Opinion
No. 1-03-1795
December 27, 2004.
Appeal from the Circuit Court of Cook County, 99 CR 18962, Stanley Sacks Judge, presiding.
Following a jury trial, defendant, Stanley Jones, was found guilty of the aggravated criminal sexual assault of Timothy Kester while defendant and Kester were inmates at the Cook County Department of Corrections. The trial court sentenced defendant to 30 years' imprisonment to be served consecutively to his prior convictions.
Defendant appeals, arguing that (1) the trial court improperly restricted his opportunity to question prospective jurors about any biases or prejudices against homosexuality; (2) defendant was denied a fair trial when Kester's testimony was improperly bolstered by the trial court; (3) the use of the word "victim" in the jury instructions was prejudicial; (4) defendant's prior conviction for murder was improperly admitted as impeachment evidence to defendant's credibility; and (5) the trial court failed to properly consider defendant's pro se posttrial motion.
In August 1999, defendant was indicted on the charge of aggravated criminal sexual assault. Defendant was accused of the sexual assault of a fellow inmate, Kester, at the Cook County Department of Corrections in July of 1999. A jury trial was held in February 2003. The following testimony was admitted at defendant's trial.
Timothy Kester testified that he is currently serving a 10-year sentence at the Robinson Correctional Center for armed robberies. He stated that in July 1999, he was 20 years old and being held at the Cook County jail. He was initially placed in the general population of the prison, but he asked to be moved to protective custody to be near a friend. While in protective custody, Kester met defendant.
Kester described his relationship with defendant "as friends." He discussed his criminal case with defendant. Kester talked to defendant about his case because defendant offered to help him and told Kester that there were some loopholes in the case. Kester had observed defendant assist other inmates with their cases. Kester then requested to move into defendant's cell to get help on his case and to watch the television from a better angle. Kester said that defendant preferred not to work on Kester's case in the dayroom of the tier because other inmates could hear and send notes to incriminate Kester. Kester made the suggestion that he move into defendant's cell.
Kester testified that wanted to move into defendant's cell so he could talk to someone and to keep him occupied in the cell. When Kester moved into defendant's cell, he took the top bunk and defendant slept on the bottom bunk. At about 1 a.m. on his first night in defendant's cell, Kester was watching the television through a hole in the door when defendant approached him. Kester stated that defendant came up behind him and put a razor blade connected to a pen up to his neck. The razor blade came from a standard plastic shaving razor. The blade was removed from the plastic shaver and tied with string to a pen.
Defendant told Kester not to move or scream. He ordered Kester to get up, and Kester complied. Defendant kept the razor at Kester's neck and told Kester to remove his boxers, and Kester did so. Defendnat told Kester to lie face down on the bottom bunk. Kester laid down. Kester testified that defendant applied some ointment to his penis and to Kester's anus. Kester told defendant not to do this and to leave him alone. Defendant did not stop. Kester stated that defendant then placed his penis into Kester's anus. Kester testified that defendant kept his penis inside Kester's anus for about 5 to 10 minutes. Defendant stopped when he heard a corrections officer enter the tier. Kester said he "felt some warm stuff" when defendant ejaculated. Defendant told Kester to be quiet and not to say anything.
Kester went up into his bunk and laid close to the wall and cried. He did not call out for help to the corrections officer in the tier. He did not see what defendant did with the razor. Kester did not sleep at all that night. He heard defendant leave the cell in the morning for a court appearance. Later that morning, Kester told another inmate about what happened and asked what he should do. The inmate notified Officer Cheryl Payton. Officer Payton came to Kester's cell and he told her what happened. She sent Kester to the dispensary, and from there he was sent to Cermak Health Services. Kester stated that he was treated for swelling to his anus and a rape kit was administered. Kester later returned to the tier. He did not see defendant again.
On cross-examination, Kester testified that he never felt any fear of defendant. He also stated that he knew defendant was a lot older than him. Kester said defendant's attack happened so fast that Kester did not see the razor, but only felt it on his neck. Kester was impeached with his testimony before the grand jury in which he said that he refused to get up when defendant ordered him to get up from the floor and that defendant forced him to get up. Kester denied asking defendant to look at a rash on his back or to rub a pain in his leg. Kester admitted that he told his friend, Ronald Hamilton, on the tier that defendant had sodomized him and that Hamilton told Kester to sue the county. He denied that he knew defendant was bisexual. On redirect, Kester stated that he has not filed a lawsuit against the county.
Officer Cheryl Payton testified that she is employed by the Cook County Department of Corrections and was employed there in July 1999. In July 1999, Officer Payton was assigned to division 11, maximum security; specifically, tier A-C. Tier A-C is protective custody for inmates who are in fear of their life or involved in a high profile case. Inmates request to be placed in protective custody. Officer Payton's duties are to insure the safety of the inmates, make sure they are fed, and receive any permitted necessities. Tier A-C houses a total of 48 inmates but was not at capacity in July 1999. She stated there are televisions in the common area of the tier which are visible from cells on the higher level.
She testified that in July 1999, Kester requested to move into defendant's cell, and she referred him to a supervisor. She said the view of the television was better in defendant's cell than in Kester's original cell. She stated that on the morning of July 29, Hamilton talked to her and following that conversation she went to check on Kester. She found him standing in the cell and he did not turn around when she first called to him. When he finally turned around, Payton saw that he was crying. Payton described Kester's demeanor as shaky and embarrassed. She then spoke with Kester, and following that conversation, she moved him to a secure area to wait for a supervisor. Kester was then taken to the dispensary, which is a medical unit within the building to assess an inmate before he is taken to Cermak Health Services.
Shortly thereafter, Officer Payton went to search defendant's cell. She put on rubber gloves and performed a routine search. When she pulled back the bottom mattress, she found a razor. Officer Payton described the razor as a standard blade from a Bic razor. The blade had been removed from the razor and was about two to three inches long with little holes for the blade to fit in the grooves of the razor. She stated that inmates are allowed to have Bic-type razors in their cell before court appearances. The razors are passed out on the midnight shift and are to be returned by the inmate when he leaves for court. Officer Payton said that she never found the plastic part of the razor.
On cross-examination, Officer Payton stated that she was not aware of any report that defendant failed to return a razor. She also said that the emergency call button to the corrections officers does not work.
Norbert Kuksta testified that he is an investigator with the internal affairs division of the Cook County Department of Corrections and he held that position in July 1999. Kuksta was assigned to investigate a sexual assault that occurred on July 29. He received a razor blade that is common to a Bic shaver but was not attached to the plastic handle. Kuksta turned over the razor blade to be processed as evidence for storage as part of his procedure. Kuksta stated that at some point in 1999, the storage process was changed and evidence was no longer stored at the Cook County jail, but was placed with another organization. Kuksta said he received a request from the State's Attorney in 2003 for the razor blade and he personally searched for the razor blade, but he was not able to find it.
The parties entered a stipulation stating that on July 29, 1999, Kester was treated at Cermak Health Services and a sexual assault evidence kit was taken. The kit included a "blood standard" and rectal swabs. Proper medical procedures were observed in taking the blood and swabs, and they were placed in the kit, which was sealed and taken to the Illinois State Police Crime Laboratory. Jennifer Schultz is employed as a forensic scientist at the Illinois State Police Crime Laboratory and is an expert in forensic biology. Schultz received the sealed kit and tested the rectal swabs using commonly accepted techniques. Her testing revealed the presence of semen on the rectal swabs. Schultz resealed the kit and transferred the kit to the DNA analysis section of the Illinois State Police Crime Laboratory.
The stipulation went on to state that pursuant to a court order, defendant reported to Cermak Health Services and a blood sample was taken. It was properly sealed, maintained, and transported to the Illinois State Police Crime Laboratory. David Turngrin is a forensic scientist at the Illinois State Police Crime Laboratory and is an expert in DNA analysis. Turngrin received the sealed sexual assault kit containing Kester's blood sample and rectal swabs as well as the sealed blood sample of defendant. Turngrin performed commonly accepted tests on the DNA found in the semen from the rectal swabs and the DNA in the blood samples. Turngrin's expert opinion to a reasonable degree of scientific certainty is that the DNA profile in the semen in the rectal swabs matched defendant.
Following the stipulation, the State rested. Defendant moved for a directed verdict, which the trial court denied.
Defendant took the stand on his own behalf. He testified that at the time of trial he was 56 years old. He stated that he did not sexually assault Kester. In June 1999, defendant lived in the A-C protective custody unit of division 11 of the Cook County jail. Defendant met Kester when Kester transferred into the A-C unit. Defendant said he was friends with Kester. Initially, their friendship began with sporadic conversations, and then developed into a close friendship. Defendant's first interaction with Kester was when Kester asked for defendant's assistance in his case. They went to defendant's cell to discuss Kester's case. Later, Kester discussed his family and friends with defendant. At some point in the conversations, defendant told Kester he was bisexual. Following defendant's disclosure of his sexual orientation, Kester asked if he could move into defendant's cell. Kester moved into the cell in the afternoon of July 29.
Following lockdown that evening, defendant undressed and went to bed. Kester came in and undressed and began to watch television through a hole in the door. Defendant testified that Kester asked defendant to come over and watch television with him. Defendant went over and watched television until the news finished and went back to bed. Kester walked over to where the light was on the wall and asked defendant to look at Kester's upper torso to see if his rash had dissipated. Defendant got out of bed and examined Kester's torso. He told Kester that the rash was gone. Defendant noticed Kester had several scars and asked Kester about them. Kester showed him another scar on his left buttock.
Defendant returned to his bunk. Kester was looking at his legs and asked defendant if they looked funny because Kester could flex them past vertical a bit. Defendant told Kester it was no big deal and his legs looked okay. Kester mentioned that one of his feet was slightly different from the other. Kester sat on the floor and stretched his legs out in front of him. Defendant came to look at Kester's feet and said he did not see any irregularity. Kester told defendant that one of his legs was hurting, and defendant massaged Kester's foot and calf. Defendant told Kester to move onto his bunk to make it easier for defendant to massage Kester. Kester wanted defendant to massage his other leg. Defendant asked Kester to lay on the bunk because defendant was uncomfortable from squatting and wanted to stand. Kester laid face down on the bunk, and defendant continued to massage him. Kester then complained about his back and defendant gave Kester a back massage.
Defendant stated that he gave a thorough massage that included Kester's neck, shoulders and arms. While massaging Kester's left arm, defendant lifted Kester's arm to rest on defendant's leg and then Kester moved his hand to defendant's groin area. Defendant said he continued to massage Kester and did not move Kester's hand. During the massage, Kester raised himself up and moved his underwear about a third of the way down his buttocks. Defendant continued to massage Kester. Soon, Kester removed his underwear. Defendant said it was obvious what was being indicated or suggested, and he "positioned [himself] in order to facilitate that taking place."
Defendant stated that Kester did not voice any protests. Defendant said that Kester was thrusting back against him with enough force that defendant needed lubrication, which defendant went and retrieved. Defendant denied using force or any weapons. He admitted that he did ejaculate. After the sexual encounter, defendant went to wash up and Kester got up and got dressed. Defendant asked Kester what was wrong, and Kester responded that he was not going to do that anymore. Defendant continued to question Kester, and Kester admitted that he had a new baby and had promised himself to refrain from that lifestyle. Defendant embraced Kester and they went to bed.
The next morning, defendant went to shower before court. When he returned to prepare, Kester asked for a cigarette and defendant went to ask for one from another inmate. He gave Kester a cigarette, they embraced, and defendant left for court. When defendant returned from court, he was escorted to the wing and told to collect his belongings. He saw Kester in the dayroom between two inmates.
On cross-examination, defendant stated that he knew Kester was 20 years old in 1999. Defendant said it was commonly known that he "delved in legal work a bit" and would help other inmates with their cases. Defendant said that he had a few conversations with Kester that lasted a total of 2½ hours before Kester asked to move into his cell. During the conversations, Kester had told defendant that he had engaged in "intergender relationships." Defendant said that Kester indirectly indicated that he wanted to have sex with defendant based on Kester's actions. Defendant admitted to sleeping on the bottom bunk, but denied any knowledge of the razor blade found under his mattress. Defendant said he did not sleep in the same bunk as Kester following their sexual encounter because the bunks are too narrow.
Defense rested after defendant's testimony. Following defendant's testimony, defendant's attorney asked the trial court if it was admitting defendant's prior convictions to impeach defendant's credibility. Defendant's attorney had previously asked the court if it would admit the convictions, but the court refused to indicate its decision until defendant testified. Defendant's attorney argued that the prejudicial effect of defendant's prior convictions outweighed any probative value. Defendant has a 1994 conviction for theft of services, a 1996 conviction for possession of a controlled substance, and a 2000 murder conviction that was on remand to the circuit court at the time of defendant's sexual assault trial. Defendant's attorney specifically pointed out the differences in admitting Kester's prior convictions and admitting defendant's. The trial court ruled to admit defendant's prior convictions as impeachment evidence. Following jury instructions and deliberations, the jury found defendant guilty of aggravated criminal sexual assault.
In March 2003, following trial, defendant's attorney filed a motion for a new trial. At the same time, defendant attempted to file pro se papers but was denied by the court. Defendant filed the papers a month later and alleged ineffective assistance of trial counsel. Defendant's motion for a new trial was denied. The trial court sentenced defendant to 30 years' imprisonment to be served consecutively to his murder conviction. In April 2003, the trial court considered defendant's pro se filings as a postconviction petition and denied it as frivolous and patently without merit.
This appeal followed.
The first issue raised on appeal is whether the trial court improperly denied defendant's attorney to question prospective jurors during voir dire about any possible prejudices against homosexuals. During defendant's attorney's questioning of potential jurors, he started to inquire from individual jurors about possible bias against homosexuality when the following discussion took place:
"MR. McMAHON [Defendant's Attorney]: With your religious feelings, what is your attitude towards homosexuality?
THE COURT: Sustained on my own. Next question, please.
MR. McMAHON: Judge, I believe I have a right to inquire as to any potential bias.
THE COURT: Turn around and ask a question.
MR. McMAHON: I have a right to inquire as to any potential bias.
THE COURT: Turn around and ask the questions.
MR. McMAHON: Am I allowed to ask that question?
THE COURT: You're not, next question please.
MR. McMAHON: And the reason is, Judge?
THE COURT: Just turn around and ask a question, Mr. McMahon.
MR. McMAHON: I have a legal right, Judge, to inquire as to any bias towards sexual orientation.
THE COURT: Counsel, you want to argue, argue later. Turn around and ask the questions.
MR. McMAHON: I'm asking the question and I would, Judge, I have a right to ask that and I believe the case law supports that.
THE COURT: We'll see later. Turned around and ask.
MR. McMAHON: I won't have chance later to ask him.
THE COURT: Counsel, do not argue with me. Ask the question, we'll go from there."
Eventually, defendant's attorney was permitted to ask the first panel en masse, "If anyone hears evidence of homosexuality, would that affect your ability to be fair or impartial? Does anyone have any strong opinions as to this, as to that issue?" The trial court indicated for the record that no one responded. However, defendant's attorney noticed that prospective juror Strauss did respond to the question. She stated that her brother had been "engaged" by a homosexual on the playground as a child. The court asked her "in any event, whatever might have happened to your brother all those years back, can you put that aside and be fair and impartial in this case?" Strauss indicated that she could.
Shortly thereafter, the court called a brief recess. In chambers, while the parties were selecting jurors from the first panel, the court reprimanded defendant's attorney for disagreeing with the judge in open court. Defendant's attorney asked to make a record, and the court told him to "make it later." Defendant's attorney went on to say that the court "would not allow me to have a side bar like we have outside the presence of the jury to discuss it. I have a right to ask questions about their prejudices towards sexual orientation." Defendant's attorney again asked to be able to question jurors about a bias against homosexuality. Defendant's attorney stated that he had more questions to ask the jurors individually, and that the court was severely limiting his right to voir dire the panel. Defendant's attorney moved to dismiss the entire venire, which the trial court did not address. The court once again made clear that defendant's attorney was not permitted to ask any questions of individual jurors. The court stated that in its opinion, "questions about the homosexuality bit are not relevant in this case. The question is not whether or not [defendant] and the other person may be homosexual. The question is whether or not there was forced sex. And whether it's consensual if that's what the defense is. The issue of homosexuality is a non-issue as far as I see it." When the jury selection resumed, defendant's attorney honored the judge's ruling and did not ask any further questions to the prospective panel members regarding the issue of homosexuality.
Defendant argues on appeal that he was denied the right to a jury free from any bias or prejudice. He asserts that evidence of homosexual conduct permeated the entire trial and it was error for the trial court to deny his attorney the chance to question the potential jurors to discover any prejudice or bias. The State maintains that the general questioning during voir dire created a reasonable assurance that any prejudice or bias regarding homosexuality would be discovered because the trial court informed the prospective jurors that the charge was based on an alleged sexual assault involving the defendant and "someone named Timothy Kester." The jurors were also asked if the nature of the charge would prevent them from giving both sides a fair and impartial trial, and if they would have difficulty following the law and adhering to the presumption of innocence.
The trial court is given the primary responsibility of conducting the voir dire examination, and the extent and scope of the examination rests within its discretion; however, the trial court must exercise its discretion in a manner consistent with the purpose of voir dire. People v. Strain, 194 Ill. 2d 467, 476 (2000). "The purpose of voir dire is to ascertain sufficient information about prospective jurors' beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath." People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993). A failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error. Strain, 194 Ill. 2d at 476-77; see People v. Lobb, 17 Ill. 2d 287, 300 (1959).
In Strain, the Illinois Supreme Court held that the defendant was denied an informed and intelligent basis on which to assert challenges for cause or to exercise peremptory challenges because the trial court failed to allow questions proposed by defendant's attorney during voir dire as to potential bias or prejudice against gangs. Strain, 194 Ill. 2d at 480-81. The Strain court found "[t]he same concerns regarding the prejudicial effect of gang evidence dictate our holding that, when testimony regarding gang membership and gang-related activity is to be an integral part of the defendant's trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias." Strain, 194 Ill. 2d at 477.
Defendant seeks for this court to extend the holding of Strain to questioning of homosexual bias because the topic of homosexual relationships incites the same type of charged and passionate response among the general public as gang activity and gang violence and is a "particularly fertile field for preconceived notions and prejudices." People v. Murawski, 2 Ill. 2d 143, 147 (1954). The State asserts that the questioning was sufficient because the potential jurors were asked if they could be fair and impartial to both sides, if they would be able to follow the presumption of innocence and proof beyond a reasonable doubt, and if anyone had any religious viewpoints that would preclude them from signing the verdict form. The State maintains that the jurors knew full well that defendant was charged with a homosexual act, and none of them spoke up about a bias.
The issue of homosexuality is a controversial topic in this country. Defendant cites to a USA Today/CNN/Gallup poll taken shortly after the time of defendant's trial which indicated that 49% of Americans said homosexuality should not be considered an acceptable alternative lifestyle compared to 46% who found that homosexuality should be considered an acceptable alternative lifestyle. Another question from the poll cited by defendant showed that 46% thought that homosexual relations between consenting adults should not be legal compared to 48% who thought it should be legal. While the question of sexual orientation may not draw as clear a bias as gangs, bias and prejudice do exist against homosexuality, and it is not necessarily true that such bias is predicated on religious beliefs.
S. Page, Poll Shows Backlash on Gay Issues, USA Today, http://www.usatoday.com/news/washington/2003-07-28-poll_x.htm.
Poll results at http://www.usatoday.com/news/polls/ tables/live/2003-07-28-polls-gays-issues.htm.
"The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him." Ristaino v. Ross, 424 U.S. 589, 594, 47 L. Ed. 2d 258, 263, 97 S. Ct. 1017, 1020 (1976), citing Ham v. South Carolina, 409 U.S. 524, 527-28, 35 L. Ed. 2d 46, 50-51, 93 S. Ct. 848, 851 (1973). Ristaino clarified that Ham, which permitted questions as to racial prejudice in voir dire "did not announce a requirement of universal applicability," but stated that racial issues "were inextricably bound up with the conduct of the [ Ham] trial." Ristaino, 424 U.S. at 596, 597, 47 L. Ed. 2d at 264, 96 S. Ct. at 1021.
We view homosexual bias to be applicable to the Ristaino holding. The mere fact that a defendant or victim is homosexual may not be sufficient to require questioning of potential jurors as to possible bias. However, in cases where issues involving homosexuality are "inextricably bound up with the conduct of the trial," the trial court should allow questions to potential jurors to discover any bias or prejudice in order to assure the defendant a fair and unbiased jury. Here, we disagree with the trial court's dismissal of homosexuality as a "non-issue." This case involved homosexual sexual assault, and under these facts where a defense of consent is presented, homosexual acts are inextricably tied up with the offense of sexual assault. Homosexuality invokes strong responses in many people, and a defendant is entitled to the opportunity to sufficiently develop any possible bias against him for that reason.
Cases from other jurisdictions support our determination that a defendant is entitled to questioning as to a potential homosexual bias. In State v. Rulon, 935 S.W.2d 723, 726 (Mo.App. 1996), the defendant contended that further individual voir dire was constitutionally mandated under Ham, but the reviewing court found no abuse of discretion when the venire panel was examined at length as to whether the defendant's sexual preference would affect the ability of the venire persons to properly weigh the evidence and render a verdict, and those that indicated they could not were excused for cause. In its ruling, the Rulon court stated:
"If we assume that the Ham requirements apply to prejudice against homosexuals, there is nothing indicating that issue was inextricably bound up with the conduct of the trial. There was no contention that defendant was being framed or prosecuted because he was homosexual. There was no contention that either his actions or that of the victim were grounded in homosexuality or occurred because either was homosexual. The evidence was that defendant killed [the victim] and the issue was whether that killing was done in self-defense. The issue before the jury was one which is commonly found in murder cases and has no underlying racial, ethnic, or sexual preference base." Rulon, 935 S.W.2d at 726.
Here, the facts of this case were grounded in homosexuality. Rulon considered extending Ham to homosexual prejudices, but determined that the case was not rooted in issues of homosexuality, as is the case at bar. We believe that the Ham requirements are properly applied in this case.
The Massachusetts Supreme Judicial Court in Commonwealth v. Plunkett, 422 Mass. 634, 640, 664 N.E.2d 833, 838 (1996), instructed the trial court in dicta that on retrial, the court "need not, but may, conduct an individual voir dire concerning the possible effect on each juror of evidence that the victim was a homosexual or bisexual." The supreme court reversed for a new trial because only one of the two theories of guilt was supported by the evidence and it was unclear on which theory the jury based its verdict of murder in the first degree. Plunkett, 422 Mass. at 635, 664 N.E.2d at 834. The court noted that in a case such as Plunkett, where the defendant alleged the male victim made sexual advances toward him, homosexuality may be important and requires careful attention, but the court was not "prepared to mandate an individual voir dire in the circumstances of this case." Plunkett, 422 Mass. at 641, 664 N.E.2d at 838.
The facts in this case are more compelling than in Plunkett, and we believe merit questions as to bias. First, the facts of the instant case more substantially involve issues of homosexuality. Second, the trial court in this case not only refused to allow individual voir dire, it also severely limited defendant's attorney's questioning on possible homosexual bias to the entire venire. See also Commonwealth v. Proulx, 34 Mass. App. Ct. 494, 612 N.E.2d 1210 (1993) (the reviewing court noted the obvious potential for prejudice in cases involving sexual acts between persons of the same sex and did not require individual questioning during voir dire; however, the trial court had conducted questioning of the entire venire and dismissed jurors who indicated a possible bias); State v. Dishon, 297 N.J. Super. 254, 687 A.2d 1074 (1997) (trial court significantly questioned as to homosexual bias, but reversed for a new trial because it denied the defendant's right to be present during in camera questioning in chambers as to homosexual bias). Here, the trial court abused its discretion when it deprived defendant of the opportunity to sufficiently question the venire as a whole and individual jurors as to any bias or prejudice against homosexuality, and we remand for a new trial.
Next, defendant contends that the trial judge improperly bolstered Kester's testimony by saying to him "Mr. Kester, you got to go back where you came from. Okay. Good luck to you, young man" as Kester was leaving the stand. Defendant claims that this statement was an expression to the jury that the trial judge believed Kester's testimony. Defendant relies on the principle that "[j]urors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling." People v. Marino, 414 Ill. 445, 450-51(1953). The State responds that this single statement is not sufficient to equal a judicial bias nor was it a material factor in defendant's conviction.
The accused in a criminal prosecution, whether guilty or innocent, is entitled to a fair and impartial trial by jury. People v. Kelley, 113 Ill. App. 3d 761, 767 (1983); People v. Santucci, 24 Ill. 2d 93, 98, 180 N.E.2d 491 (1962); Marino, 414 Ill. at 450. The defendant has a constitutional right to have his case heard and determined by a jury of impartial individuals free from influence or intimation by the trial judge as to the guilt of the defendant. Kelley, 113 Ill. App. 3d at 767. Thus, "a trial judge must refrain from interjecting opinions, comments or insinuations reflecting bias toward or against any party." People v. Sims, 192 Ill. 2d 592, 636 (2000). "Ultimate decisions of fact must fairly be left to the jury, as must be the determination of the credibility of witnesses and the weight to be afforded their testimony, and to this end it is not the province of the judge, in a criminal case, to convey his opinions on such matters to the jurors by word or deed." Santucci, 24 Ill. 2d at 98; see Kelley, 113 Ill. App. 3d at 767. For this reason, we note that expressions of opinion by a trial judge are liable to have great weight with the jury. Kelley, 113 Ill. App. 3d at 767. Judicial comments can amount to reversible error if the defendant can establish that such comments were a material factor in the conviction or were such that an effect on the jury's verdict was the probable result. People v. Burrows, 148 Ill. 2d 196, 250 (1992).
Defendant relies specifically on Kelley for his position that one statement by a trial judge can significantly undermine the function of the jury and necessitate a new trial. The statement at issue in Kelley impacted the defendant's right to a fair trial where, during voir dire, the judge said "`[a]nd basically I believe the facts will bear out here that the defendant at the time the State charges and alleges that, that the defendant here attempted to rob a cab driver, and during the course of the robbery, that attempt armed robbery, shot and killed [the victim].'" (Emphasis omitted.) Kelley, 113 Ill. App. 3d at 766. This statement by the trial judge stated that he already believed the defendant to be guilty. Defendant also cites to People v. Feathers, 134 Ill. App. 3d 1060, 1064-65 (1985), for authority. In Feathers, the trial judge said "`[s]ometimes I think if you threw out all the instructions, you'd be as well off,'" at the beginning of his instructions to the jury. (Emphasis omitted.) Feathers, 134 Ill. App. 3d at 1064.
Here, the trial judge wished the complaining witness luck as he was leaving the witness stand. Defendant's attorney immediately brought the comment to the judge's attention by moving for a mistrial. While this comment may not concern as fundamental principles as in Kelley and Feathers, we are mindful that in a case that turns on a question of credibility, any comment by the judge may have an impact on the jury's determination. The evidence in this case was closely balanced, where defendant admitted that sexual conduct occurred between defendant and himself, but he asserted that such conduct was consensual. Moreover, the trial judge did not make similar comments to the other witnesses. When Officer Payton and Kuksta finished testifying, the judge simply told them they may step down and thanked them. When defendant was dismissed from the stand, the judge told him he may step down. Given the closely balanced evidence in this case, the improper comment carried a far greater likelihood to affect the jury's credibility determination, and we cannot say that the jury was not improperly influenced.
Defendant also asserts that the use of the word "victim" in the jury instructions was improper because the jury was not given a legal definition of "victim." The State counters that defendant failed to object at trial and in his posttrial motion, and accordingly, he waived this issue on appeal. To preserve an issue for review, defendant must both object at trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a waiver as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Defendant acknowledges that he failed to preserve this issue for review, but asks this court to consider it under plain error.
Supreme Court Rule 615(a) states that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). Under the plain error rule, issues not properly preserved may be considered by a reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so as to preclude argument that an innocent person was wrongfully convicted; or (2) where the alleged error is so substantial that it affected the fundamental fairness of the proceeding, and remedying the error is necessary to preserve the integrity of the judicial process. Hall, 194 Ill. 2d at 335.
The State contends that the evidence was not closely balanced, but we disagree. The evidence in this case was essentially a question of whom the jury believed-defendant or Kester. However, defendant's claim is unfounded on its merits.
Supreme Court Rule 451(a) directs the trial court to use Illinois Pattern Jury Instructions (IPI) unless it finds them to be an inaccurate statement of the law. 177 Ill. 2d R. 451(a); see People v. Carroll, 260 Ill. App. 3d 319, 335-36 (1992). In determining the adequacy of instructions, the reviewing court considers all of the instructions given as a whole in order to determine if they fully and fairly cover the law. Carroll, 260 Ill. App. 3d at 336. Defendant complains of the word "victim" used in four jury instructions without the inclusion of a definition instruction. Specifically, the trial judge gave Illinois Pattern Jury Instructions, Criminal, Nos. 11.57, 11.58, 11.63A and 11.65C (4th ed. 2000) (hereinafter IPI Criminal 4th). The crux of defendant's argument is that the legal definition of "victim" differs from the commonly understood definition of "victim." Defendant cites no legal authority supporting his argument that the trial court is required to give the IPI instruction for the definition of "victim." Moreover, these IPI instructions are not inaccurate statements of the law when each reflects the statutory language relating to aggravated criminal sexual assault, consent, and threat of force, and we note that each of these statutes uses the word "victim." See 720 ILCS 5/12-14, 12-13, 12-17, 12-12(d) (West 1998).
States: "A person commits the offense of aggravated criminal sexual assault when he commits criminal sexual assault; and displays, threatens to use, or uses a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon or acts in such a manner as to threaten or endanger the life of the victim." See IPI Criminal 4th No. 11.57.
States: "To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions: First, that the defendant committed an act of sexual penetration upon Timothy Kester; and second, that the act was committed by the use of force or threat of force, and that Timothy Kester did not consent to the act of sexual penetration; and third that the defendant displayed, threatened to use or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon or that the defendant acted in such a manner as to threaten or endanger the life of the victim. If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty." See IPI Criminal 4th No. 11.58.
States: "The word "consent" means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the defendant shall not constitute consent." See IPI Criminal 4th No. 11.63A.
States: "The term "force or threat of force" means the use of force or violence or the threat of force or violence including but not limited to when the accused threatens to use force or violence on the victim and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat." See IPI Criminal 4th No. 11.65C.
This argument was rejected in Carroll and People v. Martinez, 335 Ill. App. 3d 844 (2002). In Carroll, the reviewing court found the argument to be waived, but stated that "victim," as used in the instructions, does not attribute guilt in any way to defendants. Carroll, 260 Ill. App. 3d at 336. The Martinez court also found the argument waived, but considered that based on the totality of the instructions given, the defendant had presented his defense of consent before the jury and the use of the word "victim" did not deprive him of his defense. Martinez, 335 Ill. App. 3d at 858.
As in Martinez, defendant clearly put forth his defense of consent. The jury was fully instructed on consent as a defense. The jury instructions did not conclude that Kester was the victim. The testimony at trial showed that the question for the jury was whether the sexual encounter was consensual or forced. We conclude that the jury instructions were proper and the trial court was not required to give the instruction defining the word "victim."
Defendant also maintains that it was ineffective assistance of counsel not to object to the jury instructions. Since we have found that the jury instructions were proper, defendant's assertion of ineffective assistance of counsel must fail. Under Strickland v. Washington, a defendant must demonstrate that counsel's performance was deficient and that such deficient performance substantially prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d. 674, 693, 104 S. Ct. 2052, 2064 (1984). Generally, decisions such as what matters to object to and when to object are matters of trial strategy. People v. Simmons, 342 Ill. App. 3d 185, 191 (2003). A decision that involves a matter of trial strategy will typically not support a claim of ineffective representation. Simmons, 342 Ill. App. 3d at 191. Defense counsel is not required to make losing motions or objections in order to provide effective legal assistance. People v. Kelley, 304 Ill. App. 3d 628, 636 (1999). Accordingly, defendant's attorney's performance was not deficient for failing to object to proper conduct, and we decline to find such performance to be ineffective.
Next, defendant argues that the trial court failed to properly weigh the probative value compared to the prejudicial effect in admitting defendant's prior convictions. Defendant has three prior convictions: a 1994 conviction for theft of services, a 1996 conviction for possession of a controlled substance, and a 2000 murder conviction that was currently on remand to the circuit court at the time of defendant's sexual assault trial. At trial, defendant opposed admitting his murder conviction for impeachment of his credibility. Defendant maintains that the trial court did not conduct a proper balancing test under People v. Montgomery, 47 Ill. 2d 510 (1971). In Montgomery, the supreme court adopted the then-proposed Federal Rule of Evidence 609 as the general rule governing the admissibility of prior convictions to impeach the credibility of a witness. Montgomery, 47 Ill. 2d at 519. Under Montgomery, evidence of a prior conviction is admissible to attack credibility if (1) the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement regardless of the punishment, (2) less than 10 years has elapsed since the date of conviction of the prior crime or release of the witness from confinement, whichever is later, and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516. Under this test, if prejudice to the defendant substantially outweighs the probative value of admitting the impeachment evidence, the prior conviction must be excluded. People v. Atkinson, 186 Ill. 2d 450, 459 (1999).
Defendant contends that even though the trial court referred to the Montgomery test, it did not follow it. Instead, defendant claims that the trial court based its decision on the fact that Kester had admitted to his convictions on the stand. The State counters that the trial court properly considered the factors of Montgomery before admitting defendant's prior convictions.
In People v. Williams, 161 Ill. 2d 1, 39 (1994), the supreme court reexamined Montgomery after courts had begun to mechanically apply Montgomery's holding and admit all prior felony convictions without considering the relation to credibility. The Williams court held that trial courts should not tip the balancing test toward probative value simply because all felonies show a disrespect for society and, thus, indicate a willingness to lie on the witness stand. Williams, 161 Ill. 2d at 39. More importantly, trial courts should not admit prior-conviction evidence as probative of guilt, rather than credibility. Williams, 161 Ill. 2d at 40.
In the record, the trial court stated that it considered Montgomery in its determination that the probative value substantially outweighed the prejudicial effect. However, the trial court also made questionable statements that Kester "fronted it up when he said he was doing time for the crimes he was in custody for. So therefore, the jury has the credibility of Kester out in front of them and the credibility of [defendant] as well." Defendant contends that this statement negates the trial court's other statements that it properly weighed the probative value and prejudicial effect. Although defendant cites no authority for this proposition, we tend to agree that trial courts should not consider the question of another witness's credibility in determining the admission of a defendant's prior convictions, but we believe the trial court properly considered defendant's prior convictions in light of Montgomery and other Illinois decisions.
This case presents an interesting look at credibility. It is undisputed that the sexual assault occurred while both men were incarcerated at the Cook County jail. For that reason, it was clear to the jury that defendant has some sort of criminal background. Moreover, the case turns on whether the jury finds Kester's testimony or defendant's to be more credible. However, defendant's three prior convictions, particularly his murder conviction on remand, have serious potential for a strong prejudicial effect. The supreme court in Atkinson found that in a case where the defendant's testimony made up his entire defense, his credibility was therefore a central issue, and the prior convictions were crucial in measuring defendant's credibility. Atkinson, 186 Ill. 2d at 461-62. As in Atkinson, defendant's testimony constituted his entire defense in this case. Under the facts of this case, we conclude that the trial court did not abuse its discretion when it admitted defendant's prior convictions, including the murder conviction, for impeachment. Because defendant's credibility was a significant factor, the prior convictions were relevant to the jury's decision.
Because we are reversing for a new trial, we need not address defendant's final argument concerning his pro se posttrial motion.
For the foregoing reasons, we reverse the decision of the circuit court of Cook County and remand for proceedings in accordance with this decision.
CAHILL, P.J. and GORDON, J., concur.