Court of Appeals of Illinois, First District, Sixth Division
Rehearing denied August 28, 2013
On appeal from defendant’s conviction for the predatory criminal sexual assault of his then live-in girlfriend’s eight-year-old daughter, the trial court’s error in failing to give the pattern instruction required when the child’s sexual-assault outcry statements are admitted under section 115- 10 of the Code of Criminal Procedure was not plain error, since the evidence against defendant was not closely balanced, and his counsel’s failure to request the instruction did not amount to ineffective representation in the absence of any reasonable probability that the result would have been different if the request had been made.
Appeal from the Circuit Court of Cook County, No. 08-CR-811; the Hon. Noreen Valeria-Love, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Mary L. Boland, Assistant State’s Attorneys, of counsel), for the People.
Presiding Justice Lampkin and Justice Reyes concurred in the judgment and opinion.
¶ 1 Defendant Jaime Marcos was convicted after a jury trial of three counts of predatory criminal sexual assault against eight-year-old G.M., who was the daughter of his then live-in girlfriend. Specifically, he was charged with one count of contact between his penis and her anus, and two counts of contact between his tongue and her anus. After hearing factors in mitigation and aggravation, the trial court sentenced defendant to 3 consecutive 6-year sentences for a total of 18 years in the Illinois Department of Corrections (IDOC).
¶ 2 On this direct appeal, defendant raises two claims. First, he argues that the trial court erred by failing to instruct the jury with Illinois Pattern Jury Instructions, Criminal, No. 11.66 (4th ed. 2000) (herinafter, IPI Criminal 4th No. 11.66), which is required whenever a trial court admits into evidence a child's sexual-assault outcry statements pursuant to section 115-10 of the Code of Criminal Procedure of 1963 as an exception to the hearsay rule. 725 ILCS 5/115-10(c) (West 2006). The issue before us is limited to whether this error rises to the level of plain error or whether it would support the conclusion that defendant's trial counsel was constitutionally ineffective for failing to raise it. There is no dispute that the trial court was required by statute to give the instruction, and defendant concedes in his brief to us that he waived this issue for consideration on appeal by failing to ask the trial court to give the instruction. With respect to plain error, defendant argues that the evidence was closely balanced only with respect to the two mouth-to-anus counts. Thus, the one penis-to-anus count is not at issue on this appeal.
¶ 3 This issue requires us to interpret and apply the Illinois Supreme Court's holding in People v. Sargent, 239 Ill.2d 166, 190 (2010), that a trial court's failure to give IPI Criminal 4th No. 11.66 did not rise to the level of plain error, because the evidence of predatory criminal sexual assault in that particular case was overwhelming. Our opinion today is the first published appellate court opinion to interpret and apply this holding in Sargent. Although many other cases have cited Sargent, they cite it for other propositions, such as a general statement of the plain error rule or a statement of the corpus delicti rule. None of the published cases interpret or apply this particular holding.
¶ 4 Secondly, defendant claims, and the State agrees, that he is entitled to an additional day of credit for time served. For the following reasons, we affirm defendant's conviction but order the mittimus corrected to reflect an additional day of credit for time served.
¶ 5 BACKGROUND
¶ 6 Prior to trial, the State moved to admit into evidence the victim's hearsay outcry statements both to her mother and to Thomas Plach, a licensed clinical social worker, pursuant to section 115-10 of the Code of Criminal Procedure of 1963. After a hearing, the trial court granted the motion and found that both statements were admissible. This order of the trial court is not at issue, since defendant argues on appeal only that the required jury instruction should have been given once the statements were admitted.
¶ 7 At trial, the State called four witnesses: (1) G.M., the victim, who was then 11 years old; (2) A.M., the victim's mother, who heard G.M.'s initial outcry; (3) Maria Salynas, who acted as the Spanish translator for G.M.'s subsequent statement to social worker Thomas Plach; and (4) Detective Carlos Paloner, who speaks both English and Spanish and who memorialized defendant's statements in Spanish in a typed document. As we explain below in the analysis section, we are called upon in this appeal to determine whether the evidence was closely balanced. Since there is no physical evidence and the State's evidence consisted primarily of statements made, we describe these statements in detail below, to show the similarity in the accounts provided by the victim at trial; the victim's hearsay outcry statements to her mother and to a social worker; and defendant's statements to the police.
¶ 8 The State's first witness, G.M., chose to testify in English. Although she first learned Spanish, she now also speaks English. G.M. identified defendant in court as her mother's boyfriend and explained that he "did something bad" to her in the autumn of 2007 in her home in Cicero, when she was eight years old. It was at night, and her mother was not home. G.M. was lying on a bed in the middle of the living room with defendant and her baby brother, and she was in between them. She was pretending to be asleep, when defendant pulled off her pants and underwear and "he put his tongue on my–on my vagina" and "licked the front." G.M. did not move because she was scared. Then he "put his penis in my butt" and moved "[b]ack and forth" until she felt "[s]omething slippery." G.M. explained that the word for penis in Spanish is "pollo." Then he pulled her pants and underwear up and went to the bathroom.
¶ 9 G.M. testified that it happened again but she did not remember how many days later. The second time, she was at home with her younger sister, her baby brother and defendant, and her mother was out buying milk. It was at night, and she was lying on the bed in the living room with defendant, her baby brother and her younger sister, and she was lying next to defendant as she pretended to be asleep. Defendant pulled off her pants and underwear, "and he put his lips on my vagina" and "licked it." Then "he put his penis on my butt" and "moved back and forth, " and "it hurt." She did not say anything because she was scared. Then he stopped and pulled her pants and underwear up, and her mother came home. G.M. did not tell her mother because she was scared of defendant.
¶ 10 G.M. testified that sometime later–she does not remember exactly when–she did tell her mother. Her mother had gone into the kitchen to heat some milk for her baby brother, and everyone else was asleep in the living room. G.M. told her mother that defendant was a pig and that he had pulled off her pants and underwear and done "something bad." Her mother told her not to cry and hugged her. G.M. admitted that she was crying "a little." Then G.M. drew a picture of what had happened, and her mother ripped up the picture and threw it in the garbage. Later that day, her mother called the police, and G.M. spoke to a man and a woman. G.M. could not remember whether she spoke to the man and woman in Spanish, but she testified that the Spanish word for vagina is "cosita, " that a "cola" is "a man, " and that she called her butt "nalgas."
¶ 11 At the end of her direct examination, G.M. testified that, after defendant placed his penis into her butt, she felt "something hot" and sticky, and she felt pain. She felt his penis going into her buttocks. When he licked her private parts, she could feel his tongue going into her.
¶ 12 During cross-examination, G.M. testified that she did not remember when defendant came to live with them and she called him "Jaime" not "dad." There were two rooms in their home: a kitchen and a living room. When she went to sleep, she wore her clothes, not pajamas. She did not observe her mother and defendant fighting, and defendant never hit her. Although defendant hurt her during these incidents, she did not yell or cry. She did not remember when police officers came to speak with her, but she did remember speaking to prosecutors this morning.
¶ 13 A.M., the victim's mother, testified that she was 32 years old, that she was born in Mexico and that she speaks Spanish. A.M. testified through a Spanish interpreter. In December 2007, she had been dating defendant for almost five years, and they lived in a house in Cicero with her four children. Defendant was the father of her two youngest children, but he was not the father of G.M. or G.M.'s older brother. Defendant worked, and A.M. stayed at home to care for the children. As a result, it was rare for her to leave defendant alone with the children.
¶ 14 A.M. testified that their house in Cicero had two bedrooms, a living room and a kitchen. On Sunday, December 2, 2007, except for G.M.'s oldest brother, the entire family was sleeping on a mattress on the floor of the living room because the heaters in the other rooms were not working. On that Sunday morning, A.M. woke up because G.M.'s baby brother was crying, and A.M. went to the kitchen to fix him a bottle. G.M. followed her into the kitchen, and A.M. observed that G.M. was "nervous, worried, afraid, and she had tears in her eyes." A.M. asked what was wrong, and G.M. said that she wanted to tell A.M. something but she did not want A.M. to be angry with her. They started to talk, and G.M. said " 'Mama, your boyfriend Jaime is dirty. He's a pig.' "
¶ 15 A.M. testified that defendant acted like a stepfather to G.M. since she had little contact with her biological father. A.M. was thinking about marrying defendant, and she believed that their relationship was fine. After G.M. called defendant a pig, A.M. asked her what she meant and G.M. replied that he had done "dirty things" to her. This conversation occurred while A.M. was walking back and forth between the water heating in the kitchen and the baby, who was still in the living room. A.M. was very tired because the baby was not letting her sleep much. When G.M. told her that, A.M. felt like "the world was falling on top of me. I couldn't breathe, and I started seeing fuzzy, " but she kept talking with G.M.
¶ 16 A.M. testified that she was speaking with G.M. in Spanish and she asked G.M. to draw her a picture. G.M. drew a picture with two stick figures, one standing and one lying down. "The one that was standing up had this big tongue over the private parts of the one that was lying down." G.M. said that the figure with a large tongue was defendant, and that she was the other figure. G.M. stated that he had placed his tongue in her private parts and licked her, and that he had pulled her pants down when she was sleeping. G.M. also stated that he hurt her when he put his penis "in the back" and moved. G.M. stated that she pretended to be asleep because she was scared. G.M. used the words "cola" and "nalgas" to describe her rear.
¶ 17 A.M. testified that she was shaking and felt desperate, and she did not know what to do. She told G.M. not to cry, hugged her, and told her it was not her fault. A.M. was crying, and she felt like it was her own fault because she had gone to therapy for her depression, and she had never left G.M. alone with defendant before. A.M. asked G.M. to forgive her, and G.M. said no mom, it was not your fault, it was defendant's fault. During this conversation, defendant was still fast asleep on the mattress. G.M. had not told A.M. about these events for two months. G.M. said that they had happened when A.M. had left the house to go to therapy, to pick up money from G.M.'s father and to buy milk for the baby.
¶ 18 A.M. testified that she did not have a telephone in the house or a vehicle and her cellular phone was out of service. At some point during the day, A.M. woke up defendant and told him that G.M. had said "something very serious." At first, he denied it. However, eventually he admitted that he licked G.M.'s "nalgas" or rear, but he denied having placed his penis in her anus. Defendant stated that, if they stayed together "who knows if this will happen again, " and he acted "like it was no big deal." A.M. had a small tape recorder in the house and she tried to record the conversation. Later she gave the tape cassette to the police and she never had an opportunity to determine if she was successful.
¶ 19 A.M. wanted to hit him but she thought if she did that, he would run and the police would not be able to nab him. So, instead, she told him that she was going to buy milk. She took G.M. and her other daughter with her, and she called 911 on her cellular telephone after she left the house. Although the cellular telephone had no service, it could still call 911. After the 911 call, several police vehicles arrived and the officers asked her to enter a police van, since it was cold outside. After A.M. told them what had happened, the police arrested defendant and transported A.M. and all four of her children to a police station.
¶ 20 A.M. testified that the next day she took G.M. to meet with a social worker named "Mr. Black" and a woman named Maria. While they were speaking, A.M. waited in another room with her other children. At some point, A.M. received some letters from defendant, whose handwriting she recognized. Although she read and tore up the first ones, she did give the last one to the State's Attorney's office and it was admitted into evidence at trial. In the middle of the letter is a drawing of a hand, and it asks G.M. to forgive him. It states in part: "Forgive me a thousand pardons."
¶ 21 On cross-examination, A.M. testified that defendant worked but he did not want A.M. to work outside the home. Sometimes there was not enough money, so G.M.'s biological father would occasionally provide money. In October 2007, G.M. had a party for her eighth birthday, but G.M.'s biological father did not attend. Except for her oldest son, the family had been sleeping together in the living room for almost five months because the furnace was not working. They had moved to this house in August 2007 before the children started school, and the furnace had stopped working right after they moved in.
¶ 22 A.M. testified that her mother lived with them before they moved and, thus, when A.M. attended her prior therapy sessions for depression, A.M.'s mother watched the children. However, her mother did not move with them to the new place. As a result, A.M. left the children with defendant, but this happened only twice: once when she went to a therapy session; and once when she went to buy milk. She did not recall the exact date of this therapy session, but the therapy lasted only three months and the last session was in October 2007. Then two months went by, and G.M. told her what happened in December 2007. When A.M. went to her last therapy session, defendant insisted that she take her oldest son with her because "he has a real short fuse." Her oldest son was then nine years old. She did not remember exactly when that last session started, but usually her sessions started between 5 and 7 p.m. The second time she left defendant with the children, her oldest son also went with her. It was at night, and they walked three blocks to purchase milk.
¶ 23 A.M. testified that, when it is cold, G.M. wears a pajama top and her pants to bed. On the morning of December 2, 2007, she woke up early, when it was still dark outside and went to the kitchen. When G.M. drew a picture, it made A.M. so angry that she ripped the picture into little pieces. After G.M. spoke to her, A.M. went to her bedroom to retrieve a tape recorder out of a drawer because she wanted to secretly record defendant. She observed a cassette in the recorder with a little space left on the tape. When the kids were little, she taped them "crying or laughing or saying a funny word." About a day or two before G.M. told her what happened, she wanted to be hugged, kissed and close to her mother; she was acting like a much younger child.
¶ 24 The parties then stipulated that the microcassette recorder contained no discernable voices and had just the sound of a baby crying.
¶ 25 The State's next witness, Maria Salynas, testified that she worked for Resurrection Behavioral Healthcare, in both the financial department and as a Spanish interpreter for Thomas Plach. Plach is a licensed clinical social worker and the director of the Proviso Child Advocacy Center, which is also part of Resurrection Behavioral Healthcare. Marina Acevedo is a case manager at Resurrection. Resurrection had provided Salynas with formal training to act as an interpreter and, prior to December 2007, she had translated over 100 interviews. Typically, she meets the parents and the child in a playroom, and then Plach would introduce her. She would then play with the child for a few minutes and ask basic questions, such as the child's age and school, to make sure that the child is not afraid to talk to her. At some point, Plach asks the child to accompany him and Salynas into a separate room, which has a two-way mirror, allowing others to observe the interview without being observed.
¶ 26 Salynas testified that, on December 3, 2007, she translated an interview between Plach and G.M. in the interview room, which was observed by police officers on the other side of the two-way mirror. The three of them sat down at the child-size table in the room, and Plach asked the questions while she translated his questions exactly. At first, Plach asked neutral questions to start the child talking, such as when was the child's birthday and was there cake. He also asked her where she lived and how she traveled to the ...