People v. Ward

• Decision Date: 16 June 2011
• Docket Number: No. 108690.,108690.
• Citation: 351 Ill.Dec. 809,952 N.E.2d 601,2011 IL 108690
• Parties: The PEOPLE of the State of Illinois, Appellee,v.Perry WARD, Appellant.
• Court: Illinois Supreme Court

2011 IL 108690

952 N.E.2d 601

351 Ill.Dec. 809

The PEOPLE of the State of Illinois, Appellee,

v.Perry WARD, Appellant.

No. 108690.

Supreme Court of Illinois.

June 16, 2011.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn and Alan D. Goldberg, Deputy Defenders, and Jessica D. Pamon, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

OPINION

Chief Justice KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 In defendant Perry Ward's trial for the criminal sexual assault of M.M., the circuit court of Cook County admitted evidence that defendant had also been involved in the criminal sexual assault of another woman, L.S. In admitting the other-crimes evidence, the court relied on section 115–7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–7.3 (West 2006)), permitting the evidence to be used under certain circumstances to show a defendant's propensity to commit sex crimes. When defendant sought to have evidence admitted of his acquittal in L.S.'s case, however, the trial court rejected his request.

¶ 2 Defendant was convicted of the criminal sexual assault of M.M. and sentenced to 25 years in prison. The appellate court affirmed (389 Ill.App.3d 757, 329 Ill.Dec. 706, 907 N.E.2d 25), and defendant now appeals to this court, arguing that the trial court erroneously refused to admit evidence of his prior acquittal.

¶ 3 We reverse the appellate court judgment affirming the trial court's refusal to admit evidence of defendant's acquittal in L.S.'s case. We conclude that barring the acquittal evidence here was an abuse of the trial court's discretion and remand the cause for a new trial.

¶ 4 I. BACKGROUND

¶ 5 In June 2003, L.S. reported to police that she had been sexually assaulted as she was walking home alone late at night after a party. When the police took her to the hospital emergency room for treatment, she saw defendant in the waiting room and identified him as her attacker. Subsequent testing of DNA evidence obtained from L.S. matched defendant, and defendant was charged with criminal sexual assault. At trial, defendant presented a consent defense, claiming he had paid L.S. for sex. The jury acquitted defendant of the criminal sexual assault charge.

¶ 6 The DNA evidence recovered from L.S., however, also matched DNA obtained in an unsolved February 2002 assault on M.M., linking defendant to the earlier attack. Based on that match, he was arrested and charged in the circuit court of Cook County with the criminal sexual assault of M.M. at issue in this appeal.

¶ 7 In M.M.'s case, the State filed a pretrial motion pursuant to section 115–7.3 (725 ILCS 5/115–7.3 (West 2006)), seeking to admit evidence of defendant's alleged sexual assault of L.S. At the motion hearing, the State argued that the two crimes were close in time and factually similar and that the probative value of L.S.'s testimony outweighed the risk of undue prejudice. Defense counsel argued that the other-crimes evidence was irrelevant and that its admission would be highly prejudicial because the alleged assault on L.S. was significantly more violent than the alleged assault on M.M.

¶ 8 The trial court allowed the State to admit the other-crimes evidence after considering the three factors set out in the statute for balancing the evidence's probative value against its risk of undue prejudice: “(1) the proximity in time to the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and circumstances.” 725 ILCS 5/115–7.3(c) (West 2002). The court specifically found the 16 months between the two attacks was an acceptable time frame and observed that the victims were demographically similar, met defendant under similar circumstances, and were both taken to secluded areas, where they claimed to have been threatened and forced to perform multiple sex acts. The court also cited the presence of defendant's DNA and use of a consent defense in both cases. The trial court then permitted the State to use L.S.'s testimony to establish defendant's propensity to commit sex crimes as well as the absence of mistake and lack of consent.

¶ 9 At trial, M.M. testified that she spoke to defendant, a stranger, at a store where she had walked after midnight to get some food. As they were talking, she asked defendant for a cigarette. When she reached into a van parked around the corner to retrieve the cigarettes as defendant had directed, she was shoved inside and sexually assaulted. M.M. recalled that defendant held an unidentifiable object in his hand during the assault and that she cooperated because she was threatened. In addition, Chicago police detective Edwin Kaup testified that during his interview of M.M. at the hospital after the assault she appeared to be “very traumatized, very shocked.” He described her as shaking, hyperventilating, and crying.

¶ 10 Before presenting L.S.'s testimony, the State filed a motion in limine asking the trial court to bar defendant from telling the jury he had already been tried and acquitted of that criminal sexual assault charge. The trial court allowed the State's motion, reasoning that the jury's findings in the earlier trial were entirely irrelevant to the conclusions M.M.'s jury might draw based on the specific evidence before it. The court explained that the jury in M.M.'s assault case should make its own assessment of L.S.'s credibility and determine for itself the weight, if any, to give to her testimony. The judge added that the acquittal in L.S.'s case could also have been attributable to the legal ability of defense counsel in that case.

¶ 11 Both before and after L.S.'s testimony, the trial court instructed the jury that it was to consider the evidence only for defendant's propensity to commit crimes and his consent defense. The trial court further informed the jury, “[i]t is for you to determine whether the defendant was involved in that offense and if so, what weight should be given to the evidence on this issue of the defendant's propensity to commit sex crimes and lack of consent.” L.S. then testified to her version of defendant's alleged attack on her in June 2003.

¶ 12 In part, L.S. testified that she saw defendant standing by some bushes near the train tracks she had started to cross when coming home alone late from a friend's party. When defendant asked her if she wanted to “kick with him,” meaning to spend some time with him, she told him to get away. As she started to run, he grabbed her by the hair and held a knife to her throat. He told her to “shut up” and threatened to kill her. Defendant pulled L.S. through the bushes and knocked her to the ground, where they struggled until he slammed her head against the concrete. He sexually assaulted her before again hitting her head against the concrete when she tried to burn him with her lighter. He then sexually assaulted her a second time.

¶ 13 When defendant released L.S., she went home and told her fiancé she had been raped. After he called the police, they took her first to the scene of the alleged attack and then to the hospital. As they entered the emergency room, L.S. saw defendant sitting in the waiting area and identified him to the police. A sexual assault examination was performed, and she was observed to have two small cuts, one on her neck and one on her finger, as well as scratches on her back, that she attributed to her struggle with defendant. She had no cuts or other injuries to her head.

[351 Ill.Dec. 813] ¶ 14 During L.S.'s direct testimony, the State did not ask her any questions about the earlier trial. A reference was made during cross-examination, however, when L.S. stated that the State did not need to prepare her to testify in this case because she had testified before. Defense counsel made another brief reference to L.S.'s prior court testimony during closing arguments, observing that she was not afraid of defense lawyers or of being in a courtroom because “[s]he knows how the drill goes” since she had “ testified before.” In her testimony, L.S. also admitted to using a false name during a prior arrest for retail theft. Those charges were later dismissed.

¶ 15 At the close of her testimony, the trial court repeated its admonishment that the jury must decide whether defendant had been involved in the offense L.S. described and how much weight to give that evidence when evaluating both his propensity to commit sex crimes and his consent defense. A similar instruction was given, both orally and in writing, before the jury began its deliberations.

¶ 16 Defendant testified that he was an alcoholic who frequented prostitutes. He admitted having sexual intercourse with both M.M. and L.S. but insisted that the acts were consensual and that he paid both women. He then gave his version of the alleged attack on M.M., stating that she approached him at a tavern and offered to perform sexual acts for money. He also testified about L.S.'s earlier alleged assault, indicating that she, too, had solicited him for sex.

¶ 17 The jury convicted defendant of the criminal sexual assault of M.M., and he was sentenced to 25 years in prison as a Class X offender. The appellate court affirmed and denied defendant's petition for rehearing. This court allowed his petition for leave to appeal. Ill. S.Ct. R. 315 (eff.Feb.26, 2010).

¶ 18 II. ANALYSIS

¶ 19 Defendant raises two issues before this court, but we need address only the merits of his claim that the trial court abused its discretion by refusing to admit evidence of his acquittal in L.S.'s case. Because that issue is determinative, we need not address whether principles of statutory construction or the doctrine of...