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People v. Munoz-Salgado

Court of Appeals of Illinois, Second District

September 8, 2016

MUDY MUNOZ-SALGADO, Defendant-Appellant.

         Appeal from the Circuit Court of Kane County, No. 12-CF-2293; the Hon. T. Clint Hull, Judge, presiding.

          Thomas A. Lilien and Fletcher P. Hamill, both of State Appellate Defender's Office, of Elgin, for appellant.

          Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer, Joan M. Kripke, and Mary Beth Burns, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.


         ¶ 1 Following a jury trial in the circuit court of Kane County, defendant, Mudy Munoz-Salgado, was convicted of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2012)), aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)), and unlawful restraint (720 ILCS 5/10-3(a) (West 2012)). He was sentenced to concurrent prison terms of seven years for aggravated criminal sexual assault and three years for each of the other offenses. The alleged victim, J.L., [1] resides in another state and did not testify at trial. However, the statements that she made to an emergency room nurse were admitted into evidence. Defendant argues that admitting the statements into evidence violated his sixth amendment right to confront the witnesses against him. Defendant also contends that the trial court erred by ruling that the rape-shield statute (725 ILCS 5/115-7 (West 2014)) barred evidence that J.L. reported engaging in sexual activity within 72 hours prior to the emergency room examination. We affirm.

         ¶ 2 At trial, video from a surveillance camera at the Lexington Inn hotel in Elgin was admitted into evidence and shown to the jury. The video showed that, at about 12 p.m. on November 13, 2012, defendant approached J.L. in the first floor hallway, spoke with her, took her by the wrist, and led her upstairs into a hotel room. A short time later, J.L. left the room and walked downstairs. Minnie Cotton, a housekeeper at the hotel, testified that at about noon she encountered a woman in the first floor hallway who was crying. The police were summoned. Officers who spoke with J.L. at the hotel indicated that she was crying. Based on what J.L. told the police, officers took defendant into custody after encountering him in the hotel's parking lot. An officer drove J.L. to the hospital. A search of the hotel room that J.L. had been taken to led to the discovery of several condoms in their wrappers and one empty wrapper.

         ¶ 3 Defendant was interviewed by police while in custody. An audio recording of part of the interview was admitted into evidence and played for the jury. Defendant indicated that he lived in Missouri but was working with a construction crew on a project in the Elgin area. He had been staying at the hotel for about two weeks. Other members of the construction crew were also staying there. Defendant was acquainted with J.L., who was, in his words, "somebody's woman in the crew." About a month earlier, defendant had exchanged text messages with J.L. and spoken with her on the telephone. They had arranged to meet in Kansas City to have sex. J.L. told defendant to send her $200. Defendant sent her the money, but she did not show up in Kansas City, and defendant did not see her again until November 13, 2012, when he encountered her at the hotel during his lunch break. He asked her why she did not show up for the planned meeting in Kansas City. J.L. made reference to defendant being married. Defendant asked J.L. whether she wanted to go to the hotel room with him. She declined because she was going to see "her man" during lunch. At that point defendant grabbed J.L.'s arm and told her to go up to his room. They got to the door, and J.L. started to walk away while defendant was retrieving his key. He grabbed her and pulled her into the room. Asked what he was thinking when this took place, defendant responded, "I was pretty much thinking about my $200 and I was horny." Defendant understood that J.L. did not want to go into his room. When they got into the room, they had sex. J.L. said that defendant was hurting her, but he did not stop.

         ¶ 4 Kristy Sheehan testified for the State that she was an emergency room nurse at Sherman Hospital in Elgin. Her duties included performing sexual assault kits on patients who reported having been sexually assaulted. A sexual assault kit contains swabs and containers for the collection of evidence. Sheehan explained that medical personnel performing a sexual assault kit "are trying to collect any kind of debris, semen, hair follicles, oral swabs, so any DNA samples inside, and clothes." Vaginal swabs and urine samples are also taken. On cross-examination, Sheehan acknowledged that the primary purpose of a sexual assault kit is to collect evidence. When a female patient reports a sexual assault, a gynecological examination is performed. Medical personnel also look for bruising, bite marks, and other signs of trauma.

         ¶ 5 Sheehan testified that on November 13, 2012, at about 3:30 p.m., she met with J.L. in a treatment room. A police officer was present, but the officer left the treatment room before Sheehan began her examination. J.L. was cooperative but anxious, and she became very tearful when Sheehan started asking her questions. Sheehan testified, "Like any patient, I ask what brought her in that day." Sheehan also asked J.L. how long it had been since the alleged sexual assault occurred and whether J.L. had taken a shower, removed any clothing, or gone to the bathroom since it occurred. Sheehan explained that those questions were "[f]or the collection of evidence." Sheehan further testified, "We ask multiple questions of what had happened, meaning, where, if there was any penetration, if so, where the penetration was." Sheehan testified that J.L. told her that defendant threw her face-down on a bed, held her down, put on a condom, and, in Sheehan's words, "forcefully put his penis inside her." J.L. indicated that, prior to the assault, defendant had dragged her by the wrist.

         ¶ 6 Sheehan observed bruising on J.L.'s wrist and a black scuff mark on her ankle. Sheehan collected swabs from J.L. and was present when a physician collected a vaginal swab from J.L. Sheehan testified that she observed spotting of blood in J.L.'s vaginal vault. Medically, the presence of spotting blood indicated "[v]aginal trauma or force to the vaginal area." On cross-examination, Sheehan indicated that there were "many reasons why somebody could be spotting." She acknowledged that it was possible to have spotting with consensual sex "if it is rough sex" or there was "little to no lubrication."

         ¶ 7 Defendant testified that he had met J.L. while working on a construction job in Milwaukee. J.L.'s boyfriend was on the construction crew. Thereafter, they spoke on the telephone and exchanged text messages. They had planned to meet again and to have sex, and defendant sent J.L. $200. J.L. did not show up for the meeting. Defendant also testified that he had not actually gone to meet with J.L. He added, "I'm married, so it didn't matter to me so I changed my phone number."

         ¶ 8 Defendant encountered J.L. again on November 13, 2012, at the Lexington Inn. He was surprised to see her, and she appeared to be surprised to see him. J.L. was upset because defendant had changed his phone number. Defendant asked J.L. to come to his hotel room. He touched her hand but did not drag her or pull her up the stairs. J.L. was worried that someone would see them. J.L. started to walk away. Defendant thought she was playing a game, and he pulled her back. Once they were inside defendant's room, defendant put on a condom, and they had sex. At one point she said that defendant was hurting her, so they changed positions. J.L. never tried to push defendant away. She never screamed or yelled, and she was not crying. After they were done, J.L. calmly left the room. Defendant denied that he forced J.L. to have sex with him.

         ¶ 9 We first consider whether defendant's right to confront the witnesses against him was violated. The sixth amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him." U.S. Const., amend. VI. The right of confrontation applies to testimonial evidence. Thus, "a testimonial statement of a witness who does not testify at trial is never admissible unless (1) the witness is unavailable to testify, and (2) the defendant had a prior opportunity for cross-examination." (Emphasis in original.) People v. Stechley, 225 Ill.2d 246, 279 (2007) (plurality opinion) (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). In order to qualify as "testimonial, " a witness's statement must be (1) made in a solemn fashion and (2) intended to establish a particular fact. Id. at 281-82.

         ¶ 10 In Stechley, the parties disagreed as to whether the intent to establish a particular fact must be that of the declarant (i.e., the witness) or of one eliciting the statement from the declarant. A majority of the Stechley court concluded that the answer depends on whether the witness's statement was elicited through police interrogation.[2] In doing so, the Stechley court answered in the affirmative a question that the United States Supreme Court had reserved in Davis v. Washington, ...

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