Appeal from the Circuit Court of Cook County Honorable Garritt Howard, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Following a jury trial, defendant Bennie Bobo was convicted of aggravated kidnapping and aggravated criminal sexual abuse and sentenced to consecutive 20- and 5-year terms in the Illinois Department of Corrections. Defendant argues that the trial court deprived him of his right to a fair trial by erroneously: (1) admitting approximately 30 irrelevant photographs of women's feet as impermissible propensity evidence; (2) allowing the State to renege on an agreement not to introduce defendant's statements; and (3) allowing the State to use a prior statement made by defendant that was not disclosed in discovery. Defendant also contends that his trial attorney provided ineffective assistance of counsel by requesting a jury instruction that included the "great bodily harm" element for aggravated kidnapping. Furthermore, defendant alleges that the trial court improperly denied his request for new counsel to assist him in his pro se posttrial allegations of ineffective assistance of counsel as required by People v. Krankel, 102 Ill. 2d 181 (1984). In addition, defendant contends that the trial court erred in finding no prima facie case of racial discrimination in the State's use of its peremptory challenges. Finally, defendant argues that the 20-year sentence imposed for aggravated kidnapping is excessive.
On July 27, 2003, 26-year-old J.L. was sexually assaulted. At trial, J.L. testified that she arrived home at about 4 a.m. She parked her car in front of her house. As she was walking inside, she heard a crash and saw another car hit her car from behind. J.L. identified Bennie Bobo as the driver of the car that crashed into hers. As she was writing down defendant's information, he grabbed her from behind and forced her into his car. She struggled, and he asked her, "Don't you think I have a gun? I could kill you." Defendant punched J.L. numerous times. At one point, he choked her with both hands and demanded that she stop screaming. Defendant drove off, then stopped suddenly at an intersection. J.L. slid into the footwell of defendant's car and started screaming. Defendant hit and punched J.L. several more times, then grabbed her by her hair so she could not move. When defendant stopped the car, he grabbed J.L.'s foot. J.L. struggled with the defendant and managed to pull a necklace off his neck. The defendant began licking and biting J.L.'s foot and toes. Then, he ordered J.L. to hold her foot on his penis and wiggle her toes. This lasted for approximately 10 minutes. After defendant sexually gratified himself using J.L.'s foot he took J.L. home.
When J.L. got out of the car, she immediately called her boyfriend. Her boyfriend and her sister's boyfriend took her to the police station. At the station, J.L. gave a description of her attacker, a description of his car, and several digits of his license plate number. From there, she went to Glenbrook Hospital, where she underwent various tests including a DNA swab of her feet. When she was released from the hospital, J.L. showed Detective Metrick of the Northbrook Police Department where defendant had sexually assaulted her.
On July 30, 2003, Northbrook Officer Michael Terry stopped a maroon Dodge car that matched the description of the car driven by J.L.'s attacker. The driver of the car, Bennie Bobo, was arrested. J.L. later viewed a six-person lineup and identified Bobo as her attacker. DNA was obtained from a buccal swab of defendant's cheek. An officer collected samples of blood on the dashboard and hairs on the floor of the car driven by defendant. J.L.'s earrings were also found in the car. On defendant's cell phone, officers found approximately 30 pictures of women's feet.
Forensic scientist Kenneth Pfoser from the DNA section of the Northern Illinois Police Crime Lab testified as an expert in the field of forensic biology DNA analysis. He tested the swabs, blood samples and buccal samples for DNA. He determined the saliva from J.L.'s left foot was consistent with defendant.
Later, defendant gave three statements. These statements were contradictory to each other. In the first statement, defendant told the police he had consensual sex with J.L. In the second statement, defendant did not admit to any sexual contact; however, he admitted hitting J.L.'s car with his car, striking J.L. with his two closed fists, telling her to get into his car and "tussling" with her in his car as he drove around. In his third statement, he again admitted hitting J.L.'s car with his car, but added that he grabbed her and she got into his car. He further admitted striking J.L. while she was in his car and described sucking on her toes and licking her feet which he admitted he liked to do sexually. At trial, the defense presented the theory that J.L.'s boyfriend had beaten her, and defendant came to her rescue. Defendant denied having any sexual contact with J.L.
Four motions relevant to this appeal were raised throughout defendant's trial: a motion in limine to preclude admission of approximately 30 photographs of women's feet; a motion in limine seeking to bar the prosecution from using an oral statement the State produced in violation of discovery requirements; a motion for mistrial based on the State reneging on its agreement not to use defendant's statement at trial, and a motion for new trial alleging a Batson violation in jury selection. The trial court denied all four motions.
Before sentencing, defendant submitted a pro se motion, alleging ineffective assistance of counsel. After hearing defendant's concerns, the trial court decided that this motion was without merit and denied it. Defendant was subsequently sentenced to a total of 25 years in prison. This appeal followed.
I. Cumulative Impact of Alleged Trial Errors
Defendant argues that the cumulative impact of three alleged trial errors deprived him of his right to a fair trial. These alleged errors were: (1) admitting approximately 30 irrelevant photos of women's feet as impermissible propensity evidence; (2) allowing the State to renege on its promise not to introduce defendant's statements; and (3) allowing the State to use a prior statement that was not disclosed in discovery. We address each alleged error in turn.
Defendant contends that he was denied a fair trial because the State improperly introduced approximately 30 highly prejudicial and irrelevant photographs of women's feet at trial.
To be admitted, evidence must have the tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. People v. Peeples, 155 Ill. 2d 422, 455-56 (1993). The primary requirements for the admissibility of photographs are accuracy and relevancy. People v. Myles, 131 Ill. App. 3d 1034, 1042 (1985). It is the trial court's function to decide the admissibility of evidence, and such findings will not be disturbed absent a showing of abuse of discretion. People v. Kirchner, 194 Ill. 2d 502, 539 (2000). Relevant photographs are admissible to prove a person's identity. People v. Gerecke, 45 Ill. App. 3d 510, 514 (1977).
Generally, evidence of offenses, acts, and wrongs other than those for which defendant is being tried is inadmissible. People v. Baptist, 76 Ill. 2d 19, 27 (1979). This is because such evidence has too much probative value. People v. Romero, 66 Ill. 2d 325, 330 (1977). " 'The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime.' " People v. Romero, 66 Ill. 2d 325, 330 (1977), quoting People v. Lehman, 5 Ill. 2d 337, 342 (1955). Evidence of other offenses or bad acts is admissible to prove any material fact other than defendant's propensity to commit a crime. People v. Donoho, 204 Ill. 2d 159, 170 (2003). Such evidence can be admitted to show motive, intent, identity, absence of mistake or accident, modus operandi or the existence of a common plan or design. People v. Wilson, 214 Ill. 2d 127, 135-36 (2005); People v. Hansen, 313 Ill. App. 3d 491, 500 (2000). Moreover, other extrinsic acts evidence may include acts which are not crimes. People v. Davis, 260 Ill. App. 3d 176, 190-91 (1994) (evidence of defendant's non-criminal sexual activity with consenting adults was relevant and admissible in prosecution for sexual activity with minors).
In the instant case, the court allowed approximately 30 pictures of women's feet to be admitted in evidence during defendant's trial for aggravated kidnapping and aggravated criminal sexual abuse. These pictures were found on defendant's cell phone at the time of arrest. In resolving defendant's motion in limine to preclude the admission of these photographs, the court found that the pictures were relevant and that their probative value was not outweighed by their prejudicial impact. Thus, the court allowed the pictures to be admitted into evidence, published to the jury, and sent back to the jury room. The State referenced these pictures in both its opening and closing statements to show identity and defendant's intent to sexually gratify himself.
First, we examine the use of the photographs by the State to prove identity. Identity was at issue in this case because the defense theory was that J.L.'s boyfriend beat her, not defendant. J.L. described sexual abuse in connection with defendant using her foot to complete the sexual assault upon her. This complaint was corroborated by bite marks and DNA traces that were found on her foot. Defendant was charged with aggravated criminal sexual abuse in that he committed an act of sexual conduct by the use of force or threat of force, "to wit: forced her foot to touch his penis" for his own sexual arousal or gratification. The pictures found in defendant's cell phone provided circumstantial evidence that it was defendant who was responsible for sexually gratifying himself by using J.L.'s foot.
Additionally, the photographs were relevant to show defendant's intent. See People v. Wilson, 214 Ill. 2d 127, 137-38 (2005) (aggravated criminal sexual abuse is a specific intent crime and defendant's intent is at issue where he denied committing the crime). Defendant contended at trial that he did not have sexual contact with J.L. According to defendant, he picked J.L. up in his car and comforted her after she was in a fight with her boyfriend. Under this theory, defendant did not commit any kidnapping or sexual assault. To disprove this theory of innocence, the prosecution had to show that defendant intended to sexually gratify himself by his contact with J.L. People v. Illgen,145 Ill. 2d 353, 373 (1991) (defendant's involvement in other acts was offered to prove absence of innocent frame of mind or presence of criminal intent). The photographs of women's feet, found on defendant's phone, demonstrated that the defendant was attracted to feet. J.L. described her sexual attack by defendant as including his licking and biting her foot then forcing her foot down his pants to masturbate himself. Defendant contested this version of what happened. Accordingly, the photographs were relevant to defendant's identity and to his intent to sexually gratify himself.
We are mindful that relevant evidence is inadmissible if the prejudicial effect of admitting that evidence substantially outweighs any probative value. People v. Santos, 211 Ill. 2d 395, 419 (2004). When arguing in his brief that the pictures are irrelevant, defendant contends that the photographs of feet are "benign" and do not indicate any prurient interest. The photos do not show defendant touching the feet or using them for sexual pleasure. However, the defendant also contends that the pictures are highly prejudicial and should not have been allowed at trial. As explained above, the pictures are probative to show identity and intent. The trial court, when presented with all the facts and circumstances surrounding the pictures, concluded that the probative value of the pictures was not substantially outweighed by the potential for prejudice. Based on the record, we do not believe the trial court abused its discretion in deciding this matter.
Moreover, any error in admitting the photographs into evidence is harmless beyond a reasonable doubt. The evidence in the instant case was not closely balanced. J.L.'s testimony was credible and convincing, she identified the defendant within three days of the crime, defendant's DNA evidence was recovered from J.L.'s foot, the defendant made incriminating statements, and J.L.'s property was recovered from the car driven by defendant when he was arrested. Based on the strength of the evidence, we conclude that a trial without the pictures being admitted into evidence would have produced no different result. See People v. Mertz, 218 Ill. 2d 1, 65-66 (2005) (in prosecution for first degree murder, home invasion, and aggravated criminal sexual assault, any error in admitting descriptions of defendant's tattoos and e-mail address was harmless beyond a reasonable doubt in light of the overwhelming evidence); People v. Pulliam, 176 Ill. 2d 261, 276-77 (1997) (in prosecution for first degree murder, aggravated criminal sexual assault, and aggravated kidnapping, admission of book found in defendant's apartment titled "The Force of Sex" was harmless error because the properly admitted evidence of guilt was overwhelming); People v. Sykes, 341 Ill. App. 3d 950, 980 (2003) (in prosecution for predatory criminal sexual assault, attempted first degree murder, and aggravated kidnapping, any error in admitting and publishing an inflammatory and irrelevant photograph of defendant was harmless, as evidence was not closely balanced).
B. Defendant's Statements
In preparing for trial, defendant relied on the State's representation that it did not plan to use defendant's statements to the police in its case in chief. Defendant contends he was unfairly prejudiced when the prosecution reneged on that position halfway through trial because it rendered defendant's trial strategy useless.
At a pretrial motion in limine hearing, the prosecution moved to bar defense counsel from mentioning defendant's statements to the police in opening statements. In discussing this evidence, defense counsel stated that "the statements are going to go in, in which the defendant says in those statements that he engaged in that conduct." The State informed the court that it did not intend to introduce the defendant's statements in its case in chief. The State further indicated an objection based on hearsay "to counsel bringing it up in opening statements or ask[ing] any questions regarding that statement." The defense responded, "[a]s long as the State is saying they are not going to do it in their case in chief, we won't bring it up in opening." The court then indicated its understanding that both sides were in agreement. The State said that it would notify the defense of any strategic change on this issue.
At trial, the defense during its opening comments to the jury did not mention defendant's statements. However, during trial, the defense did cross-examine witnesses on the issue of identity. Based on that defense strategy, the State decided to introduce defendant's statements.
The trial court made the following ruling:
"The State's initial strategy was that they did not intend to put in the statements of the defendant. But through defendant's cross, the strategy has been to make this an 'identification' case. So, I'm not surprised that the State has decided to change their strategy. There is nothing improper about it."
We are mindful that when a defendant initiates inquiry into a subject, he cannot complain about the testimony he invited. People v. Davis, 53 Ill. App. 3d 424 (1977). Based on the record, we conclude the experienced trial judge correctly ruled that the prosecution could introduce defendant's statements after he initiated a challenge to his ...