Appeal from Circuit Court of McLean County No. 92CF1065
The opinion of the court was delivered by: Justice Garman
Honorable Luther H. Dearborn, Judge Presiding.
Defendant Kevin Childs was convicted after a jury trial in the circuit court of McLean County of residential burglary (720 ILCS 5/19-3 (West 1992)), aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 1992)), two counts of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1992)), and violation of an order of protection (720 ILCS 5/12-30 (West 1992)). He was sentenced to consecutive terms of imprisonment totaling 55 years. He now appeals, claiming (1) the evidence was not sufficient to convict him of the various offenses beyond a reasonable doubt, (2) the testimony of his public defender from his first trial violated attorney-client privilege, (3) he was denied a fair trial by the excusing of the only African-American juror for cause, and (4) his increased sentence following a second trial is the product of judicial vindictiveness. We affirm.
Defendant was previously convicted of the same offenses. His conviction was overturned by this court in People v. Childs, 278 Ill. App. 3d 65, 662 N.E.2d 161 (1996), because the trial court did not substantially comply with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) regarding admonishments upon waiver of counsel. At the second trial, defendant was represented by counsel.
Bloomington police officer Fred Martin testified that he was dispatched to the home of the victim, C.G., at approximately 10 p.m. on December 21, 1992, to check on the welfare of the resident. He found the back door forced open and personal effects, such as a purse and wallet, on the floor. No one was at home.
Officer Henry Craft testified that he was dispatched to the same address at approximately 5 a.m. the following morning, after C.G. reported that she had been kidnapped and sexually assaulted by defendant, her former boyfriend. When Craft arrived, C.G. was crying and upset. He sent C.G. to the hospital in the company of a female officer and stayed to secure the premises.
Michael Ripsch, now a retired Bloomington police officer, testified he was sent to room 147 of a local motel on December 22, 1992, to locate and arrest defendant. He knocked on the door and defendant answered. As soon as the door opened, Ripsch saw "a large knife laying [sic] on the floor." He immediately stepped on the knife to prevent defendant from reaching it and placed defendant, who did not resist, under arrest.
Police sergeant Randall McKinley testified he investigated the crime scenes at C.G.'s home and the motel. He identified several photographs taken at the home, including one of the back door "with a piece of trim broken off." At the motel room, he found one bed "in pristine condition" and one "roughed up and mussed." A knife was on the floor at the foot of the unmade bed. McKinley identified the knife he found in the motel room. The knife and several photographs of both locations were admitted into evidence.
On cross-examination, McKinley described the clothing found on a chair at the victim's home as neatly folded. He agreed that an empty beer can with a hole punctured in the side and burn marks on it was found in the motel room and that such cans are typically used for smoking crack cocaine.
C.G. testified that several weeks before the incident she obtained an order of protection against defendant. She identified a copy of the order, which prohibited him from having contact with her and from coming to her home. When C.G. came home at about 8 p.m. on December 21, 1992, she noticed her back door had been forced open. She turned to run but defendant appeared from inside the house, grabbed her, pulled her inside, and threw her against the refrigerator. She dropped a briefcase and another bag she had been carrying. C.G. stated she saw a large knife on the kitchen table. She identified the knife previously identified by McKinley as the one she had seen on the table. It was not one of her knives. Defendant did not pick up the knife, but it was within his reach. C.G. testified that defendant was angry and repeatedly threatened to kill her. He insisted she remove all of her clothing so that she would not try to run away. She folded her clothing and placed it on a chair.
At this point, the trial was recessed until the following morning. On the morning of the second day of trial, one of the jurors, A.M., sent a note to the trial court, asking to be excused. In her note, she stated she knew the defendant, his family, the complaining witness, and "was friends with almost everyone waiting outside the courtroom." She concluded, after hearing the first day's testimony, that there was "no way possible [for her] to be open[-]minded and fair in this trial." In addition, she wrote that after she obtained an order of protection, her ex-husband broke into her home with the intent to harm her. Although she at first thought it would be easy to set aside her personal feelings, she "thought it out thoroughly last night" and was no longer sure she could be an impartial juror.
At the request of both defense counsel and the State, A.M. was questioned. She acknowledged it was "unfortunate" she was the only African-American in the entire jury pool. She explained that she had not said anything about her familiarity with the defendant during voir dire because she did not know him as Kevin. She had always known him by a nickname and did not make the connection until after testimony began. When questioned by defense counsel, A.M. expressed concern that she might be unfair to the defendant because "hearing what little bit I heard, *** it's just too identical *** to my own situation." The State asked that A.M. be excused for cause. Defense counsel requested she be kept on the jury, specifically mentioning his concern that she was the only black juror. The trial court excused A.M. for cause and she was replaced by an alternate juror, resulting in an all-white jury. Both defendant and C.G. are African-American.
When C.G. resumed testifying, she stated that after she removed her clothing, she and defendant moved into the living room. He threatened to kill her if she had been with another man. She begged him not to kill her. He turned on her cassette tape recorder, explaining he wanted her to be able to hear herself begging. The phone rang and the answering machine picked up the call. It was defendant's mother, saying she knew defendant was there and asking him to call her. Defendant called her back and C.G. heard him tell his mother "everything is okay" and he was not going to hurt C.G. His mother called a second time and C.G. called her back at defendant's request. He told her to tell his mother everything was all right. C.G. did as she was told but his mother "was not convinced *** and said she was going to call the police anyway."
Defendant then took her upstairs. There was a knock at the front door. It was Fred Childs, defendant's brother. C.G. "hollered down and told him he's not here," but Fred said he knew defendant was there. Defendant went to the door while C.G. remained on the stairs, still unclothed. She heard Fred say his mother had called the police. Fred left. Defendant told her to get dressed, that they were leaving. On their way out of the house, he took the knife. He continued to threaten to kill her.
C.G. gave defendant her car keys. He drove. The knife was in his right jacket pocket and she was sitting to his right. Defendant drove to a house she did not recognize and told her to get out of the car. She did not try to run because she was afraid of him. She knew he could catch her if she tried to get away because she had once tried to run away from him and he caught her and beat her. They were inside the house for about half an hour. She knew no one and did not speak. She was always within arm's reach of defendant.
As they drove to a gas station, she could see the handle of the knife in his pocket. They went inside and he bought some beer. Again, she did not seek assistance because she was afraid he would kill her. Then they drove to the motel. She went to the registration desk and he stood behind her. She assumed he still had the knife. She checked in, using her credit card, and asked for a room in the back, as defendant instructed. C.G. did not try to signal to the clerk that she needed help.
When they got to the room, defendant brought out the knife and set it on the television table. He told her to undress and said that if she could have sex with another man, she could have sex with him. She told him she would do whatever he wanted. Defendant drank the beer. They had intercourse and oral sex. The knife was three or four feet away the entire time.
Finally, at about 4:30 a.m., defendant told her she could leave. C.G. drove around in her car for awhile, then returned to her house ...