She has made that request to court administration."

On March 23, 2018, defendant filed a motion in limine arguing that dog's presence would unduly prejudice him because there was no evidence that R.L. suffered a disability covered by the ADA or that the dog in question was a service dog.

¶ 11 A hearing on defendant's motion in limine took place on April 5, 2018. At the beginning of the hearing, the trial court stated that if it "[found] out that it [was] an actual service dog, not a comfort dog, the Court [was] going to have to make a reasonable accommodation." Wallis testified that his responsibilities included monitoring access to the courthouse for people with disabilities. Peggy L., R.L.'s mother, contacted him about three months prior requesting that a service animal be present for R.L.'s testimony. According to an attorney general manual for court disability coordinators, Wallis was permitted to ask only two questions, those being whether the animal was required for a disability and whether it performed work for the individual. Peggy answered these questions in the affirmative, saying that the dog assisted in coping with a mental illness. In court, Wallis admitted that, in situations where it was not apparent what the nexus was between the disability and the service animal, the manual allowed him to ask what the "functional limitation" was but that he did not do so. Rather, the

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450 Ill.Dec. 253

nexus between the dog and the disability was readily apparent to him.

¶ 12 Defense counsel argued that there was no evidence that R.L. had a mental disability and that there was no explanation as to what the dog was trained to do to help cope with the mental disability. The State argued that defendant did not have standing to challenge Wallis's decision or the accommodation. The trial court stated that Wallis had yet to make a written decision pertaining to R.L.'s request and that, depending on that writing, the trial court would determine if it was going to make an accommodation. The trial court stated that, if it decided to make an accommodation, it would have a separate court date where the dog would be brought in so that it could determine the appropriate accommodation for R.L. while ensuring that defendant received a fair trial.

¶ 13 At a hearing on August 22, 2018, the trial court stated, "I've reviewed the matters and received the information from our coordinator, and the Court will allow a service dog to be present." It stated that the dog should be brought in on August 24 to determine a reasonable accommodation. R.L.'s mother requested that, if R.L. had to come in that day, defendant should not be present, as R.L. had PTSD. The trial court responded that it just needed the dog to come in with someone who could control the dog. Peggy stated that R.L. and the dog were a service team, that they had not been separated since becoming a team, and that only R.L. could legally take the dog out in public. The trial court stated that it also had to look out for defendant's rights to make sure that he received a fair and impartial trial, that defendant had a right to be present, and that, if the only way that the dog could be present was with R.L., she would need to come. Peggy stated that she would not be bringing R.L., because it would very likely cause a dissociative episode. The trial court stated that if the dog were not brought...