Appeal from the Circuit Court of Cook County. Honorable Joseph M. Claps, Judge Presiding. No. 04 CR 25947
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Karnezis and Harris concurred in the judgment and opinion.
Following a bench trial, defendant John Herman was found guilty of multiple offenses relating to criminal sexual assault, official misconduct and kidnaping. The circuit court entered judgment on three counts of aggravated criminal sexual assault predicated upon official police misconduct, multiple counts of criminal sexual assault, two counts of kidnaping and five counts of official police misconduct. Defendant was sentenced to three consecutive seven-year prison terms for the aggravated criminal sexual assault to be served consecutively to a four-year prison term for kidnaping. Additionally, he was sentenced to concurrent 4- year sentences for the official misconduct counts, for a total of 25 years' imprisonment.
On appeal, defendant makes the following contentions: (1) the evidence was insufficient to support his convictions; (2) the trial court made several erroneous evidentiary rulings which denied him a fair trial; and (3) the State engaged in impermissible double enhancement when it used the act of sexual penetration to establish official misconduct and again to aggravate the criminal sexual assault. For the following reasons, we reverse the judgment of the circuit court.
Defendant's convictions arose from an encounter at 7759 South Peoria Street in Chicago. April M. Owney, a self-described crack cocaine addict, testified that she was sexually assaulted by defendant sometime after 5:25 a.m. in her bedroom on March 10, 2004, while defendant was on duty as a Chicago police officer. Defendant's theory at trial was that there was a consensual sexual encounter on the evening of March 9, 2004, prior to his being on duty, and that Owney had a motive to fabricate a rape for money to support her drug addiction.
Defendant was charged with three counts of aggravated criminal sexual assault premised on the display of a weapon (720 ILCS 5/12-14(a)(1) (West 2004)), three counts of aggravated criminal sexual assault premised on official misconduct (720 ILCS 5/12-14(a)(4) (West 2004)), three counts of aggravated criminal sexual assault premised on his being armed with a firearm (720 ILCS 5/12-14(a)(8) (West 2004)), two counts of aggravated kidnaping premised on his being armed with a firearm (720 ILCS 5/10-2(a)(1), (a) (3), (a) (6) (West 2004)), four counts of official misconduct premised on violations of police department rules and regulations, and one count of official misconduct premised upon the aggravated criminal sexual assault (720 ILCS 5/33-3(b) (West 2004)).
Because defendant challenges the sufficiency of the evidence against
him, a complete
recitation of the facts adduced at trial is necessary to a
disposition of the appeal. At the bench trial, Owney testified that
she was a 42-year-old crack cocaine addict who had stopped using one
month before trial. In March of 2004, she lived in a second-floor
apartment at 7759 South Peoria Street in Chicago with her daughter,
grandchildren and son-in-law. She sometimes smoked $80 to $100 worth
of crack every other day. As she was not employed, she used money she
obtained from baby-sitting her daughters' children and other children
and her government social security check to purchase her drugs.
Owney began smoking crack in her home sometime after midnight on March 10, 2004. At about 1 a.m., while the family slept, Owney purchased two bags of crack for $20 from her delivery man in front of her apartment building and went back to her apartment to smoke. She initially testified that she remained in her apartment smoking until about 5 a.m. Despite her testimony from a prior deposition where she denied that she ever did "rocks," Owney acknowledged at trial that she was heavily under the influence of drugs during that night. At one point during her testimony, she stated that she had her "rocks" delivered and that it took her drug delivery man some time to get there, depending on how far away he was from the apartment. However, she later testified that she went out four or five times that night to buy "rocks." She originally testified she had smoked six to seven "rocks" of cocaine during the four-hour period from 1 a.m. until 5 a.m. and then later testified that she smoked six to eight "rocks" during that period.
On direct, she testified that at about 5 a.m., everyone was still
asleep, and she telephoned her delivery man for more drugs using her
daughter's cell phone. Her delivery man then delivered
a second batch of drugs. She began to smoke again, but then
realized she had run out of cigarettes and alcohol, which she liked to
use together with the drugs. Owney left the crack in the apartment on
her bedroom dresser. She went out to get some cigarettes and alcohol
from a "bootlegger," whom she described as someone who sold liquor
from his house when the stores were closed. She then encountered
As she walked north on Halsted Street towards a gas station, a police car came southbound and made a U-turn going the wrong way down a one-way street. A police officer, alone in the vehicle, stopped her. Owney was about a half block from her home and across the street from the police station parking lot. The officer asked her what she was doing outside. She told him she was going to get some cigarettes. He then asked her if she was prostituting, and she said "no." He asked her if she had any identification. She replied that she did not have any identification on her person. He told her to get in the vehicle.
She testified at trial that she walked around the car and got in on the rear passenger side of the vehicle. When she got into the backseat of the police vehicle, she moved some papers and "stuff." She did not recall telling the police that she sat behind the driver's side. She was then impeached with her prior deposition testimony where she had testified that she got in and sat behind the driver's side. She did not see a black "boombox" radio on the back seat directly behind the driver's seat. She also testified that the vehicle had a cage in it and that it was not the first time she had been in a caged police vehicle. The other times she had been in a caged police vehicle she had to be let out by police because she was in handcuffs.
According to Owney, the officer then asked for her address and she
told him where she
lived. He drove to her building and followed her up the
stairs to her apartment. Owney identified defendant in court as the
police officer that escorted her back to her apartment.
Owney unlocked the door to her apartment, and just inside the front door was the door to her bedroom, which was a few feet away from her daughter's bedroom. Owney was nervous because she remembered she left the crack in her bedroom and thought she would be arrested. They went into her bedroom and defendant closed the door behind him. She went to her dresser to get her identification out of her purse. She heard the sound of the nail that served as a latch to keep her bedroom door closed and she turned around. Defendant told her to take off her clothes. He had a gun in his hand down by the side of his leg. After being shown a photograph, she stated that it resembled a second small black gun defendant had in an ankle holster. She did not recall whether she told the officers at the police station that she saw a silver gun in the ankle holster. She took off her clothes. Defendant had undressed and she noticed he had an eagle tattoo. He told her to perform oral sex on him while the gun was still in his hand. He called her a bitch and a whore, forced her to lie down, and slapped her breasts. He then grabbed his nightstick, inserted it into her vagina, and then performed vaginal intercourse from behind her.
When defendant was finished, he took off a condom and threw it in her garbage. He also had a paper towel which he used to wipe off the nightstick and threw the paper towel in her garbage. He threatened to kill Owney if she told anybody about the incident. Owney crawled into bed and cried. Owney testified that she never consented to any of the sexual acts on March 10, 2004. She denied having ever met defendant prior to that day and denied ever having him in her apartment prior to that day.
She was not sure how long she stayed in bed crying, stating "it could have been an hour, two. I'm not for sure." She then took the condom out of the garbage and put it in her purse and left it there in her bedroom as proof that the officer raped her because she knew her "word was not good enough" because she was a crack addict and he was a police officer. She testified that she did not make an outcry to her family at the time the assault was happening because she was embarrassed and ashamed.
With respect to the timing of the encounter, she stated that she could not give an exact time as to when the assault occurred because she didn't look at a clock. However, after being shown cell phone records from her daughter's cell phone, she changed her testimony. She then stated that she telephoned her drug delivery man at 5:25 a.m. and that the assault occurred after that telephone call to her delivery man. She stated that she received her crack within less than 30 minutes from the time she called him because he was "always around." She then went back upstairs to smoke again, and realized she had run out of cigarettes and alcohol. She then left the apartment and was walking about three or four minutes when defendant stopped her on the street.
Owney denied telling any police officers that the assault happened
between 3:30 and 4:30 a.m. She may have told police that the assault
occurred sometime between 4:30 and 5:30 a.m., and then indicated, "I
believe. I don't know. I believe I did. I said around about 5:00,
5:30." Owney recalled being interviewed by an Internal Affairs
Division (IAD) investigator. When asked whether she recalled telling
the IAD investigator that the assault occurred well before 5:30 a.m.,
she stated that she did not know what time she told the investigator.
She did not believe that she told him a time. At a prior deposition,
Owney was asked whether anything happened to her
sometime around 4 a.m. and then relayed the facts related to
the encounter with defendant. The trial court appears to have admitted
this evidence for its "limited" impeachment value.
Owney further testified that after the assault, she looked at her clock to see what time it was to determine whether the liquor store would be open. When she saw that it was 7 a.m. she left her apartment to go to the liquor store to get some alcohol, but the liquor store was closed. She then went to the police station to report the assault.
After arriving at the station sometime between 7 a.m. and 7:30 a.m., she told the police what had happened to her. She denied being "high" when she went to the police station.
She was placed in a small room, where she testified she remained for hours. She kept telling them that she had been raped and that she needed to go to the hospital. They kept "badgering" her and "degrading" her and "talking about [her] and shit as if [she] wasn't nobody." At some point, she telephoned her brother from the station. Initially, she testified that a lawyer arrived and talked with her at the station, but she later stated that testimony was mistaken and that her attorney met her at the hospital.
After taking her to the hospital, Owney testified that the detectives took her to a liquor store. She initially stated that they purchased a beer for her, and then had her view a lineup at the 111th Street police station. Owney later testified that the beer was purchased after she left her apartment and not after she left the hospital. She then testified that the detectives did not purchase the alcohol for her at the liquor store, but instead gave her the money to purchase it. According to Owney, the detective asked her whether she needed something for her nerves. Owney told the detective she needed a beer and the detective bought her a beer.
Owney identified defendant in the lineup as the man who sexually assaulted her. After the lineup, she was alone in a room with a female African-American detective, the same detective that purchased the beer for her. Owney testified that the detective offered her a bribe of $5,000 and said, "You're going to be the first black woman's pussy worth $5,000." Owney denied ever asking the detective for a $5,000 payment to "make this go away." She denied ever "high-fiving" any of the investigators in the case. According to Owney, the detective attempted to bribe her and "high-five" her, but Owney never raised her hand to slap "high-five" with the detective.
During her interview with police, she initially refused to tell the police where the condom was out of fear. At some point at the police station, she called her neighbor to contact her daughter and instructed her daughter to hide the condom. Owney told her to get the condom out of her purse and to use her discretion to put it somewhere.
At trial, Owney also identified several exhibits which she described as photographs taken during the investigation when the police took her back to her apartment and made her "re-enact" the sexual encounter with defendant. Owney's lawyer, who was present at the apartment with a medical student, was taking the "re-enactment" photographs of her on her bed.
She denied giving police consent to search her house and stated that the consent form was signed by her daughter. Owney denied telling any officer that the assault occurred after she had gone out at 11 p.m. She acknowledged that she was with her neighbor Steve Slater "under the porch" sometime during daylight hours on either March 9 or 10.
Chicago police officer Geraldine Robinson testified that on March 10,
2004, she was assigned to the front desk at the sixth district police
station. At about 7:15 a.m., Owney
approached the desk after turning around several times and
looking out the window. Owney told her that she wanted to report that
she was raped. When asked when it occurred, "[Owney] gave [Robinson] a
time around 3:30, 3:45 a.m., somewhere within that window." At some
point, Robinson was told to sit with Owney in an interview room. She
provided Owney with a telephone and Owney made about 8 to 10 telephone
calls. Owney never mentioned to her that the assault occurred after
Owney's daughter, April Shontae Owney, testified that she was 21 years old at the time of trial. In March 2004, she lived with her children and her boyfriend at 77th and Peoria with her mother. She was not employed. She arrived home at about 11 p.m. on March 9, 2004. She testified that her mother was baby-sitting her children. However, her mother testified that she was baby-sitting her other daughter Erica's children and denied that she was baby-sitting April Shontea's children that evening. April Shontea further testified that she saw her mother leave the house at around 11:30 p.m. April Shontea went to sleep and was awakened at about 5 a.m. by her cell phone that she shared with her mother. When April Shontea went to her mother's bedroom to retrieve ...