Appeal from the Circuit Court of Cook County. No. 07 CR5693 Honorable Mary Margaret Brosnahan, Judge Presiding
The opinion of the court was delivered by: Presiding Justice Cunningham
PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.
In April 2009 the defendant, Donnell Turman, was convicted by a jury in the circuit court of Cook County of the Class 1 felony offense of criminal sexual assault. This offense required a finding that, while committing an act of sexual penetration, the defendant knew that the victim was unable to give knowing consent. 720 ILCS 5/12-13(a)(2) (West 2008). The trial court sentenced the defendant to five years of imprisonment. 730 ILCS 5/5-8-1(a)(4) (West 2008). The written sentencing order is devoid of any mention of a period of mandatory supervised release (MSR). The defendant filed a timely appeal of his conviction and sentence.
On appeal, the defendant raises the following issues: (1) whether the trial court violated his right to due process and a fair trial when it instructed the jurors that the term "reasonable doubt" was for them to define; (2) whether his right to a fair trial was denied because the trial court failed to instruct the jury that it could consider whether or not the defendant made prior inconsistent statements to the police; (3) whether the State failed to prove beyond a reasonable doubt that thedefendant knew the victim could not give knowing consent to sex; (4) whether the trial court abused its discretion because it did not allow defense counsel to disclose to the jury, either in defense counsel's opening statement or during trial, the statements that the defendant made to police until after the State had introduced the statements into evidence; (5) whether the defendant is entitled to a new trial because the trial court violated Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); and (6) whether the cause should be remanded to allow the trial court to impose a definite term of MSR.
For the following reasons, we reverse the defendant's conviction and remand the case to the trial court for a new trial.
The testimony at trial showed that on February 2, 2007, at approximately 11 or 11:30 p.m., the 17-year-old defendant and his 20-year-old brother, Jamol Turman (Jamol), arrived at a party in downtown Chicago. The victim, B.W., was 19 years old and also attended the party with David Nelson (Nelson), her friend and college classmate. Letasha Drake (Drake) testified for the State as follows. At the party she observed B.W. "drinking a lot, a lot of vodka, excessively." Drake and the victim were drinking straight vodka in eight-ounce cups. At one point during the party, Drake entered the bathroom and found B.W. passed out and lying across the toilet. Drake asked for help removing B.W. from the toilet. The defendant and Drake picked B.W. up and placed her in the bathtub. Drake described B.W. as being "lethargic. Her mouth was wide open. Her eyes were rolling back. She was moaning, making really disturbing noises." After leaving the bathroom, Drake returned to the party and asked if anyone would help B.W. The defendant answeredaffirmatively and went into the bathroom and closed the door. Drake saw B.W. approximately one hour later and B.W.'s eyes were "still kind of rolled back. All you could see was the white in her eyes." Drake stated during cross-examination that B.W. was drinking voluntarily and that she never saw her being forced to drink.
David Nelson testified for the State as follows. B.W. was very drunk at the party. He and the defendant helped B.W. to the bathroom, where he witnessed her vomiting. Nelson brought B.W. water and she vomited it up. The defendant stayed in the bathroom to help B.W., and then later Nelson saw B.W. "[p]assed out. She was just like her eyes were closed. She was sitting there. She would moan and that's really it."
Nelson left the party between 2 a.m. and 3 a.m. with the defendant, Jamol and B.W. in Jamol's car. Jamol drove to the apartment building where Nelson and B.W. lived. The defendant was in the backseat with B.W., who "started shaking like seizurely [sic] shaking and spitting up and moaning." The defendant's reaction to B.W.'s behavior was "[h]oly crap, what's going on." The defendant "did most of the carrying this time to take [B.W.] upstairs" to her apartment. Nelson stated he used his own key card to enter the building and reached into B.W.'s purse to get her apartment key.
Once they were in B.W.'s apartment, the defendant and Nelson placed B.W. on her bed. Nelson described B.W. as "passed out." Nelson and Jamol left the building and later returned to Nelson's apartment. At approximately 5 a.m., Nelson was awakened by Jamol and they went to B.W.'s apartment. B.W. was "flat out cold, out cold." The defendant and B.W. were in B.W.'s bed, and the defendant's head was near B.W.'s feet, with his feet near B.W.'s head.
Nelson did not see B.W. again until approximately 4 to 5 p.m. that same day. B.W. showed Nelson a note that the defendant had left in her bra. The note contained the defendant's phone number asking B.W. to call him. The note also contained the following:
"What up baby, this is D-money AKA Donnell Jamol brother. OK even though you have a boyfriend thats cool, well my fault your getting married soon. but anyway even though you were drunk thats the reason you were acting the way you were acting I mean I actually had to pick you up and put you in my car and take you home and someone had to stay with you especially the way you were spitting up on the way home and when we first got here don't get me wrong it was just the alcohol but don't trip we were both drunk as hell we both still had some very interesting sex and to be honest you kept on asking me but I kept saying no but you kept saying yes but for the record it was just the alcohol but the only thing is we both would have to keep our mouths closed.
P.S I still would like to talk to you on the low key excuse the hand writing Thank you for the ...