Appeal from the Circuit Court of Cook County. No. 08 CR 16590 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hall and Justice Hoffman concurred in the judgment and opinion.
¶ 1 Defendant, Jerry Peters, appeals his convictions of predatory criminal sexual assault of a child and criminal sexual assault and his sentence of natural life imprisonment. Defendant contends:
(1) the circuit court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) by failing to ask the potential jurors during voir dire whether they understood and accepted the principles set forth in People v. Zehr, 103 Ill. 2d 472 (1984); (2) his mandatory natural life sentence violated the proportionate penalties clause; and (3) his mittimus should be corrected to accurately reflect the counts of which he was convicted. We affirm defendant's convictions and sentence and correct the mittimus.
¶ 2 Defendant was charged with three counts of predatory criminal sexual assault of a child and three counts of criminal sexual assault. The predatory criminal sexual assault charges alleged that, on or about March 1, 2001, through August 5, 2003, defendant, who was 17 years of age or over, knowingly committed an act of sexual penetration upon J.J., who was under 13 years of age, by making contact between: his penis and J.J.'s vagina (count I); his penis and J.J.'s anus (count II); and his mouth and J.J.'s vagina (count III). The criminal sexual assault charges alleged that, on or about, August 6, 2003, through March 25, 2004, defendant knowingly committed an act of sexual penetration upon his stepdaughter J.J., who was under 18 years of age, when he made contact between: his penis and J.J.'s vagina (count IV); his penis and J.J.'s anus (count V); and his mouth and J.J.'s vagina (count VI).
¶ 3 During jury selection, the court advised the venire of "certain fundamental principles" that "apply to this trial like they've applied to every other trial in the history of our country." First, the court advised the venire that "a criminal trial begins with the person accused of a crime presumed to be innocent." The court further explained:
"This is how a criminal trial starts. Whoever walks in accused of a crime walks in the court presumed to be innocent. We don't take the position, well, if he's accused, he must have done something wrong or else they wouldn't be held for trial. They don't take the position, somebody did something wrong or else there wouldn't be a trial. An accused begins proceedings in court presumed to be innocent. Is there anybody here who has a problem with that most fundamental proposition of American justice, that when a criminal trial starts, the accused is presumed to be innocent? If you have a problem with that, please raise your hand. No hands are raised."
¶ 4 The court then explained that a person becomes accused of a crime when the government brings formal charges against him by filing a piece of paper listing those charges. The court stated that the fact the paper was filed does not necessarily mean defendant did something wrong. Then the court asked, "[I]s there anybody here who would hold it against the accused simply because someone in the government filed a piece of paper in court indicating what the formal charges are? If you have feelings like that, please raise your hand. No hands are raised."
¶ 5 The court further explained:
"The only way someone can be guilty of a crime is if the government who brought the charges against the accused is able to prove the accused guilty beyond a reasonable doubt. *** The government has the burden of proof. They have to prove the case beyond a reasonable doubt. You don't guess somebody guilty. You don't make a hunch they're guilty. You don't think they're guilty. The only way you can be guilty is if the government brought the charge and proved guilt beyond a reasonable doubt. Anybody have a problem with that proposition? The only way you can be guilty is if the government [that] brought the case can prove guilt beyond a reasonable doubt. Do you have a problem with that, please raise your hand? No hands are raised."
¶ 6 Finally, the court discussed one "last proposition":
"In a criminal trial, the person accused of a crime does not have to prove their innocence. In a criminal trial, the burden of proof is on the government, they have to prove guilt beyond a reasonable doubt. An accused doesn't have to prove anything at all. An accused does not have to testify. It is their perfect right not to testify. They don't have to call any witnesses on their own behalf. It is their perfect right not to call witnesses on their own behalf. Hypothetically speaking, there can be a criminal trial. The government may call a hundred witnesses against the accused. The accused, which is their perfect right, chooses not to testify, and which is also their right, chooses not to call any witnesses on their own behalf. After hearing from a hundred people on one side, no people on the other, there can be a reasonable doubt the jury find [sic] as to whether the government has indeed proven their case as required. With that said, is there anybody here who would hold it against the accused if they did not testify, which is their perfect right, or did not call any witnesses on their own behalf, which is their right? Anybody here who feels the accused has some responsibility in a criminal case to prove their innocence? If you have feelings like that, please raise your hands. No hands are raised. Okay."
¶ 7 The court also individually asked each venireperson who was selected for the jury if he or she would hold it against defendant if he did not testify. Each person selected replied that he or she would not.
¶ 8 At trial, J.J. testified she was 10 years old in 2001 and lived with her mother, uncle, and brother. Her mother was dating defendant at that time, and he also had been living in their home for two or three years. In March 2001, J.J. came home from school at approximately 3:20 p.m. Defendant was home, and he asked J.J. to come into the bedroom he shared with her mother. Defendant asked J.J. to sit on the bed and take off her clothes. J.J. did so. Defendant took off his clothes and told J.J. to lie down. Defendant climbed on top of J.J., applied baby oil to her vaginal area, and inserted his penis into her vagina. After he was finished, defendant told J.J. not to tell anyone or else she would "go to DCFS" and never see her mother again. Defendant also threatened to hurt her mother if J.J. told anyone what he had done. One week later, defendant again asked J.J. to come into his room, where he inserted his penis into her vagina. This continued to happen two to three times a week for three years. J.J. testified she saw "cum" come out of defendant's penis on the occasions when he inserted it into her vagina. J.J. testified defendant also would place his mouth on her vagina and move his tongue back and forth. Defendant also tried to put his penis inside her mouth, but he was unable to do so because she kept moving and he eventually grew tired of fighting her.
¶ 9 J.J. testified defendant married her mother in September 2001. Prior to the marriage, J.J. never told her mother about what defendant was doing because she was too afraid. J.J. wrote about the incidents in a diary and left it out in the hope that her brother would read it and come to her aid. Instead, defendant discovered the diary and ripped it up. Then he called her into his room, told her not to write about what he had been doing to her, and told her to lie down and take off all her clothes. He inserted his penis into her vagina, then he told her to turn over and he inserted his penis into her anus. J.J. subsequently told her best friend, Adrienne, about what defendant had been doing to her.
¶ 10 J.J. testified that, on March 25, 2004, she came home from school and defendant asked her to come into his room "like every other day." Defendant told her to lie down and take off all her clothes, after which he inserted his penis into her vagina. Defendant later left and picked up her mother from work in order to go bowling. After defendant left, J.J.'s brother, K.J., called her and she told him that defendant had been "messing" with her. K.J. drove over and picked her up and then drove to the bowling alley, where they saw defendant and their mother. K.J. began screaming and cursing at defendant. Defendant said nothing in response. J.J. left the bowling alley with her mother and K.J. and went to the hospital where she underwent a physical examination. She also spoke with police while at the hospital.
¶ 11 K.J. testified that, on March 25, 2004, he was working at a barbershop when he received a phone call from a female who stated her name was "Tweet." K.J. did not know this person. They had a brief conversation about J.J. After hanging up the phone and finishing work, K.J. called J.J. and asked her if defendant had been "messing with her." J.J. said yes and began crying. K.J. drove over and picked up J.J. and his eight-year-old son, whom J.J. was baby-sitting. K.J. drove around until he met up with his friend, Lamont Jones. K.J. left J.J. and his son in the car while he got out to speak with Lamont. Lamont gave K.J. a handgun. K.J. placed the gun in the waist of his pants and he put the clip in his pocket. Then he dropped his son off at his mother's house and drove over to the bowling alley. K.J. told J.J. to go inside the bowling alley; as she did so, he finished parking, took the clip out of his pocket, and put it inside the gun. Then he walked into the bowling alley, where he saw defendant and his mother. K.J. cursed at defendant and yelled out that he had "f***ed" his sister. Defendant made no response but continued bowling. His mother came over, and K.J. told her that defendant had been "f***ing" J.J. Then K.J. pulled the gun out of his pocket and pointed it at defendant's groin. The owner of the bowling alley stepped between K.J. and defendant, grabbed the gun, and told K.J. "It ain't worth it." A couple of men dragged K.J. outside the bowling alley. His mother and J.J. joined him outside. K.J. testified they drove to their mother's house and then to the hospital.
¶ 12 J.J.'s mother, Anita P., testified she began dating defendant in 1996 and that he moved in with her one year later. Anita's daughter, J.J., and her youngest son, T.J., as well as their uncle Clarence, also lived with them. Anita married defendant in September 2001. Anita worked at a messenger service in 2001 and began working at a bank in 2002. She usually arrived home at 6 p.m. While she was at work, defendant was responsible for picking J.J. up from school.
¶ 13 Anita testified that, on March 25, 2004, she and defendant went bowling after work. While they were at the bowling alley, J.J. and K.J. came in and K.J. began cursing and saying that defendant had been "f***ing" J.J. for three years. While K.J. was saying this, J.J. was crying. Defendant made no response but continued bowling. Anita walked over to K.J. to "see what was going on." Defendant subsequently called Anita into the locker room and told her not to "bring DCFS into [their] life right now." Anita asked defendant about what was going on, but he said that he could not talk about it right now. Anita left the bowling alley and went home with K.J. and J.J. Then they took J.J. to the hospital. Anita never saw defendant after that night.
¶ 14 Nanette Kelly testified she is a registered nurse and she examined J.J. on March 25, 2004, at the hospital. J.J. had stated that she had been sexually assaulted. J.J.'s underwear was collected, and Doctor Carrie Wilson took a vaginal swab, pubic comb, and blood sample from J.J., using a sexual assault kit. Nurse Kelly testified that J.J.'s hymen was broken. Officer Zdziarski picked up the sexual assault kit.
¶ 15 Doctor Robin Cotton was qualified as an expert in the field of DNA analysis and testified that, from 1988 to 2006, she worked for Cellmark Diagnostics, later called Orchid Cellmark, which was a DNA testing lab. Her primary duties were to review the work of other analysts at the lab. Doctor Cotton testified that, on April 29, 2004, Orchid Cellmark received a blood specimen and four vaginal swabs taken from J.J. DNA profiles were generated from the blood sample and from semen on the vaginal swabs.
¶ 16 Detective Mike Dimeo testified that, on August 12, 2008, defendant "came into contact" with Chicago police officers "concerning a traffic matter" and was placed into custody based on a prior investigative alert that had been issued for defendant based on his alleged involvement in J.J.'s sexual assault. Michael Scarriot, an evidence technician for the Chicago police department, testified that, on August 13, 2008, he took a buccal swab from defendant's inner mouth. The swab was subsequently sealed and inventoried.
¶ 17 Janice Martino, a forensic scientist with the Illinois State Police, was qualified as an expert in the field of forensic DNA analysis and testified that she received defendant's buccal swab, from which she generated a DNA profile. She compared this DNA profile with the DNA profile generated by Orchid Cellmark from the vaginal swabs taken from J.J. Ms. Martino concluded that the DNA profile from defendant's buccal swab matched the DNA profile from J.J.'s vaginal swabs. Ms. Martino testified that the DNA profile from J.J.'s vaginal swabs would be expected to match only 1 in 100 quadrillion black individuals, 1 in 3.4 quintillion white individuals, or 1 in 12 quintillion Hispanic individuals.
¶ 18 Detective Dimeo testified that he met with defendant on August 13, 2008, in a police department interview room. Detective Dimeo gave defendant his Miranda rights and defendant stated he understood them. Defendant told Detective Dimeo that he had a "special relationship" with J.J., in which he had penetrated her vagina with his penis numerous times, had touched his mouth to her vagina numerous times, and had fondled her breasts on multiple occasions. Defendant also stated ...