Appeal from the Circuit Court of DuPage County. No. 00-CF-2751 Honorable George J. Bakalis,
The opinion of the court was delivered by: Justice Callum
A jury found defendant, William V. Stewart, guilty of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)) and criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 2000)), and the trial court sentenced him to consecutive terms of 7 and 10 years' imprisonment, respectively. On appeal, defendant argues that (1) the trial court erred by refusing to suppress recorded telephone conversations between defendant and the victim, (2) he was denied his right to an impartial jury because the trial court recited in detail to the venire the allegations in counts of the indictment that were dismissed before the trial and because the prospective jurors heard the remarks of other prospective jurors about the reprehensible nature of the offenses as charged, (3) the trial court erred in admitting photographs of the victim and of defendant's apartment, and (4) he is entitled to an additional day of credit against his sentence and a $365 credit against his fines. We grant defendant an additional day of sentencing credit and a $200 credit against his fines but affirm in all other respects.
Shortly after bringing in the prospective jurors, the trial court read the charges to them. Count II of the indictment alleged that defendant committed aggravated criminal sexual abuse by fondling the sex organ of the victim, Keith D., for the purpose of the sexual gratification or arousal of defendant. Counts VI, VII, and VIII alleged that defendant committed criminal sexual assault by placing his mouth on Keith D.'s penis. Counts IX, X, and XI alleged that defendant committed criminal sexual assault by placing his finger in Keith D.'s anus. Counts XII, XIII, and XIV alleged that defendant committed criminal sexual assault by placing his tongue in Keith D.'s anus. After reading the charges, the trial court admonished the venire that defendant was presumed innocent until the State proved his guilt beyond a reasonable doubt and that the indictment should not be considered as evidence against defendant.
When asked if there was anything about the nature of the charges that would cause them to be less than impartial, several prospective jurors answered affirmatively. Prospective juror No. 45 stated, "I have a young kid. I am very protective and situations like that bother me. *** Visions of my kid having these problems, I am not saying it would happen, but I would be prejudiced, I am very protective of any children."
Prospective juror No. 42 stated, "When I was a very young child, I was in the very situation. It was an adult that was in charge and very close." Defense counsel objected, and the trial court continued the examination outside the presence of the venire.
The following exchange occurred during the trial court's examination of Prospective juror No. 15:
"A. No, I am very disgusted of [sic] what I heard. I think a
violation of trust is just disgraceful.
Q. You understand those are the allegations in this case? It
hasn't been proved?
A. I have just been walking around in your parking lot, trying
to calm myself down from--
MR. MARTIN [defense counsel]: Objection, Judge.
JUROR: --being very upset.
THE COURT: Q. The question I need to know from you, sir, are
you capable, if you were a juror in this case, [of] listening to
the evidence and deciding the case solely based on the evidence
that you hear in this case, or is the very nature of the charge
such that you could not do that?
A. I could not do it."
The trial court dismissed each of these prospective jurors. Immediately after the trial court dismissed prospective juror No. 15, defense counsel requested a conference outside the presence of the venire. The trial court obliged, and defense counsel expressed concern over how defendant was going to receive a fair trial in light of the prospective jurors' comments, which counsel argued were creating a "very damaging sentiment." He requested that the court identify the prospective jurors who might have similar concerns and examine them outside the presence of the other prospective jurors. The trial court responded that it would conduct a sequestered examination of prospective jurors only if there were an indication that a person could not be impartial.
After the first six jurors were selected, the trial court brought in a new group of prospective jurors. Again, the trial court read the charges to the venire and gave them the same instructions that the first group received. During the examination of this second group, if a prospective juror stated that there was something about the charges that would cause him or her to be less than partial, the trial court stopped the questioning and continued the examination outside the presence of the other prospective jurors.
After the jury was selected but before the trial began, the State nol-prossed counts XII, XIII, and XIV of the indictment. Apparently, shortly before the trial, Keith stated that he could no longer remember the incident that formed the basis for counts XII, XIII, and XIV. The trial court informed the jury that those counts, which had been read the previous day, were not going to be presented and instructed it to disregard those charges.
During the trial, the parties stipulated that Keith was born in September 1985 and defendant was born in August 1957. Keith's mother, Kimberly K., testified that in 1999 she became a friend of defendant. Defendant worked with Chris K., the brother of Kimberly's fiancé, Mark K. Defendant was a friend of Chris and his wife, Natalie, and often attended family functions at their home in Wheaton. Defendant lived in an apartment in Lombard, was not married, and had no children. Kimberly and Keith lived in DeKalb with Mark. At the time, Mark was in the process of earning his Ph.D. and therefore did not have much time to spend with Keith. Keith was withdrawn and awkward, had few friends, had attention deficit disorder, and had been receiving counseling. Kimberly had learned that Keith and defendant had common interests, such as motorcycles and video games.
In July or August 1999, Kimberly and Keith attended a party at Chris's home. Kimberly became upset when she saw Keith sitting on defendant's lap. Defendant had his arms around Keith. Kimberly ordered Keith to get up and told defendant that he should have known that such behavior was inappropriate. During the Labor Day holiday 1999, defendant invited Keith and Kimberly to attend a motorcycle racing event, but Kimberly declined. Kimberly and Keith celebrated Thanksgiving at Chris's house. Defendant was present and told Kimberly that he did not really have any male friends, he missed Keith, who reminded defendant of himself when he was younger, and he would like to be Keith's mentor. Because Keith did not have a male adult role model in his life, Kimberly was receptive to defendant's idea.
In December 1999, defendant invited Keith to spend time with him. Defendant picked up Keith at Chris's home and took Keith to his place of employment. Afterwards, defendant called Keith several times. On January 16, 2000, Kimberly dropped off Keith at a shopping mall, and defendant picked him up and took him to a video game arcade. Late in January 2000, defendant asked Kimberly if Keith could spend the weekend at his apartment. Because Keith seemed excited about the idea, Kimberly agreed. From January through March 2000, Keith spent two or three weekends at defendant's apartment. In February 2000, defendant took Kimberly, Mark, and Kimberly's two other children, Niki and Josh, to a motorcycle show.
At some point, Keith's behavior changed. Keith avoided talking to defendant over the telephone and stated that he did not want to spend time with defendant. Kimberly asked Keith if everything was okay, and Keith responded that everything was fine and he just did not want to be with defendant. Keith's grades began to suffer, and Kimberly told defendant that Keith's grades were the reason why Keith could not spend time with him.
Defendant frequently called, wrote, and sent e-mails requesting to see Keith and blamed Kimberly for interfering in defendant's and Keith's relationship. In March 2000, Kimberly was to receive her confirmation in the Catholic church and planned to baptize her three children. She asked defendant to be Keith's godfather. Keith stated, however, that he did not want defendant to be his godfather. Defendant gave a $50 baptism gift to Keith but not to Kimberly's other children.
Keith's interest in seeing defendant continued to fade. Kimberly told Keith that, if he did not want to continue to see defendant, she would "take the blame." Keith agreed, and Kimberly "cut it off."
In May 2000, defendant offered to give Kimberly and Mark two airline tickets to go anywhere if they would let defendant take Keith to Disney World as a graduation present. Keith did not want to go, and Kimberly did not want Keith to go. In May or June 2000, defendant showed up with a "wave runner" at Kimberly's home and invited her and her family to come with him. Shortly thereafter, Mark arrived home, and the invitation was declined.
About two weeks later, defendant asked to talk to Kimberly in person. Kimberly and Mark met defendant at a restaurant in De Kalb. Kimberly told defendant that Keith did not want to see him. Defendant said that he missed Keith, was sorry, and wanted Kimberly to forgive him and give him another chance. Kimberly asked, "Why should we give you another chance? What did you do?" Defendant merely kept replying, "I'm sorry, I'm sorry." Kimberly told defendant that she would call the police if he had any contact with Keith.
In September 2000, Keith received a birthday card and a typed letter from defendant. The card contained $10 and two movie tickets. The letter stated in pertinent part:
"It hurts me to think that you are afraid of me or that you
think I would hurt you. I have never hit you, threatened you, or
forced you to do anything, so I don't understand, why you would
think that. *** I am sorry if I hurt you in anyway [sic], I never
Kimberly did not show the card to Keith. Shortly thereafter, defendant called Kimberly at work, apologized, and asked for another chance. Kimberly replied that she and her family did not want to have anything to do with him. An argument ensued, and Kimberly's boss ended up taking the telephone from her and hanging it up.
Late in September 2000, Kimberly went to the De Kalb police department, initially to seek a restraining order against defendant. The De Kalb police referred Kimberly to the Lombard police department.
Keith testified that he became familiar with defendant while attending family functions at Chris's and Natalie's home. Keith and defendant talked and discovered they had common interests. Eventually, Keith and defendant arranged a social outing. They went to a video game arcade for a couple of hours, and afterwards Keith stayed with Chris and Natalie. The following day, Keith and defendant met again and went to an arcade, and then Keith went home. Defendant did audio/visual work, and on one occasion defendant took Keith to a site where defendant was setting up equipment.
Defendant and Keith called each other two to three times a week and socialized together about once every two weeks. Keith and defendant went to arcades, went swimming, and watched movies at defendant's apartment. Keith enjoyed spending time with defendant and considered him a friend.
Keith first spent the night at defendant's apartment in January 2000. Defendant picked up Keith at home and drove him to Lombard. While at defendant's home, Keith used defendant's computer and watched action movies. Keith testified that he spent about every other weekend at defendant's apartment and sometimes more frequently once he finished school ...