People v. Walls
Case Date: 03/19/2004
Court: 5th District Appellate
Docket No: 5-01-0771 Rel
NO. 5-01-0771
JUSTICE DONOVAN delivered the opinion of the court: Defendant, Michael A. Walls, appeals his conviction of aggravated criminal sexualassault. Defendant raises the following three contentions on appeal to this court: (1) he wasdenied a fair trial when the court prevented him from presenting evidence attacking thecomplaining witness's credibility with a prior false accusation of a crime, (2) the trial was anullity based on the use of a special assistant State's Attorney, and (3) section 12-14(d)(2) ofthe Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(d)(2) (West 2000)), whichmandates a term of natural-life imprisonment for a second conviction of aggravated criminalsexual assault, is unconstitutional under section 11 of article 1 of the Illinois Constitutionbecause it creates a disproportionate penalty when compared to other more serious crimes. For the following reasons, we affirm. On November 25, 2000, Kathy, her cousin Jackie, and defendant met at the CornerTavern in Mt. Vernon, Illinois. Defendant and Kathy had met on an Internet chat room aboutsix months before the incident involved in this case. Later that evening, the threesome left theCorner Tavern in defendant's van and, in search of money, visited the homes of several friends. When they failed to secure any cash, the trio went to Club 57. They left Club 57, and defendantand Kathy dropped Jackie off at the Corner Tavern and proceeded to defendant's trailer tosearch for money. After entering the trailer, Kathy looked through a jar for money. Defendant gave hera beer. Kathy dropped her cigarettes, and when she bent over to pick them up, defendant hit herin the head with a hammer. Defendant then told Kathy to stay down or he would hurt her again. Defendant picked Kathy up and took her into the back bedroom and placed her on the bed. Defendant forced her to get on her hands and knees, tied her hands and feet, tied her to the bed,and put a cloth around her mouth. Defendant left the bedroom to go to the bathroom. When he returned, he pulled Kathy'spants and underwear down to her knees and placed his penis in her vagina. After he finished,defendant sat on the bed, untied Kathy, and told her that he was sorry. Defendant also told herthat he would not blame her if she went to the police. Defendant then drove Kathy home andagain told her he was sorry. Once inside her home, Kathy woke up her mother and told her that she had been raped. Her mother drove her to Good Samaritan Hospital in Mt. Vernon shortly after 1 a.m. At thehospital, Kathy spoke to several medical staff members and police officers about the incident. Kathy had a large knot on her head, described by hospital staff members as a hematoma. Dr.Richard Garretson, the emergency room physician at Good Samaritan Hospital, testified thatthe hematoma came from a blow to the head that had been very recent and that he believed thatthe hematoma was "consistent with the blow from the hammer." Kathy developed bruises onher ankles from being tied up. Medical personnel and police officers described the bruises asligature marks. When defendant and Kathy entered defendant's trailer, Kathy sat on the couch and askeddefendant for a cigarette. Defendant gave Kathy his last beer. Defendant testified that Kathyseemed frustrated and angry because they could not come up with any money. Defendant statedthat he then asked, "What would you say if I just up and just kissed you right here?" Kathyreplied, "I got no problem with that." They then started kissing and things got "heated." Defendant and Kathy then stretched out on the couch. Kathy accidentally "bumped her head"on the edge of the couch, and she immediately grabbed her head and claimed she was in pain. Kathy was irritated but finally calmed down. Defendant then suggested they go to the bedroom. In the bedroom, they removed their clothes and defendant put on a condom beforeengaging in sexual intercourse. After a few minutes, defendant discovered that the condom hadbroken. He sat on the bed with his head in his hands. Defendant testified, "[Kathy] commencedto getting in my stuff, getting argumentative with me, [and] telling me not only was I broke butI was sexually unsatisfied and apparently didn't know what I was doing, if I was having sex andhave [sic] a condom broke on me." Defendant admitted that he had ejaculated, that he put thecondom in the toilet, and that they both got dressed. Kathy walked out of the trailer door first and got into the van. Defendant then droveKathy home. After defendant stopped at her residence, Kathy asked for one more cigarette. Defendant testified that he could tell that Kathy was angry when she walked to her home. Defendant waited until Kathy was inside her home and then drove to Kimmie's Bar. Defendant had one beer at Kimmie's Bar. He tried to start his van to drive home, butit would not start. It took defendant about 15 to 20 minutes to walk home. Defendant went tosleep and awoke the next morning to a knock on the door by the police. Defendant wasfrightened by the nature of the complaint alleging that he had raped Kathy and by the demeanorof the police. Defendant denied that any sex act had occurred. Defendant basically deniedeverything because of the way he was approached by the police. He was under the assumptionthat the police would probably get more rude if he admitted that he had sex with Kathy. Detective Mark Junkins went to defendant's trailer to investigate Kathy's complaint. Defendant told Detective Junkins that he had been with Kathy at the Corner Tavern the previousevening. They had traveled around and looked for some money to go to Club 57. Afterdropping Kathy's cousin off at the Corner Tavern, defendant and Kathy went to his trailer tolook for money. Defendant gave Kathy a beer, and after not finding any money, he drove herhome. Defendant denied that he had sexual intercourse with Kathy, denied that she had beenon his bed, and denied knowledge of how the condom wrapper the police found came to be inthe toilet in his trailer. Defendant and the State stipulated that the evidence collected at Good SamaritanHospital was examined at the forensic laboratory. Defendant's semen was found on the rectalswab taken from the underwear worn by Kathy that night. The jury found defendant guilty of unlawful restraint and three counts of aggravatedcriminal sexual assault. At the sentencing hearing on September 24, 2001, the trial courtvacated defendant's conviction for unlawful restraint, finding that the offense of unlawfulrestraint is an inherent factor in the charge of aggravated criminal sexual assault. The court sentenced defendant to natural-life imprisonment on one count of aggravated criminal sexualassault. The court denied defendant's motion to declare section 12-14(d)(2) of the CriminalCode (720 ILCS 5/12-14(d)(2) (West 2000)) unconstitutional and impose a term ofimprisonment less than natural-life imprisonment, finding that natural-life imprisonment wasmandatory pursuant to the statute, based on defendant's previous conviction in 1985 ofaggravated criminal sexual assault. Defendant's first issue on appeal is whether he was denied a fair trial because the courtprevented him from presenting evidence attacking Kathy's credibility with a prior falseaccusation of an offense. Before the trial, the State filed a motion in limine to prevent thedefense from introducing testimony that Kathy had made a prior criminal complaint ofdomestic battery against her husband, Tony, and that at some time later she filed a documentwith her husband's attorney recanting her original statement to the police. In granting theState's motion, the circuit court reasoned as follows: "Whether [the victim] lied or not about a totally unrelated matter is collateral to thiscase and would be collateral impeachment, and the case law in the Fifth District is veryclear[:] the fact that on a former occasion that she may have lied about a totallyunrelated matter is not permissible. Motion is granted." Although it is permissible to show that a witness in a criminal case has a bad reputationfor truth and veracity, it is not permissible to impugn a witness's credibility by establishing thaton a former specific occasion, the witness lied about a totally unrelated matter. See Peoplev. West, 158 Ill. 2d 155, 162, 632 N.E.2d 1004, 1007 (1994) (rejecting the argument thatspecific acts of untruthfulness may be used to impeach in cases involving children who are tooyoung to have developed a reputation as an exception to the rule that only reputation evidencemay be used for impeachment); People v. McGee, 286 Ill. App. 3d 786, 796, 676 N.E.2d 1341,1348 (1997) ("specific instances of untruthfulness are not admissible to attack a witness'sbelievability"). Defendant argues that the case of People v. Nicholl, 210 Ill. App. 3d 1001, 569 N.E.2d604 (1991), is on point. In Nicholl, the defendant argued that the court erred in not allowingevidence that a minor victim's subsequent complaint of abuse against the defendant had beendetermined to be unfounded by the Department of Children and Family Services. Upon review,the court concluded that the trial court should have allowed this evidence. Nicholl is easilydistinguished from the case at bar. In Nicholl, the evidence sought to be admitted related tothe same victim and the same defendant. In the case at bar, the evidence sought to be admittedrelates to the same victim but involved someone other than defendant. We fail to see how afalse complaint made by Kathy against her husband about a domestic battery, an entirelydifferent charge than the rape in this case, can be considered materially relevant to the issueof whether Kathy lied when she told the police that she had been sexually assaulted by a manwho was not her husband. Such collateral information is not admissible. Even if this testimony had been allowed, we believe that the jury still would havereturned a guilty verdict based on the evidence in this case. This is not a case where theevidence was closely balanced. Rather, there was sufficient evidence to establish thatdefendant committed these crimes, based on the testimony of Kathy, medical personnel, and officers. Therefore, we find that the trial court did not err by granting the motion in limine toexclude the testimony related to Kathy's former complaint against her husband. Defendant's next argument is that the trial was a nullity because the attorney for theOffice of the State's Attorneys Appellate Prosecutor who appeared in this case did not have thestatutory authority to assist in the prosecution of this aggravated-criminal-sexual-assaultcharge. Before the trial, this case had been handled exclusively by Jefferson County assistantState's Attorney Nicole Villani. On the day of the trial, David Rands, a prosecutor from theOffice of the State's Attorneys Appellate Prosecutor (SAAP), appeared with Ms. Villani andentered his appearance, whereupon he subscribed an oath before the circuit court as "[s]pecial[a]ssistant State's Attorney." Defense counsel objected to Mr. Rands' assistance, stating, "Iwould object to his assistance at this time due to the fact that the State's Attorney's budget isand with-in addition to its extra resources available, it creates an unfair advantage to the Stateto have such assistance." Defendant failed to object to Rands' participation on the basis thathe did not have the statutory authorization to participate in the prosecution of this case. Thecircuit court overruled the objection, and defendant did not contend in his motion for a newtrial that Rands' participation was unauthorized. Defendant relies on this court's decision in People v. Ward, 326 Ill. App. 3d 897, 762N.E.2d 685 (2002). In Ward, this court held that the assistance of a SAAP attorney in a drugprosecution rendered that prosecution void, in that the special attorney was not authorized bystatute to assist in the prosecution and, further, that the court record was devoid of an orderappointing the attorney as a special assistant State's Attorney. Several months later, our court distinguished People v. Ward in People v. Woodall,333 Ill. App. 3d 1146, 777 N.E.2d 1014 (2002). In Woodall, the court found that while theSAAP attorneys were court-appointed "special assistant State's Attorneys," the act ofappointment was of no legal consequence because the SAAP attorneys lacked statutoryauthority to prosecute the matter, based on the language of the SAAP's enabling statute. However, the court in Woodall later noted that the defense team in the case had notcomplained about the use of the SAAP, and the court found that the wrongful participation ofa SAAP attorney did not render the prosecution void, because the circuit court had subjectmatter jurisdiction over the prosecution as a result of the charges validly initiated by the State'sAttorney and because personal jurisdiction had been acquired when the defendant appeared andjoined the issues with a plea. The court in Woodall distinguished Ward, stating: "Ward should not be read as the source of a novel jurisdictional rule that wouldvoid all convictions procured by licensed attorneys who, for whatever reason,mistakenly believe that they are authorized to act on the State's behalf and who arepermitted to do so by those being prosecuted. Any defect in an attorney's appointmentprocess or in his or her authority to represent the State's interests on a given matter isnot fatal to the circuit court's power to render a judgment. The right to be prosecutedby someone with proper prosecutorial authority is a personal privilege that may bewaived if not timely asserted in the circuit court." Woodall, 333 Ill. App. 3d at 1159,777 N.E.2d at 1024-25. We believe that Woodall controls this case in that it holds that even if an appointmentis defective, the defective appointment of special assistant prosecutors does not nullify ajudgment of conviction. Additionally, we note that as in Woodall, the only objection defendanthad to Rands' participation was that Rands' participation gave the State an unfair advantage interms of the number of prosecutors and financial resources available to the State. Thus, unlikethe defendant in Ward, who complained that the SAAP did not have authority pursuant to thestatute, defendant in this case only objected for financial reasons and only now objects to theuse of the SAAP for statutory reasons. Therefore, we find that defendant has forfeited thisissue. Finally, defendant argues that section 12-14(d)(2) of the Criminal Code (720 ILCS5/12-14(d)(2) (West 2000)) is unconstitutional pursuant to section 11 of article 1 of theIllinois Constitution because it creates a disproportionate penalty. Specifically, defendantargues that section 12-14(d)(2), which mandates a term of natural-life imprisonment for asecond conviction of aggravated criminal sexual assault while the more serious conduct ofcommitting two first-degree murders is the same mandatory term of natural-life imprisonment(730 ILCS 5/5-8-1(a)(1)(c)(i) (West 2000)), is unconstitutional pursuant to section 11 ofarticle 1 of the Illinois Constitution because it creates a disproportionate penalty. The Illinois Constitution mandates the following: "All penalties shall be determinedboth according to the seriousness of the offense and with the objective of restoring theoffender to useful citizenship." Ill. Const. 1970, art. I, |