Appeal from the Circuit Court of De Kalb County. No. 05-CF-169 Honorable Robbin J. Stuckert, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.
¶ 1 In the appeal of his predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(l) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(l) convictions regarding a two-year-old boy, S.C., defendant, John Theis, raises three issues. The first is whether the trial court improperly admitted into evidence his videotaped interrogation. The second is whether testimony and the prosecutor's argument regarding defendant's body language during his interrogation infringed on his right to remain silent. The third is whether the trial court erred by admitting an overwhelming amount of evidence of alleged other crimes. For the reasons set forth below, we affirm.
¶ 3 The following facts are undisputed. In early 2005, Brandi Lewis and her two-year-old son, S.C., the victim in this case, lived at the Hope Haven homeless shelter in De Kalb, Illinois. During the same period, defendant and his wife, Valorie Theis, lived at the homeless shelter with their son, Max, and Valorie's daughter, M.L., who was then about 51/2 years old.
¶ 4 At trial, Valorie testified that she recalled giving videotaped interviews to police on March 28, 2005, and in June 2008, but could not remember the statements she made during the interviews. Valorie testified that she had been addicted to Vicodin and that she still loved defendant and did not want him to go to prison. Valorie testified that she was testifying pursuant to a plea agreement regarding her guilty plea for predatory criminal sexual assault of her daughter, M.L. In exchange for her testimony, Valorie received a sentence of 30 years in prison instead of natural life. Valorie had a cellmate named Lynda Larson while in prison, but Valorie could not recall what they discussed.
¶ 5 De Kalb police detective Mark Nachman testified as follows. On March 28, 2005, he received a call and brought Valorie from the Harbor Inn Motel to the De Kalb police department for a videotaped interview. Detective Nachman recounted the details of Valorie's videotaped interview, which was admitted into evidence and published to the jury.
¶ 6 The March 2005 videotaped interview depicts Valorie stating the following. Defendant touched S.C.'s penis, sucked on S.C.'s penis, placed his finger in S.C.'s anus, and told Valorie to place her finger in S.C.'s anus; Valorie complied. Both defendant and Valorie used lubricant while penetrating S.C. Defendant placed his penis in S.C.'s anus and ejaculated on S.C.'s body.
¶ 7 Detective Nachman also testified that, in June 2008, Valorie provided a second interview that was recorded on a DVD. Valorie's attorney and an assistant State's Attorney were present during the recorded interview. Detective Nachman recounted the details of this interview, which was admitted into evidence and published to the jury.
¶ 8 The June 2008 recorded interview depicts Valorie stating the following. Defendant had vaginal and anal intercourse with M.L. 30 to 40 times at the Hope Haven homeless shelter, at least once a week. Defendant got mad at M.L., especially for crying, and would punish her by putting anal beads, a vibrator, and a dildo in M.L.'s vagina and anus. Valorie saw defendant use each device on M.L. between five and seven times. Defendant also placed his fingers into M.L.'s anus while wearing latex gloves. Defendant was physically and sexually abusive to Valorie and was jealous of the attention Valorie showed M.L. On several occasions, when M.L. told Valorie that she did not like defendant, he punished M.L. by making her place her mouth on his penis.
¶ 9 During the recorded interview Valorie also stated that M.L. was curious about sex and that Valorie and M.L. occasionally performed sex acts such as touching each other's breasts and vaginas.
¶ 10 Lynda Larson, who was housed on Valorie's cell block, testified that Valorie told her the following. Valorie was in prison for molesting S.C. and M.L. Larson testified that Valorie told her that defendant "bit [S.C.'s] penis and played with his anus prior to sodomy." Valorie "fingered [M.L.] because she was fearful of [defendant]." Although Valorie was addicted to Vicodin, "she was not under the influence at the time." Valorie repeatedly told Larson that she had been truthful with the police.
¶ 11 Detective Nachman also testified that, in March 2005, he interviewed defendant and the interview was videotaped. Prior to the interview, defendant was provided Miranda warnings, both orally and in writing, and defendant signed a Miranda waiver form. Detective Nachman was trained as an interrogator to notice body language, eye contact, and strength of denials. During the interview, defendant "turned away from [Detective Nachman]. He wouldn't look [Detective Nachman] in the eyes. He was covered up. He was sad. At some point he cried, talked about how his life was over." Detective Nachman also testified that defendant "continuously" asked for a cigarette. Detective Nachman testified that he "talked to [defendant] about him having his mouth on [S.C.'s] penis, and his response was, 'I can't picture that,' which [Detective Nachman] found noteworthy." Defendant "[i]nitially denied doing anything and made the statement that he never changed [S.C.'s] diaper, and that was unsolicited without me asking him anything about changing diapers." Without objection, the entire two-hour videotaped interview was admitted into evidence and published to the jury.
¶ 12 The videotaped interview of defendant depicts the following. At first, defendant denied changing S.C.'s diaper. Later, defendant admitted changing his diaper. Defendant stated that he accidentally "pinched" S.C.'s penis. Detective Nachman told defendant more than once that police had physical evidence, that Valorie told Detective Nachman the truth about what had happened, that he knew that defendant had put his mouth on S.C.'s penis and put his own penis into S.C.'s anus. Detective Nachman also told defendant more than once that he knew defendant was lying and that more happened between him and S.C. than he admitted. Detective Nachman told defendant that this was his opportunity to make himself look like an honest person who made one mistake rather than a true sexual predator. Defendant denied doing anything beyond pinching S.C.'s penis.
¶ 13 Prior to trial, the trial court admitted statements that S.C. made to Lewis, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2004)). Lewis testified that S.C. was born at the Hope Haven homeless shelter on January 20, 2003. Defendant and Valorie occasionally watched S.C. while Lewis worked and Lewis's mother was unavailable. After defendant and Valorie watched S.C. for one week in March 2005, S.C.'s demeanor changed "drastically." Prior to that week, S.C. was "very playful" and "very happy." S.C. liked to roll around on the floor and liked when Lewis gave him "raspberries." After the week in March 2005, S.C. did not like being touched below his "lower back area" when Lewis gave S.C. a bath and did not like having his diaper changed. Prior to the week in March 2005, it was easy to change his diaper. The first day after defendant and Valorie watched S.C. for the week in March 2005, while changing S.C.'s diaper Lewis tried to blow S.C. "raspberries" on his tummy, but, instead of S.C.'s normal reaction, he started "flipping and thrashing" and said "No Mommy. Owie, owie." S.C. then threw himself off the bed and split his head open on an end table. S.C. also began looking uncomfortable and attempted to hold his bowel movements. S.C. had never acted like that before.
¶ 14 Lewis testified that, before the week in question in March 2005, S.C. told Lewis when he soiled his diaper and changing his diaper "was a quick procedure." After the week in question, S.C. walked around for hours with soiled diapers and refused to allow Lewis to touch him "anywhere" during diaper changes.
¶ 15 Lewis also testified that S.C. spoke "pretty well." Lewis asked S.C. if "[defendant] or somebody else" had touched him. S.C. replied, "I bite [defendant]." Lewis asked, "why did you bite [defendant]?" S.C. answered, "[defendant] bite me." When Lewis asked S.C. where defendant bit him, S.C. lifted his shirt and touched his tummy. Lewis asked S.C. if defendant or Valorie had touched him anywhere else, and S.C. touched his penis and said, "[defendant] touch my pee" or "[defendant] bite my pee."
¶ 16 Lewis also testified that defendant "wanted to spend a lot of time with S.C." and always offered to baby-sit, play with, and bathe S.C. and change his diapers. Valorie became angry with Lewis when she asked someone else to baby-sit for S.C. On March 30, 2005, Lewis went to the police and filed a report.
¶ 17 Sangita Rangala, an expert in pediatric sexual abuse, testified that she examined S.C. on April 4, 2005. Doctor Rangala found a loss or decrease in the normal folds around the anus, but there was no way to know what caused S.C.'s condition based solely on her examination.
¶ 18 Theresa Sanchez, a friend of defendant and Valorie, testified that, on March 25, 2005, she began caring for Max. Florence Sternberg, defendant's mother, was caring for M.L. They went to a hotel room, where defendant had been staying, to pick up the children's things. In the hotel room they found a plastic bag containing hemorrhoidal "[c]ream, a lubricant of some sort, and a rubber glove," which Sanchez gave to police.
¶ 19 Sternberg testified that, while in defendant's hotel room, defendant called and asked if "the bitch" was there, referring to Valorie. Defendant said, "[t]he stupid bitch sold me down the river. She sang like a bird and she's going to cost me life in prison." He also said, "I kept my mouth shut like I told her to do, but no, she didn't listen to me."
¶ 20 Sternberg testified that Valorie was caring for M.L. until her arrest on March 28, 2005. When Sternberg went to defendant's hotel room with Sanchez to get the children's things, she found a blue bag filled with toys. When Sternberg opened the blue bag at home and pulled out a black bag from the larger blue bag, M.L.'s eyes "got really big and she started shaking." M.L. "[k]ept yelling, 'no, no, no.' " Sternberg put the bag behind a chair and said, "[i]t's gone," but M.L. continued to shake and ran to her room. Sternberg later discovered that the black bag contained a "dildo, some ointments and some other things." Sternberg gave the items to police.
¶ 21 Sternberg also testified that, when Detective Nachman came to the house to collect a DNA sample from M.L., she "was excited." Sternberg and M.L. had "practiced DNA." However, as soon as Detective Nachman put on rubber gloves, M.L. began to cry, ran to her room, and locked the door. M.L.'s DNA was later obtained from her toothbrush.
¶ 22 Detective Nachman testified that, when he came to Sternberg's home to collect a DNA sample from M.L. and put on latex gloves, M.L. screamed, ran to her room, and locked the door. No amount of coaxing could get her out of her room. The police eventually obtained a sample of M.L.'s DNA from her toothbrush.
¶ 23 Toya Jones, a director at the Hope Haven homeless shelter, testified that Lewis, S.C., defendant, Valorie, M.L., and Max were all residents at Hope Haven. In early 2005, Lewis was "extremely upset" and came to Jones regarding changes in S.C.'s behavior. Jones, who saw S.C. every day, noticed a change as well. S.C. would not speak or play and instead he "just clung to [Lewis] a lot" and would not "allow anybody to touch him." Before the change, S.C. was a "happy little guy."
¶ 24 Jones also testified that she did not recall ever hearing M.L. speak; she was "really withdrawn" and "just kind of clung" to her mother. Defendant worked a nighttime job, arrived at the shelter at about 9:30 p.m., and slept until noon. Defendant usually awoke with M.L., "Valorie and sometimes [S.C.]"
¶ 25 Cynthia Cale, a forensic DNA analyst, testified that she found M.L.'s, Valorie's, and, possibly, ...