Appeal from the Circuit Court of Madison County. No. 99-CF-1650 Honorable James Hackett, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
Released for publication.
After a jury trial in the circuit court of Madison County, Mark Maguire (defendant) was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). Thereafter, the trial court found defendant to be a habitual criminal pursuant to section 33B-1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/33B-1 (West 1998)) and sentenced defendant to life in prison. On appeal, defendant contends that (1) his conviction must be reversed because the State failed to prove that he was the person who committed the crime, (2) the trial court deprived him of his rights to compulsory process and due process by preventing him from compelling the testimony of the child victim at the reliability hearing, and (3) section 33B-1 of the Criminal Code, under which he was found to be a habitual criminal, violates a defendant's constitutional rights to due process and a trial by jury as set forth by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.
The victim was four years old when she alleged that defendant molested her by placing his penis in her mouth. Defendant and his family lived in the same trailer park as the victim and her family. Prior to the trial, the State notified defendant that pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1998)), it intended to introduce statements allegedly made by the victim to Susan Redmon, Sergeant Larry Coles, Kris J., M.J., S.J., and Lieutenant Jack Stalcup. The trial court then set the matter for a reliability hearing to determine whether the hearsay testimony was sufficiently reliable. Defendant subpoenaed the victim to testify at the reliability hearing. The State moved to quash the subpoena. The trial court granted the State's motion to quash.
The six witnesses listed by the State in its notice of intention to admit hearsay statements testified at the reliability hearing. Sergeant Larry Coles testified that on July 25, 1999, he was dispatched to the home of Kris J., the victim's mother, where he spoke with both Kris and the victim. Sergeant Coles asked the victim to tell him what happens when she goes to defendant's house to play. The victim initially hesitated, but after being reassured by her mother, she told Coles that defendant pulls down his pants in the living room when his son, J.D., goes outside to play. Defendant then gets under some covers with the victim and puts his "wiener" in her mouth. The victim said that this happened a lot. It occurs when Diane, defendant's wife, is at work.
Upon completing the interview with the victim, Sergeant Coles telephoned his supervisor, Lieutenant Stalcup. Stalcup told Coles to ask the victim and her mother to come to headquarters so he could speak to them. Stalcup and Coles then interviewed the victim together at the police station. The victim's mother was also present. Coles asked the victim to tell Lieutenant Stalcup what happens when she plays at defendant's house. The victim said that defendant tells his son, J.D., to go outside and play. She and defendant then lie on the couch under the covers. Defendant then pulls down his pants and puts his "wiener" in her mouth. Defendant tells her not to tell anyone. He also gives her candy and lets her play with his kittens afterwards. Sergeant Coles specifically asked the victim whether she saw defendant's underwear. The victim said that she did not because defendant does not wear underwear. The victim said she is afraid of defendant. The victim said that she keeps her clothes on under the covers and denied that defendant ever touched her anywhere else.
Lieutenant Stalcup observed Sergeant Coles interview the victim at police headquarters while the victim's mother was in the room. Stalcup reiterated Coles' testimony about the interview. Stalcup also testified that later that day he and Coles went to defendant's house and placed defendant under arrest. The next day, Stalcup interviewed M.J., one of the victim's brothers. M.J. told him that the week before defendant's arrest, defendant babysat for him, his two brothers, and the victim and spanked all of them because they were fighting. According to Stalcup, M.J. did not seem mad about being spanked. M.J. also told Stalcup that he had walked over to defendant's trailer looking for the victim. When he entered, he saw the victim's head pop out from underneath covers on the couch. Defendant was also on the couch.
Susan Redmon, a Department of Children and Family Services (DCFS) employee, went to the South Roxana police department at Lieutenant Stalcup's request for assistance with the instant case. Redmon met with the victim and her mother in a small room at police headquarters. Redmon stated that the mother was present but did not interfere with Redmon's interview of the victim. According to Redmon, the victim could distinguish her "fake" stuffed duck from her "real dog," could count, and knew her colors. Redmon testified that the victim used the words "butt" and "pee-pee" and "wiener" for the parts of anatomically correct dolls. Redmon recalled that without being specifically asked, the victim started talking about her neighbor J.D. and his father and mother. The victim told Redmon that defendant did a bad thing to her. She said that defendant did something bad while J.D. was outside playing and defendant's wife, Diane, was at work. She said that she and defendant would be under the blankets on the couch and that defendant would have his pants down around his feet. The victim said she did not remove any of her clothes. The victim told Redmon that after they were under the covers, defendant would put his "wiener" in her mouth and that his "wiener" would go in and out of her mouth. The victim said that her brothers were outside, except on one occasion when her brother M.J. saw her with her head under the covers.
The victim told M.J. what defendant did to her. According to Redmon, the victim then said that M.J. "told on her" to her mother. Redmon specifically asked the victim about his underwear, and the victim replied that defendant does not wear underwear. The victim also said that sometimes when defendant put his "wiener" in her mouth it would make her cough. Redmon testified that the victim's concept of time was not good, but the victim did tell her that it was warm out when it occurred and that it happened more than once.
Kris J. testified that she lives with her boyfriend and four children, including the victim, in a trailer park. Her trailer and defendant's trailer are separated only by a vacant lot. Defendant's son, J.D., is approximately 1½ years older than the victim. The two children often played together, and the victim spent time at defendant's trailer. Defendant and his family got along well with the victim's family. On occasion, Kris saw the victim and defendant lying together underneath a blanket on defendant's couch. Kris's sons were not allowed in defendant's trailer. When Kris questioned defendant about this unequal treatment, defendant explained that he treated the victim differently because she was like his daughter that he never gets to see.
At the end of July 1999, Kris first learned of the alleged assault when one of the victim's brothers, age nine, informed her that the victim told him defendant "had stuck his wiener in [the victim's] mouth." Kris immediately approached her daughter and asked her whether the allegations made by her brother were true. The victim told Kris that it was true and that it had occurred more than once. Kris asked a friend for advice. The friend talked to the victim, and the victim told the same story about defendant. Kris then contacted the police.
Between the time Kris learned about the alleged assault and the time she called the police, defendant became aware that the victim made accusations against him. Defendant asked Kris whether he could speak with the victim. Kris allowed defendant to speak with the victim while Kris was present. Defendant asked the victim whether she told anyone that he stuck his "wiener" in her mouth. The victim denied making such an allegation. Kris stated, "I could tell [the victim] was a little scared *** [b]y the look on her face." Kris described what defendant said then, while in the victim's presence: "[Defendant stated] that he didn't really need to have this kind of thing getting around, because if it did, if one word of this got out, that [sic] he would go back to prison." Sometime after the victim and Kris talked to defendant, Kris asked her daughter whether, when defendant pulled his pants down, he also pulled his underwear down, and the victim said, "No, mommy, he doesn't wear underwear."
The victim's brother M.J., age 12, testified that on one occasion, he saw defendant and the victim on defendant's couch underneath some blankets. According to M.J., the victim liked to play with defendant's son, but she did not like going over to defendant's house. M.J. said that the victim told him "that when she went over there, she had to suck [defendant's] wienie." M.J. did not immediately tell his mother what the victim told him. M.J. admitted that sometimes he got in trouble when he was playing at defendant's house. On cross-examination, defense counsel asked M.J. whether, a few days before defendant's arrest, defendant had paddled him, and M.J. responded: "Yeah. But he like tapped us. He tapped me."
The victim's brother S.J., age nine, also testified that he saw the victim and defendant under the covers on defendant's couch. According to S.J., the victim later told him "that once when she was laying [sic] under the covers, [defendant] told her to suck his private." S.J. said that the victim used the term "pee-pee" rather than "private." S.J. said that the victim had a "sad face" and was crying when she told him about the incident and that she had never made this type of allegation before. S.J. told his mother what the victim told him about defendant. S.J. further testified that defendant would occasionally baby-sit for him and his siblings and ...