Appeal from the Circuit Court of Cook County. No. 07 CR 1301. Honorable Timothy J. Joyce, Judge Presiding.
Defendant's convictions for aggravated criminal sexual assault and aggravated criminal sexual abuse were upheld where defendant waived review of the ruling on the admission of the diagnosis of the victim's personality disorder by failing to present an offer of proof as to the basis for the diagnosis, any error was harmless in view of the overwhelming evidence of defendant's guilt and the extensive cross- examination the trial court allowed as to the victim's mental health, and the trial court did not err in accepting the testimony of the State's DNA expert over that of the defense expert.
For Defendant-Appellant: Office of the State Appellate Defender, First Judicial District, Chicago Illinois, Jonathan Yeasting OF COUNSEL.
For Plaintiff-Appellee: State's Attorney of Cook County, Chicago, Illinois, Alan J. Spellberg, Mary L. Boland, Samuel C. Ray, OF COUNSEL.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant, Willie Baldwin, was convicted of two counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. The trial court sentenced defendant to two consecutive 15-year terms of imprisonment for the aggravated criminal sexual assault convictions and one consecutive 3-year term of imprisonment for the aggravated criminal sexual abuse conviction. On appeal, defendant contends: (1) the trial court erred in excluding evidence of the complainant's diagnosis of antisocial personality disorder; (2) his trial counsel committed ineffective assistance; and (3) the trial court erred in admitting evidence of an unrelated sexual assault against a third person on a propensity theory. We affirm.
[¶2] Defendant was charged with one count of armed habitual criminal, four counts of aggravated kidnapping, one count of armed robbery, six counts of aggravated criminal sexual assault, and four counts of aggravated criminal sexual abuse against the victim, E.W. Prior to trial, the State filed a motion in limine to admit certain other-crimes evidence, specifically, of defendant's aggravated criminal sexual assault of a second victim, D.D., approximately six months prior to E.W.'s assault. The motion was made pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/115-7.3 (West 2010)) which applies, in relevant part, to a defendant who is accused of aggravated criminal sexual assault. Section 115-7.3(b) provides that evidence of defendant's commission of another aggravated criminal sexual assault " may be admissible (if that evidence is otherwise admissible under the rules of evidence) and may be considered for its bearing on any matter to which it is relevant." 725 ILCS 5/115-7.3(b) (West 2010). Section 115-7.3(c) further provides:
" In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances." 725 ILCS 5/115-7.3(c) (West 2010).
[¶3] The trial court here weighed the factors mentioned in section 115-7.3(c) and granted the State's motion, ruling that the evidence of defendant's aggravated criminal sexual assault against D.D. was admissible in E.W.'s case to show his propensity to commit sex offenses. (We will discuss
the basis of the trial court's ruling in more detail later in this opinion.) The trial court granted the State's motion despite the fact that when D.D.'s case went to trial, the jury there acquitted defendant of aggravated criminal sexual assault alleging forced oral penetration and was unable to reach a verdict on a second count alleging forced vaginal penetration.
[¶4] On the day of defendant's bench trial in the E.W. case, defendant made an oral motion in limine to admit evidence that in 2011, the University of Utah Assessment and Referral Services (hereinafter, Assessment and Referral Services) had diagnosed E.W. with antisocial personality disorder following her arrest for several offenses in Utah. Defendant explained that he had not made the motion earlier because he had only recently received the report from Assessment and Referral Services containing E.W.'s diagnosis. Defendant sought a preliminary ruling from the trial court that E.W.'s diagnosis of antisocial personality disorder was relevant and admissible with regard to her truthfulness. Defendant also sought guidance from the trial court regarding the best way to introduce E.W.'s diagnosis into evidence in the event it found the diagnosis relevant and admissible. Defendant stated:
" If you should find her antisocial diagnosis relevant, we would either need [E.W.] to endorse that she has information that she had been diagnosed with that or a stipulation from the State as to that diagnosis. Absent those things I don't think the court can consider them in which case we would have to hire an expert.
Of course, since we received this information late, we have not had the ability to contact or procure an expert and we're ready for trial. And so we probably cannot answer ready for trial unless we can sort of lay some ground work for how that evidence would come in. The expert would either be the clinician herself, would have to be flown in from Utah or, like I said, if there was a stipulation as to the diagnosis itself and if your Honor were to take judicial notice of the definition of antisocial personality disorder, that would be satisfactory to us."
[¶5] The record on appeal contains neither any written motion in limine seeking the preliminary finding of admissibility with regard to E.W.'s diagnosis, nor the report from Assessment and Referral Services containing the diagnosis and the reasons therefore.
[¶6] The trial court ruled that evidence of E.W.'s diagnosis was inadmissible under section 115-7.1 of the Criminal Code (725 ILCS 5/115-7.1 (West 2010)), which prohibits a court from requiring a witness who is the victim of an alleged sex offense to undergo a psychiatric or psychological examination. However, the trial court also ruled that defendant could cross-examine E.W. regarding her specific conduct leading to the diagnosis of antisocial personality disorder.
[¶7] I. Trial
[¶8] A. E.W.'s Testimony Regarding the Sexual Assault
[¶9] At trial, E.W. testified she was 24 years old at the time of trial in 2011 and had been living in Salt Lake City, Utah, since the end of 2006. On February 3, 2003, E.W. was 15 years old and living with her grandmother at 53rd and Hermitage Avenue in Chicago. At about 9 p.m. that evening, E.W. was waiting at the bus stop at 53rd Street and Ashland Avenue. When the bus did not come, E.W. began walking south on Ashland Avenue toward the next bus stop. As she was walking, she heard defendant, who was sitting in a car facing north on Ashland Avenue, " holler"
at her to come over to his car. E.W. refused because she did not know defendant. Defendant drove off north on Ashland Avenue and E.W. continued walking south on Ashland Avenue.
[¶10] E.W. testified that she again saw defendant as he drove up a side street behind her, turned on Ashland Avenue, and pulled up alongside her with his passenger window down. Defendant leaned over the passenger seat and pulled out a gun with his left hand and pointed it at E.W. Defendant demanded that E.W. get in the car and he threatened to shoot her if she ran away.
[¶11] E.W. testified she complied and entered his car. Defendant placed the gun in the driver's side door panel and drove south on Ashland Avenue. As he was driving, defendant asked E.W. whether she had any money in her pocket. E.W. said no. Defendant responded that he would search E.W., and that if she had any money, he would kill her. E.W. then gave defendant her money, approximately $60 or $70. Defendant offered her a " primo" cigarette and beer; she refused.
[¶12] E.W. testified defendant drove into an alley and forced her to perform oral sex on him while he remained in the driver's seat. Defendant then ordered E.W. to climb over into the back seat, where he forced her to engage in sexual intercourse (penis to vagina) with him. During the course of this, defendant touched her breast with his mouth.
[¶13] E.W. testified that after defendant finished having sex with her, they returned to the front seat of the car and defendant drove out of the alley. Defendant told E.W. that he had been watching her for the last two months and that now he was going to drive her to the west side of Chicago and kill her. E.W. did not attempt to get away at that point because, in addition to the gun, defendant also " had a knife and one of them arrow-bow crosses up there in that car."
[¶14] E.W. testified that at 68th Street and Damen Avenue, defendant came to a stop to avoid hitting two people who were crossing the street. Taking advantage of the opportunity, E.W. jumped out of the car and ran to a gas station near 67th Street and Ashland Avenue and used a pay phone to call the police.
[¶15] Officer Maria Hernandez testified she was dispatched to 68th Street and Damen Avenue at around 9 p.m. on February 3, 2003, where she saw E.W., who was very upset, distraught, and crying. E.W. stated she had been sexually assaulted. Officer Hernandez asked E.W. some " brief questions" and then put her in the squad car and drove her to the University of Chicago Hospital.
[¶16] B. Testimony Regarding the Investigation
[¶17] E.W. testified that at the hospital, doctors examined her and a criminal sexual assault kit was administered to her. The parties stipulated that nurse Harwood would testify that the criminal sexual assault kit included the taking of oral, vaginal, and rectal cultures.
[¶18] Officer Hernandez spoke with E.W. at the hospital and made a police report based on that conversation. E.W. testified she provided a description of defendant as a dark-skinned man with brown eyes and a beard, wearing a khaki jogging suit, a leather jacket, black gloves, and driving a white car. Officer Hernandez testified that during the conversation, E.W. never mentioned that defendant had touched her breasts, nor did she state that defendant had told her he had been watching her for two months and that he was going to take her to the west side of Chicago to kill her. Instead, E.W. stated that defendant had dropped her off on the south side of Chicago
near 68th Street and Damen Avenue, after which she walked to 67th Street and Ashland Avenue. E.W. testified that Officer Hernandez was mistaken in her recollection of their conversation and that defendant had not voluntarily dropped her off after the sexual assault but, rather, she had escaped from his car.
[¶19] Nicholas Richert, who was formerly a forensic scientist for the Illinois State Police, testified that in 2006, defendant's DNA registered as a hit in the Combined DNA Index System (CODIS) for the sexual assault of the other-crimes victim, D.D. On December 8, 2006, defendant was arrested at 63rd Street and Ashland Avenue. E.W. testified that on December 10, 2006, she went to the ...