Appeal from the Circuit Court of Williamson County. No. 98-CF-47 Honorable John Speroni, Judge, presiding.
Justices: Honorable Terrence J. Hopkins, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Gordon E. Maag, J., Concur
The opinion of the court was delivered by: Justice Hopkins
Floyd E. Murphy (defendant) appeals from convictions of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 1998)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)). Defendant claims that he was deprived of a fair trial due to the admission of hearsay evidence concerning the child victim's statements made to a police officer and the child's mother. Defendant also argues that the trial court abused its discretion when sentencing defendant because the court failed to take into account certain mitigating factors. Additionally, defendant argues that he is entitled to credit for time served in jail prior to posting bond. The State concedes that defendant is entitled to credit for time served. Finally, defendant argues that under the recent United States Supreme Court case of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), his consecutive sentences must be vacated and the cause remanded for resentencing because the facts that increased his sentence from concurrent to consecutive terms of imprisonment were not charged in the charging instrument or submitted to the jury for proof beyond a reasonable doubt. We affirm on all issues, except we modify defendant's sentence to include credit for time served.
The victim in this case (P.C.) was 10 years old when she alleged that defendant molested her. P.C., her sister, and her mother lived next door to defendant's family. Before the jury trial, the State notified defendant, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1998)), that it intended to introduce statements P.C. made to Detective Brian Thomas. Thereafter, a reliability hearing was held, in which Detective Thomas testified. P.C. did not testify at the reliability hearing. The trial court determined that the time, contents, and circumstances of P.C.'s statements to Detective Thomas were sufficiently reliable to allow him to testify about those statements.
At the trial, P.C. testified that on October 18, 1997, P.C., her sister, defendant's wife (Rebecca), the neighbors' children (Christian, Raymond, and Katie), and defendant were in the living room of defendant's home watching movies for several hours before the incident occurred. In the record, Christian is also referred to as "Christina" by certain witnesses. For ease of reading, we will simply refer to the child as Christian. P.C. testified that she fell asleep on the living room floor next to Raymond and Christian. She testified that Raymond was lying on the floor between her and the couch, where defendant was lying. P.C. acknowledged that when she spoke to Detective Thomas in the early morning hours after the incident, she described the sleeping positions of the various people differently, stating that Raymond was on the couch with defendant and that Christian was lying on a recliner.
At the trial, P.C. testified that after she fell asleep, defendant woke her up when he pulled the pillow from underneath her, stuck his finger in her, and kissed her "boobs." P.C. testified that when defendant did this, he told her not to tell anyone. P.C. then told defendant that she had to use the bathroom. She testified that she went into the bathroom, straightened her clothing, and then went into Rebecca's room to tell her what happened. P.C. testified that when she was talking to Rebecca, she was crying, upset, and scared. P.C. testified that Rebecca immediately went into the living room, where defendant was lying on the couch, pretending to be asleep. P.C. testified that defendant denied P.C.'s allegations, and then he left. P.C. and Rebecca went to P.C.'s house to tell her mother (Glenda) what had happened, and then Rebecca, P.C., and Glenda went to the police station. P.C. testified that after she talked to the police officer, she went to the hospital. P.C. identified defendant as the person who molested her.
On cross-examination, P.C. again testified that defendant lifted up her top and kissed her breasts, unbuttoned her pants, and placed his finger in her "private part." P.C. also testified on cross-examination that she told the nurse at the emergency room the same sequence of events.
Rebecca's testimony corroborated P.C.'s testimony.
P.C.'s mother, Glenda, testified that during the early morning hours of October 18, 1997, Rebecca and P.C. came to her house. Glenda testified that Rebecca told her that they needed to go to the police station because defendant had "hurt" P.C. At this time, P.C. was crying and shaking. Glenda testified that she went with Rebecca and P.C. to the police station and that she stayed with P.C. during the first part of the interview with Detective Thomas and a policewoman. Glenda testified that Detective Thomas asked P.C. what had happened. Glenda stated, "[P.C.] wouldn't really say anything, so they told her that she could whisper it in my ear and then I could tell them [what she said]." Glenda described what P.C. whispered to her: "[Defendant] held his hand on her mouth, and he licked her boobs, and then he put his hands down in her pants, and that's all she said." After Glenda told the police officers what P.C. whispered, Glenda left the interview room at Detective Thomas's request. After P.C. talked to the officers alone, Glenda took her to the hospital emergency room.
On cross-examination, Glenda repeated her testimony regarding the statements P.C. whispered to her at the police station during the interview with Detective Thomas.
Detective Thomas testified that when he first asked P.C. about what had happened, she was reluctant to talk to him, so he asked P.C. to tell her mother what had happened. According to Detective Thomas, P.C. whispered something into her mother's ear, and then her mother told him, "[Defendant] held his hand on her mouth, and he licked her boobs, and then he put his hands down in her pants." Detective Thomas testified that he explained to P.C. that he understood that she did not want to talk to him about the incident but that he needed to hear it from her and not just from her mother. Detective Thomas testified that he then interviewed P.C. without her mother present, and she told him the same sequence of events that she related earlier through her mother.
Dr. Wroten McQuirter testified that he was the doctor on call at the emergency room when P.C. and her mother arrived. Dr. McQuirter described what P.C. said when he asked her what had happened:
"[S]he was at a neighbor's house, um, and that she had been laying [sic] on the floor asleep, and about two o'clock or so she was awakened from sleep by [defendant] and [defendant] had put his left hand across her mouth and had opened her pants with his right hand and had digitally manipulated her genitals."
Dr. McQuirter testified that when he performed a vaginal examination on P.C., he found a lesion and discoloration on P.C.'s vaginal area and that his physical findings were consistent with the type of abuse she described.
Gail Meiling, a clinical counselor, testified for the defense that she interviewed P.C. about four months after the incident. Meiling testified that P.C. was very hesitant to talk to her but that P.C. finally told her that on the night of the incident, she was sleeping on the floor next to defendant, who was on the couch. According to Meiling, P.C. told her that she was awakened by defendant grabbing her and pulling her up onto the couch, where he unbuttoned her pants and stuck his finger down her pants. Meiling described P.C.'s statement made during the interview with her as "remarkably consistent" with P.C.'s statements made before that interview.
Defendant was convicted of both predatory criminal sexual assault and aggravated criminal sexual abuse. The presentence report filed for defendant's sentencing hearing indicated that defendant was 35 years old at the time of the offense, that he had no prior criminal convictions, that he was the father of two children (ages seven and four), and that he was employed as a laborer. At the sentencing hearing, a child therapist, Judith Durham, testified that she counseled P.C. about 50 times prior to the hearing. Durham testified about the adverse side effects P.C. was experiencing as a result of the sexual abuse.
On July 26, 1999, the trial judge entered a verbal order in which he explained defendant's sentence and the various factors he used in setting the appropriate punishment for defendant. The judge found as mitigating factors defendant's lack of a criminal history and his ability to financially compensate the victim, and the judge found as aggravating factors the necessity to deter others from similar crimes, defendant's lack of remorse, and the gravity of the offense. Defendant was eligible for a prison sentence of 6 to 30 years for the class X felony of predatory criminal sexual assault and three to seven years for the class 2 felony of aggravated criminal sexual abuse. The trial court sentenced defendant to consecutive terms of 10 years' imprisonment for the predatory criminal sexual assault conviction and five years' imprisonment on the aggravated criminal sexual abuse conviction.
Defendant filed a motion to reconsider his sentence, alleging that his sentence was improper because the trial court failed to consider certain mitigating factors, including defendant's family situation and defendant's potential for rehabilitation. The trial court denied the motion to reconsider sentence, and this appeal followed.
A. Hearsay Statements to Victim's Mother
Defendant argues that he was deprived of a fair trial where Glenda, P.C.'s mother, testified about statements P.C. whispered to her at the police station. Defendant contends that Glenda's testimony, which involved P.C.'s out-of-court statements about sexual abuse by defendant, entitled him to a hearing outside the presence of the jury, pursuant to section 115-10, and that the hearing should have been held prior to Glenda's testimony, so that the court could determine the reliability of those statements. Defendant ...