People v. Ousley

No. 3--96--0470
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 95--CF--346
)
ANGELO M. OUSLEY, ) Honorable
) John D. O'Shea,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

After a jury trial, defendant, Angelo M. Ousley, was found
guilty of home invasion, two counts of aggravated criminal sexual
assault, robbery, and residential burglary (720 ILCS 5/12--11,
12--14(a)(2), 12--14(a)(4), 18--1, 19--3 (West 1994)). The jury
returned a not guilty verdict on the charge of criminal sexual
assault (720 ILCS 5/12--13 (West 1994)). On appeal, defendant
contends, among other things, that: (1) his convictions for
aggravated criminal sexual assault should be reversed outright
because they are legally inconsistent with his acquittal on the
lesser-included charge of criminal sexual assault; and (2) his
other convictions should be reversed and remanded for a new trial
due to the trial court's error in admitting certain inadmissible,

plea-related statements. For the reasons that follow, we reverse
each of defendant's convictions and remand defendant's cause for
a new trial on the charges of home invasion, robbery, and
residential burglary. Due to our disposition of defendant's
cause, we decline to address the other claims of error raised in
defendant's brief.
FACTS
At trial, Teresa Hammond testified she went to the home of
JoAnn McConville, a friend, on April 5, 1995, to do her laundry.
Hammond took her laundry to the basement and returned upstairs.
She then observed a man, whom she identified in court as
defendant, standing at a sliding glass door which opened onto the
kitchen. She opened the door to ask whether she could help the
man. The man then forced his way into the house, pushed her into
the living room, and informed her that he had a knife. The man
struck Hammond in the face, pulled off her sweatpants and
underpants, and had forced sexual intercourse with her. After
the attack, the man demanded money. Hammond retrieved $31 from
the basement which she surrendered to her assailant. The man
fled. Hammond called for emergency assistance.
Susan Lenger, a neighbor of JoAnn McConville, testified that
on April 5, 1995, she observed a man, whom she identified in
court as defendant, run towards the alley. She then saw the man
struggle to open the driver's side door of a light blue car and
watched him as he experienced difficulty starting the vehicle.
The man eventually succeeded in starting the car and driving
away. In court, Lenger identified the car in photographs as the
vehicle she had seen. Lenger also identified a jacket and a pair
of pants as the same type of clothing worn by the man.
Police investigator Stephen Harder testified he questioned
defendant on April 7, 1995. At that time, defendant confessed to
sexually assaulting and robbing Hammond. Defendant told Harder
that he and Demerick Pugh[fn1] were walking to school on April
5, 1995, when Pugh pointed out a parked car which Pugh said was
unlocked and could be started without a key. Defendant stated he
drove the car until he saw a woman carrying laundry into a house.
Defendant forced his way into the house, had sex with the woman,
and took her money. Defendant made a statement recorded on
audiotape which was played for the jury.
Defendant testified on his own behalf. On direct
examination, defendant denied he ever went to Teresa Hammond's
house, ever entered her house and robbed her, or ever entered her
house with the intention of assaulting her. In view of the fact
that defendant was charged with sexually assaulting Hammond at
the McConville residence, rather than Hammond's residence, it is
likely defendant's answers were intended as a denial that he ever
entered the McConville home or committed the crimes as alleged by
the State. On cross-examination, defendant denied he was in the
light blue car on the day Hammond was assaulted. Defendant also
testified that he was home from school on the day of the assault
and was not in the company of Demerick Pugh. Defendant testified
his confession to police was false. Defendant explained that he
made the statement because he was led to believe he would be
allowed to go home if he did so.
The prosecutor then asked defendant whether he had stated a
week before "in open court" that he "stayed in the car while
Demetrius went in." Defendant denied making the statement. The
prosecutor's question referred to a statement defendant made at
an aborted guilty plea hearing. At that hearing, the trial court
had refused to accept defendant's plea in light of defendant's
responses to the court's questions aimed at eliciting the factual
basis for the plea.
At a conference on jury instructions, the trial judge
expressed his concern about the prosecution's reference to the
statement made at the aborted guilty plea hearing. The trial
judge asserted that the prosecution had an obligation to follow
up its impeachment of defendant.
The prosecution moved for leave to reopen its case in order
to perfect impeachment of defendant's testimony. The trial court
allowed the motion. The prosecution called Investigator Harder
to the stand. Harder testified he was present in court when
defendant was asked whether he entered the McConville home.
Harder recalled that defendant stated: "Dude did it. Dometric
went in. I almost went in but I stayed in the car." The
prosecution then called Sherry Bolt, the court reporter at
defendant's aborted guilty plea hearing. Bolt testified her
typed notes from the proceeding indicate defendant made the
following statement at the hearing: "Well, it was a dude. Dude
was with me. Dometric. That's the one that did it. I almost
went in the house."
Defendant requested that the jury be allowed to consider the
lesser-included offense of criminal sexual assault. The court
granted defendant's motion. People's Instruction No. 6C
(Illinois Pattern Jury Instructions, Criminal, No. 2.01R (3d ed.
1992) (modified)) instructed the jury, in pertinent part:
"Under the law, a person charged with two counts of
Aggravated Criminal Sexual Assault may be found (1) not
guilty of both counts of Aggravated Criminal Sexual
Assault, and not guilty of Criminal Sexual Assault or
(2) guilty of one count of Aggravated Criminal Sexual
Assault, and not guilty of the other count of
Aggravated Criminal Sexual Assault, and not guilty of
Criminal Sexual Assault, or (3) guilty of both counts
of Aggravated Criminal Sexual Assault, and not guilty
of Criminal Sexual Assault, or (4) guilty of the lesser
included offense of Criminal Sexual Assault, and not
guilty of either count of Aggravated Criminal Sexual
Assault."
People's Instruction No. 100 (Illinois Pattern Jury Instructions,
Criminal, No. 26.01R (3d ed. 1992) (modified)) instructed the
jury, in relevant part:
"Under the law, the defendant cannot be found
guilty of both Aggravated Criminal Sexual Assault and
Criminal Sexual Assault. Accordingly, if you find the
defendant guilty of either count of Aggravated Criminal
Sexual Assault, or both counts of Aggravated Criminal
Sexual Assault, that verdict would mean that the
defendant is not guilty of Criminal Sexual Assault.
Likewise, if you find the defendant guilty of Criminal
Sexual Assault, that verdict would mean that the
defendant is not guilty of Aggravated Criminal Sexual
Assault."
The jury found defendant guilty of both counts of aggravated
criminal sexual assault and not guilty of criminal sexual
assault. The jury also returned guilty verdicts on the charges
of home invasion, robbery, and residential burglary. The trial
court entered its judgment on these verdicts.
ANALYSIS
I. Legally Inconsistent Verdicts
On appeal, defendant contends his convictions for aggravated
criminal sexual assault should be reversed outright because they
are legally inconsistent with his acquittal on the lesser-
included charge of criminal sexual assault.
Logically inconsistent verdicts may stand, while legally
inconsistent verdicts cannot. People v. Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370 (1996). Where proof of one offense (the
predicate offense) is an essential element of another offense
(the compound offense), verdicts acquitting the defendant of the
predicate offense and convicting the defendant of the compound
offense are legally inconsistent. People v. Frias, 99 Ill. 2d 193, 457 N.E.2d 1233 (1983). Where the charges of criminal
sexual assault and aggravated criminal sexual assault arise out
of a single act of sexual penetration, criminal sexual assault is
a predicate offense of aggravated criminal sexual assault.
People v. Smith, 245 Ill. App. 3d 712, 614 N.E.2d 1326 (1993).
In the case at bar, the verdicts acquitting defendant of criminal
sexual assault and convicting him of two counts of aggravated
criminal sexual assault are based on a single act of sexual
penetration. Therefore, the verdicts are legally inconsistent
and defendant's convictions for aggravated criminal sexual
assault must be reversed.
The State maintains the verdicts are not legally
inconsistent because the inconsistent verdicts resulted from the
jury's faithful application of the court's erroneous
instructions. The State, however, cites no authority to support
this proposition. Although it is presumed that a jury follows
the court's instructions in arriving at its verdict (People v.
Boshears, 228 Ill. App. 3d 677, 592 N.E.2d 1187 (1992)), it does
not necessarily follow that, but for the faulty instructions, the
jury would have found defendant guilty of criminal sexual
assault. The trial court's misstatement of the law is almost
certainly the cause of the legally inconsistent verdicts in this
case. The trial court's error, however, does not reconcile the
inconsistent verdicts or render them any more reliable. See
Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370 (legally inconsis-
tent verdicts cannot stand because they are inherently unreli-
able).
Neither can it be maintained that defendant's failure to
object to the errant jury instructions constitutes a waiver of
his claim concerning the legally inconsistent verdicts. Although
a defendant who fails to object to a jury instruction waives any
error concerning the propriety of the instruction (People v.
Anderson, 201 Ill. App. 3d 75, 559 N.E.2d 267 (1990)), defendant
in the case at bar does not claim the court's instruction of the
jury was error. Rather, defendant argues that the jury's
verdicts were legally inconsistent. Moreover, defendant's
failure to raise the issue of the jury's legally inconsistent
verdicts at trial or in a post-trial motion does not result in a
waiver of that issue because legally inconsistent verdicts
present plain error, the exception to the rule of waiver. People
v. Fornear, 283 Ill. App. 3d 171, 669 N.E.2d 939 (1996).
Having determined defendant's convictions for aggravated
criminal sexual assault must be reversed, we must now determine
whether he may be retried on those charges. The doctrine of
collateral estoppel and the guarantee against double jeopardy
contained in the Illinois and federal constitutions preclude the
State from retrying a defendant on the compound offense where the
defendant has been acquitted of the predicate offense.
Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370; Ill. Const. 1970,
art. I,  10; U.S. Const. amends. V, XIV. Moreover, an acquitted
defendant may not be retried even where it appears that the
acquittal is based upon an egregiously erroneous foundation.
Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370 (citing Arizona v.
Washington, 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824
(1978)). We hold, therefore, that the State may not retry
defendant on the charge of aggravated criminal sexual assault as
he has already been acquitted on the predicate charge.
II. Admission of Guilty Plea Hearing Statements
We turn next to defendant's claim that he was denied a fair
trial when, at the trial court's suggestion, the prosecution
reopened its case and introduced statements defendant made at an
aborted guilty plea hearing. We note at the outset that
defendant neither objected to the admission of these statements
at trial, nor included the issue in a post-trial motion. Under
such circumstances, this issue normally would be considered
waived. See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124
(1988). In recognition of the devastating effect the use of plea
negotiation testimony may have, however, Illinois courts have
held that the use of such testimony is so prejudicial as to
require reversal as plain error. People v. Friedman, 79 Ill. 2d 341, 403 N.E.2d 229 (1980).
Supreme Court Rule 402(f) provides, in pertinent part: "if
a plea of guilty is not accepted or is withdrawn, *** neither the
plea discussion nor any resulting agreement, plea, or judgment
shall be admissible against the defendant in any criminal
proceeding." 134 Ill. 2d R. 402(f). The State concedes that the
statements at issue are inadmissible plea-related statements.
The State maintains, however, that any error resulting from the
introduction of the statements is harmless. We disagree.
Defendant's statements during the aborted guilty plea
hearing tend to contradict defendant's trial testimony as to
whether he ever went to the McConville home, whether he was in
the light blue car on April 5, 1995, and whether he was with
Demerick Pugh on that day. Investigator Harder and Sherry Bolt
testified defendant made the statements in open court. The jury
was left to speculate as to the nature of the hearing at which
defendant made the statements and to wonder whether he made the
statements under oath. Under these circumstances, we hold that
the admission of defendant's plea-related statements was plain
error. See People v. Benniefield, 88 Ill. App. 3d 150, 410 N.E.2d 455 (1980). Accordingly, defendant's convictions for home
invasion, robbery, and residential burglary must be reversed and
his cause remanded for a new trial on these charges.
Finally, we must agree with defendant that the trial judge
acted improperly when he urged the prosecution to reopen its case
in order to perfect its impeachment of defendant's testimony. To
direct the jury to disregard the prosecutor's reference to the
aborted guilty plea hearing would have been the better course.
We believe the trial judge crossed the line of judicial propriety
when he urged the prosecution to reopen its case in order to
introduce highly prejudicial, inadmissible evidence against
defendant. Accordingly, in order to remove any appearance of
judicial bias, on remand this matter should be assigned to a
different trial judge.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is reversed and remanded for proceedings
consistent with this opinion.
Reversed and remanded.
HOMER and HOLDRIDGE, J.J., concur.
[fn1] The trial transcript contains references to
"Demerick," "Demetrius," and "Dometric." The parties agree that
these names all appear to refer to the same person.