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
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
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
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
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
None of the venire members answered affirmatively.
31 After a sidebar conference held outside of the jury's
hearing, the trial ...