People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14)
Predatory reversed due to non severance of the charges.
Life sentence in a predatory criminal sexual assault is reversed because the charges were not severed.
Joinder of Charges
A trial court may order that two or more charges be tried together “if the offenses *** could have been joined in a single charge.” 725 ILCS 5/114-7.
“Two or more offenses may be charged in the same [charging instrument] in a separate count for each offense if the offenses charged *** are based on the same act or on 2 or more acts which are part of the same comprehensive transaction”, unless joining the separate charges would prejudice the defendant. 725 ILCS 5/111-4(a) and 725 ILCS 5/114-8(a).
Thus, assuming the lack of prejudice to the defense, two or more offenses may be charged in the same charging instrument only if
(1) the offenses are based on the same act or
(2) the multiple acts are part of the same comprehensive transaction.
Same Comprehensive Transaction
Case law has developed some factors for determining whether multiple acts are parts of the same comprehensive transaction, including
(1) “the proximity in time and location of the offenses,”
(2) “the identity of evidence needed to demonstrate a link between the offenses,”
(3) “whether there was a common method in the offenses,” and
(4) “whether the same or similar evidence would establish the elements of the offenses.”
People v. Gapski, 283 Ill. App. 3d 937, 942 (1996).
Those are merely factors, however, and we must not allow them to supplant the statutory language. In this case, the critical language in section 111-4(a) is “the same comprehensive transaction.”
Typically, the word “transaction” is used to mean “an exchange or transfer of goods, services, or funds.” Merriam-Webster’s Collegiate Dictionary 1249 (10th ed. 2000). Less often, the word is used to mean “the carrying on or completion of an action or course of action” (Oxford English Dictionary 387 (2d ed. 1989)) or “an exchange or interaction between people” (New Oxford American Dictionary 1787 (2d ed. 2005)). See also Merriam-Webster’s Collegiate Dictionary 1248 (10th ed. 2000) (“a communicative action or activity involving two parties or things that reciprocally affect or influence each other”).
Section 111-4(a) uses the term “transaction,” in this somewhat unusual way, to mean a course of action or an interaction between people because case law preexisting the statute almost always used the term that way when explaining when separate offenses could be joined in a single charging instrument.
See People v. Fleming, 121 Ill. App. 2d 97, 102 (1970) .
Different Victims At Different Times
If a defendant completes offenses at different times and against different victims, the offenses probably are not parts of the same transaction unless there was “a concerted plan of action or scheme on the part of defendant that would link the two offenses.” See People v. Bricker, 23 Ill. App. 3d 394, 397 (1974).
Thus, if at different times a defendant commits the same type of offense against different victims, a similarity in methodology (such as pointing a gun at a clerk) and a similarity of motive (such as the desire for money) do not make the offenses parts of “the same comprehensive transaction.”
Defendant’s alleged sexual offense against his stepdaughter, T.M., and his alleged sexual offense against his stepdaughter’s friend, A.C., at a different place three years later, are not parts of the same comprehensive transaction.
It is logically irrelevant that both victims were female minors and that he sexually molested them in a similar manner and under similar circumstances. The similarity of the two offenses has no logical tendency to make them a “united, continuous and indivisible act.” These offense were, on the face of the information, separate transactions, and, therefore, the trial court abused its discretion by denying defendant’s motion for a severance.
But Was It Harmless Error?
If the charges had been severed as they should have been, section 115-7.3(b) of the Code (725 ILCS 5/115-7.3(b)), would have allowed T.M. to testify in A.C.’s trial and A.C. to testify in T.M.’s trial. Even though the common law rule against propensity evidence is lifted in prosecutions for the listed sex offenses, there is still a condition of admissibility that no other rule of evidence stands in the way of the propensity evidence. If the propensity evidence is, for example, hearsay, there must be an applicable exception to the hearsay rule
Nevertheless, defendant argues—and here is his crucial point—that T.M. or A.C., as a propensity witness, could have testified to defendant’s alleged assault upon her, but her hearsay statements—her out-of-court statements about the assault upon her—would have been inadmissible absent an applicable exception to the hearsay rule (see Ill. R. Evid. 802), such as the exception for excited utterances (Ill. R. Evid. 803(2)).
Severance Would Have Had A Purpose
Thus, defendant argues, the severance of the charges would have resulted in the exclusion of many of the credibility-bolstering hearsay statements that the State presented in his trial. In other words, defendant traces a causal relationship between the denial of his motion for a severance and the abundance of confirmatory hearsay that was allowed in his trial.
With a severance, he could have objected to propensity evidence that was inadmissible because it was hearsay, not because it was cumulative.
Section 115-10 Is Limited To “Victim” Testimony”
With the charges erroneously unsevered, both A.M. and T.M. were “the victims” in the prosecution, and, consequently, under section 115-10 (725 ILCS 5/115-10), hearsay statements regarding sexual assaults upon them were admissible. Go to Illinois Evidence Page for more information on other hearsay rules.
But if the charges had been severed, as they should have been, the hearsay exception in section 115-10, would have applied in A.C.’s case only to hearsay statements regarding sexual assaults upon A.C., and in T.M.’s case only to hearsay statements regarding sexual assaults upon T.M.
Defendant agrees that under section 115-7.3(b), each child could have testified in the other child’s trial as a propensity witness. But their propensity testimony would have been limited to their in court testimony. None of the additional hearsay testimony pertaining to the propensity witness would have been admitted.
Section 115-10 of the Code creates a hearsay exception not for the out-of-court statements of any victim, but only for the out-of-court statements of “the victim,” designated in the “prosecution.” The language of the section makes this clear. Additionally, “the victim” can mean only the victim (or the victims (see id. § 102-3) named in the “prosecution for a physical or sexual act”—not a propensity witness. When the legislature means propensity witnesses, it naturally uses the term “witnesses,” not “victims.” See id. § 115-7.3(d).
Thus, the definite article in “the victim” (725 ILCS 5/115-10(a)(1), (2)) is a restrictive word, signifying that “victim” is someone previously mentioned in subsection (a) (§ 115-10(a)), namely, the “child under the age of 13,” or “person who was a moderately, severely, or profoundly intellectually disabled person” who is the alleged victim in the “prosecution for a physical or sexual act.” “The victim” means not just any victim but “the victim” named in the prosecution.
Plethora of Hearsay In This Trial
As defendant convincingly argues, the misjoinder of counts made A.C. and T.M. both “the victim” for purposes of section 115 10(a)(1) and (2), and, consequently, threw the doors open to a lot of bolstering hearsay evidence that would have been inadmissible if the charges had been severed, as they should have been.
For example, in A.C.’s trial, she could not have testified to what T.M. had told her. Nor could D.O. have testified to what T.M. had told her. Nor could Shirita have testified to what T.M. had told her. Nor could Bunyard have testified to what T.M. had told her. Nor could the DVD of her interview of T.M. been played to the jury.
In T.M.’s trial, maybe, under the hearsay exception for excited utterances (see Ill. R. Evid. 803(2)), A.C.’s hearsay statements to D.O. and D.O.’s parents would have been admissible, assuming that such evidence was not unduly cumulative. However, Cassandra could not have testified to what A.C. had told her. Nor could T.M. have testified to what A.C. had told her. Nor could the DVD of Bunyard’s interview of A.C. have been played to the jury.
There Was Prejudice
We can readily infer that all this hearsay evidence was calculated to bolster the credibility of A.C. and T.M.—and defendant has a reasonable argument that their credibility needed such bolstering. The cumulative, bolstering hearsay statements could have persuaded the jury to overlook those arguable weaknesses and inconsistencies in the State’s case and to set aside any questions about the complainants’ credibility.
The prejudice from the misjoinder of the charges was the admission of hearsay that, but for the misjoinder, would have been inadmissible.
the State use what otherwise would have been inadmissible hearsay to bolster the credibility of the complainants—as the misjoinder of the charges allowed the State to do. The record fails to clearly show that the misjoinder of charges and the resulting admission of bolstering hearsay were not prejudicial.
For the foregoing reasons, we reverse the trial court’s judgment, and we remand this case for further proceedings consistent with this opinion.