Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County, No. 01 CR 14985, Honorable Evelyn B. Clay, Judge Presiding.
Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE
¶1 A jury convicted defendant Sandy Williams of aggravated criminal sexual assault and aggravated kidnaping of E. B. and acquitted him of armed robbery. Williams was sentenced to concurrent terms of natural life for the aggravated criminal sexual assault conviction and 20 years in prison for the aggravated kidnaping conviction.
¶2 Williams had previously been convicted, on August 23, 1985, for aggravated criminal sexual assault and sentenced to 25 years in prison. He was paroled on February 4, 1997, and on August 3, 2000, arrested and charged with aggravated criminal sexual assault of a 16-year-old African-American girl, N.H. Later, DNA extracted from semen on oral swabs taken from N.H. matched Williams' DNA. Williams' DNA also matched evidence recovered from the aggravated criminal sexual assaults of four other women, A.M., S.R., L.J., and E.B.
¶3 On June 13, 2001, Williams was arrested and charged for the assault of E.B. The matter proceeded to jury trial. Williams asserted a consent defense and, in response, the State presented testimony regarding Williams' prior criminal sexual assault of N.H. Williams argues that (1) the trial court abused its discretion in admitting other-crimes evidence of N.H.'s assault because its prejudicial effect outweighed its probative value; and (2) the trial court committed reversible error by not allowing him to present DNA evidence from N.H.'s sexual assault kit to rebut the other-crimes evidence that was offered by the State to show propensity in this case.
¶4 We affirm Williams' convictions finding, first, that the trial court did not abuse its discretion by admitting testimony of Williams' prior aggravated criminal sexual assault of N.H., where Williams asserted a consent defense and the evidence was presented to show propensity, and where its probative value outweighed its prejudicial effect. We find, second, that Williams did not properly preserve his claim that he should have been allowed to present DNA evidence from the assault of N.H. to rebut the evidence of his assault on N.H. Further, we find that the trial court's denial of Williams' request to present evidence relating to another male DNA profile in N.H.'s sexual assault kit was not an abuse of discretion. This evidence was not relevant to the issue of whether N.H. consented to sexual intercourse with Williams. Finally, we modify Williams' sentence for aggravated criminal sexual assault to run consecutively rather than concurrently to the sentence for aggravated kidnaping.
¶6 Motion to Admit Other-Crimes Evidence
¶7 In February 2009, before trial, the State filed a motion to admit evidence of other-crimes under section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2008)). Specifically, the motion requested that the trial court allow evidence of other sexual assaults against A.M. and N.H. The State asserted that the close proximity in time between the assaults of E.B. (December 1, 1998), A.M. (May 26, 1999), and N.H. (August 3, 2000) weighed in favor of allowing the other-crimes evidence. The State also argued that (1) each of the sexual assaults occurred in similar areas and were carried out in a similar manner, (2) many factual similarities existed where each of the victims was an African-American young woman, was much smaller than Williams, lived near the South Side of Chicago, and was alone and vulnerable when assaulted, and (3) the assaults occurred in close geographic proximity to each other and near Williams' residence. The State maintained that the other-crimes evidence was relevant to rebut any claim by Williams that E.B. consented. Finally, the State argued that the probative value of the other-crimes evidence was not substantially outweighed by the possible prejudicial effect of the evidence.
¶8 Williams filed a written response to the State's motion, arguing that the probative value of the other-crimes evidence was outweighed by the prejudicial effect of the evidence. Williams argued that the time periods between the assaults were long and there were many factual dissimilarities among the assaults. He also asserted that the other-crimes evidence should not be admitted where the probative value was outweighed by the unfair prejudice. Williams noted that if the trial court granted the State's motion to admit other-crimes evidence, Williams should be allowed to present evidence that there was a mixture of DNA profiles identified from the vaginal and anal swabs taken from N.H.'s sexual assault kit.
¶9 The trial court conducted a hearing on the State's motion to admit the evidence. The trial court allowed the State's motion, finding (1) the probative value of the evidence outweighed any prejudicial effect, (2) the other-crimes evidence was not remote in time, (3) the evidence was factually similar, and (4) Williams asserted a consent defense. Accordingly, the trial court concluded that the other-crimes evidence pertaining to A.M. and N.H. was allowed on the issue of propensity. The trial court denied Williams' motion to reconsider the ruling.
¶10 Evidence at Trial
¶11 At trial, E.B. testified that on December 1, 1998, she was 16 years old and a bout 4 feet 9 inches tall. On that evening, E.B. was visiting her boyfriend, Mario Johnson, at his apartment at 64th Street and Lowe Avenue in Chicago. E.B. testified that she and Johnson kissed and he gave her a "hickey" on her neck. Johnson wanted to engage in further sexual activity, but they did not because E.B. was menstruating.
¶12 At about 9:45 p.m., E.B. walked to the bus stop next to the Aldi grocery store at 63rd Street and Lowe Avenue to take the bus home. Johnson walked E.B. half way to the bus stop, then she walked the rest of the way alone. When E.B. arrived, Williams was also waiting at the bus stop. After a long wait for the bus, E.B. decided to walk to a friend's house a few blocks away, on 59th Street, to call her mother for a ride home. E.B. walked through the Aldi parking lot, toward 59th Street. When she looked behind her, she saw that Williams was also walking through the parking lot. Williams then "angled off" and started to walk in a different direction so that it no longer appeared that he was following her.
¶13 E.B. testified that as she continued to walk toward her friend's house, she saw another shadow run up to her. Williams grabbed her by the neck from behind, placed a knife to her neck, and said, "Bitch, don't you holler, don't you scream, don't you say shit or I'm going to cut you." E.B. began to panic and cry. Williams asked her if she had any money and where she lived. He then placed his arm around E.B.'s shoulder and walked along-side her, creating the appearance that they were a couple. Williams held the knife pressed to E.B.'s neck as he looked for a place to take her. E.B. testified that Williams seemed like "a giant" to her and she was afraid he would cut her. Williams instructed her to stop crying and that once he cut the vein in her throat, E.B. would bleed to death.
¶14 E.B. tried to get away, but Williams grabbed her jacket and she got caught in the drawstring. Williams hit E.B. in the face and said, "[B]itch, I'm not playing with you." Williams then dragged E.B. toward a dark area on the side of the Aldi where the shopping carts were stored. E.B. grabbed a railing to try to stop him from dragging her into the dark area, but Williams beat her fingers then tried to cut her fingers with the knife. E.B. let go of the railing so that her fingers would not be cut, and Williams dragged her behind the shopping carts, where he ripped off her shirt and pulled down her pants. Williams pinned E.B.'s thighs down with his legs and inserted his penis into her vagina. After he ejaculated, Williams pulled up his pants and ran away.
¶15 E.B. testified that she put her clothes back on, but could not find her underwear. She ran back to Johnson's apartment. On the way, she saw Johnson's brother and told him what happened. E.B. then told Johnson what happened and the police arrived at his apartment. E.B. described the assault to the police and was taken to the hospital, where she described the assault to the doctor and nurse. E.B. had pain in her jaw from where Williams hit her, pain in her neck from where the knife was pressed into her, and pain in her vagina from the rape. E.B. had a pelvic exam performed and was given medicine for her pain.
¶16 On June 13, 2001, E.B. viewed a lineup at the police station and identified Williams as the individual who assaulted her. After visually identifying Williams, E.B. asked the detectives if she could hear the lineup participants speak. E.B. testified that when she heard Williams's voice, it immediately confirmed that he was the person who raped her.
¶17 Mario Johnson testified, that on the date in question, he was E.B.'s boyfriend. On the evening of December 1, 1998, Johnson and E.B. were talking and kissing in the hallway of his apartment. Johnson testified that he was "a very bad guy" back then and made E.B. leave because she was menstruating and unable to have sex with him that night. Johnson testified that he gave E.B. a hickey on her neck because he was cheating on her with another girl and wanted to make E.B. feel better. Johnson testified that he walked E.B. half way to the bus stop because he wanted to get back home to the other girl.
¶18 Johnson testified that later that evening, his brother brought E.B. back to his apartment. E.B. was crying, her clothing was torn off. E.B. told him that she had been raped and described her assailant. Johnson's brother gave E.B. a shirt to wear, and Johnson and his brother left to look for E.B.'s assailant. Johnson's mother called him back to the apartment and he accompanied E.B. to the hospital. Johnson also testified that an investigator from the Cook Count State's Attorney's office took a swab of his mouth, pursuant to his consent.
¶19 Jane Malaluan, testified that she was the nurse who treated E.B. in the emergency room that night. Malaluan observed that E.B. had human bite marks on her neck and tenderness in her vaginal area. Malaluan was present when a sexual assault kit was performed on E.B., which included swabs of her vagina and neck, and a blood sample.
¶20 Two forensic biologists from the Illinois State Police crime lab testified regarding the vaginal swabs from E.B.'s sexual assault kit. The biologists testified that the swabs tested positive for the presence of semen, though at the lowest possible level. The kit also contained swabs that tested negative for semen but positive for saliva. The amount of DNA extracted from the vaginal swabs was too small for the type of DNA analysis performed at that time by the Illinois State Police crime lab, so the samples were stored for future analysis.
¶21 In 2001, the Illinois State Police lab sent the vaginal swabs from E.B.'s sexual assault kit to Cellmark Diagnostics for further DNA analysis. Dr. Robbin Cotton testified, as a DNA expert from Cellmark, that analysis of the semen from the swabs produced a male DNA profile. But, Cellmark did not have a known male sample to compare to that profile. Dr. Cotton testified that there was a clear primary male donor in the sperm fraction, as well as three small signals that could have been either a second male donor or machine-generated artifacts.
¶22 A blood sample was taken from Williams in August 2000, while he was in custody on a different matter. Sandra Lambatos, a DNA expert, testified that the major male profile deduced by Cellmark for E.B.'s vaginal swab ...