Appeal from Circuit Court of McLean County. No. 12CF23. Honorable Robert L. Freitag, Judge Presiding.
Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy (argued), all of State Appellate Defender's Office, of Springfield, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Aimee Sipes Johnson (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.
[¶1] In May 2013, a jury found defendant, Derry " Jay" Sanders, guilty of two counts of criminal sexual assault. On appeal, defendant asserts the trial court (1) improperly denied his Batson challenge ( Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)), and (2) erred when it prohibited defense counsel from introducing the content of text messages the complaining witness, B.J., sent another man the night of the offense. We affirm.
[¶2] I. BACKGROUND
[¶3] In January 2012, the State indicted defendant, a Caucasian male, on two counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2010)) and one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2010)). Defendant entered an open plea of guilty to the unlawful possession charge and proceeded to jury trial on the two criminal sexual assault charges.
[¶4] A. Motion in Limine
[¶5] In May 2012, the State filed a motion in limine to exclude testimony regarding B.J.'s sexual history under section 115-7 of the Code of Criminal Procedure of 1963 (the rape-shield statute) (725 ILCS 5/115-7 (West 2010)). Specifically, the State sought to prevent defendant from introducing testimony regarding sexually suggestive text messages B.J. sent to Nick Lacomba (a bouncer at Fat Jacks bar in Bloomington, Illinois) on the night of the offense.
[¶6] At a February 2013 hearing on the motion, the State argued the text messages were evidence of B.J.'s sexual history under the rape-shield statute and had no relevancy to the case against defendant. Defendant responded the sexual assault charges against him were predicated upon defendant knowing B.J. was unable to give knowing consent and the text messages were relevant because they related to B.J.'s cognitive abilities. Defendant further argued the text messages were not covered by the rape-shield statute because they were only statements relating to sex--not actual prior sexual activity.
[¶7] Following the hearing, the trial court granted the State's motion in part and denied the motion in part. The court explained:
" [I]n this court's opinion, the evidence does touch on the complainant's prior sexual history and/or reputation.
After having given this a lot of thought, probably much more thought than the parties ever thought the court would, I think that a balance can be struck in this situation, and that's what my ruling is going to be. The court is going to allow the witness to testify that he had personal contact with the victim at the bar between two and 4:30 a.m. He may testify to his observations of her physical condition and his ability to converse with her and she with him. He can also testify that he received a series of text messages and had a phone conversation with her up until somewhere around 4:30 a.m. However, the court will bar the witness from disclosing any sexual suggestions or the actual content of the conversation as far as it goes to sexual suggestions, and I will not allow the content of the text messages themselves to be admitted because of their sexual content.
I think this strikes a balance between giving the defendant an opportunity to present evidence of the victim's alleged abilities while also protecting her reputation and her from being harassed based upon the content of some of those conversations. So, in essence, the motion is allowed in part and denied in part."
[¶8] In April 2013, defendant filed a motion to reconsider the trial court's ruling on the State's motion in limine, which the court denied. The court found its ruling struck the proper balance because it allowed defendant to pursue the issue of whether B.J. had the cognitive ability to consent based upon her ability to communicate both electronically and in person with Lacomba, while protecting her from embarrassment and harassment. It noted, " the substance of those [text messages,] they're--if they're offered will serve only to demonstrate a level of promiscuity
*** to suggest, even if not overtly, *** if she was promiscuous with one individual then she obviously must have been promiscuous with the defendant. And I think that's what the statute is meant to avoid."
[¶9] B. Voir Dire
[¶10] The jury venire in this case consisted of 32 potential jurors. The precise racial makeup of the venire is unknown. What is known is the State exercised its third and sixth peremptory challenges on African-American venire members. Following the State's sixth challenge, the following colloquy took place:
" [DEFENSE COUNSEL]: Judge, I would ask the court to note that two challenges have been made to the only two African Americans that we've reached at this point in time, that being [Juror 100 and Juror 14].
THE COURT: All right. The court will note that those two jurors indicated by counsel appear to be African American.
[THE STATE]: I'll just ask because we think we need to at this point in time, is ...