The rape shield law in Illinois won’t be easily overcome. The Supreme Court of Illinois issues a ruling in an automatic transfer case involving a 15 year old defendant convicted of three counts of aggravated criminal sexual assault.
People v. Patterson, 2014 IL 115102 (10/17/2014).
Did the appellate court error in excluding defendant’s confession and finding that evidence of the victim’s sexual past was admissible on remand?
Defendant Ronald Patterson was a 15-year-old ward of the State of Illinois living in a residential treatment facility when he committed a violent sexual assault on a 25-year-old staff member.
The victim was was driving defendant home from a weekend family visit. He forced her to pull the facility van into a deserted parking lot off the highway, where the assault occurred. She was 5 foot 2 inches and weighed 115 pounds. Defendant was 5 feet 10 inches and weighed more than 250 pounds. After the assault, the victim returned to the facility with defendant. Once defendant was secured in his unit, the victim immediately reported the attack, and the police were called.
Defendant was charged with three counts of aggravated criminal sexual assault. His case was automatically transferred to criminal court, and he was tried as an adult, as required by statute (705 ILCS 405/5-130).
Defendant filed a motion to suppress his inculpatory statement to the police, arguing that the police youth officer did not contact defendant’s legal guardian, the Illinois Department of Children and Family Services (DCFS), before he was interviewed and did not “affirmatively” protect his rights. The motion also claimed his statement was involuntary. The motion did not allege, and defense counsel expressly denied, “any type of coercion or duress” by the police.
A second detective then interviewed defendant for about 45 minutes about the alleged assault while a youth officer was present. The youth officer remained in the room during questioning, and did not participate. After the interview was over and defendant’s statement was typed, it was read to defendant, who did not make any corrections. Defendant then read the statement aloud and signed it.
The trial court denied defendant’s motion to suppress his statement, finding both that the youth officer had fulfilled his duty and that it was reasonable for the police to notify the residential facility director of defendant’s arrest as he was a State ward and the facility “has been run under the supervision of [DCFS]. In denying the suppression motion, the court found that defendant understood his rights when he signed the waiver form, and that, under “the totality of the circumstances,” his confession was voluntary.
So it would be reasonable to assume that the director has some authority to act on behalf of DCFS. Particularly over people that are residents in his residence hall that he directs.”
The court concluded that defendant’s rights had been properly protected during questioning and that the police were not required to suspend their investigation until defendant’s caseworker was notified “because then they would be criticized for sitting on him for days.”
Defendant gave two conflicting accounts of the incident. First, he claimed that the victim initiated the encounter, and he denied that intercourse occurred. When the officer said he would check for surveillance footage from the surrounding buildings, defendant’s demeanor changed suddenly. He then disclosed that he had not been telling the truth.
He then admitted committing the assault, stating he had not meant to hurt the victim but had gotten angry because he had not taken his medication. Defendant’s second statement was typed and read aloud before he signed it. The statement noted that defendant was not threatened, coerced, or promised anything in return, and his signature acknowledged that the statement was true, accurate, and voluntarily made and that he previously had an opportunity to review and edit it.
The victim’s medical examination revealed redness, abrasions, and bruising on her left thigh, wrist, elbow, and waist or hip. An external genital examination failed to reveal any injuries, a finding the physician explained was not unusual. An internal examination, however, revealed some cervical redness. The physician was unable to attribute the redness to a sexual assault, and testified he did know when the injuries were occurred. On cross-examination, the physician was unable to identify any specific source of the redness.
Defendant’s DNA was not found. However, a different person’s DNA was discovered. Defense counsel was not permitted to to cross examine on the issue of the victim’s prior sexual intercourse with another. The trial court barred defendant from eliciting testimony about the victim’s prior activity to explain the redness because the physician “did not even trace it back to this incident” and “did not say it was the result of a rape.” ¶ 19.
Rape Shield Law in Illinois
The Illinois Compiled Statutes Code of Criminal Procedure contains the rape shield law in Illinois. The law says:
In prosecutions for [sex crimes] the prior sexual activity or the reputation of the alleged victim … is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim … with the accused when this evidence is offered by the accused upon the issue of whether the alleged victim … consented to the sexual conduct with respect to which the offense is alleged; or (2) when constitutionally required to be admitted.
Suppression of the Confession
The relevant section of the Illinois Compiled Statutes Juvenile Code says that:
“A law enforcement officer who arrests a minor without a warrant under Section 5-401 shall, if the minor is not released, immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care or the person with whom the minor resides that the minor has been arrested and where the minor is being held ***.” (Emphasis added.)
Taking a juvenile confession requires great care to ensure it did not result from mere juvenile ignorance or emotion. See In re G.O., 191 Ill. 2d 37, 50, 54-55 (2000). Relevant factors to consider include the minor’s
- mental capacity
- physical condition
- the legality and length of the interview
- and physical or mental abuse by the police
- as well as the presence of a concerned adult and any attempts by the police to prevent or frustrate that contact.
Se G.O., 191 Ill. 2d at 54-55.
Suppression of Confession
The key to resolving the question in this case is the reasonableness of the police department’s actions before defendant was questioned.
The appellate court concluded that those actions did not constitute a “reasonable attempt” to contact a concerned adult, and defendant emphasizes that the presence of a “concerned adult” before or during the interrogation is an “important element” in determining the voluntariness of his confession. See People v. Griffin, 327 Ill. App. 3d 538, 545 (2002).
While the police undoubtedly could have taken additional steps to notify a concerned adult, such as seeking out and calling the caseworker’s home phone number, none of those steps are required by the statute. See 705 ILCS 405/5-405(2).
Statutory compliance is solely dependent on the police making a “reasonable attempt” at notification, not on perfect performance. In this instance, defendant was taken into custody at approximately 8:30 p.m. on a Sunday. The police attempted to comply with the notice requirement by placing telephone calls to both the director of defendant’s residential facility, and defendant’s caseworker before defendant was questioned.
When he was unable to reach either party, left phone messages were left. The facility director gave permission for the police to interview Defendant. Although the statute does not require permission to interview a juvenile defendant, a grant of permission establishes that actual notice was given, fulfilling the statute.
As the director of the treatment facility where defendant had resided for three years, the director was at least arguably “a person with whom defendant resided,” and bore some degree of responsibility for his care. The plain language of the statute does not require that the individuals to be notified be concerned exclusively with the defendant’s well-being, instead simply listing broad categories of potentially concerned adults.
The statute does not expressly require the police to attempt to contact every possible concerned adult, and in the absence of that legislative mandate, we decline to read that requirement into the statute. See People v. Lewis, 223 Ill. 2d 393, 403 (2006).
As enacted, the statute does not mandate the presence of a concerned adult or, even more critically, that actual notice be provided before the start of questioning. Section 5-405(2) simply requires that the police make a reasonable attempt to provide notification. 705 ILCS 405/5-405(2). The court may not add requirements to those already imposed by the plain language of the statute. Lewis, 223 Ill. 2d at 403.
The Supreme Court concluded that the attempt here by police to provide proper notice, while arguably not exemplary, was sufficient to comport with the legislature’s statutory mandate.
The appellate court said the trial court errored when it excluded evidence of the victim’s sexual history. The appellate court thought her sexual history was admissible under an exception to rape shield law in Illinois. See 725 ILCS 5/115-7(a)(2).
The true core of defendant’s argument is based on dicta in People v. Sandoval, 135 Ill. 2d 159, 185 (1990). That case said that one “extraordinary circumstance[ ]” potentially satisfying the constitutional requirement exception to the rape shield statute is an offer of evidence providing an alternative explanation for the victim’s observed injuries.
Here, the injury at issue was noted by the victim’s examining physician, who testified that she had “some” cervical redness that was “consistent with sexual intercourse.” In a sidebar, defense counsel requested permission “to go into whether or not sperm was found in [the victim’s] vagina, which would otherwise be protected by the rape shield, but [defendant] has a constitutional right, I think, to bring out that evidence when there’s an inference that she had recent sexual intercourse and he’s denying that he had sexual intercourse with her, and she had sexual intercourse, apparently, with someone else within 72 hours, knowing how far—that’s about how long sperm lasts.” ¶ 116.
In ruling on the request, the trial judge noted that the physician testified to the presence of some redness but “did not say it was the result of a rape. He did not even trace it back to this incident.” The trial court added that “[i]t would be different, ***, if we were in a situation if he said he found some injury that was consistent with forced sexual act within the last few hours. Then we’d be in a different ballpark, so I think based on how he’s described it and how he described the significance or insignificance of that finding to this jury. Respectfully your request is denied.” ¶ 49.
The State argued before the Supreme Court that defendant failed to provide adequate support for his request to admit the evidence under the rape shield exception to create an appealable issue. See People v. Maxwell, 2011 IL App (4th) 100434, ¶¶ 76-87; People v.Grant, 232 Ill. App. 3d 93, 103-05 (1992)). The Court agreed in light of the important purpose underlying the rape shield statute, namely “to prevent the defendant from harassing and humiliating the prosecutrix at trial with evidence of *** specific acts of sexual conduct with persons other than the defendant” See Sandoval, 135 Ill. 2d at 180.
To preserve a claim on appeal, a party is required to make “considerably detailed and specific” offers of proof after a denial of a request to admit evidence if the substance of the witness’s answer is unclear. See People v. Peeples, 155 Ill. 2d 422, 457 (1993).
Here, the only support offered for defense counsel’s proffered evidence was his speculation that the victim’s cervical inflammation occurred three days before the assault because sperm could persist for 72 hours. No medical testimony was offered to back up counsel’s bare assertion, and counsel did not take the opportunity to ask the examining physician, or any other expert, questions about the general persistence of cervical inflammation that could have provided a sufficiently detailed offer of proof. See ¶ 119.
Although defendant asserts the futility of asking additional questions because the examining physician had already testified that he could not tell when the injury occurred, the Court thought otherwise. On cross-examination, the examining physician was asked,
-“You don’t know exactly when [the cervical inflammation] occurred; is that correct, sir?”
-The physician responded, “I don’t know when that occurred.”
Contrary to defendant’s contention, the physician’s response did not establish that he had a medical opinion on whether the redness could have persisted for three days. The question asked only if the witness could tell “exactly when” the inflammation occurred.
After reviewing the testimony elicited from the witnesses and defense counsel’s closing argument, we conclude that, as in Sandoval, the trial court’s exclusion of the evidence of the victim’s sexual history did not prevent defendant from presenting the jury with his theory of the case. Sandoval, 135 Ill. 2d at 181.
Before this court, defendant also argues that the medical sources cited in the State’s brief indicate cervical inflammation could, in fact, last three days. It was, however, defense counsel’s burden to provide a sufficiently detailed offer of proof at trial, not months or years later on appeal. See People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003) (stating that appellate review is limited to the record on appeal).
When reviewing an evidentiary ruling for an abuse of discretion, common sense dictates that we evaluate the exercise of that discretion in light of the evidence actually before the trial judge. Without a sufficient offer of proof, the trial court could not have known if any witness would have testified that the victim’s cervical redness could have persisted for three days or the possible underlying basis for that opinion. Because defendant did not provide a sufficient offer of proof, defendant’s claim that the trial court erred in denying his evidentiary request is not subject to review. See Peeples, 155 Ill. 2d at 457-58 (explaining courts’ inability to review appeal when an offer of proof is not “considerably detailed and specific,” leaving the substance and basis of the witness’s testimony unclear).
Therefore, the Supreme Court rejected the portion of the appellate court opinion instructing the trial court to admit on remand the evidence requested by defendant.
The Supreme Court reversed the appellate court and reinstated the conviction and 36 year sentence. No retrial is necessary.