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No. 3--02--0794

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

JUSTICE HOLDRIDGE delivered the Opinion of the court:

A jury found the defendant, Robert D. Rapp, guilty of twocounts of predatory criminal sexual assault of a child (720 ILCS5/12--14.1(a)(1) (West 2000)). He was sentenced to twoconsecutive terms of 11 years' imprisonment. His postconvictionpetition was denied at the third stage of the proceedings. Onappeal, the defendant argues that the trial court erred bydenying his petition. Specifically, he contends that his dueprocess rights were violated because at trial the State failed todisclose that one of its witnesses was a convicted felon. Weaffirm.

BACKGROUND

The defendant was charged with having committed two countsof predatory criminal sexual assault of a child with a minor,N.P., in 1998 and 1999 in Henry County. According to testimonyat trial, N.P. was approximately eight or nine years old whenthese offenses occurred.

N.P. is the daughter of Denise Torrence and Gerald P. AfterDenise and Gerald were divorced, Denise was granted custody ofN.P. and Gerald was allowed visitation. Gerald moved to Iowa,where he lived with Stephanie Swisher.

Denise developed a relationship with the defendant. Eventually, Denise, the defendant, and N.P. began livingtogether.

After Denise was convicted of driving under the influence,Gerald commenced proceedings to gain custody of N.P. During thecustody hearing, the defendant testified on Denise's behalf. Gerald's initial petition to obtain custody of N.P. was denied.

At trial, the State played for the jury a video tape of aninterview of N.P. conducted by Carol Nigh, a clinical socialworker. In the tape, N.P. described the sex acts committed onher by the defendant on two occasions.

N.P. testified at trial. Her testimony was less detailedthan her description of events had been during the tapedinterview. Nigh also testified.

At trial, Denise, Gerald, and Stephanie all testifiedconcerning the contextual events surrounding N.P.'s allegationsof the defendant's criminal conduct with her. Each of thesewitnesses, however, stated that N.P. had not told him or her thedetails of the sex acts.

Gerald testified about the custody and visitationarrangements that he and Denise had regarding N.P. He statedthat N.P. was with him and Stephanie in Iowa during most of thesummer of 1999. At the end of the summer, N.P. returned toIllinois to live with Denise and the defendant. After N.P. hadbeen "in school maybe a week or so," the defendant and some ofhis relatives called Gerald to tell Gerald that they did not knowwhere Denise was. They asked Gerald to come and get N.P. Because Gerald was a professional truck driver, he was not homeand could not pick up N.P. at that time. At Gerald's request,Stephanie and Gerald's sister traveled to Illinois to pick upN.P. and bring her back to Iowa.

After Gerald returned home, he learned of N.P.'s allegationsagainst the defendant from other adults, but not from N.P. Gerald testified that he never discussed the details of theallegations with N.P. He stated that he only told N.P. not tolie and that she should tell the truth.

The defendant testified in his own defense. He deniedhaving engaged in the sex acts N.P. had described in the tapedinterview and in her testimony.

Eventually, Denise was located. She was incarcerated formore criminal offenses. Gerald petitioned again for custody ofN.P. This time, his petition was granted.

During the closing arguments at trial, the defendant'sattorney suggested to the jury that Gerald and Stephanie hadprompted N.P. to bring the allegations against the defendant sothat Gerald could gain custody of N.P. The prosecutor contendedthat there was no evidence that Gerald and Stephanie had toldN.P. to bring her allegations against the defendant. Theprosecutor submitted that, furthermore, Gerald had begun hissecond proceeding for custody of N.P. on the basis of Denise'sincarcerations. The prosecutor argued that Gerald had no need toplant the idea with N.P. to bring her allegations against thedefendant in order to gain custody of N.P.

The jury found the defendant guilty of the charges, and hewas sentenced. On direct appeal, we affirmed his convictions andsentences (People v. Rapp, No. 3--01--0213 (2002) (unpublishedorder under Supreme Court Rule 23)).

On May 7, 2002, the defendant filed a postconvictionpetition through his attorney. In his petition, he argued thathis due process rights were violated because the State failed todisclose that Gerald was a convicted felon.

The matter proceeded to a third-stage evidentiary hearing. At the hearing, the trial judge ruled the defendant had not shownthat the outcome of the case would have been different ifGerald's felony conviction had been disclosed to the defendantfor impeachment purposes. The court issued an order denying thedefendant's petition. The defendant appealed.

ANALYSIS

The defendant argues that his due process rights wereviolated because the State failed to disclose that Gerald was aconvicted felon. The defendant submits that if the defendantcould have impeached Gerald's credibility during cross-examination, the jury might have disbelieved Gerald. Thedefendant contends that if the jurors disbelieved Gerald, theymight have believed the defendant's theory that Gerald andStephanie coached N.P. to bring her allegations against thedefendant so that Gerald could gain custody of N.P.

The Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.(West 2002)) provides a remedy to a criminal defendant who showsa substantial violation of his constitutional rights. People v.Dockery, 296 Ill. App. 3d 271, 694 N.E.2d 599 (1998). Uponreviewing a postconviction petition that was denied following athird-stage evidentiary hearing, we are to determine whether thetrial court's factual findings were against the manifest weightof the evidence. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d1063 (1998).

In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S.Ct. 1194 (1963), the United States Supreme Court held that theState has an affirmative duty to disclose certain favorableevidence to the defendant. Failure by the State to discloseevidence that is material either to the defendant's guilt orpunishment is a violation of the defendant's due process rights.

Such favorable evidence, however, is material only whenthere is a reasonable probability that had the evidence beendisclosed to the defendant, the outcome of the case would havebeen different. United States v. Bagley, 473 U.S. 667, 87 L. Ed.2d 481, 105 S. Ct. 3375 (1985). In order to succeed in a claimedBrady violation, the defendant bears the burden to show that: (1)the evidence is favorable to the defendant because it is eitherexculpatory or impeaching; (2) the evidence was either wilfullyor inadvertently withheld from the defendant by the State; and(3) withholding the evidence resulted in prejudice to thedefendant. Strickler v. Greene, 527 U.S. 263, 144 L. Ed. 2d 286,119 S. Ct. 1936 (1999).

In Illinois, the Brady rule has been codified in SupremeCourt Rule 412(c). 188 Ill. 2d R. 412(c); People v. Williams,329 Ill. App. 3d 846, 769 N.E.2d 518 (2002). Evidence, such as aprior conviction, that the defense may use to impeach one of theState's witnesses falls under the purview of Rule 412(c). Williams, 329 Ill. App. 3d 846, 769 N.E.2d 518.

In the present case, the State acknowledges that itinadvertently failed to disclose to the defendant that Gerald hadbeen convicted of a felony. The disclosure of Gerald's felonyconviction could have been used by the defendant to impeachGerald. The crucial inquiry, however, is whether the State'sfailure to disclose Gerald's prior conviction prejudiced thedefendant's case. See Strickler, 527 U.S. 263, 144 L. Ed. 2d286, 119 S. Ct. 1936. Under Brady and its progeny, we mustdetermine whether there is a reasonable probability that had theevidence of Gerald's criminal record been disclosed to thedefendant, the outcome of the case would have been different. See Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375.

Gerald's testimony was not material to proving whether thedefendant committed the elements of the crimes. His testimonyconcerned events that were relevant to the context in which thecriminal acts were committed.

As in any criminal case, the State's burden was to presentevidence to prove beyond a reasonable doubt the elements of thecrimes charged. The State, however, was not required to disprovethe defendant's alternative theory that Gerald and Stephanieencouraged N.P. to bring her allegations against the defendant sothat Gerald could gain custody of N.P.

In this case, the jury reasonably could have found that thedefendant committed the elements of the crimes beyond areasonable doubt based on the video tape and N.P.'s testimony. Even if the defendant had impeached Gerald's credibility byraising his prior conviction during cross-examination, there isnot a reasonable probability that it would have affected theoutcome of the case. The defendant was not prejudiced by theState's failure to disclose Gerald's prior felony conviction.

CONCLUSION

The State's failure to disclose Gerald's criminal record wasnot a violation of the defendant's due process rights underBrady. Because the defendant did not present evidence at thethird-stage hearing of a substantial violation of hisconstitutional due process rights, the trial court's denial ofthe postconviction petition was not against the manifest weightof the evidence. Therefore, we affirm the judgment of the HenryCounty circuit court.

Affirmed.

LYTTON and BARRY, JJ., concur.