Court of Appeals of Illinois, First District, Second Division
Defendant’s convictions and sentences for predatory criminal sexual assault were upheld where his trial counsel was not ineffective in failing to investigate the effect of his neurological and cognitive impairments on his ability to waive his Miranda rights, in failing to raise a meaningful challenge to the voluntariness of his confession, or in failing to call certain witnesses; furthermore, defendant was not denied a fair trial by the court’s admission of evidence that the complaining witness had an abortion or the State’s inference that defendant had abused other adopted siblings, and although the trial court erred in giving a modified version of the pattern instruction on prior inconsistent statements, the error was harmless under the circumstances.
Appeal from the Circuit Court of Cook County, No. 08-CR-18227; the Hon. Joel L. Greenblatt, Judge, presiding.
Arnstein & Lehr LLP, of Chicago (Ronald D. Menaker and Julie A. Meyer, of counsel), for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Tasha- Marie Kelly, and Koula A. Fournier, Assistant State’s Attorneys, of counsel), for the People.
Presiding Justice Harris and Justice Connors concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Christopher Cooper was found guilty of four counts of criminal sexual assault and four counts of predatory criminal sexual assault. At sentencing, the court merged defendant's convictions and sentenced him to consecutive terms of 8 years' imprisonment on the four counts of predatory criminal sexual assault, for an aggregate term of 32 years' imprisonment. On appeal, defendant contends that: (1) trial counsel was ineffective for failing to investigate the extent of his neurological and cognitive impairments and their effect on his ability to knowingly and competently waive his Miranda rights; (2) trial counsel was ineffective for failing to present a meaningful pretrial challenge to the voluntariness of his confession; (3) trial counsel was ineffective for failing to call available witnesses; (4) he was denied a fair trial when the State was allowed to present evidence that the complaining witness was forced to undergo an abortion; (5) he was denied a fair trial when the State inferred to the jury that he sexually abused other adopted siblings; and (6) the trial court erred in giving a pattern jury instruction in its modified form. For the following reasons, we affirm.
¶ 2 I. BACKGROUND
¶ 3 The record shows, in relevant part, that defendant was charged with four counts of predatory criminal sexual assault and four counts of criminal sexual assault in connection with his sexual abuse of R.C., his younger adopted sister, over the course of many years. Prior to trial, he filed a motion to suppress a statement he gave to police admitting the abuse on the grounds that it was involuntarily given. He alleged, inter alia, that his "will was overborne in that it is clear from the transcript that the Detectives clearly tried to create a position of trust by stating he knew [defendant's] father, " and that "the Detectives appeared to coerce [him] into making a confession by stating he was a victim of circumstance." He further alleged that he "has an IQ of 79, is diagnosed with ADHD, had a traumatic brain injury [at] birth, learning disability, as well as restricted reading and spelling abilities with low intellectual functioning."
¶ 4 At the hearing on defendant's motion, Rosemont police detective Jeff Caldwell testified that on August 21, 2008, he arrested defendant in Lombard for criminal sexual offenses. He then returned to the Rosemont police station and called the assistant State's Attorney (ASA). Prior to the ASA's arrival, an attorney appeared on defendant's behalf and was allowed to speak with him, and when he came out of the room, he said, "I don't want my client to talk to you guys." No one had attempted to speak with defendant beforehand, and no one attempted to speak with him thereafter.
¶ 5 Detective Caldwell next saw defendant on the afternoon of August 22. About 1 p.m., he removed defendant from his cell to bring him to a bond hearing. He first brought him into a booking room where Detective Richmond and Detective Muich were present, and the detectives instructed him to change into his street clothes and handcuffed him. At that point, defendant asked whether he would receive bond and how long he would have to remain in jail, and Detective Caldwell responded that he would not get bond and that he did not know how long he would remain in jail. Defendant then said, "I'm guilty. I did all those bad things to my sisters that were said that I did." Detective Caldwell told defendant "not to say anything else; that we had to do some paperwork, and we would be back to talk, " and defendant told them that he wanted to speak to them "without his lawyer present."
¶ 6 That same afternoon, Detective Caldwell read defendant his Miranda rights and obtained his signature on a Miranda rights form. He then took defendant's statement in the presence of Detective Muich, who tape recorded it. During their conversation, Detective Caldwell told defendant that he would get him some help, but only after defendant said that he needed it. He did not tell defendant to "man up" before reading him his Miranda rights.
¶ 7 Rosemont detective Ronald Muich testified that on August 21, 2009, he accompanied Detective Caldwell, Detective Richmond, and Lieutenant Hasselberger to Lombard where defendant was taken into custody. Defendant and Lieutenant Hasselberger rode in his squad car back to Rosemont, and he did not have any conversation with defendant during the ride. When they arrived at the Rosemont police station, defendant was brought into a holding room, and Detective Muich stayed with him for about two hours and engaged in "[v]ery minimal conversation" with him. When asked what he discussed with defendant, Detective Muich testified that "it was just some small talk about his father, and he was telling me how much he missed his dad and really just about his dad." Detective Muich testified that he told defendant that he knew his father, and that "he was a real nice man, and, you know, I'm sorry that he passed away and that was pretty much it."
¶ 8 The following day, about 1 p.m., Detective Muich saw defendant again when he was taken out of his cell for a bond hearing and brought to a holding room where he, Detective Caldwell, and Detective Richmond were present. Defendant changed into his own clothes and was eventually handcuffed, and Detective Caldwell explained the bond hearing procedure to him. Although defendant mentioned his bond, nobody told him what it would be. Detective Muich did not recall defendant asking how long he would have to remain in jail. At some point, defendant, who was in handcuffs, turned to him and Detective Caldwell and said, "I'm guilty. I did all these bad things to my sister–my sisters." Detective Caldwell then put up his hand and asked, "Christopher, are you reinitiating conversation with us, " and defendant replied, "yes, I am."
¶ 9 Thereafter, Detective Caldwell read defendant his Miranda rights, and defendant was advised that his statement was going to be tape recorded, which he said was "fine." Detective Muich asked several times whether defendant was willing to reinitiate conversation without his attorney, and defendant responded, "yes, I am." After defendant was Mirandized, something about "help" came up, and the detectives said they "would talk to somebody in court. If he needed any kind of help, we would help him." When counsel asked Detective Muich whether he recalled having a conversation with defendant involving the statement "your father's looking down on you from heaven, " Detective Muich testified that he "never brought up the word heaven." He also testified that he never used the phrase "man up."
¶ 10 Detective Muich testified that he knew defendant prior to arresting him. Defendant worked at Allstate Arena in maintenance, and whenever he saw Detective Muich, he would approach him and say "hi, " and Detective Muich would say "hi" back. Detective Muich testified that he knew defendant's family as well, stating: "As an auxillary officer for Rosemont, I used to follow the school bus, and that's when I used to talk to Mr. [C.] a lot and he used to bring [defendant] and some of the other children to school so that's how I kind of knew the family."
¶ 11 The defense entered into evidence a copy of the Miranda waiver executed by defendant. The parties also stipulated that defendant has an intelligence quotient of 79. Counsel then argued that defendant's statement was not voluntary under the totality of the circumstances. Referring to his IQ, counsel noted that defendant "does not have such a low IQ where we are alleging any kind of mental retardation but it is the susceptibility that he had." He also noted that Detective Caldwell told defendant that he would not receive bond, that the Detectives specifically promised him that they were going to help him, and that it was "undignified being told to change in a holding area or booking room with people walking around." Ultimately, the court denied defendant's motion to suppress, finding, inter alia, that "[t]he waiver was knowingly and intelligently corroborated by his not only signing but initialing various phases of the written Miranda Warnings."
¶ 12 The State subsequently filed a motion to permit the use of other crimes evidence, citing defendant's sexual abuse of another sibling, but the memorandum of orders reflects that the motion was withdrawn. Thereafter, on the day of jury selection, the topic of defendant's other victims came up when the parties and the court discussed the editing of defendant's audiotaped statement. At that time, counsel indicated to the court that defendant's statement had been redacted, and the State clarified that the "confession that was taken isn't only in relation to this victim, " and that "[a]ny reference to anyone else other than this victim, [R.C.], was redacted from the audiotape, as well as from the transcript." The court, at that point, noted, "I want to be very certain that there is not even a hint of any other alleged victim, not even–so it becomes important, and I'm sure [defense counsel] has listened to it very carefully, to begin that redaction prior to any intimation that there might be someone else."
¶ 13 That same day, counsel also made an oral motion in limine "to bar the State from asking questions about pregnancy or abortion, unless they are in a position to prove up those two purported facts, " arguing that such testimony from the victim was hearsay. The State responded that it could prove those facts through the testimony of the victim, and the court noted that it "tend[ed] to agree with the State" and denied the motion.
¶ 14 At the ensuing jury trial, R.C. testified that she was born on November 11, 1990, and that she lived in Rosemont with her adoptive mother Patricia C. from the time she was a baby until she was 17 years of age, along with five adopted brothers and six adopted sisters. The house that she lived in was a "normal three-story house, " and the boys slept in the basement, her adoptive father Hugh C. slept on the middle floor, and the girls slept upstairs.
¶ 15 R.C. testified to a pattern of sexual abuse by defendant, her adopted brother, who was eight years older. Beginning when she was about six years old, defendant would insert his fingers into her vagina on a weekly basis, either in the basement, in her room, or on the stairs going up to her room. She would cry when this happened, and defendant would put a pillow over her face and say, "Be quiet, be quiet." When she was eight or nine years old, defendant then began putting his mouth on her vagina once a week to twice a month. In subsequent years, when she was about 12 or 13 years old, defendant began making her perform oral sex on him and would also insert his penis in her vagina once or twice a month. About this time, R.C. started feeling sick; she "would throw up a lot during the day, and just felt different." She thought that she was pregnant and spoke with Patricia C. about it at her adopted sister Robin C.'s house in Lombard. Patricia C. confronted defendant, and defendant told Patricia C. that they only had sex once. After taking a pregnancy test, R.C. had an abortion in 2004 at the age of 13.
¶ 16 Shortly thereafter, detectives from the Rosemont police department came to R.C.'s school to speak with her. R.C. did not tell them the truth about who got her pregnant and told them it was a guy that she met on the street because that is what Patricia C. told her to say. In 2006, R.C. also met with Bonnie Fries for a private interview at a Children's Advocacy Center after investigators were told that something was going on in the house. She did not tell Fries what defendant had done to her because Patricia C. had told her that she "would go to a foster home and nobody wants teenagers, " and she did not want to go to a shelter. Instead, she told Fries the same story that she had told the detectives, the one Patricia C. told her to tell, which was "[t]hat I met this guy that was, like, coming up on the side of the street, and then I felt lonely because my brother had just passed away, so I decided to have sex."
¶ 17 In late August 2008, police picked up R.C. from Robin C.'s house the day after she missed an interview at the Children's Advocacy Center. She was brought to the Rosemont police station and told Detective Caldwell everything that had happened with defendant because, in her words, "I was just, like, sick of being there and the abuse that was going on, and at the time I was 17, so I saw my sisters living on their own, and I figured I could do it myself." R.C. also had another interview with Fries at the Children's Advocacy Center and told her what defendant had done to her because she "didn't want to lie anymore." After her conversation with Detective Caldwell, R.C. never lived with Patricia C. or defendant again.
¶ 18 On cross-examination, R.C. stated that she came forward with her story of sexual abuse because she was sick of being at the house with defendant. She wanted to tell police about the abuse in 2004, but was threatened by Patricia C. that they would beat her, or that she would be placed in a shelter. R.C. stated that she was scared of Patricia C., Robin C., and defendant. She also could not confide in Ronald C., Patricia C.'s biological son who was a police officer, because he was related to Patricia C. and she did not trust him.
¶ 19 R.C. was confronted with a letter she had written to her friend Katelyn in 2004 about the circumstances of her pregnancy, which stated:
"I was with my best friends, and we were walking in the woods, and my friends left to go get something, and all of a sudden my boyfriend comes with a guy that I've never seen, and the guy has a camera, and my boyfriend has never taken drugs and all of that, but this time he got high off of something and started punching me and slapping me, and I was so scared I didn't know what to do. And after that, he punched me really hard, and I got knocked out. And he raped me. I woke up the last minute of it when my friends came back and threw him off me." R.C. acknowledged writing this letter, but stated that it was "not truthful at all."
¶ 20 R.C. stated that when she was interviewed by Fries in 2006, they were alone and she did not feel threatened. However, she stated that she did not feel that she could be truthful with Fries because she knew that if "Pat [C.] would find out, [she would] be in trouble, so [she] kept it a lie." R.C. also acknowledged that when she spoke with Fries on September 2, 2008, she did not mention that defendant had put his penis in her mouth, or that defendant had performed oral sex on her.
¶ 21 R.C. further acknowledged an e-mail that she sent to Robin C. on the morning of August 27, 2008. The e-mail stated, inter alia, that "I didn't mean to tell on Chris. None of it was the truth." It also stated, "I told them that I got pregnant by somebody. His name is Jeff. I don't know his last name, but I knew him for a while, and he moved to another state a long time ago, like four years ago." She explained in the e-mail that "[t]he police told me to tell them what they wanted to hear."
¶ 22 R.C. stated that when defendant had sexual intercourse with her on the staircase the noise was loud, but that her father "was on an oxygen tank that was so loud, so it's pretty hard to hear over that, and he would sleep with the TV on." R.C. trusted her father, but she never told him about the sexual abuse because she thought that she would get in trouble.
¶ 23 On redirect, R.C. testified that it is embarrassing to talk about what defendant did to her. She also testified that she told Fries the truth in September 2008, just not the whole truth, and that she told the truth to Detective Caldwell in 2008. She further testified that she wrote the letter to her friend Katelyn "[b]ecause my friends would look at me, like, weird, like, 'Oh, your brother touched you, ' so I made up a lie so they wouldn't, like, look at me gross or disgusting."
¶ 24 R.C. testified that she was scared of Robin C. because "[s]he would beat us when we would get in trouble for, like, the smallest little things and, like, threaten us, threaten to kill us at numerous times." She also testified that what she wrote in the e-mail to Robin C. was not true, and that she wrote it because, "I had just gotten off the phone with her, and I was staying at a shelter, and it was, like–I didn't like it at all, and I just wanted to go home, like, where I grew up my whole life, even if it was bad."
¶ 25 Detective Muich testified that on August 21, 2008, Detective Caldwell received a report from Department of Children and Family Services (DCFS). Based on that report, Detective Muich, Lieutenant Hasselberger, Detective Caldwell, and Detective Richmond went to 6119 Hawthorne Street, in Rosemont, to take R.C., Melissa C., and Michael C. into protective DCFS custody. When no one was home, they went to Robin C.'s house at 327 Stewart Avenue, in Lombard, and found defendant and the children.
¶ 26 Detective Caldwell testified that on August 21, 2008, he was assigned by DCFS to take temporary custody of Melissa C., Michael C., and R.C. He went to 6119 Hawthorne Street, where the family resided, but no one was home. He then went to Robin C.'s house and found Patricia C., defendant, R.C., Michael C., and Melissa C. Detective Caldwell testified that he brought the children to the Rosemont police station, and that defendant was taken into custody and brought there by Detective Muich and Lieutenant Hasselberger. Detective Caldwell spoke with R.C. at the station for a few hours after which she was brought to a DCFS shelter. He did not speak with defendant that evening.
¶ 27 About 1 p.m. on August 22, 2008, Detective Caldwell was preparing defendant for a bond hearing when defendant stated that "he was guilty and that he did all the bad things that were said that he did to his sister." Detective Caldwell told him, "Well, hold on a second. Don't say anything else." He then removed defendant's handcuffs and asked him, "Are you saying you want to talk to us, " and defendant responded, "Yes." The detective asked, "Without your attorney, " and defendant said, "Yes, I want to talk to you." Detective Caldwell told defendant to wait, then moved him to an interview room, advised him of his rights from a Miranda waiver form, and had him initial those rights and sign the form.
¶ 28 Detective Caldwell then had a taped conversation with defendant. Defendant told him that when he was 16 or 17 years old, he began having sexual relations with R.C., who was then 8 years old. He initially would penetrate her vagina with one or two fingers about once a month, and throughout the conversation, defendant stated that "he licked her pussy and that he enjoyed doing that." When R.C. was about 13 years old and in eighth grade, he had intercourse with her which resulted in pregnancy. He stated that "[h]e knew that he was the father, and he said he did not want to be the father and Patricia was mad at him, and Patricia and Robin took [R.C.] to an abortion clinic to have the baby aborted." Defendant explained that he would ejaculate in the toilet or in the sink after sex, but not in her or on her other than that one time. He also told Detective Caldwell that "he wished that he had told the truth on the night that he was picked up, and he wished that he had told Detective Muich when he had the opportunity, and he's sorry that it went on for so long." Detective Caldwell learned that defendant's birthday is March 11, 1982. The State rested. Defendant's motion for a directed verdict was denied.
¶ 29 For the defense, Detective Muich testified that about 1 p.m. on August 22, 2008, he was downstairs at the Rosemont police station getting defendant ready for a bond hearing. Defendant had previously been informed of the charges against him by the officers who processed him in the middle of the night, and Detective Caldwell informed him of the charges again, though Detective Muich does not remember exactly what was said. Detective Muich testified that "there was [also] some conversation about how he was going to be turned over to the sheriffs, he was going to appear before a judge, and then he would just be in the hands of the court and that would be it." About 1:20 p.m., however, defendant said, "I'm guilty. I did those things to my sister."
¶ 30 Detective Muich testified that between 1 p.m. and 1:20 p.m., he does not recall defendant being told that "once he gets to the county that there was no telling what would happen to him, " or that the judge would not be giving him bond. He also testified that nothing was said "about the Cook County jail being full of blacks and Hispanics, " and that neither he, Detective Caldwell, nor Detective Richmond told defendant that "this was [his] last chance to help himself." Further, he testified that no one told defendant that they already knew "all the bad things" he had done to his sister, that if he "simply helped himself by telling [them] that he did these bad things to his sister [they] would not have to take him to see the judge, " or that "now is the time to help yourself."
¶ 31 Detective Muich was present when defendant's statement was recorded. He denied using the phrase "man up" to defendant at the time, testifying, "I never use the word man up. Never." He also acknowledged that on the second part of the tape, for a very short part of the interview, the statements were inaudible.
¶ 32 Bonnie Fries testified that she is a licensed clinical social worker at the Children's Advocacy Center of North and Northwest Cook County. On November 21, 2006, she conducted a victim sensitive interview (VSI) of 16-year-old R.C. They were alone in the room so R.C. would be comfortable, and two detectives from the Rosemont police department and a DCFS investigator observed the interview through a one-way mirror. Fries testified that the goal of a forensic interview is to "obtain facts from the child by asking non-leading and non-suggestive questions, " and that at the start of an interview, she goes over the rules, including the importance of telling the truth.
¶ 33 Fries interviewed R.C. again on September 2, 2008, following the same protocol. They were alone this time as well, and a DCFS representative was behind the one-way mirror. R.C. appeared older than the previous time, but not disheveled. Regarding her demeanor, Fries testified that "[s]he seemed to come in having an understanding of why she was there, ready to talk openly to me. She didn't–she wasn't crying or overly upset in the interview. She spoke to me very matter-of-factly and did just fine."
¶ 34 Ronald C. testified that he is defendant's eldest brother and the biological son of Patricia C. He lives in Chicago and is employed by the Chicago police department as a school liaison and crisis intervention officer. From 2000 to 2008, Ronald C. had contact with his family once every four or five weeks for holidays, birthdays, and dinners at his sister's house. He usually had contact with defendant and R.C. during family parties at his sister's house when he would go down in the basement with the kids and play games and watch movies. Ronald C. testified that none of the children ever told him that they were being abused.
¶ 35 Defendant testified that Patricia C. and Hugh C. are his adoptive parents. With respect to his education, defendant testified that in grammar school and high school, he was in a special education program, and that he eventually graduated with his associate's degree from Triton College, where he had "specialized privileges."
¶ 36 About 6:21 p.m. on August 21, 2008, defendant was at Robin C.'s house when Rosemont detectives arrived. He was handcuffed behind his back, placed into the back of a squad car, and driven by Detective Muich to the Rosemont police station. During the ride, Detective Muich asked him at least four times whether he knew what had happened with R.C., and each time he replied, "I do not know what's going on." Detective Muich also asked him "what was going on at the Allstate Arena and that was pretty much it."
¶ 37 At the station, Detective Muich and Lieutenant Hasselberger removed defendant from the car and brought him into a "holding slash booking room." Detective Muich sat with him there and continued to ask him questions about R.C., specifically, whether he knew what had happened to her. He remained in that room for about two and a half hours and was visited by an attorney during that time. The attorney told him that he was his counsel and instructed him, "Do not talk to the detectives." He then left, and Detective Muich came back into the room and began talking about his dad, "saying that he knew my dad and that was pretty much it." He told defendant that his father "was a great wonderful man and he's going to be well missed." Defendant testified that Detective Muich was not a friend of his father, that he never saw him at his parent's house, and that Detective Muich never expressed sympathy about the loss of his father when he saw him at the Allstate Arena. About an hour and a half after defendant's attorney left, Detective Muich took defendant to a holding cell. The room was about 55 degrees, and he asked Detective Muich for an extra blanket which he received. That night, Detective Muich came down to check on him about five times. Defendant testified that during these checks, Detective Muich made only small talk and did not ask defendant about his case.
¶ 38 About 8 a.m. on August 22, 2008, defendant was removed from his cell by a patrol officer and taken to the "holding slash booking room." Detective Muich came by and started talking to him about his father, "saying he's a wonderful man and I've known him for many years. I used to know him over at the grammar school." Defendant was expecting to go to bond court that morning, but after his conversation with Detective Muich, he was returned to his cell.
¶ 39 About 1 p.m., Detective Muich and Detective Caldwell brought defendant from his holding cell to the "holding slash booking room" again and told him that he was going to bond court that afternoon. Defendant asked them if he would be getting bond and what was going to happen at bond court, and Detective Muich responded that he was not going to be getting a bond and "was going to go down to Cook County jail and become someone's bitch." Defendant took that to mean that he would be raped. Detective Muich also told him that "there's a whole bunch of blacks, Mexican, and Hispanics down there, " and that "since I'm a small guy, you know, I'm not going to fit in real well. They are going to end–I will end up being someone's bitch." He then told defendant that he needed "to man up to what happened with [R.C.], " and defendant responded, "man up to what." Detective Muich said, "just man up, tell us what we want to hear and we can get you the help that you need." Defendant did not reply and sat there for about 20 minutes while the detectives were handling paperwork.
¶ 40 Defendant acknowledged that he subsequently gave an audiotaped statement, but testified that he gave the statement because "[t]hey were telling me what to say. They kept on pressuring me, telling me to man up. You know you did this to [R.C.] Man up. We can get you the help that you need." He testified that prior to giving his statement, Detective Caldwell told him the questions that would be asked and the answers he was to give. Defendant gave these answers on the tape and, later, to the ASA. He also testified that he believed the officers were going to get him help, that he was scared, that he was telling them anything that they wanted to hear, and that he did not commit any of the acts of which he is accused.
¶ 41 Dr. Veronika Kroin, a pediatrician, testified that she first examined defendant when he was 10 years old. It was her opinion that defendant was developmentally delayed and had a learning disability as a result of being born premature and sustaining a brain injury caused by lack of oxygen to his brain. Dr. Kroin sometimes prescribed defendant medication for attention deficit hyperactivity disorder, and she had referred him to a pediatric endocrinologist and a pediatric neurologist. She last examined his mental condition in 1997, at which time defendant was still in special education because of his learning disability. Dr. Kroin testified that neither a brain injury nor a learning disability ever goes away, and that she thinks ...