Appeal from the Circuit Court of Cook County. No. 96 CR 15156 The Honorable James M. Schreier, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
Defendants Kwame McGlaston and Greylon Brials were indicted for the aggravated criminal sexual assault and unlawful restraint of 11-year-old C.B. They were tried simultaneously, McGlaston in a bench trial and Brials before a jury. Brials was convicted of two counts of aggravated criminal sexual assault and one count of unlawful restraint and sentenced to two consecutive six-year prison terms. McGlaston was convicted of three counts of aggravated criminal sexual assault and one count of unlawful restraint and sentenced to an eight-year prison term. We affirm the convictions but remand for resentencing.
Brials appeals the following issues: (1) whether his confession should have been suppressed because his continued detention was unlawful after probable cause had dissipated; (2) whether his sentences should be concurrent because they were not committed as part of a single course of conduct; and (3) whether one of his sentences should be vacated because the trial court sentenced him twice on one charge.
In addition, Brials argues that the jury was improperly instructed that an 11-year-old could not consent, while McGlaston argues that the State did not prove beyond a reasonable doubt that C.B. could not give knowing consent. They both argue that their convictions for aggravated criminal sexual assault, based on commission during the felony of unlawful restraint, must be reduced to criminal sexual assault because unlawful restraint is a lesser-included offense of criminal sexual assault and cannot be used as an aggravating factor.
McGlaston also claims his right to a jury trial was violated where the trial court failed to obtain a knowing waiver in open court.
At the hearing on Brials' motion to suppress, Detective Duckhorn testified that C.B. told officers that three men assaulted her. She did not give the men's names. She described the second man as a black man with a dark complexion, about 20 years old, 5 feet 8 inches tall and weighing 160 pounds. She also identified McGlaston's house and described the interior where the assaults occurred.
McGlaston told detectives that he was in the backyard with two friends when C.B. walked by. He asked her to come inside the house to smoke marijuana and have sex. Inside the house, C.B. refused to have sex with McGlaston, but went upstairs with his friend Emanuel. Brials also went upstairs after buying a condom from McGlaston. When Brials came downstairs, he said he had had sex with C.B. and would return later. McGlaston went upstairs to have sex with C.B., but she refused again. He invited her to spend the night, but she left the house and he did not see her again. C.B. identified McGlaston in a lineup.
McGlaston described Brials to the detectives as 17 or 18 years old, 5 feet 10 inches tall, with a medium to dark complexion.
When Detective Duckhorn first questioned Brials, he admitted that he was at the house with McGlaston and C.B., selling drugs in the backyard. Brials said that C.B. had walked by and then went inside the house with McGlaston. Brials said that some time later he saw McGlaston and C.B. inside the house when he went in to use the telephone.
Duckhorn questioned Brials a second time in the presence of Assistant State's Attorney Oppenheimer. Brials was confronted with information from McGlaston's statement and then made another statement, admitting that he had sexual contact with C.B.
Brials testified that on May 24, 1996, he was taken into custody because McGlaston had implicated him in the assault of a girl. The police told him that McGlaston's version of what happened differed from his. He admitted knowing McGlaston but denied that they were friends.
Brials' motion to suppress his statement was denied. Trial
At trial C.B. testified that on May 22, 1996, she returned home from school at about 3 p.m. About 4 p.m. she left with two of her foster sisters to go to a playground. At the baseball field C.B. met a friend and went home with her to skip rope. It was still somewhat light out when she went to her friend's house. A short time later she went back to the baseball field and headed home.
At the corner of 121st Street and Yale Avenue, some men in McGlaston's backyard called to her. She had seen McGlaston before in the neighborhood but did not know his name at the time. She did know the names of Emanuel and Tiger, who were also in the yard. She went over to the yard, and McGlaston asked her to come to his house, but she refused. He grabbed her by the arm, told her to "come on," and pulled her onto the back porch and into the kitchen. She did not cry out when McGlaston grabbed her.
Inside the house C.B. saw a large brown dog with a lot of hair, and in the bedroom near the kitchen she saw a photograph of McGlaston and his sister on top of a television set. McGlaston told her to come upstairs. She said she didn't want to go, but he grabbed her arm and took her to the attic. She saw clothing, a mattress with a pillow and sheet and toys strewn about the room.
McGlaston forced her to lie on the mattress and took off all her clothes except her socks. McGlaston then took his pants off and put his penis in her vagina. She tried to scream but he covered her mouth with one hand and held her arm down with the other. He told her he would kill her if she said anything.
McGlaston went downstairs and another man came upstairs. C.B. did not move from the mattress because she was in shock. The second man also held her down and put his penis in her vagina and then threatened to kill her. She recognized his voice as that of one of the men she had seen downstairs, but could not remember his name.
After the second man left, Emanuel came upstairs. He held her down, threatened her, and put his penis in her mouth and her vagina. She knew his name because he lived across the street from her.
C.B. testified that each of the three men returned and assaulted her again. At one point all three were in the attic, and she heard McGlaston say that his mother was not home. After the men left she looked out the attic window and saw the second offender in the yard near the alley. He was giving something to a woman in exchange for money. C.B. left the attic in the morning. As she left the house, she saw McGlaston sleeping. She went to the park and stayed there until about 8 p.m. on May 23. She was very upset and finally went home and told her mother and grandmother about the assaults.
At the hospital, C.B. told the doctor she had been raped by three men, but did not tell him that one had put his penis in her mouth. She told police that she got into a blue four-door car with three black men at 125th Street and Michigan Avenue because they said they would give her a ride home. C.B. testified that she lied about the car because she thought that she would be blamed for walking over to McGlaston's yard.
C.B. identified McGlaston in a lineup. She saw a second lineup in which she recognized Brials, but did not point him out because she was afraid. She later told her foster grandmother, Bessie Robinson, that Brials was in the lineup. A few days later she spoke to an assistant State's Attorney and told him that she did not identify the second man who had raped her because she was afraid he would kill her.
C.B.'s foster mother, Laura Alston, testified that C.B. was a sixth-grader in special education classes. Alston called the police on the night of May 22, 1996, when C.B. did not return home. She told police that C.B. had run away four other times and that, before C.B. left for the park, they had an argument about personal hygiene.
Bessie Robinson testified that C.B. returned home on May 23, 1996, between 8 and 8:30 p.m. She appeared frightened and dazed. Her demeanor was unusual and her answers were not coherent when Robinson questioned her. C.B. gave her the names Kwame and Emanuel and said the men had threatened to kill her. C.B. cried and appeared ashamed. Neither Robinson nor Alston noticed blood on C.B.'s clothing when she came home.
Both Alston and Robinson testified that C.B. was nervous during the second lineup. After they arrived home C.B. told them that one of the offenders was in the lineup but she did not identify him because she was afraid he would kill her.
Dr. Scott Cooper testified that he examined C.B. about 11:30 p.m. on May 23, 1996. C.B. told him she had been raped vaginally by three men but that there had been no oral or anal contact. Dr. Cooper's examination did not show any external tears or lacerations in the vaginal area, but the area was tender and painful. He could not perform an internal examination with a speculum because C.B. was so young and in too much pain.
Outside the presence of Brials' jury, Officer Latham testified for the State in the case against McGlaston. Latham testified that, when he first spoke with McGlaston, McGlaston said that he did not rape C.B. but that she had consented to sex. McGlaston said that he, Brials, Emanuel and Tiger had vaginal sex with C.B. ...