The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable James M. Schreier, Judge Presiding.
Following a jury trial, defendant Michael Waters was convicted of aggravated criminal sexual assault and armed robbery and sentenced to consecutive terms of 10 and 6 years in prison, respectively. On appeal, defendant contends that (1) the trial court erred in denying his motion to vacate judgment or grant a new trial based on newly discovered evidence; (2) the State violated the rules of discovery by failing to inform the defense of a crucial change in the victim's testimony; (3) his consecutive sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); (4) his consecutive sentence is improper because there was a substantial change in the criminal objective between the occurrence of the armed robbery and the aggravated criminal sexual assault; and (5) the jury was read an instruction that misstates the law.
Defendant's conviction arose from an assault upon the 22-year-old victim, N.B., on April 20, 1996, in Chicago. At trial, N.B. testified that around 11 p.m. on the night in question, she had an argument with her boyfriend and decided to drive around the block to a nearby park to "cool off." However, N.B. was upset, made a wrong turn, and soon got lost. N.B. testified that she drove around for about 15 minutes in an attempt to find a busy street. Ultimately, she came to the corner of 67th Street and Damen Avenue. While she was stopped at the light, N.B. noticed four men standing on the corner to her right, drinking beer. N.B. looked away because she did not want to draw attention to herself, but one man walked around the front of the car and suddenly "they were all opening the doors to get into the car." The man in the front seat, later identified as co-defendant Wesley Montgomery, ordered, "Drive, bitch, drive." As N.B. drove, Montgomery directed her in and out of alleys, grabbed N.B.'s purse, took out about $4 in food stamps and $2 in cash, and passed it back to the three men in the back seat.
Eventually, the men ordered N.B. to stop the car in a deserted alley illuminated by a street light. N.B. testified that as soon as she turned off the car, the men in the back seat got out of the car. The man who had earlier walked around the front of the car positioned himself right next to the driver's side window. N.B. testified that this man, whom she later identified as defendant, appeared to be the oldest of the group and "looked like he was a leader of all of them." N.B. got a look at defendant's face because he took his hat off when he got out of the car, he was "right in the light," he was facing her, and nothing blocked her view. N.B. testified that she looked at defendant for about 15 or 20 seconds because she wanted to catch the details of his face.
N.B. testified that Montgomery, who was still in the front passenger seat, took out a "palm length" knife with a curved blade and two little points. In court, N.B. identified the knife as People's Exhibit No. 13. N.B. testified that Montgomery pointed the knife at her abdomen and started fondling her breasts, trying to get into her pants. Montgomery said, "We are going to get you, bitch." Defendant told Montgomery, "Hurry up, dog. Do what you are going to do. Hurry up." N.B. was resisting and crying loudly, and defendant told her, "Don't scream, bitch, don't scream." At this point, N.B. lied to Montgomery, telling him that she had gonorrhea. Montgomery replied, "No you don't. Let me see. Let me see." He then tried to pull N.B.'s pants off, but N.B. kept pulling them up. Eventually, Montgomery pulled her pants open, penetrated her vagina with his finger for about 30 seconds, and said, "Doesn't feel like you got anything. It doesn't smell like you have anything." However, when he pulled his finger out, there was a little bit of blood on it and he said, "Oh, this bitch is poison. This bitch is sick or dirty," and wiped his finger on the seat. N.B. testified that she reiterated to Montgomery that she had gonorrhea and told him to look in the glove compartment, where she had antibiotics for an unrelated infection. When Montgomery opened the glove compartment and saw the drugs, he told defendant, "This bitch is dirty."
N.B. testified that in response to Montgomery's statement, defendant picked up a baseball bat from the back seat of the car, swung it, and shattered the driver's side rear window. He said, "Fuck this bitch. Fuck this Mexican bitch." Defendant then punched N.B. in her left eye, causing her to bleed. Defendant told N.B. to clean herself up. While she was doing so, N.B. felt something warm on her shoulder. She turned and saw defendant, who was looking straight at her, urinating on her face. As the urine ran down her neck and shoulder, N.B. stuck her hand out the window to block the urine and rolled up her window. N.B. testified that the men told her they wanted to drive to a store to get some condoms. Specifically, defendant told her, "We are going to go get some condoms. We are going to get you, bitch. We are going to get you." At that point, defendant ordered N.B. out of the car. N.B. opened her door and was about to get out when the police arrived at the scene and the four men ran.
N.B. testified that she was crying and was horrified and hysterical when the police arrived, but managed to point in the direction the men had run. While she was talking to Chicago police officer Damen Balesteri, she saw defendant. A short time later, the police brought defendant to the ambulance where N.B. was being treated. N.B. testified that as soon as she saw his eyes, she became hysterical. She stated, "I positively identified Michael Waters. I don't forget anybody that urinates on me." After being treated at the hospital, N.B. went to the police station, where she identified the knife that Montgomery had used during the assault.
On cross-examination, N.B. acknowledged that she had lost sight of defendant between the time of the assault and the time the police had him in custody. In response to questions by defense counsel on cross- examination about who urinated on her, N.B. testified as follows:
"Q: Who was it that urinated on you?
Q: None of the other people did, correct?
A: No, none of the other people did.
Q: Did you ever tell Detective Crescenzo that it was Waters and one of the other unknown offenders that urinated on you?
A: No, I distinctly remember Waters.
Q: But only Waters, correct?
Q: And you were able to see who was doing it?
A: I was looking at him straight like I am looking at you right now.
Q: And when you spoke to Detective Cain and Sutter right after this happened, did you tell Detective Cain and Sutter that Mr. Montgomery and Mr. Waters had both urinated on you?
A: No. Mr. Montgomery was upset that Waters got some of that urine on him.
Q: Well, it's fair to say, [N.B.], this was extremely traumatic for you, correct?
Q: And it's fair to say that you were emotionally upset by what was ...