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The People of the State of Illinois v. Perry Ward

June 16, 2011


The opinion of the court was delivered by: Chief Justice Kilbride

CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Justices Freeman, Burke, and Theis concurred in the judgment and opinion.

Justice Garman dissented, with opinion, joined by Justices Thomas and Karmeier.


In defendant Perry Ward's trial for the criminal sexual assault of M.M., the circuit court of Cook County admitted evidence that defendant had also been involved in the criminal sexual assault of another woman, L.S. In admitting the other-crimes evidence, the court relied on section 115--7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--7.3 (West 2006)), permitting the evidence to be used under certain circumstances to show a defendant's propensity to commit sex crimes. When defendant sought to have evidence admitted of his acquittal in L.S.'s case, however, the trial court rejected his request.

Defendant was convicted of the criminal sexual assault of M.M. and sentenced to 25 years in prison. The appellate court affirmed (389

Ill. App. 3d 757), and defendant now appeals to this court, arguing that the trial court erroneously refused to admit evidence of his prior acquittal.

We reverse the appellate court judgment affirming the trial court's refusal to admit evidence of defendant's acquittal in L.S.'s case. We conclude that barring the acquittal evidence here was an abuse of the trial court's discretion and remand the cause for a new trial.


In June 2003, L.S. reported to police that she had been sexually assaulted as she was walking home alone late at night after a party. When the police took her to the hospital emergency room for treatment, she saw defendant in the waiting room and identified him as her attacker. Subsequent testing of DNA evidence obtained from

L.S. matched defendant, and defendant was charged with criminal sexual assault. At trial, defendant presented a consent defense, claiming he had paid L.S. for sex. The jury acquitted defendant of the criminal sexual assault charge.

The DNA evidence recovered from L.S., however, also matched DNA obtained in an unsolved February 2002 assault on M.M., linking defendant to the earlier attack. Based on that match, he was arrested and charged in the circuit court of Cook County with the criminal sexual assault of M.M. at issue in this appeal.

In M.M.'s case, the State filed a pretrial motion pursuant to section 115--7.3 (725 ILCS 5/115--7.3 (West 2006)), seeking to admit evidence of defendant's alleged sexual assault of L.S. At the motion hearing, the State argued that the two crimes were close in time and factually similar and that the probative value of L.S.'s testimony outweighed the risk of undue prejudice. Defense counsel argued that the other-crimes evidence was irrelevant and that its admission would be highly prejudicial because the alleged assault on L.S. was significantly more violent than the alleged assault on M.M.

The trial court allowed the State to admit the other-crimes evidence after considering the three factors set out in the statute for balancing the evidence's probative value against its risk of undue prejudice: "(1) the proximity in time to the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and circumstances." 725 ILCS 5/115--7.3(c) (West 2002). The court specifically found the 16 months between the two attacks was an acceptable time frame and observed that the victims were demographically similar, met defendant under similar circumstances, and were both taken to secluded areas, where they claimed to have been threatened and forced to perform multiple sex acts. The court also cited the presence of defendant's DNA and use of a consent defense in both cases. The trial court then permitted the State to use L.S.'s testimony to establish defendant's propensity to commit sex crimes as well as the absence of mistake and lack of consent.

At trial, M.M. testified that she spoke to defendant, a stranger, at a store where she had walked after midnight to get some food. As they were talking, she asked defendant for a cigarette. When she reached into a van parked around the corner to retrieve the cigarettes as defendant had directed, she was shoved inside and sexually assaulted. M.M. recalled that defendant held an unidentifiable object in his hand during the assault and that she cooperated because she was threatened. In addition, Chicago police detective Edwin Kaup testified that during his interview of M.M. at the hospital after the assault she appeared to be "very traumatized, very shocked." He described her as shaking, hyperventilating, and crying.

Before presenting L.S.'s testimony, the State filed a motion in limine asking the trial court to bar defendant from telling the jury he had already been tried and acquitted of that criminal sexual assault charge. The trial court allowed the State's motion, reasoning that the jury's findings in the earlier trial were entirely irrelevant to the conclusions M.M.'s jury might draw based on the specific evidence before it. The court explained that the jury in M.M.'s assault case should make its own assessment of L.S.'s credibility and determine for itself the weight, if any, to give to her testimony. The judge added that the acquittal in L.S.'s case could also have been attributable to the legal ability of defense counsel in that case.

Both before and after L.S.'s testimony, the trial court instructed the jury that it was to consider the evidence only for defendant's propensity to commit crimes and his consent defense. The trial court further informed the jury, "[i]t is for you to determine whether the defendant was involved in that offense and if so, what weight should be given to the evidence on this issue of the defendant's propensity to commit sex crimes and lack of consent." L.S. then testified to her version of defendant's alleged attack on her in June 2003.

In part, L.S. testified that she saw defendant standing by some bushes near the train tracks she had started to cross when coming home alone late from a friend's party. When defendant asked her if she wanted to "kick with him," meaning to spend some time with him, she told him to get away. As she started to run, he grabbed her by the hair and held a knife to her throat. He told her to "shut up" and threatened to kill her. Defendant pulled L.S. through the bushes and knocked her to the ground, where they struggled until he slammed her head against the concrete. He sexually assaulted her before again hitting her head against the concrete when she tried to burn him with her lighter. He then sexually assaulted her a second time.

When defendant released L.S., she went home and told her fiancee she had been raped. After he called the police, they took her first to the scene of the alleged attack and then to the hospital. As they entered the emergency room, L.S. saw defendant sitting in the waiting area and identified him to the police. A sexual assault examination was performed, and she was observed to have two small cuts, one on her neck and one on her finger, as well as scratches on her back, that she attributed to her struggle with defendant. She had no cuts or other injuries to her head.

During L.S.'s direct testimony, the State did not ask her any questions about the earlier trial. A reference was made during cross-examination, however, when L.S. stated that the State did not need to prepare her to testify in this case because she had testified before. Defense counsel made another brief reference to L.S.'s prior court testimony during closing arguments, observing that she was not afraid of defense lawyers or of being in a courtroom because "[s]he knows how the drill goes" since she had "testified before." In her testimony,

L.S. also admitted to using a false name during a prior arrest for retail theft. Those charges were later dismissed.

At the close of her testimony, the trial court repeated its admonishment that the jury must decide whether defendant had been involved in the offense L.S. described and how much weight to give that evidence when evaluating both his propensity to commit sex crimes and his consent defense. A similar instruction was given, both orally and in writing, before the jury began its deliberations.

Defendant testified that he was an alcoholic who frequented prostitutes. He admitted having sexual intercourse with both M.M. and L.S. but insisted that the acts were consensual and that he paid both women. He then gave his version of the alleged attack on M.M., stating that she approached him at a tavern and offered to perform sexual acts for money. He also testified about L.S.'s earlier alleged assault, indicating that she, too, had solicited him for sex.

The jury convicted defendant of the criminal sexual assault of M.M., and he was sentenced to 25 years in prison as a Class X offender. The appellate court affirmed and denied defendant's petition for rehearing. This court allowed his petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).


Defendant raises two issues before this court, but we need address only the merits of his claim that the trial court abused its discretion by refusing to admit evidence of his acquittal in L.S.'s case. Because that issue is determinative, we need not address whether principles of statutory construction or the doctrine of collateral estoppel preclude the application of section 115--7.3 (725 ILCS 5/115--7.3 (West 2006)) to defendants previously acquitted of other offenses.

Although defendant couches his acquittal evidence argument in terms of fundamental fairness and due process, we conclude he is not making a formal constitutional challenge to the statute. He neither identifies the applicable constitutional standard of review nor argues that section 115--7.3 violates either the state or federal constitutions. In fact, he readily admits that the statute is constitutional.

Instead, defendant appears to argue that the trial court erred because its refusal to admit evidence that he had been acquitted of assaulting L.S. unfairly prejudiced his defense. We review the propriety of a ruling on the admission of other-crimes evidence for an abuse of the trial court's discretion. People v. Donoho, 204 Ill. 2d 159, 186 (2003). An abuse of discretion occurs when the ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court's view. People v. Illgen, 145 Ill. 2d 353, 364 (1991).

Here, the State defends the trial court's refusal to admit the acquittal evidence because the prior verdict had been based on different evidence and could simply be attributable to more adroit "lawyering," as the trial court noted. Accordingly, it argues no abuse of discretion occurred.

Defendant contends that the trial court's ruling was an abuse of discretion because the jury was entitled to hear all the evidence affecting the probative value and reliability of the other-crimes evidence necessary to weigh the evidence properly. He adds that

L.S.'s testimony on cross-examination "suggest[ed] that [defendant] was involved in a prior criminal proceeding involving her," "very likely" leading the jury to conclude erroneously that he had been convicted of L.S.'s sexual assault and improperly bolstering her credibility.

Traditionally, evidence relating to a defendant's propensity to commit crimes has been excluded from criminal trials because it tends to be overly persuasive to a jury, who may "convict the defendant only because it feels he or she is a bad person deserving punishment." People v. Lindgren, 79 Ill. 2d 129, 137 (1980). See also People v. McKibbins, 96 Ill. 2d 176, 182 (1983) (noting that other-crimes evidence is generally inadmissible to show the defendant's propensity to commit a crime). As the United States Supreme Court explained in Michelson v. United States, 335 U.S. 469, 475-76 (1948),

"Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. *** The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." (Emphasis added.)

In Illinois, however, our legislature has chosen to provide a limited exception to this general rule of inadmissibility for other-crimes evidence intended to show the defendant's propensity to commit crimes. If a defendant is tried on one of the enumerated sex offenses, section 115--7.3(b) of the Code (725 ILCS 5/115--7.3(b) (West 2006)) allows the State to introduce evidence that the defendant also committed another of the specified sex offenses. The statute expressly permits this other-crimes evidence to be admitted for any relevant purpose. 725 ILCS 5/115--7.3(b) (West 2006). As the Supreme Court recognized in Michelson, propensity evidence is often highly relevant, making other-crimes evidence admissible under section 115--7.3 to show a defendant's propensity to commit sex crimes.

Before the other-crimes evidence may be used, however, the statute requires the court to apply a balancing test, weighing the probative value of the evidence against the undue prejudice it may produce against the defendant. 725 ILCS 5/115--7.3(c) (West 2006). This court has previously upheld the constitutionality of section 115--7.3. People v. Donoho, 204 Ill. 2d 159, 190 (2003).

Here, however, defendant argues the trial court abused its discretion by precluding the admission of his acquittal evidence because L.S.'s testimony about her alleged attack was highly prejudicial and detailed a considerably more violent attack than did M.M.'s testimony. We note that the plain statutory language permits admission of both evidence of "defendant's commission of another [enumerated] offense or offenses" and "evidence to rebut that proof or an inference from that proof." 725 ILCS 5/115--7.3(b) (West 2006). The acquittal evidence defendant sought to admit would have aided in rebutting the inference created by L.S.'s testimony that he had a propensity to commit sex offenses, making it admissible under section 115--7.3.

In support, defendant cites other state jurisdictions holding that acquittal evidence is highly relevant and that it is an abuse of discretion to withhold it from the jury. See Kinney v. People, 187 P.3d 548, 556 (Colo. 2008). See also Hess v. State, 20 P.3d 1121, 1125 (Alaska 2001); State v. Davis, 619 P.2d 1062 (Ariz. Ct. App. 1980); People v. Griffin, 426 P.2d 507 (Cal. 1967); People v. Mullens, 119 Cal. App. 4th 648, 666 (Cal. Ct. App. 2004); Nolan v. State, 131 A.2d 851, 857-58 (Md. 1957); Walker v. State, 921 P.2d 923 (Nev. 1996); State v. Smith, 532 P.2d 9, 11-12 (Or. 1975); State v. Bernier, 491 A.2d 1000, 1005-06 (R.I. 1985). We need not examine case law from other states, however, if Illinois law adequately addresses the issue.

Defendant cites two Illinois appellate court decisions stating that fairness requires a jury be told of a defendant's prior acquittal even when the other-crimes evidence is admitted only for less inherently prejudicial nonpropensity purposes. See People v. Bedoya, 325 Ill. App. 3d 926, 943 (2001); People v. Overton, 281 Ill. App. 3d 209 (1996). In Bedoya, the court's discussion of the acquittal evidence was arguably dicta because it came after the court found that the other-crimes evidence had been improperly admitted, but it constituted an extensive and integral part of the court's decision. At a minimum, the court's determination that evidence of the defendant's acquittal had to be admitted to avoid undue prejudice to the defendant constituted judicial dicta carrying the force of the reviewing court's determination and warranting considerable weight. Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93, 100 (2004).

In Bedoya, the defendant was originally tried for both aggravated discharge of a firearm and first degree murder. He was acquitted of the firearms charge but convicted of the murder charge. The murder conviction was later overturned on appeal. During the retrial of the murder charge, the State introduced evidence related to the prior firearms charge as other-crimes evidence showing the defendant's mental state at the time of the killing. The defendant, however, was barred from introducing evidence that he was previously acquitted of the firearms charge. Bedoya, 325 Ill. App. 3d at 928. He was again convicted of first degree murder and appealed.

On appeal, the Bedoya court reversed the murder conviction and remanded the cause for a new trial, concluding that "[f]airness required disclosure" because the "jury could have been left with the false impression that those [previously tried] 'offenses' were alive and pending," making the "risk of misleading or overpersuading the jury *** palpable." Bedoya, 325 Ill. App. 3d at 943. The court also found it notable that, in upholding the constitutionality of admitting other-crimes evidence in Dowling v. United States, 493 U.S. 342, 346, 354 (1990), the United States Supreme Court added that the jury in that case had received instructions stating that the defendant had been acquitted of the offense implicated in the other-crimes evidence. Bedoya, 325 Ill. App. 3d at 942-43. In addition, the Bedoya court relied on its prior reversal of an armed robbery conviction based on the erroneous admission of other-crimes evidence in Overton. Bedoya, 325 Ill. App. 3d at 943.

In Overton, the court held that the admission of other-crimes evidence unfairly prejudiced the defendant, requiring reversal of his conviction and remand for a new trial. Overton, 281 Ill. App. 3d at 217. Because the jury was not told the defendant had been acquitted of the other charge, the court found that the State had failed to demonstrate either the relevance of the other-crimes evidence "or that the evidence was not prejudicial." Overton, 281 Ill. App. 3d at 216. Instead, the court found that the prejudice from admitting the other-crimes evidence, absent any evidence of the defendant's prior acquittal, "was unnecessarily prejudicial, outweighing any potential probative value." Overton, 281 Ill. App. 3d at 216.

Here, the State advocates the adoption of the principle widely applied in federal courts that acquittal evidence is generally inadmissible as either hearsay that fails to prove the defendant's actual innocence or as evidence that is unduly prejudicial and potentially confusing if used to rebut inferences based on differing evidence in the two trials. Defendant counters that these cases are contrary to Illinois law and should not be followed.

We conclude we need not look to federal case law because existing Illinois law supplies the necessary answers. The jury's function is "to assess the credibility of witnesses, weigh the evidence presented, resolve conflicts in the evidence, and draw reasonable inferences from the evidence." People v. Moss, 205 Ill. 2d 139, 164 (2001). To perform this function properly, the jurors logically must have access to as much relevant, admissible evidence as possible. Without that evidence, the reliability of the jury's conclusions is called into question. Our reviewing courts are commonly called upon to evaluate whether a trial court's application of an evidentiary balancing test is an abuse of discretion resulting in undue prejudice. Thus, we need not consider the law applied in other jurisdictions to decide this appeal because Illinois law provides an adequate basis for our analysis.

To determine whether the trial court abused its discretion in barring the evidence of defendant's acquittal in L.S.'s case, we must apply a balancing test. Under that test, the court must weigh "the probative value of the evidence against undue prejudice to the defendant." 725 ILCS 5/115--7.3(c) (West 2006). The statute lists three factors that may be considered in applying this balancing test, namely, the proximity in time between the two acts alleged, the factual similarity between the acts, or other relevant circumstances and facts. The ...

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