Appeal from the Circuit Court of Cook County.) 04 CR 28307 Honorable Lawrence W. Terrell, Judge Presiding.
The opinion of the court was delivered by: Justice Lavin
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.
After a jury trial, defendant Jose Rivera was convicted of three counts of predatory criminal sexual assault, three counts of criminal sexual assault, and five counts of aggravated criminal sexual abuse arising out of conduct with his 13-year-old stepdaughter and her middle school classmate. Defendant was also convicted of one count of possession of child pornography. The trial court sentenced defendant to 75 years' imprisonment. On appeal, defendant contends that: (1) his motion to suppress custodial statements was improperly denied; (2) certain plea-related statements were improperly admitted; (3) the evidence was insufficient to sustain his convictions; (4) the trial court failed to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); (4) his defense counsel was improperly disqualified; (5) his right to a public trial was violated; (6) certain evidence and testimony lacked proper foundation; (7) certain prior consistent statements were admitted to improperly bolster the credibility of witnesses; (8) a fatal variance existed between his indictment and the proof offered at trial; (9) defense counsel was ineffective; and (10) statements made during the State's closing argument were improper. For the reasons discussed at length below, we reverse and remand for a new trial.
Edys Rivera testified that when she married defendant in 1993, she already had a two-year-old daughter, J.M. Defendant had two other daughters, Evelyn and Maria, from a prior relationship who would visit every other weekend. Mrs. Rivera and defendant had a son together and, along with J.M., they lived in three different towns in the west suburbs of Chicago. During this period, she worked as a receptionist from 8:30 a.m. to 5 p.m. every weekday and 8 a.m. to 6 p.m. every other Saturday, while defendant was a computer technician and worked from 4 a.m. to 12 p.m during the week.
In the fall of 2004, Evelyn came to live with her father and his "second" family. Shortly thereafter, on October 22, 2004, Mrs. Rivera was driving home from work when she received a phone call from the Franklin Park police. She was told that her two daughters were at the station and Mrs. Rivera was told to go to the police station alone. She immediately phoned her husband at that time to inform him of the situation. After arriving at the police station, Mrs. Rivera was informed of a police investigation which involved allegations of a sexual nature between defendant and her 13-year-old daughter, J.M. She signed a consent form permitting the police to search the family apartment.
Mrs. Rivera accompanied the police to the apartment for the search and, upon entering, she noticed a burning smell in the kitchen and "burned stuff" in the sink, even though the sink was in normal condition in the morning. She also noticed that the living room computer, which was assembled and "in working order" in the morning, was on the floor and disassembled. Mrs. Rivera admitted that she only occasionally used the computer and only defendant knew the password to access the computer. During the search, the police recovered, among other things, parts of a computer, a camcorder, a camera, and various digital storage media. Later that day, condoms were recovered from defendant's jacket pocket. She testified that defendant had never used condoms in their intimate relationship.
Defendant's stepdaughter, J.M., testified that she was born on October 21, 1990. J.M. stated that in the spring of 2002, when she was 12, she had several unusual conversations with defendant in his room while her mother was at work. During these conversations, defendant told J.M. that he could help her start a modeling career and form a band with his daughters and another daughter of a friend. He said J.M would make "a lot of money." Defendant told J.M. not to tell her mother because he wanted to "surprise her." Defendant also told J.M. that he signed a modeling contract for her and that an individual named Cindy would arrange for photo shoots and get J.M. clothing. Apparently to that end, defendant took several measurements of J.M. in his room.
After several conversations, defendant eventually persuaded J.M. that, as a part of her contract, she needed to test condoms and some lotion. J.M. indicated that the lotion was intended to be put on her body and defendant would lick it off. As for the condoms, defendant would put one on and J.M. would perform oral sex on him. Although J.M. did not want to test the products, defendant told her it was necessary in order to launch her modeling and music career. J.M.testified that she told defendant she did not want to test the lotions because she did not want defendant touching her, but would test the condoms if she had to. As a demonstration, defendant retrieved a plastic grocery bag, put it over his penis, and told J.M., "What you do now is the exact same thing you're going to do when we have the condom on." Defendant instructed J.M. to kneel and to put her mouth on his penis and "move [her] head backward and forward." J.M. complied and defendant continued to instruct her. After approximately 10 minutes, defendant removed the bag and J.M. left the room.
J.M. testified that although she was disgusted, she felt she did not have a choice because her career depended on it. The next day, J.M. was in defendant's room again and was told to do the same thing she did before with the grocery bag and she complied. After that day, J.M. testified that defendant would have her perform oral sex on him while he wore a condom once or twice a week. J.M. did not inform her mother because defendant told her that if she ever told her mother, she would disown J.M. and she would be placed into foster care.
In the summer of 2003, J.M. and her family were in the process of moving to Hillside, Illinois. J.M. and defendant continued to have conversations about modeling and her band, with defendant stating that they just had to give it time. At one point, J.M. was told by her mother that if she continued to misbehave at school and in the house, J.M. would be sent to "boot camp." Defendant later took J.M. to see their new house at Hillside. Once there, he told J.M. that if she did not want to go to boot camp, she could perform oral sex on him at that time and he would later talk to her mother. Defendant drove to a nearby drug store and purchased condoms, and the two went into the basement of the Hillside house where J.M. performed oral sex on defendant.
After moving to Hillside, J.M. would perform oral sex on defendant throughout the summer according to defendant's requests. J.M. testified that the frequency of the acts varied from one to three times a week, depending on whether her brother or mother was home and defendant's work schedule. Defendant's advances also changed during this time, as he began performing oral sex on J.M., touching and licking her breasts, recording videos of the acts, as well as taking photos of J.M. unclothed.
On one occasion in the summer of 2003, defendant initiated vaginal intercourse with J.M., with the penetration lasting a minute and her screaming in pain. Defendant then abandoned his attempt and made J.M. perform oral sex on him instead. In July 2003, J.M. told defendant she was "sick and tired of everything" and she was "not going to do anything anymore." Defendant then informed J.M. that Cindy was going to sue J.M. and her mother for $200,000. J.M. told defendant that she "would rather be touched by a girl," and in response, defendant told her that if she could find another girl to make a video with, he would "let [J.M] off the hook for a good two weeks." J.M. spoke to a close friend, J.T., and told her she needed help. After hearing an explanation of the situation, J.T. agreed to help but told J.M., "make sure he doesn't talk to me, make sure he doesn't touch me." J.M. then testified as to one distinct occasion when J.T. came over, where defendant had J.M. and J.T. perform oral sex on defendant and how the acts were recorded with a camcorder. J.M. could not remember if sexual acts occurred on other occasions that J.T. visited.
Once J.M. started seventh grade, she stated that the sexual acts had increased up to five times a week. Defendant would have J.M. feed her brother and put him in his room, after which J.M. would perform sexual acts for defendant. J.M. testified she continued to perform sexual acts because defendant informed her that if she stopped, Cindy would continue to sue J.M. and her mother. After seventh grade, J.M and her family moved to Franklin Park. Defendant continued to have J.M. perform oral sex on him approximately three or four times a week, telling J.M. that Cindy was requiring J.M. to do so to "pay off what you owe [Cindy]." At the Franklin Park residence, defendant would use a webcam to make recordings of the sexual acts to, under J.M.'s belief, send to Cindy. J.M. testified that on one occasion, when she was unwilling to accede to defendant's demand for oral sex, she was told to speak to a woman on the phone whom defendant said was Cindy. "Cindy" told J.M., "listen to your stepfather, he is a good man, just listen to what he says and do what he is telling you to do."
As J.M. started eighth grade, she attempted to stay away from her house as much as possible but defendant still had J.M. perform sexual acts approximately every other Saturday while her mother was at work. On October 11, 2004, defendant told J.M. it was time to make another video, but J.M. refused. Shortly thereafter, J.M. and defendant had a conversation where he threatened a confrontation with Cindy the following Friday, October 22, 2004. Defendant stated that Cindy would be at the residence when J.M. returned from school and warned her that she was "screwed over now." That same day, J.M. wrote a note to a friend relating her fears of being sued, wanting another chance, and wanting to run away. Later that day, J.M. talked with Rosanne Zuccaro, the substitute social worker, and told her what had been happening with defendant, which led school officials to contact the local police.
J.M.'s friend, J.T., testified that she was born on May 6, 1990. During the summer of 2003, J.T. testified that she spoke to her friend nearly every day on the phone. During one phone conversation, J.M. asked her for help because "she had to do some modeling and her step-dad was the one doing it and she needed help in order to get out of it," but was otherwise not specific. Not long thereafter, on a summer afternoon, J.T. was visiting J.M. at her house when defendant called his step-daughter to the basement. After 30 to 45 minutes, J.T. went to the basement to look for her. J.M. ran up to J.T., told her to relax and then blindfolded her. J.M. took her hand and placed it on defendant's penis and told her to give defendant oral sex, which she did. J.T. was eventually told to stop by J.M., and her blindfold was taken off. Defendant told J.T. not to tell anyone because he had her parents' "account numbers," and that if she told anyone, her parents would not be able to buy a house and he would take her away from her parents. J.T. testified she visited three more times over that summer, and defendant had her and J.M. perform various sexual acts. She stated that she did not tell anyone because she was scared her parents would be taken away from her and that her parents would lose their house. J.T. and J.M. did not see each other anymore after the last incident, although they spoke occasionally over the phone. J.T. further testified that she did not tell anyone what had happened until she was contacted by the Franklin Park police in October 2004.
Roseanne Zuccaro testified that on October 22, 2004, she was a teacher at Hester Junior High School in Franklin Park. On that day, Zuccaro was checking her mailbox in the school's office at around 2:30 p.m. when she was asked to fill in for the school's social worker. Zuccaro entered the social worker's office and saw that J.M. was upset. After being asked what was wrong, J.M. said that she had made movies involving sexual acts with her stepfather and that she did not want to make the movies anymore. Zuccaro and J.M. discussed the situation until 3 p.m., when she told J.M. it was okay to go to volleyball practice. Unsure as to her responsibilities since she was filling in for the social worker, Zuccaro spoke to the assistant principal, prompting notification of the local police department and the retrieval of J.M. from volleyball practice.
Detective Vito Busse testified that on October 22, 2004, he was working as an evidence technician in the investigation for the underlying case. He testified that upon entering defendant's residence, he saw a disassembled computer on the floor that was missing a hard drive. He recovered a number of items from the residence, including a compact disc labeled "Jose's Stuff," a digital camera, a camcorder, various computer disks and components, and a few videotapes which Detective Busse later learned contained recordings of various family events. Detective Busse also testified that it appeared something had been burnt in the kitchen sink. He also observed black material, similar to what was in the kitchen sink, on a toilet seat and a nearby pink towel.
Brad Giglio testified that in October 2004, he was an assistant State's Attorney (ASA) assigned to the child exploitation unit. He interviewed both J.M. and J.T. at separate times, and subsequently met with defendant. During a meeting at around 9 p.m. on October 23, 2004, defendant was read his rights and signed a Miranda waiver form. He asked Giglio for guarantees that he would not go to "jail" if he decided to talk about what happened. Giglio responded that he could not give a guarantee because he did not want defendant's statements to be coerced or otherwise based on some sort of promise, resulting in defendant terminating the interview.
Detective Michael Jones testified that on October 22, 2004, he was assigned to the investigation of the underlying case. At around 4:30 p.m. and 5 p.m., J.M. and her mother respectively arrived at the station. Defendant arrived at 6 p.m., sweating and breathing heavily, and was taken to an interview room. Defendant was read his rights and agreed to speak with Detective Jones. During this time, Detective Jones also learned of the second alleged victim, J.T., and at approximately 2:40 a.m. on October 23, 2004, Detective Jones stated to defendant that "his troubles had just gotten bigger." Defendant asked Detective Jones what guarantees could be made if he gave a confession. Detective Jones stated he could not make any promises and defendant responded he would give a confession but needed another glass of water. Right around this time, an attorney, Michael Clancy, appeared at the station and met with defendant who signed a form indicating that he would not speak with the police. Some 18 hours later, at around 9 p.m., Jones said that defendant again indicated he would give a confession if he was guaranteed no jail time. Detective Jones was with Giglio and testified similarly to the events that Giglio described.
John Griffin, Jr., also testified for the State. He stated that he was an investigator for the State's Attorney's office in Cook County for 13 years as of the time of this particular investigation. At the time of trial, he worked for the Secret Service of the United States. He testified he had been employed in computer analysis work for approximately five years and had experience examining computers and computer components in a variety of cases, including child pornography, computer hacking, credit card fraud, and bank fraud. He also testified that he has examined at least 100,000 files or video clips of child pornography. The trial court declared Griffin to be an expert in the area of computer forensic analysis. Griffin testified that he was asked to analyze a compact disc labeled "Jose's Stuff," and two internal hard drives for child pornography. He testified that the two hard drives contained various documents and several pornographic images; however, the images were of adults. On the compact disc, Griffin testified that it contained various videos, images, music, and documents. He testified that one filed was named, "13-year-old give head," which caught his attention. He offered his opinion that the video contained a "young adolescent performing fellatio on a male subject" and that the male "looked to be older than her." He also opined that the female was "small in stature" with "underdeveloped breasts," and believed the individual in the video was "a juvenile".
On behalf of defendant, Dora Hernandez testified first. She stated she was the mother of defendant's two daughters. She testified that defendant, pursuant to a court order, would pick up his daughters every Saturday at noon and bring them to back to Hernandez on Sunday evenings. She acknowledged that there were some Saturdays when he did not pick them up, usually due to a special occasion. She also stated defendant was a "wonderful father." Both Evelyn and Maria testified as well. They stated that they would visit defendant on the weekends and that they never saw or heard about anything inappropriate occurring between defendant and J.M. Defendant's mother, Ramona LaCourt, testified that she would see her grandchildren regularly on the weekends and J.M. never complained about defendant. Defendant's aunt, J.J. LaCourt-Grant also testified that she saw J.M. regularly and that she never complained about defendant.
Defendant testified on his own behalf. He testified that he worked for a technological company where he served as a supervisor in a department that dealt with circuit boards. The daughters he had with Dora Hernandez would visit every Saturday and Sunday he was not working. He testified he only saw J.T. once or twice when he lived in Berwyn. When living at Berwyn, defendant built two computers for the household, but one of the computers broke after the family moved to Hillside. When at Hillside, defendant testified that he and Mrs. Rivera began to have personal and financial problems, and were discussing getting divorced. At that time, defendant was seeing an individual named Cindy.
Defendant and Mrs. Rivera sold their Hillside house due to their personal and financial problems and moved to Franklin Park in an effort to rekindle their relationship. While living in Franklin Park, on October 20, 2004, defendant testified that he brought Evelyn to his house to have her live with him because her grades were declining and he believed a change of environment could be beneficial. Defendant testified that Mrs. Rivera was unhappy with the situation and the two fought, and so Evelyn stayed with his aunt that night. On October 21, defendant registered Evelyn in the local school and drove her to school the next day, the day defendant was also called to the Franklin Park police department.
Defendant specifically denied all of the testimony of the two girls about the sexual acts that were related in the State's case-in-chief. He also denied the rather involved testimony about the musical group, lotion and condom testing, and the potential modeling career for his step-daughter. Defendant further denied asking for guarantees regarding probation and imprisonment from then-ASA Giglio or Detective Jones. He explained that the computer in Franklin Park was disassembled because he was attempting to replace the hard drive. Defendant also explained that the burning smell in the kitchen, as well as the ashes in the sink and on a towel, were from an attempt to light a candle in the bedroom to create a romantic atmosphere for his wife. He had lit a piece of paper and walked toward the bedroom, but before being able to light the candle, he turned around back to the kitchen and threw the burning paper into the sink. On cross-examination, however, defendant stated he successfully lit the candle.
Defendant was found guilty by the jury of three counts of predatory criminal sexual assault, three counts of criminal sexual assault, five counts of aggravated criminal sexual abuse, and one count of child pornography. The trial court sentenced defendant to 75 years' imprisonment. This timely appeal followed.
Defendant contends that the trial court erred in denying his motion to suppress statements he made to the police. In reviewing a motion to suppress, this court is presented with questions of law and fact. People v. Terry, 379 Ill. App. 3d 288, 292 (2008). We give great deference to factual findings by the trial court and will only reverse such findings if they are against the manifest weight of the evidence. People v. Cosby, 231 Ill. 2d 262, 270-71 (2008). We, however, review the trial court's legal determination of whether suppression is warranted under those facts de novo. Terry, 379 Ill. App. 3d at 292.
Defendant filed a motion to suppress which alleged that: (1) defendant was arrested by the Franklin Park police department; (2) defendant was subsequently questioned; (3) attorney Michael Clancy met with defendant; (4) defendant, in the presence of Clancy and Detective Jones, asserted his right to remain silent; (5) defendant signed a written assertion of his Miranda rights in the presence of Clancy and Detective Jones; and (6) defendant was subsequently questioned and made statements in violation of Edwards v. Arizona, 451 U.S. 477 (1981).
Evidence presented at the hearing on the motion to suppress revealed the following sequence of events: Detective Jones and Deputy Chief Jack Krecker met with defendant at 6:06 p.m. on October 22, 2004. Defendant was read his Miranda rights, which defendant indicated he understood. He waived his rights through a signed and initialed form and subsequently engaged in a number of conversations. Clancy received a call at 1:30 a.m. on October 23, 2004, from defendant's uncle and was subsequently retained by him on behalf of defendant. Clancy arrived at the Franklin Park police department at 3:15 a.m, and met with defendant shortly thereafter. Defendant discussed his Miranda rights with Clancy and initialed and signed a written assertion of his Miranda rights. Clancy left the police department at 3:34 a.m.
At 5:15 p.m., Detective Page entered the lockup area of the police department to take a photo of defendant for use in a photo array. Detective Page did not speak to defendant, but defendant did ask if Detective Jones was in the station. Detective Page answered affirmatively, and defendant asked if he could speak to Detective Jones. Detective Page said, "okay" and relayed the information to Detective Jones. At 9:14 p.m., Detective Jones and ASA Giglio met with defendant. Detective Jones asked defendant if he wanted to speak to them and defendant answered affirmatively. Defendant was again read his Miranda rights, which he waived, memorialized by a signed and initialed waiver form. Giglio asked defendant if he had met with an attorney, and defendant answered yes. Giglio also asked defendant if he was self-initiating the instant conversation, and defendant said yes. Defendant spoke to Detective Jones and Giglio until around 9:43 p.m., at which point defendant requested to call his attorney. Defendant was able to reach his aunt and mother, but was unable to reach Clancy, and was then returned to his cell by the police without further conversation. At 10:55 p.m., Clancy returned to the police station and although defendant denied speaking to the police, Clancy advised defendant to not speak and then reinvoked defendant's Miranda rights. Defendant argues that he did not reinitiate contact with the police prior to the evening conversation occurring on October 23, 2004, but that instead the police did when Detective Page entered his cell to take a photograph.
Edwards held that a defendant, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. Whether a defendant reinitiates contact is subject to a double-pronged inquiry. First, we must determine whether the defendant, rather than the police, initiated the conversation in a manner evincing a "willingness and a desire for a generalized discussion about the investigation." Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). If it is determined that the defendant did reinitiate contact, the next inquiry is whether the defendant, by his or her initiation of such a conversation, coupled with the totality of the other circumstances, knowingly and intelligently waived his right to the presence of counsel and his right to remain silent during custodial interrogation. Bradshaw, 462 U.S. at 1046.
Defendant points solely to People v. Olivera, 164 Ill. 2d 382 (1995), in support of his argument that he did not reinitiate contact with the police. Olivera, however, is readily distinguishable. In Olivera, the defendant, after participating in a lineup, asked a detective, " 'what happened[?]' " Olivera, 164 Ill. 2d at 387. The detective responded that the defendant was " 'positively identified.' " Id. The detective testified the defendant " 'stated that he wanted to know what happens next. I told him I wanted to advise him of his rights, and I advised him of his rights at that time.' " Id. Defendant subsequently gave a statement. Our supreme court noted that the defendant's initial question of "what happened" was insufficient to establish, on defendant's part, "a willingness and a desire for a generalized discussion concerning the investigation," failing to satisfy the first prong of the analysis. Olivera, 164 Ill. 2d at 390-91. Furthermore, the detective's response that the defendant had been positively identified was "one that could and did elicit further comment by the defendant." Id. at 391.
The exchange between Detective Page and defendant was in a entirely different context than the one in Olivera. Defendant's first statement to Detective Page, without any prompting, was whether Detective Jones was still in the station. Upon discovering that Detective Jones was still present, defendant requested to speak with Detective Jones. From this simple exchange, it is apparent that defendant unilaterally evidenced a willingness and a desire for a generalized discussion concerning the investigation. In Olivera, however, the defendant was subject to a lineup, after which he asked what had happened. There is no indication the defendant in Olivera had any initial desire to actually speak with the police regarding the investigation until immediately after the detective indicated to the defendant that he had been positively identified. Had the detective in Olivera indicated to the defendant was not identified, one could reasonably believe that the defendant's subsequent response would be considerably different. Here, Detective Page's comments were neutral in character, in that they only confirmed the presence of an individual that defendant already wished to speak to, as opposed to a comment imputing guilt upon defendant, as was the case in Olivera. We also note that defendant explicitly acknowledged that he was self-initiating the conversation with Detective Jones. Accordingly, the trial court's determination that defendant reinitiated contact was not against the manifest weight of the evidence.
Having confirmed that defendant reinitiated contact with the police, we must determine whether defendant knowingly and intelligently waived his right to the presence of counsel and his right to remain silent during custodial interrogation. Given the totality of the circumstances, this court finds that the trial court's determination that defendant's waiver was made knowingly, intelligently, and voluntarily. Defendant had been explained his Miranda rights on multiple occasions in written and oral form, including through a conversation with his attorney. Prior to the reinitiated conversation with Detective Jones, defendant was reread his Miranda rights and asked if he understood the rights, and he signed and initialed a written waiver form. Defendant was also asked by Giglio whether defendant had met with his attorney and was nevertheless self-initiating the conversation, to which defendant responded affirmatively. Furthermore, defendant has an associate's degree in a technological field, therefore creating little, if any, doubt that he understood his rights. Finally, it is clear defendant ...