Appeal from the Circuit Court of Cook County. Honorable Daniel M. Locallo, Judge Presiding.
The opinion of the court was delivered by: Justice Burke.
SUPPLEMENTAL OPINION *fn1
This case is before us for a second time. Defendant Julio Martinez was convicted of three counts of aggravated criminal sexual assault and one count of armed robbery and was sentenced to 12 years' imprisonment on each of the three convictions for criminal sexual assault and 6 years' imprisonment for armed robbery, to be served consecutively. Defendant appealed, challenging the jury selection and we held that the trial court failed to conduct the third step of the Batson analysis. Accordingly, we remanded the cause to the circuit court for the limited purpose of conducting a proper Batson analysis. People v. Martinez, 317 Ill. App. 3d 1040, 740 N.E.2d 1185 (2000). Defendant now appeals from the order of the circuit court entered on remand, finding that the State's reason for excluding a minority juror was not motivated by race and that defendant failed to meet his burden of proving purposeful discrimination. On appeal, defendant contends that the State's reason for excluding the juror was motivated by discrimination and that the trial court erred in not confining its findings on remand to the record made at the time of defendant's trial. Defendant also contends that the trial court erred in denying him his right to present a defense by limiting cross-examination of a key State witness, in providing the jury with verdict forms that contained the term "victim," and that his consecutive sentences violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). *fn2 For the reasons set forth below, we affirm.
We repeat those facts set forth in our original opinion that are necessary to resolution of defendant's Batson claim. Defendant was charged with numerous counts of aggravated criminal sexual assault, armed robbery, kidnaping, and aggravated battery, based upon events that occurred on February 26, 1997. Prior to trial, defendant filed a motion to suppress, contending that his pretrial statement was the result of physical, psychological, and mental coercion and, therefore, was involuntary. In an amended motion to suppress, defendant alleged that he was struck about the body and head by unknown detectives with their fists, and that he was deprived of sleep.
On August 26, 1998, the trial court conducted a hearing on defendant's motion to suppress his statement. Following testimony from Detective Robert Collins, Assistant State's Attorney Jeff Neslund, and defendant, the court denied the motion. The trial court specifically stated that defendant was not a credible witness. After reviewing all of the testimony presented, the trial court concluded that defendant had been given his Miranda warnings, he was not assaulted, and Neslund did not simply present the statement to defendant and tell him to sign it. Therefore, the court ruled that defendant knowingly and intelligently gave his statement.
Jury selection began on November 30, during which the State, using a peremptory challenge, excused Leanna Lee, a black female, approximately 65 years old. Lee had stated that she had no hobbies and read the Chicago Sun Times, Chicago Tribune, Defender, Jet, and Ebony. Defendant objected to the State's challenge, arguing that the State was striking all minorities. When asked by the trial court for a reason for excusing Lee, the State responded that it was excusing her because "[s]he indicated one of the publication[s] she is [sic] likes to read is the Defender. Based on that representation, we ask to excuse her." The trial court found the State's reason to be race-neutral. Defendant then argued that the Defender was like any other newspaper--"it shows facts and gives facts." According to defendant, excusing Lee on this basis was like excusing any other juror because he or she read the Tribune. Defendant therefore maintained that the State's reason was not race-neutral. The trial court then again found that the State's reason was race-neutral, stating "race neutral if it [is] not based upon race."
With respect to defendant's other claims, we repeat only those facts necessary to our resolution of these issues. At trial, M.L., the victim, testified with respect to the events that occurred on February 26, 1997, as well as the fact that she was taken to the hospital for an examination following an interview by the police.
Peggy Lee, a registered nurse, testified that she was working in the emergency room on February 26. She stated that she had seen approximately 50 victims of sexual assault over the years. On February 26, Lee saw M.L. at approximately 10 p.m., at which time M.L. told her what had happened. Lee testified that M.L. was not able to give a detailed version of the events because she was tearful, very sad, and seemed depressed. M.L. would not make direct eye contact with Lee. Dr. Scott Betzelos performed an examination of M.L. Additionally, a sexual assault kit was made. M.L.'s underpants were retained and swabs were taken from her mouth, vaginal area, and rectal area. Lee stated that she did not observe any injuries or trauma to M.L.'s body, but "[t]hat this was not uncommon." Lee further stated that there were no injuries or trauma to M.L.'s vaginal or rectal area, again stating that this was "not at all" uncommon. When asked how many of the 50 plus victims of sexual assault she had examined had injury to the vaginal area, Lee stated that there "very few, maybe 5 or less." With respect to injuries to the rectal area, she stated, "Very few." She also stated that very few of the individuals she had seen had injuries, lacerations, bruises, or abrasions to the body.
On cross-examination, Lee testified that she was not at the scene with any of the 50 plus victims. She stated that when they arrived at the hospital, they told her their complaints. When asked if she knew whether the complaints were truthful or not, Lee stated, "I don't know what happened prior to their admission to the emergency room." Lee further admitted that of the cases she had seen, she did not know how many involved forcible penetration.
Cecelia Doyle, a superintendent for the Illinois State Police Forensic Center, conducted DNA testing. She compared defendant's DNA sample to the sperm found on the swabs taken from M.L. and her underpants. The DNA profile from M.L.'s vaginal swab matched the DNA profile of defendant as did the rectal swab. Doyle stated that, to a reasonable degree of scientific certainty, the semen was consistent with having originated from defendant. On cross-examination, Doyle testified that there was no way to tell from DNA whether sex had been forced. The State rested and defendant's subsequent motion for a directed finding was denied.
Defendant then called Dr. Betzelos to establish his consent defense. Betzelos was an attending emergency room doctor. He stated that he had approximately 5 to 10 alleged sexual assault cases per year and, in his history, had himself seen approximately 50 plus individuals. He further stated that he examined M.L. after she had been seen by Lee. According to Betzelos, the nurses perform their own physical assessment of a patient in addition to the doctor's examination. Upon examination, Betzelos did not find any bumps, bruises, or abrasions on M.L.'s body, nor did he find any type of defense wounds. Betzelos also stated that one does see injuries such as bumps, bruises, and abrasion in sexual assault cases but "not all cases."
Dr. Betzelos further stated that when he examined M.L., he probably assumed she had been on cement because his notes indicated she was in a gangway. He testified that he found no signs of trauma, and no cuts or tears to the vagina. Although Betzelos did not conduct an internal rectal examination, he found no signs of trauma outside. Additionally, Betzelos did not notice any bruises or scraps on M.L.'s buttocks nor redness on the backs of her legs. Betzelos testified that when a sexual assault victim is on cement "you can see injuries. Sometimes you can't, more likely than not you can."
On cross-examination, Dr. Betzelos testified that M.L. was depressed. He further stated that it would not be uncommon for an individual not to suffer trauma in the vaginal or rectal area if she submitted to the sexual assault. Betzelos further stated that it was less likely that one would suffer injuries if they submitted. When questioned regarding the likelihood of injuries on wet versus dry cement, Betzelos stated, "Water would certainly reduce friction and therefore reduce injury." According to him, if one's butt or knees were placed on wet concrete, abrasion would less likely occur. Betzelos then testified it would be consistent with an individual who did not resist to not have defense wounds.
On redirect examination, Dr. Betzelos testified that it was more likely than not that one would see injuries in forced anal penetration. However, on recross-examination, he testified that an individual was less likely to suffer injury in the rectal area if she submitted.
In rebuttal, the State called Assistant State's Attorney Neslund. Neslund testified that on March 6, 1997, he took defendant's statement after he advised defendant of his rights. Prior to speaking with defendant, Neslund had reviewed the police reports and spoken to M.L. According to Neslund, Detective Collins was with him when defendant was interviewed. Neslund talked with defendant for one-half hour, then asked defendant if he wanted to memorialize his statement, to which defendant replied, "Yes." Neslund then wrote the statement out. When he was finished, he went through the statement with defendant and allowed defendant to make corrections. Neslund then published defendant's statement to the jury.
The jury returned guilty verdicts on three counts of aggravated criminal sexual assault and one count of armed robbery. Defendant was sentenced to 12 years' imprisonment on each of his three convictions for aggravated criminal sexual assault and 6 years' imprisonment for armed robbery, to be served consecutively.
Defendant appealed and we remanded the cause, finding that the trial court failed to conduct the third step of the Batson analysis. On remand, Assistant State's Attorney Michael Falagario was questioned by the court and the following colloquy occurred:
"THE COURT: What is your reason for excluding [Lee] based upon her reading of the Defender?
MR. FALAGARIO [Assistant State's Attorney]: As you know, there was a motion to suppress statements in this case that was litigated.
During that motion the defendant Julio Martinez testified on August 26th of 1998.
He testified and the motion stated that the defendant was struck about his body and head by detectives with their fists, that he was deprived of sleep and that he was told if he did not sign [t]he handwritten ...