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People v. Applewhite

Court of Appeals of Illinois, Fourth District

December 20, 2016

KAWQUAUN APPLEWHITE, Defendant-Appellant.

         Appeal from Circuit Court of Vermilion County No. 12CF531 Honorable Craig H. DeArmond, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Appleton concurred in the judgment and opinion. Justice Turner specially concurred, with opinion.



         ¶ 1 Following an October 2013 trial, a jury convicted defendant, Kawquaun Applewhite, of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)). In April 2014, the trial court sentenced defendant to four years in prison and imposed a $1250 fee for court-appointed counsel.

         ¶ 2 Defendant appeals, arguing that (1) the trial court abused its discretion by admitting multiple hearsay statements the victim made to others pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2012)), (2) the court erred by prohibiting defense counsel from questioning venire members individually about personal experiences they or their family members had with sexual abuse, and (3) this court should vacate the fee for court-appointed counsel that the trial court improperly imposed without first conducting a hearing as required by section 113-3.1 of the Code (725 ILCS 5/113-3.1 (West 2012)). For the reasons that follow, we (1) affirm defendant's conviction and sentence and (2) vacate the order regarding the fee for court-appointed counsel.

         ¶ 3 I. BACKGROUND

         ¶ 4 A. The State's Charges

         ¶ 5 In November 2012, the State charged defendant with (1) predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and (2) aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)), alleging that six months earlier, defendant had sexual contact with G.Z. (born January 4, 2002), who was then under 13 years old.

         ¶ 6 In January 2013, the State filed an amended notice of its intent to solicit corroborative testimony detailing complaints G.Z. made to others under section 115-10 of the Code, which provides an exception to the prohibition against admitting hearsay testimony as substantive evidence in cases involving sexual acts perpetrated against a child under 13 years old.

         ¶ 7 B. Pretrial Proceedings

         ¶ 8 At a February 2013 pretrial hearing, the trial court considered the following evidence on the State's amended section 115-10 notice.

         ¶ 9 Austin Hardy testified that he was married to Amber Hardy, and they shared a home with their children, G.Z. (11 years old), Z.Z. (9 years old), A.H. (6 years old), and L.H. (4 years old). On November 8, 2012, Austin came home from work earlier than usual. After entering unnoticed through the rear door, Austin heard children playing in the basement but decided to go to the bathroom before announcing his arrival.

         ¶ 10 Defendant supervised Austin's four children while Austin worked. Austin explained that he met defendant "three, maybe four years" earlier through Amber's coworker, Emily Newton, who had been in a relationship with defendant. During that time, Austin's friendship with defendant developed to the point where Austin trusted defendant "with my life and my kids." Because other people Austin hired proved untrustworthy, Austin asked defendant to supervise his children during the days he and Amber worked.

         ¶ 11 As Austin walked to his locked master bedroom, he stopped to get a key from a closet located directly across from a hallway bathroom. G.Z., who was then 10 years old, emerged from the hallway bathroom, which Austin noticed was unlit. G.Z. asked Austin to follow her because she wanted to show him a dead spider. When G.Z. could not find the spider, Austin started walking back toward his bedroom. G.Z. then attempted to get Austin to go downstairs. Austin told G.Z. that he had to go to the bathroom. When Austin turned toward the master bedroom, he saw light coming from the open hallway bathroom door. Austin estimated that his encounter with G.Z. lasted about two minutes.

         ¶ 12 When Austin reached the hallway bathroom, he saw defendant standing in front of the sink. Defendant inquired about the slow-draining sink. Defendant's question concerned Austin, because he and defendant had twice attempted, unsuccessfully, to fix the sink. Austin then went into his master bedroom. Two minutes later, defendant knocked on the master bedroom door and asked Austin to call Emily to determine whether she was ready to be picked up from her work. Defendant subsequently left with Emily's then four-year-old son, Z.N., whom defendant had also been supervising. That evening, Amber arrived home from work, and Austin informed her about his encounter with G.Z. and defendant. Amber went to speak with G.Z.

         ¶ 13 Austin was "in and out" of the front room where Amber spoke with G.Z. because he was taking care of their other children. Shortly after Amber confronted G.Z., Austin heard G.Z. throw up in the kitchen. After speaking with G.Z. for about 20 minutes, Amber contacted Emily because she was concerned about Z.N. Police later arrived at the Hardy home and separately questioned Austin, Amber, and G.Z. Austin acknowledged that G.Z. did not tell him what occurred with defendant. Austin added that one of the factors that prompted him to speak with Amber was G.Z.'s unusual and fidgety demeanor that day, commenting that G.Z. is usually giddy, happy, and wants to talk. However, that night, Austin noticed that G.Z. did not react as she normally does when he arrived home from work.

         ¶ 14 Amber testified that on November 8, 2012, defendant was at her home, watching her four children and Z.N. Amber explained that defendant had been supervising her children during the week from noon to approximately 5 or 6 p.m. for several months. After Amber arrived home from work that evening, she had a conversation with Austin. When Austin conveyed his concerns, Amber decided to speak with G.Z.

         ¶ 15 During their 10-minute talk, Amber (1) told G.Z. about how Austin got a "funny feeling" about the hallway bathroom encounter and (2) asked G.Z. if defendant had ever touched her inappropriately. G.Z. hesitated. When Amber asked again if defendant had touched G.Z. inappropriately, G.Z. started shaking, got up, and walked into the kitchen, where she threw up. After doing so, G.Z. returned and, according to Amber, stated the following:

"[G.Z.] said that [defendant] pulled his thing out and asked her to kiss it, and she shook her head no, and then he turned her around and tried to tie her wrists up, *** placed his thing between her butt cheeks and started to hump her."

         Amber recalled that G.Z. told her that defendant pulled her shorts down and then pulled his pants down before he began humping her. Amber observed that during G.Z.'s recitation of defendant's acts in the hallway bathroom, G.Z. was "visibly shaken" and hesitant, but she did not cry.

         ¶ 16 After informing Austin of G.Z.'s account, Amber met with Emily and told her about defendant's conduct with G.Z. because Amber was worried about Z.N. That night, Danville police officer Jon Stonewall privately interviewed G.Z. in the Hardys' home. The following morning, Amber took G.Z. to the police station, where Detective Scott Damilano privately interviewed G.Z. Amber could not recall telling Stonewall whether G.Z. stated defendant asked her to wear a blindfold during the hallway bathroom incident.

         ¶ 17 Stonewall testified that on November 8, 2012, he responded to a call of a sexual assault at the Hardy residence. Upon arriving, Stonewall observed Austin, Amber, Emily, and G.Z. Stonewall conducted a private interview of G.Z. in the living room of the Hardy residence. Stonewall characterized G.Z.'s demeanor as meek and nervous.

         ¶ 18 G.Z. told Stonewall that she had been in the basement earlier that day wrestling with her siblings, Z.N., and defendant. At one point, G.Z. went to the hallway bathroom. When she exited, defendant was standing in the hallway. After G.Z. "play punched" defendant, he responded that G.Z. "better stop, or I'm going to make you kiss my balls." G.Z. returned to the basement, but she later went upstairs, intending to use the hallway bathroom again. Defendant followed G.Z. into the bathroom, closed the door behind him, and turned off the lights. Defendant pulled his trousers and underwear down and did the same with G.Z.'s shorts and underwear. Defendant then pulled G.Z. away from the sink, and as she faced away from defendant, he "put his penis on her buttocks and moved it back and forth" for about "10 to 15 minutes." During this time, G.Z. and defendant did not speak. Stonewall clarified that G.Z. (1) used the term "wiener" instead of "penis" and (2) did not try to get away from defendant. When G.Z. left the hallway bathroom, she was startled by Austin's presence and attempted to get him away from the hallway bathroom because G.Z. feared getting into trouble.

         ¶ 19 G.Z. revealed to Stonewall that the hallway bathroom incident was not the first time defendant touched her inappropriately. In summer 2012, G.Z. recalled an incident at defendant's home where she, her siblings, and Z.N. were wrestling with defendant. Later, when G.Z. was alone with defendant watching television in his bedroom, defendant exposed his penis and told G.Z. that he wanted her "to kiss his wiener." G.Z. told Stonewall that (1) defendant "used his fingers to manipulate her lips and touched his wiener to her mouth" and (2) "what had occurred in the bathroom at her home had also occurred a couple of times at [defendant's] house." Stonewall then asked Amber to come back into the room for the purpose of retrieving the underwear G.Z. had been wearing during the hallway bathroom incident. During the interview, G.Z. did not mention defendant tried to tie her up or asked her to wear a blindfold.

         ¶ 20 Damilano testified that on November 9, 2012, he interviewed G.Z. A recording of Damilano's interview, which the trial court reviewed, revealed the following.

         ¶ 21 After engaging G.Z. in general conversation regarding her age, schooling, family situation, and G.Z.'s basic knowledge of male and female anatomy, Damilano asked G.Z. questions regarding the circumstances surrounding the November 8, 2012, incident with defendant, which prompted the following responses from G.Z.

         ¶ 22 G.Z. characterized defendant as a "good friend of the family, " and although G.Z. had numerous interactions with defendant over the previous years, defendant began supervising G.Z. and her three siblings about a month earlier on school days when Austin and Amber were at work. On November 8, 2012, defendant was supervising G.Z., her three siblings, and Z.N. at the Hardy home. After play wrestling in the basement, G.Z. went upstairs to the hallway bathroom. Defendant followed G.Z. into the bathroom and turned off the lights. G.Z. thought defendant "was still playing around" so she punched him in a playful manner. Defendant then told G.Z. that she was "going to kiss his penis." Thereafter, defendant pulled down his trousers and then proceeded to unbutton G.Z.'s pants and pulled them down as well. G.Z. then felt the "back and forth movement" of defendant's penis on her buttocks, which was not painful but did not feel good. G.Z. described the contact as warm and nasty. G.Z. pulled up her pants and walked out of the bathroom, where she saw Austin. Thereafter, G.Z. attempted to get Austin away from the hallway bathroom because she thought she would get in trouble.

         ¶ 23 G.Z. added that in summer 2012, defendant engaged in this same behavior on two occasions. During the first incident, defendant watched her, her brother, and Z.N. in defendant's home while Austin and Amber were at work. G.Z. was in defendant's bedroom wrestling with defendant on his bed while the other children were playing in another room. At some point, defendant pulled his trousers down as well as G.Z.'s pants, got on top of G.Z., and started humping her. G.Z. clarified that defendant's penis was making contact with her buttocks as in the hallway bathroom encounter, except that defendant was lying on top of her as G.Z. was lying on the bed, looking away from defendant. G.Z. stated that "the exact same thing" happened during the second encounter at defendant's home.

         ¶ 24 Following argument, the trial court found that the "time, content, and circumstances of the statements, the testimony of the witnesses, the credibility of [G.Z.], who has testified here by way of video, all [the court] believe[s] are sufficient to allow the admissibility of the [section] 115-10 statements."

         ¶ 25 In June 2013, the State filed a supplemental notice of its intent to solicit corroborative testimony detailing statements G.Z. made to Lisa Moment, a nurse, pursuant to section 115-10 of the Code. At a July 2013 pretrial hearing, the State presented the following evidence.

         ¶ 26 On November 9, 2012, Moment performed a sexual assault examination of G.Z. As part of that process, Moment asked G.Z. broad questions regarding her understanding of why she was being examined. Moment recalled that G.Z. told her that "at some point [G.Z.] went to the bathroom. [Defendant] followed her into the bathroom and turned out the lights and pulled down his pants and her pants and started humping her." G.Z. clarified that "humping" meant "going back and forth." G.Z. agreed with Moment's description that defendant put his penis in G.Z.'s bottom. Moment characterized G.Z.'s demeanor during her recital of the events at issue as "very calm" and "pretty flat, " which Moment did not find unusual. Moment acknowledged that she did not find any bleeding or tears during her physical examination of G.Z.

         ¶ 27 Following argument, the trial court found that the time, content, and circumstances of the statements provided safeguards of reliability sufficient to permit admission of Moment's testimony under section 115-10 of the Code.

         ¶ 28 C. Voir Dire

         ¶ 29 In October 2013, the trial court conducted voir dire, where the following exchange occurred outside of the venire's presence:

"[DEFENSE COUNSEL]: Due to the nature of the case, I think some inquiry is going to be made regarding personal and/or knowledge of sexual abuse issues. Our request *** would be to address those individually due to the obvious circumstances regarding those kind of issues, and the personal nature that they may-
THE COURT: [The court will] be asking questions about whether they have been the victim of any criminal offense. [The court will] also be asking them whether once they hear the nature of this offense, is there anything about that which affects their ability to be fair and impartial. [The court is] not inclined to inquire or ask people to disclose in open court that they've been victims themselves. [The court will] ask questions that are designed to get that information out, and [the court] will also tell them that if at any time *** [the court] ask[s] a question which causes them any concern or anxiety and they don't feel comfortable answering it in open court, they have a right to talk with me privately. [The court] will call you up to tell you what they [said]. Nine times out of ten, that's when they come up, someone will say they were a victim of a rape, or victim of some sexual offense, and they don't want to disclose it in open court. They tell [the court] what the situation is. [The court will] then call the attorneys up at a side-bar and advise them of the situation, but as far as being allowed to inquire further about if, no. [The court will] cover it.
[DEFENSE COUNSEL]: You're barring us as a counsel?
THE COURT: Yes. [The court will] cover it, and if [the court] think[s] it needs further covering because of a response they give, then [the court will] have even more questions, but [the court's] questions are designed to get responses without people having to go through the stress of acknowledging in open court something of that nature. *** [I]n almost every jury[, ] one or more persons ask to talk to [the court] privately and they come up and disclose their circumstance, and then [the court] let[s] the attorneys know. Once you hear the information, if you want further questions asked of that person, tell [the court] what questions you want asked and [the court will] ask them. Anything else?
[DEFENSE COUNSEL]: No. I just wanted to make sure our request for the individual ID-
THE COURT: It won't be done individually, but [the court] will make sure that there's individual inquiry if any of those people respond in a way that gives us some reason to believe that we need to ask some further questions."

         ¶ 30 Thereafter, during voir dire of 14 venire members, the trial court inquired, as follows:

"Have you or any members of your family ever been the victim of a criminal offense? Any of you have any bias or prejudice against a person merely because they have been charged with a criminal offense? Is there anything about the nature of the charges in this case, predatory criminal sexual assault of a child and aggravated criminal sexual abuse, just the charges themselves, is there anything about hearing those charges that affects you in such a way that you believe that it would prevent you from reaching a fair and impartial verdict?"

None of the venire members answered affirmatively.

         ¶ 31 After a sidebar conference held outside of the jury's hearing, the trial ...

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