Justia.com Opinion Summary: In defendant's trial for criminal sexual assault, the circuit court admitted evidence that defendant had also been involved in criminal sexual assault of another woman. The court cited the Code of Criminal Procedure, 725 ILCS 5/115–7.3, permitting the evidence to show a defendant’s propensity to commit sex crimes. When defendant sought to admission of evidence of his acquittal in the prior case, the court rejected his request. Defendant was convicted and sentenced to 25 years in prison. The appellate court affirmed. The Illinois Supreme Court reversed and remanded. The statutory language permits admission of both evidence of defendant’s commission of another enumerated offense and evidence to rebut that proof or an inference from that proof. Exclusion of the acquittal evidence limited the jury’s ability to assess testimony from the victim in the earlier case and was very prejudicial to the defendant.
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Docket No. 108690.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERRY
WARD, Appellant.
Opinion filed June 16, 2011.
CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
with opinion.
Justices Freeman, Burke, and Theis concurred in the judgment
and opinion.
Justice Garman dissented, with opinion, joined by Justices
Thomas and Karmeier.
OPINION
In defendant Perry Ward’s trial for the criminal sexual assault of
M.M., the circuit court of Cook County admitted evidence that
defendant had also been involved in the criminal sexual assault of
another woman, L.S. In admitting the other-crimes evidence, the court
relied on section 115–7.3 of the Code of Criminal Procedure of 1963
(725 ILCS 5/115–7.3 (West 2006)), permitting the evidence to be
used under certain circumstances to show a defendant’s propensity to
commit sex crimes. When defendant sought to have evidence
admitted of his acquittal in L.S.’s case, however, the trial court
rejected his request.
Defendant was convicted of the criminal sexual assault of M.M.
and sentenced to 25 years in prison. The appellate court affirmed (389
Ill. App. 3d 757), and defendant now appeals to this court, arguing
that the trial court erroneously refused to admit evidence of his prior
acquittal.
We reverse the appellate court judgment affirming the trial court’s
refusal to admit evidence of defendant’s acquittal in L.S.’s case. We
conclude that barring the acquittal evidence here was an abuse of the
trial court’s discretion and remand the cause for a new trial.
I. BACKGROUND
In June 2003, L.S. reported to police that she had been sexually
assaulted as she was walking home alone late at night after a party.
When the police took her to the hospital emergency room for
treatment, she saw defendant in the waiting room and identified him
as her attacker. Subsequent testing of DNA evidence obtained from
L.S. matched defendant, and defendant was charged with criminal
sexual assault. At trial, defendant presented a consent defense,
claiming he had paid L.S. for sex. The jury acquitted defendant of the
criminal sexual assault charge.
The DNA evidence recovered from L.S., however, also matched
DNA obtained in an unsolved February 2002 assault on M.M.,
linking defendant to the earlier attack. Based on that match, he was
arrested and charged in the circuit court of Cook County with the
criminal sexual assault of M.M. at issue in this appeal.
In M.M.’s case, the State filed a pretrial motion pursuant to
section 115–7.3 (725 ILCS 5/115–7.3 (West 2006)), seeking to admit
evidence of defendant’s alleged sexual assault of L.S. At the motion
hearing, the State argued that the two crimes were close in time and
factually similar and that the probative value of L.S.’s testimony
outweighed the risk of undue prejudice. Defense counsel argued that
the other-crimes evidence was irrelevant and that its admission would
be highly prejudicial because the alleged assault on L.S. was
significantly more violent than the alleged assault on M.M.
The trial court allowed the State to admit the other-crimes
evidence after considering the three factors set out in the statute for
balancing the evidence’s probative value against its risk of undue
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prejudice: “(1) the proximity in time to the charged or predicate
offense; (2) the degree of factual similarity to the charged or predicate
offense; or (3) other relevant facts and circumstances.” 725 ILCS
5/115–7.3(c) (West 2002). The court specifically found the 16 months
between the two attacks was an acceptable time frame and observed
that the victims were demographically similar, met defendant under
similar circumstances, and were both taken to secluded areas, where
they claimed to have been threatened and forced to perform multiple
sex acts. The court also cited the presence of defendant’s DNA and
use of a consent defense in both cases. The trial court then permitted
the State to use L.S.’s testimony to establish defendant’s propensity
to commit sex crimes as well as the absence of mistake and lack of
consent.
At trial, M.M. testified that she spoke to defendant, a stranger, at
a store where she had walked after midnight to get some food. As
they were talking, she asked defendant for a cigarette. When she
reached into a van parked around the corner to retrieve the cigarettes
as defendant had directed, she was shoved inside and sexually
assaulted. M.M. recalled that defendant held an unidentifiable object
in his hand during the assault and that she cooperated because she
was threatened. In addition, Chicago police detective Edwin Kaup
testified that during his interview of M.M. at the hospital after the
assault she appeared to be “very traumatized, very shocked.” He
described her as shaking, hyperventilating, and crying.
Before presenting L.S.’s testimony, the State filed a motion in
limine asking the trial court to bar defendant from telling the jury he
had already been tried and acquitted of that criminal sexual assault
charge. The trial court allowed the State’s motion, reasoning that the
jury’s findings in the earlier trial were entirely irrelevant to the
conclusions M.M.’s jury might draw based on the specific evidence
before it. The court explained that the jury in M.M.’s assault case
should make its own assessment of L.S.’s credibility and determine
for itself the weight, if any, to give to her testimony. The judge added
that the acquittal in L.S.’s case could also have been attributable to
the legal ability of defense counsel in that case.
Both before and after L.S.’s testimony, the trial court instructed
the jury that it was to consider the evidence only for defendant’s
propensity to commit crimes and his consent defense. The trial court
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further informed the jury, “[i]t is for you to determine whether the
defendant was involved in that offense and if so, what weight should
be given to the evidence on this issue of the defendant’s propensity
to commit sex crimes and lack of consent.” L.S. then testified to her
version of defendant’s alleged attack on her in June 2003.
In part, L.S. testified that she saw defendant standing by some
bushes near the train tracks she had started to cross when coming
home alone late from a friend’s party. When defendant asked her if
she wanted to “kick with him,” meaning to spend some time with
him, she told him to get away. As she started to run, he grabbed her
by the hair and held a knife to her throat. He told her to “shut up” and
threatened to kill her. Defendant pulled L.S. through the bushes and
knocked her to the ground, where they struggled until he slammed her
head against the concrete. He sexually assaulted her before again
hitting her head against the concrete when she tried to burn him with
her lighter. He then sexually assaulted her a second time.
When defendant released L.S., she went home and told her fiancé
she had been raped. After he called the police, they took her first to
the scene of the alleged attack and then to the hospital. As they
entered the emergency room, L.S. saw defendant sitting in the waiting
area and identified him to the police. A sexual assault examination
was performed, and she was observed to have two small cuts, one on
her neck and one on her finger, as well as scratches on her back, that
she attributed to her struggle with defendant. She had no cuts or other
injuries to her head.
During L.S.’s direct testimony, the State did not ask her any
questions about the earlier trial. A reference was made during crossexamination, however, when L.S. stated that the State did not need to
prepare her to testify in this case because she had testified before.
Defense counsel made another brief reference to L.S.’s prior court
testimony during closing arguments, observing that she was not afraid
of defense lawyers or of being in a courtroom because “[s]he knows
how the drill goes” since she had “testified before.” In her testimony,
L.S. also admitted to using a false name during a prior arrest for retail
theft. Those charges were later dismissed.
At the close of her testimony, the trial court repeated its
admonishment that the jury must decide whether defendant had been
involved in the offense L.S. described and how much weight to give
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that evidence when evaluating both his propensity to commit sex
crimes and his consent defense. A similar instruction was given, both
orally and in writing, before the jury began its deliberations.
Defendant testified that he was an alcoholic who frequented
prostitutes. He admitted having sexual intercourse with both M.M.
and L.S. but insisted that the acts were consensual and that he paid
both women. He then gave his version of the alleged attack on M.M.,
stating that she approached him at a tavern and offered to perform
sexual acts for money. He also testified about L.S.’s earlier alleged
assault, indicating that she, too, had solicited him for sex.
The jury convicted defendant of the criminal sexual assault of
M.M., and he was sentenced to 25 years in prison as a Class X
offender. The appellate court affirmed and denied defendant’s
petition for rehearing. This court allowed his petition for leave to
appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
II. ANALYSIS
Defendant raises two issues before this court, but we need address
only the merits of his claim that the trial court abused its discretion by
refusing to admit evidence of his acquittal in L.S.’s case. Because that
issue is determinative, we need not address whether principles of
statutory construction or the doctrine of collateral estoppel preclude
the application of section 115–7.3 (725 ILCS 5/115–7.3 (West 2006))
to defendants previously acquitted of other offenses.
Although defendant couches his acquittal evidence argument in
terms of fundamental fairness and due process, we conclude he is not
making a formal constitutional challenge to the statute. He neither
identifies the applicable constitutional standard of review nor argues
that section 115–7.3 violates either the state or federal constitutions.
In fact, he readily admits that the statute is constitutional.
Instead, defendant appears to argue that the trial court erred
because its refusal to admit evidence that he had been acquitted of
assaulting L.S. unfairly prejudiced his defense. We review the
propriety of a ruling on the admission of other-crimes evidence for an
abuse of the trial court’s discretion. People v. Donoho, 204 Ill. 2d
159, 186 (2003). An abuse of discretion occurs when the ruling is
arbitrary, fanciful, unreasonable, or when no reasonable person would
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adopt the trial court’s view. People v. Illgen, 145 Ill. 2d 353, 364
(1991).
Here, the State defends the trial court’s refusal to admit the
acquittal evidence because the prior verdict had been based on
different evidence and could simply be attributable to more adroit
“lawyering,” as the trial court noted. Accordingly, it argues no abuse
of discretion occurred.
Defendant contends that the trial court’s ruling was an abuse of
discretion because the jury was entitled to hear all the evidence
affecting the probative value and reliability of the other-crimes
evidence necessary to weigh the evidence properly. He adds that
L.S.’s testimony on cross-examination “suggest[ed] that [defendant]
was involved in a prior criminal proceeding involving her,” “very
likely” leading the jury to conclude erroneously that he had been
convicted of L.S.’s sexual assault and improperly bolstering her
credibility.
Traditionally, evidence relating to a defendant’s propensity to
commit crimes has been excluded from criminal trials because it
tends to be overly persuasive to a jury, who may “convict the
defendant only because it feels he or she is a bad person deserving
punishment.” People v. Lindgren, 79 Ill. 2d 129, 137 (1980). See also
People v. McKibbins, 96 Ill. 2d 176, 182 (1983) (noting that othercrimes evidence is generally inadmissible to show the defendant’s
propensity to commit a crime). As the United States Supreme Court
explained in Michelson v. United States, 335 U.S. 469, 475-76
(1948),
“Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecution
to any kind of evidence of a defendant’s evil character to
establish a probability of his guilt. *** The state may not
show defendant’s prior trouble with the law, specific criminal
acts, or ill name among his neighbors, even though such facts
might logically be persuasive that he is by propensity a
probable perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny him a
fair opportunity to defend against a particular charge. The
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overriding policy of excluding such evidence, despite its
admitted probative value, is the practical experience that its
disallowance tends to prevent confusion of issues, unfair
surprise and undue prejudice.” (Emphasis added.)
In Illinois, however, our legislature has chosen to provide a
limited exception to this general rule of inadmissibility for othercrimes evidence intended to show the defendant’s propensity to
commit crimes. If a defendant is tried on one of the enumerated sex
offenses, section 115–7.3(b) of the Code (725 ILCS 5/115–7.3(b)
(West 2006)) allows the State to introduce evidence that the
defendant also committed another of the specified sex offenses. The
statute expressly permits this other-crimes evidence to be admitted for
any relevant purpose. 725 ILCS 5/115–7.3(b) (West 2006). As the
Supreme Court recognized in Michelson, propensity evidence is often
highly relevant, making other-crimes evidence admissible under
section 115–7.3 to show a defendant’s propensity to commit sex
crimes.
Before the other-crimes evidence may be used, however, the
statute requires the court to apply a balancing test, weighing the
probative value of the evidence against the undue prejudice it may
produce against the defendant. 725 ILCS 5/115–7.3(c) (West 2006).
This court has previously upheld the constitutionality of section
115–7.3. People v. Donoho, 204 Ill. 2d 159, 190 (2003).
Here, however, defendant argues the trial court abused its
discretion by precluding the admission of his acquittal evidence
because L.S.’s testimony about her alleged attack was highly
prejudicial and detailed a considerably more violent attack than did
M.M.’s testimony. We note that the plain statutory language permits
admission of both evidence of “defendant’s commission of another
[enumerated] offense or offenses” and “evidence to rebut that proof
or an inference from that proof.” 725 ILCS 5/115–7.3(b) (West 2006).
The acquittal evidence defendant sought to admit would have aided
in rebutting the inference created by L.S.’s testimony that he had a
propensity to commit sex offenses, making it admissible under
section 115–7.3.
In support, defendant cites other state jurisdictions holding that
acquittal evidence is highly relevant and that it is an abuse of
discretion to withhold it from the jury. See Kinney v. People, 187
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P.3d 548, 556 (Colo. 2008). See also Hess v. State, 20 P.3d 1121,
1125 (Alaska 2001); State v. Davis, 619 P.2d 1062 (Ariz. Ct. App.
1980); People v. Griffin, 426 P.2d 507 (Cal. 1967); People v.
Mullens, 119 Cal. App. 4th 648, 666 (Cal. Ct. App. 2004); Nolan v.
State, 131 A.2d 851, 857-58 (Md. 1957); Walker v. State, 921 P.2d
923 (Nev. 1996); State v. Smith, 532 P.2d 9, 11-12 (Or. 1975); State
v. Bernier, 491 A.2d 1000, 1005-06 (R.I. 1985). We need not
examine case law from other states, however, if Illinois law
adequately addresses the issue.
Defendant cites two Illinois appellate court decisions stating that
fairness requires a jury be told of a defendant’s prior acquittal even
when the other-crimes evidence is admitted only for less inherently
prejudicial nonpropensity purposes. See People v. Bedoya, 325 Ill.
App. 3d 926, 943 (2001); People v. Overton, 281 Ill. App. 3d 209
(1996). In Bedoya, the court’s discussion of the acquittal evidence
was arguably dicta because it came after the court found that the
other-crimes evidence had been improperly admitted, but it
constituted an extensive and integral part of the court’s decision. At
a minimum, the court’s determination that evidence of the
defendant’s acquittal had to be admitted to avoid undue prejudice to
the defendant constituted judicial dicta carrying the force of the
reviewing court’s determination and warranting considerable weight.
Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93, 100 (2004).
In Bedoya, the defendant was originally tried for both aggravated
discharge of a firearm and first degree murder. He was acquitted of
the firearms charge but convicted of the murder charge. The murder
conviction was later overturned on appeal. During the retrial of the
murder charge, the State introduced evidence related to the prior
firearms charge as other-crimes evidence showing the defendant’s
mental state at the time of the killing. The defendant, however, was
barred from introducing evidence that he was previously acquitted of
the firearms charge. Bedoya, 325 Ill. App. 3d at 928. He was again
convicted of first degree murder and appealed.
On appeal, the Bedoya court reversed the murder conviction and
remanded the cause for a new trial, concluding that “[f]airness
required disclosure” because the “jury could have been left with the
false impression that those [previously tried] ‘offenses’ were alive
and pending,” making the “risk of misleading or overpersuading the
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jury *** palpable.” Bedoya, 325 Ill. App. 3d at 943. The court also
found it notable that, in upholding the constitutionality of admitting
other-crimes evidence in Dowling v. United States, 493 U.S. 342,
346, 354 (1990), the United States Supreme Court added that the jury
in that case had received instructions stating that the defendant had
been acquitted of the offense implicated in the other-crimes evidence.
Bedoya, 325 Ill. App. 3d at 942-43. In addition, the Bedoya court
relied on its prior reversal of an armed robbery conviction based on
the erroneous admission of other-crimes evidence in Overton.
Bedoya, 325 Ill. App. 3d at 943.
In Overton, the court held that the admission of other-crimes
evidence unfairly prejudiced the defendant, requiring reversal of his
conviction and remand for a new trial. Overton, 281 Ill. App. 3d at
217. Because the jury was not told the defendant had been acquitted
of the other charge, the court found that the State had failed to
demonstrate either the relevance of the other-crimes evidence “or that
the evidence was not prejudicial.” Overton, 281 Ill. App. 3d at 216.
Instead, the court found that the prejudice from admitting the othercrimes evidence, absent any evidence of the defendant’s prior
acquittal, “was unnecessarily prejudicial, outweighing any potential
probative value.” Overton, 281 Ill. App. 3d at 216.
Here, the State advocates the adoption of the principle widely
applied in federal courts that acquittal evidence is generally
inadmissible as either hearsay that fails to prove the defendant’s
actual innocence or as evidence that is unduly prejudicial and
potentially confusing if used to rebut inferences based on differing
evidence in the two trials. Defendant counters that these cases are
contrary to Illinois law and should not be followed.
We conclude we need not look to federal case law because
existing Illinois law supplies the necessary answers. The jury’s
function is “to assess the credibility of witnesses, weigh the evidence
presented, resolve conflicts in the evidence, and draw reasonable
inferences from the evidence.” People v. Moss, 205 Ill. 2d 139, 164
(2001). To perform this function properly, the jurors logically must
have access to as much relevant, admissible evidence as possible.
Without that evidence, the reliability of the jury’s conclusions is
called into question. Our reviewing courts are commonly called upon
to evaluate whether a trial court’s application of an evidentiary
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balancing test is an abuse of discretion resulting in undue prejudice.
Thus, we need not consider the law applied in other jurisdictions to
decide this appeal because Illinois law provides an adequate basis for
our analysis.
To determine whether the trial court abused its discretion in
barring the evidence of defendant’s acquittal in L.S.’s case, we must
apply a balancing test. Under that test, the court must weigh “the
probative value of the evidence against undue prejudice to the
defendant.” 725 ILCS 5/115–7.3(c) (West 2006). The statute lists
three factors that may be considered in applying this balancing test,
namely, the proximity in time between the two acts alleged, the
factual similarity between the acts, or other relevant circumstances
and facts. The first two factors are inapplicable in the context of the
acquittal evidence at issue in this case. See 725 ILCS 5/115–7.3(c)
(West 2006).
Here, the trial court appears to have applied a balancing test in
barring defendant’s acquittal evidence. The court’s ruling primarily
relied on its views that the jury in M.M.’s case would have “twice as
much in the way of eyewitness testimony” as the L.S. jury and that
“they can believe [the evidence presented] *** or not.” Due to the
differences in the evidence admitted in the two cases, the trial court
believed the comparison was improperly one of “apples and oranges”
that did not justify admission of the prior acquittal judgment. The trial
court also expressed concern that “what one jury does *** could be
[due to] the adroitness and the masterful trial technician, that lawyer
that holds a jury to say guilty on one and not guilty of another
alternative.” In short, the trial court appears to have concluded that
the probative value of the acquittal evidence was limited due to
inherent differences in the evidence presented and unfolding of the
legal proceedings in the two cases. We must determine whether this
conclusion was an abuse of the trial court’s discretion.
The State argues that barring the acquittal evidence and limiting
the other-crimes evidence to a single witness was proper because it
precluded an undesirable “mini-trial” that could have created juror
confusion and prejudice. See People v. Walston, 386 Ill. App. 3d 598,
619 (2008) (noting that barring a mini-trial would avoid “unfair
prejudice, jury confusion, or delay”). It also emphasizes the jury’s
repeated instruction on the limited use of the other-crimes evidence
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to show defendant’s propensity to commit sex crimes and the victim’s
lack of consent to ensure the fairness of the trial. Finally, the State
maintains that barring the acquittal evidence was fair because
defendant was permitted to challenge L.S.’s credibility on crossexamination by other means as well as to testify to his version of the
events.
We conclude that the probative value of the acquittal evidence
offered by defendant is derived from the very evidentiary differences
the trial court used to justify the exclusion of that evidence. Here, the
trial court admitted L.S.’s testimony because of similarities in the two
cases: the similar time frame, the demographic similarities of the
alleged victims, the similar circumstances surrounding the women
meeting defendant for the first time, the seclusion of the areas where
the assaults allegedly occurred, and the repeated claim that defendant
used threats to force compliance. These similarities greatly enhanced
the probative value of the other-crimes evidence. The trial court’s
refusal to allow defendant to tell the jury he had previously been
found “not guilty” of assaulting L.S., however, severely limited the
jury’s ability to assess her testimony in a fully realistic context. This
limitation may well have artificially enhanced L.S.’s credibility
because the jury in M.M.’s case did not hear all the evidence leading
to defendant’s prior acquittal that could have affected their
consideration of her credibility.
While the State correctly argues that a “mini-trial” of L.S.’s case
should be avoided, the complete absence of any reference to the
outcome in that case severely restricted defendant’s ability to convey
a complete context for L.S.’s allegations. We cannot overlook the
highly inflammatory nature of those allegations against defendant and
his commensurate need to counter that impact with additional
evidence.
Here, the jury knew L.S. had testified before and could only
speculate on the entirety of the other testimony presented in that
proceeding. Without a fuller context, the danger of excessive juror
sympathy for the alleged victim is high. Naturally, sympathy could
well have influenced the jury’s consideration of L.S.’s testimony,
adding to defendant’s need to rely on the acquittal evidence. Without
the benefit of even the general knowledge that defendant was
acquitted of assaulting L.S., the jury could easily have been swayed
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after hearing only parts of the story. Here, the probative value of the
acquittal evidence is in its ability to provide the jury with a more
complete context for L.S.’s testimony. While the M.M. jury still had
an independent duty to determine the credibility of her testimony and
evaluate its weight, the acquittal evidence would have provided
another part of the picture that was otherwise sorely absent.
Having addressed the probative value of admitting the acquittal
evidence, we must next consider the potential for unfair prejudice to
defendant if the other-crimes evidence is admitted without the
admission of the acquittal evidence. Prejudice means “an undue
tendency to suggest decision on an improper basis, commonly an
emotional one, such as sympathy, hatred, contempt, or horror.”
(Internal quotation marks omitted.) People v. Lewis, 165 Ill. 2d 305,
329 (1995) (quoting M. Graham, Cleary & Graham’s Handbook of
Illinois Evidence §403.1 (4th ed. 1984)). Here, the potential for
prejudice is readily apparent from L.S.’s highly detailed testimony
about defendant’s alleged violent attack on her, followed by her
statement that she had previously testified in another case. The latter
evidence was elicited during defense counsel’s cross-examination of
L.S. when counsel inquired about whether she had been prepared to
testify in M.M.’s case. In response, L.S. offered that the State did not
need to prepare her because she “already knew that.” In a follow-up
to that response, defense counsel asked if she had previously been
prepared to testify, and L.S. stated, “I already testified before.”
Thus, the jury knew from L.S.’s testimony that she had identified
defendant to the police as her attacker in a violent sexual assault and
that she had provided testimony in a prior case. Despite L.S.’s brief
reference to a prior arrest for retail theft, it is unlikely the jury would
have immediately connected her prior testimonial experience with
that charge because she stated that “they threw [that charge] out, it
was dismissed,” implying that case was never tried. Moreover, the
violent and highly inflammatory nature of L.S.’s accusations against
defendant far overshadowed the mere seconds spent in reference to
the dismissed retail theft charge.
Given the graphic nature of the depiction of defendant’s alleged
attack on L.S., the jury naturally would have assumed the State had
pressed charges against defendant, providing a more likely context for
L.S.’s prior testimony. Therefore, L.S.’s testimony left the jury to
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speculate whether those charges against defendant were ongoing or
had already been resolved. The admission of evidence that defendant
had been acquitted of assaulting L.S. would have put to rest that
speculation and provided a context for her statements about having
“already” given testimony.
Under this court’s definition in Lewis, the prejudicial impact of
not informing the jury about defendant’s acquittal is obvious. See
Lewis, 165 Ill. 2d at 329 (defining “prejudice” as “an undue tendency
to suggest decision on an improper basis, commonly an emotional
one, such as sympathy, hatred, contempt, or horror” (internal
quotation marks omitted) (quoting M. Graham, Cleary & Graham’s
Handbook of Illinois Evidence §403.1 (4th ed. 1984)). A jury would
have likely reacted to L.S.’s testimony describing her violent attack
with sympathy for her and hatred or contempt for the alleged
perpetrator, here, defendant. This reaction would have seriously
prejudiced the jury against defendant.
Moreover, the jury was instructed that the other-crimes testimony
was relevant to both defendant’s propensity to commit sex crimes and
the victim’s lack of consent, seriously undercutting his sole defense
of consent. As in Bedoya, the jury repeatedly received a limiting
instruction stating that the other-crimes evidence showed defendant
had been “involved in an offense other than that charged in the
indictment” and that it was the jury’s job to determine whether
defendant was involved in that “offense” as well as the weight to be
given to that testimony. (Emphasis added.) See Bedoya, 325 Ill. App.
3d at 943. These repeated references to defendant’s prior “offense”
implicitly supported a jury inference that defendant had been charged,
and perhaps even convicted, on L.S.’s claims. That inference, in turn,
further supported the jury’s already likely conclusion that L.S. had
testified in earlier proceedings involving defendant’s alleged attack
on her, adding to the jury’s potential speculation about the outcome
of that case and the prejudice against defendant.
The other-crimes evidence was admitted under section 115–7.3
to prove defendant’s propensity to commit sex crimes. Due to the
inherently high, and often overly persuasive, probative value of such
propensity evidence, the need to avoid unfair prejudice by providing
a full context for the other-crimes testimony is readily apparent.
Given the real possibility the jury would convict defendant based on
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his alleged prior bad acts alone, barring the acquittal evidence further
enhanced the already high danger of undue prejudice against him. See
725 ILCS 5/115–7.3(c) (West 2006) (stating the proper balancing test
for the admission of other-crimes evidence as “weighing the
probative value of the evidence against undue prejudice to the
defendant”).
Although the trial court expressed concern that differing evidence
in the two cases required the jury to compare “apples and oranges,”
any potential jury confusion could easily have been remedied. For
example, if the acquittal evidence had been admitted, the jury could
have been informed that a verdict of “not guilty” may have been
attributed to a number of factors and does not conclusively establish
defendant’s actual “innocence.” As our courts have long recognized,
jurors tend to find propensity evidence overly persuasive and to give
it too much weight, prompting them to prejudge defendants based on
their generally bad records. Michelson, 335 U.S. at 476; People v.
Lindgren, 79 Ill. 2d 129, 137 (1980). As the Michelson Court
explained, in “practical experience *** disallowance [of propensity
evidence] tends to prevent confusion of issues, unfair surprise and
undue prejudice.” (Emphasis added.) Here, juror confusion would be
similarly minimized by providing the jury will a more complete
context for their consideration of L.S.’s testimony.
Because the proper application of the balancing test firmly
establishes the serious risk of undue prejudice to defendant created by
the admission of the other-crimes evidence in the absence of any
acquittal evidence, “[t]he risk of misleading or overpersuading the
jury is palpable.” “Fairness requires disclosure.” Bedoya, 325 Ill.
App. 3d at 943. We hold that barring the admission of the acquittal
evidence was an abuse of the trial court’s discretion. The ruling was
unreasonable under the facts and circumstances of this case. See
People v. Harvey, 211 Ill. 2d 368, 392 (2004).
We find unpersuasive the State’s final argument that any error in
barring the acquittal evidence was harmless. The only issue in dispute
at trial was defendant’s consent defense. Repeating a jury instruction
limiting the use of the other-crimes evidence to show defendant’s
propensity to commit sex crimes and a lack of consent could not cure
the underlying error. Indeed, the language of that instruction likely led
the jury to speculate about the outcome of the proceedings on
-14-
defendant’s prior “offense.” Without knowledge of defendant’s
acquittal, the jury was not able to evaluate the other-crimes evidence
fully, unduly limiting defendant’s ability to present L.S.’s testimony
in the proper context. Given the recognized tendency for juries to be
overly persuaded by propensity evidence (Michelson, 335 U.S. at 476;
Lindgren, 79 Ill. 2d at 137), we cannot say the trial court’s error in
barring defendant’s acquittal evidence was harmless. Based on that
error, we reverse defendant’s conviction for the criminal sexual
assault of M.M. and remand for a new trial where evidence of
defendant’s acquittal in L.S.’s case will be admitted if she again
provides other-crimes evidence.
Because we are remanding this cause for a new trial, we must
consider whether another trial would violate the double jeopardy
clause. If the totality of the evidence presented at defendant’s first
trial was sufficient for a rational trier of fact to find that the essential
elements of the crime had been proven beyond a reasonable doubt, no
double jeopardy violation is created on retrial. People v. McKown,
236 Ill. 2d 278, 312 (2010). Here, the jury was obliged to determine
the critical issue of consent, and the State’s evidence, if believed, was
sufficient to establish defendant’s guilt beyond a reasonable doubt.
No double jeopardy impediment to retrial is presented here.
III. CONCLUSION
For the reasons stated, we conclude that the trial court’s bar on the
admission of defendant’s acquittal evidence must be reversed as an
abuse of its discretion. Accordingly, we reverse the appellate court’s
judgment and defendant’s conviction and remand the cause to the
circuit court for a new trial.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
-15-
JUSTICE GARMAN, dissenting:
The majority concludes that defendant is entitled to a new trial on
the basis that it was reversible error for the trial court to deny
admission of evidence of his previous acquittal of the attack on L.S.
Because I believe that the trial court’s ruling on the admissibility of
this evidence was neither arbitrary, fanciful, or unreasonable, nor a
view that no reasonable person would adopt (see People v. Donoho,
204 Ill. 2d 159, 182 (2003)), I respectfully dissent. In my opinion, the
majority does not give sufficient deference to the trial court, thereby
undermining the abuse of discretion standard, and reaches a result
that may lead to unintended consequences.
Threshold Issue
As a threshold matter, defendant argues to this court on two
separate grounds that evidence regarding the attack on L.S. should not
have been admitted pursuant to section 115–7.3 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/115–7.3 (West
2006)). He argues that as a matter of statutory interpretation, section
115–7.3 of the Code does not permit admission of other-crimes
evidence when the defendant has previously been acquitted of the
other crime. He also argues that admission of this evidence is barred
by the doctrine of collateral estoppel.
The State responds that defendant has forfeited the statutory
interpretation issue for failure to raise it as a one of the “points relied
upon” in his petition for leave to appeal as required by Supreme Court
Rule 315(c)(3) (Ill. S. Ct. R. 315(c)(3) (eff. Oct. 15, 2007)). The State
also argues that he has forfeited the collateral estoppel issue by failing
to raise it at trial and in his posttrial motion. See People v. Enoch, 122
Ill. 2d 176, 186 (1988). Finally, the State argues that defendant has
not demonstrated that either of these claimed errors constitutes plain
error under Supreme Court Rule 615(a) (Ill. S. Ct. R. 615(a)).
The majority, however, does not discuss these issues (see slip op.
at 5), which will most certainly be raised again in a new trial. Further,
if defendant is correct that the other-crimes evidence should not have
been admitted in the first place, the issue that the majority does
address is moot. Therefore, this court should either address these
issues or explain why it is not doing so.
-16-
Presentation of Facts
The majority devotes a single paragraph to summarizing the
prosecution’s evidence in this case. Slip op. at 3. This is a significant
omission, given the majority’s characterization of the attack on L.S.
as “considerably more violent” than the attack on M.M. (slip op. at 7)
and its ultimate conclusion that the error it finds is not harmless (slip
op. at 14-15).
At trial, M.M. testified that after midnight on February 23, 2002,
she left her sleeping husband in their southside Chicago home and
walked to a nearby restaurant and liquor store to get something to eat
and to buy beer and cigarettes. She was 49 years old at the time and
weighed 105 pounds. After she arrived at the store, she spoke to
several people there, including defendant. While she was waiting for
her food, she stepped outside. Defendant was smoking and she asked
him for a cigarette. He told her that his cigarettes were in his van,
which was parked at the side of the restaurant. She walked with him
around the corner to the van. At the van, he opened the door and told
her the cigarettes were inside on the seat. When she reached inside,
he pushed her into the back of the van, which had no passenger seat,
and followed her inside.
She further testified that he threatened to kill her if she “hollered”
and forced her to remove her clothing. He had some sort of object in
his hand, which she could not identify. Defendant forced her to touch
him and to perform oral sex on him. She prayed and begged him not
to hurt her. He attempted to penetrate her anally, but she fought him.
Eventually, he penetrated her vaginally and thereafter had vaginal
intercourse with her “several” times. Over the course of the four or
five hours he kept her in the van, he repeatedly threatened to kill her
if she told anyone about the incident.
Defendant eventually released M.M. after again threatening to kill
her if she told anyone what had happened. She ran home and told her
husband, who called the police. The police took her to the hospital for
a sexual assault examination.
Other witnesses testified to the chain of custody of the evidence
gathered in the course of her examination at the hospital. The parties
stipulated that if called to testify, Illinois State Police forensic
scientist Marla Fiorelli would testify that the vaginal swabs taken
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from M.M. revealed the presence of semen. Fiorelli also preserved
and prepared the samples taken during the sexual assault examination
and sent them to a commercial laboratory for DNA testing. The
parties also stipulated that forensic scientist Brian Schoon, if called
to testify, would testify that the DNA profile from the vaginal swabs
collected from M.M. matched the DNA profile obtained from a
buccal swab collected from defendant.
Chicago police detective Edwin Kaup testified that he interviewed
M.M. at the hospital and found her to be “very traumatized, very
shocked.” He described her as shaking, hyperventilating, and crying.
From her description, he located the van near the restaurant and had
it processed for evidence. He identified the owner of the van from its
license plates. The owner informed him that the van was inoperative
and that it had been parked in the alley for several weeks. He knew
that people “squatted” in the van.
Later that evening, M.M. went to the police station to view a lineup. The owner of the van agreed to appear in the line-up; defendant
was not present. M.M. did not identify anyone in the line-up as her
attacker.
Chicago police detective Robert Distasio testified that in March
2005, he contacted M.M. in Decatur, Georgia, where she was living
with her grandchildren after the death of her husband. At his request,
she returned to Chicago to view a line-up. This time defendant was
a member of the line-up and she identified him as the man who
attacked her in 2002.
Application of Abuse of Discretion Standard
The question for this court is whether the trial court’s exclusion
of evidence of the acquittal was an abuse of discretion. The majority
does not directly address the State’s arguments, including the
assertion that evidence of an acquittal is inadmissible hearsay. In
addition, the majority applies an incorrect evidentiary rule to reach its
conclusion and fails to clearly establish that the acquittal evidence is
relevant to a material fact.
Arguments Not Addressed
The State’s argument is mischaracterized by the majority. The
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State does not defend the trial court’s ruling on the basis that “the
prior verdict had been based on different evidence and could simply
be attributable to more adroit ‘lawyering.’ ” Slip op. at 6. Although
the State may very well agree with this statement, this is not the
gravamen of the State’s argument. The State notes that the jury in the
earlier trial did not make a special finding as to the credibility of L.S.
and that its general verdict of not guilty “may have resulted from
lenity, failure to follow the law, or a failure to prove an element of the
offense.” Because the evidence in that case was essentially a swearing
contest between the alleged victim and the defendant, a not-guilty
verdict could have resulted from proper application of the beyond-areasonable-doubt standard, even if the jury found L.S. and defendant
to be equally credible. Thus, the State argues, permitting the
defendant “to attack the credibility of [L.S.] with an acquittal based
on a prior jury’s opinion about the weight of evidence not before the
jury is both misleading and confusing, and imbues the acquittal with
a power it does not possess–to brandish L.K. as incredible.”
Therefore, the State asserts, the trial court did not abuse its discretion
by excluding evidence of the acquittal. In addition, the State also
argues that while evidence of a conviction is an exception to the
hearsay rule, evidence of an acquittal is not. The majority does not
directly engage any of the State’s arguments.
Applicable Rules of Evidence
When a defendant is accused of certain crimes, section 115–7.3(b)
permits the admission of “evidence of the defendant’s commission of
another offense or offenses” of a similar nature “for its bearing on any
matter to which it is relevant,” including the propensity of the
defendant to commit the crime of which he is accused. 725 ILCS
5/115–7.3(b) (West 2006). Such evidence must be “otherwise
admissible under the rules of evidence.” Id.
Under the generally applicable rules of evidence, evidence may
not be admitted unless it is relevant. Ill. R. Evid. 402 (eff. Jan. 1,
2011) (codifying common law rule). Evidence is relevant if it has
“any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Ill. R. Evid. 401
(eff. Jan. 1, 2011) (codifying common law rule). The evidence, even
-19-
if relevant, will be excluded if its admission would violate another
rule of evidence, such as the hearsay rule (see Ill. R. Evid. 802 (eff.
Jan. 1, 2011) (codifying common law rule)). If relevant and otherwise
admissible, “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” Ill. R. Evid. 403 (eff. Jan. 1, 2011) (codifying common
law rule).
In addition, when the State seeks to admit other-crimes evidence
pursuant to section 115–7.3, section 115–7.3(c) guides the trial
court’s “weighing the probative value of the evidence against undue
prejudice to the defendant,” by directing the court to consider three
factors in addition to the factors listed in Rule 403. The court “may
consider: (1) the proximity in time to the charged or predicate
offense; (2) the degree of factual similarity to the charged or predicate
offense; or (3) other relevant facts and circumstances.” 725 ILCS
5/115–7.3(c) (West 2006).
The first two factors relate to the other crime’s probative value as
evidence of the defendant’s propensity to commit the crime charged.
The more similar the two crimes and the closer in time they occurred,
the more probative the other-crimes evidence would be. The third
factor, “other relevant facts and circumstances,” would include,
among other things, the fact that the defendant has previously been
tried for the other offense, the outcome of that trial, and whether the
complaining witness in that case is available to testify in person in the
present case. For example, if a defendant were acquitted in the first
trial based on his denial of the assault and the testimony of an alibi
witness, a court might exclude the other-crimes evidence in a second
trial in which his defense is consent, no matter how factually similar
the two offenses or how close their proximity in time.
If, after considering the Rule 403 factors and the section
115–7.3(c) factors, the court allows the State to admit the othercrimes evidence, the defendant may admit “evidence to rebut that
proof or an inference from that proof.” 725 ILCS 5/115–7.3(b) (West
2006).
The majority states that the court must again apply section
115–7.3(c) and “weigh the probative value of the evidence against
-20-
undue prejudice to the defendant” when deciding on the admissibility
of such rebuttal evidence. (Internal quotation marks omitted.) Slip op.
at 10; see also slip op. at 14. This is not the correct formulation of the
balancing test that should be applied to rebuttal evidence. Instead, the
rebuttal evidence should be evaluated under the generally applicable
rules of evidence.
Section 115–7.3(c) specifically focuses on “undue prejudice to the
defendant.” 725 ILCS 5/115–7.3(c) (West 2006). The defendant’s
own rebuttal evidence cannot, by definition, cause him “undue
prejudice.” Thus, by its own terms, section 115–7.3(c) applies to only
evidence that the State seeks to admit against the defendant, not to
rebuttal evidence proffered by the defendant.
Even if the members of this court are to disagree as to the merits
of this particular case, we should agree that based on the plain
language of section 115–7.3(c), evidence offered to rebut othercrimes evidence admitted pursuant to section 115–7.3(b) should be
evaluated under the generally applicable rules of evidence.
Under these general rules, when a defendant offers evidence to
rebut other-crimes evidence admitted pursuant to section 115–7.3, the
court should first consider whether the proffered evidence tends to
rebut the evidence that he committed the other crime–that is, is it
relevant? Second, is the rebuttal evidence otherwise admissible under
the rules of evidence? Third, if so, is its probative value substantially
outweighed by any of the Rule 403 concerns?
This is the analysis followed by the trial court in the present case.
The trial court allowed the State’s motion in limine, reasoning that
what one jury made of the evidence in the earlier trial was “entirely
irrelevant” to what the jury in this case might conclude from the
different evidence before it. The court explained that this jury should
make its own assessment of the credibility of L.S. and its own
determination of the weight, if any, to give to her testimony. After
concluding that the evidence of defendant’s acquittal was not relevant
to any material fact at issue in the present case, the trial court stated
that even if the evidence were relevant, it would balance the factors
in favor of excluding the evidence.
-21-
Relevance
The majority addresses the question of relevance by discussing
the “probative value of the acquittal evidence.” Slip op. at 12.
Probative value is but one aspect of relevance. To be relevant,
evidence must be both material and probative. That is, it must relate
to a fact of consequence and it must tend to make that fact more or
less probable. See Ill. R. Evid. 401 (eff. Jan. 1, 2011); see also
Black’s Law Dictionary 1066 (9th ed. 2009) (defining “material” as
“[h]aving some logical connection with the consequential facts”); id.
at 1323 (defining “probative” as “[t]ending to prove or disprove”).
The fact of consequence to which the proffered evidence is said
to relate is L.S.’s credibility. Slip op. at 11. Yet, as the trial court
noted, the jury heard her testimony and was perfectly capable of
assessing her credibility. Indeed, assessing the credibility of all
witnesses is the obligation of the jury in every case.
The majority says that hearing her testimony and defendant’s
conflicting version of the events “may well have artificially
enhanced” her credibility. I am at a loss to understand how her sworn
testimony, subject to cross-examination, and rebutted by the
defendant’s own testimony, was “artificially” bolstered in any way.
The majority is also concerned about the jury’s “ability to assess
her testimony in a fully realistic context,” and that the defendant was
unable “to convey a complete context for L.S.’s allegations.” Slip op.
at 11. The jury needed “a fuller context,” to balance sympathy for the
alleged victim (id.), and the “probative value of the acquittal evidence
is in its ability to provide the jury with a more complete context for
L.S.’s testimony” (id. at 12). “Context” is not a term of art and the
majority does not explain what it means by its repeated use of this
term.
“Context,” according to the dictionary, means “the circumstances
in which a particular event occurs.” Webster’s II New College
Dictionary 243 (1999). The context of the assault was described by
L.S. in her testimony. She stated under oath that the defendant
sexually assaulted her after chasing her, grabbing her hair, putting a
knife to her throat, and dragging her through some bushes. The
context of the testimony itself was L.S.’s sworn testimony in this trial.
The earlier acquittal is not the context of either event. It is
-22-
information regarding a past event in the defendant’s life, but it is
neither relevant to nor probative of L.S.’s credibility.
A guilty verdict in a prior prosecution shows that every one of the
12 jurors in that case concluded that the State had proven each
element of the charged offense beyond a reasonable doubt. A notguilty verdict, on the other hand, is less telling. All it reveals is that
the jurors concluded that the State did not meet its burden of proof.
One or more of the jurors in the earlier trial may not have found the
State’s witness credible. Others may have found the State’s witness
and the defendant equally credible and, following their instructions
regarding the State’s burden of proof, voted to acquit. One or more
may simply not be inclined to believe that a rape occurred absent
severe physical injury to the victim. Others may hold a “blame the
victim” mindset, feeling that a victim of sexual assault may have
invited trouble by her dress or her conduct. And, as the trial court
noted, good lawyering, such as masterful cross-examination of the
State’s witnesses by defense counsel and strongly persuasive closing
argument, may play a role in an acquittal.
I do not attempt to read the minds of the jurors in defendant’s first
trial or speculate as to the bases for their votes to acquit. I merely
point out several possible bases to illustrate that while the verdict of
not guilty may have been unanimous, it does not necessarily express
the jury’s unanimous assessment of the credibility of either L.S. or the
defendant. Thus, it does not have “any tendency to make the existence
of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” See Ill. R. Evid. 401 (eff. Jan. 1, 2011).
The majority is also persuaded by defendant’s argument that
L.S.’s testimony on cross-examination suggested to the jury that he
was involved in a prior criminal proceeding involving her, “very
likely” leading the jury to conclude that he had been convicted in that
trial. This, he suggests, makes his acquittal relevant rebuttal evidence.
In describing the testimony of L.S., the majority notes that a
“reference was made” to the earlier trial when “L.S. stated that the
State did not need to prepare her to testify in this case because she
had testified before.” Slip op. at 4.
In fact, L.S. did not make these comments spontaneously. Rather,
-23-
defense counsel asked her on cross-examination about her prior
experience as a witness, despite the trial court’s having already
allowed the State’s motion in limine. Defense counsel was well aware
that he was barred from informing the jury that defendant had been
tried and acquitted of assaulting L.S. Thus, to the extent that the jury
gave any thought to the possibility that defendant had previously been
tried for the assault on L.S., such speculation was not only invited,
but encouraged, by defense counsel in defiance of the trial court’s
ruling. This speculation was further encouraged by defense counsel’s
remarks during closing argument.
Based on an abbreviated presentation of the L.S.’s testimony and
the conduct of defense counsel, the majority concludes that the jury
“naturally would have assumed the State had pressed charges against
defendant.” Slip op. at 12. Yet the attack on L.S. occurred in June
2003 and the attack on M.M. occurred in February 2002. It is just as
likely that the jury would have concluded that the earlier crime was
being prosecuted first and that the later crime would be prosecuted
later.
Of course, we have no way of knowing what thought the jury gave
to this question, if any. It is sheer speculation for this court to attempt
to read the minds of jurors when the testimony they heard, in light of
the instructions they were given, could reasonably have led to either
conclusion. In addition, to the extent that the jury might have inferred
that the defendant had already been convicted of sexual assault, that
inference was planted in their minds by defense counsel.
I would, therefore, give little weight to defendant’s argument
regarding what the jury might have concluded regarding the
possibility of a prior prosecution.
In my opinion, the trial court’s conclusions that the acquittal
evidence was irrelevant to any fact of consequence in the present case
and that the jury was fully capable of making its own assessment of
the credibility of both L.S. and defendant were not arbitrary, fanciful,
or unreasonable, or views that no reasonable person would adopt. See
Donoho, 204 Ill. 2d at 182. Therefore, exclusion of the acquittal
evidence was not an abuse of discretion.
-24-
Otherwise Admissible
Even if proffered evidence is relevant to a fact of consequence in
the case, it must be admissible under the generally applicable rules of
evidence before it may be admitted pursuant to section 115–7.3 (725
ILCS 5/115–7.3(b) (West 2006)).
The State argues that evidence of acquittal is hearsay and cites
several cases from the federal courts of appeals for this proposition.
The majority does not address this argument, which must be
resolved before acquittal evidence may be admitted as rebuttal of
other crimes-evidence pursuant to section 115–7.3. As this question
is certain to arise on remand and because it has been fully briefed and
argued by the parties, this court should address it.
Balancing of Probative Value and Prejudice
Because the majority misstates the balancing test, it considers “the
potential for unfair prejudice to defendant if the other-crimes
evidence is admitted without the admission of the acquittal evidence.”
Slip op. at 12. This conflates two separate evidentiary issues–the
admission of other-crimes evidence pursuant to section 115–7.3 for
the purpose of showing propensity and the admission of rebuttal
evidence proffered by the defendant.
First, the trial court decides whether the other-crimes evidence is
admissible under section 115–7.3. At this stage, the court considers
the potential for unfair prejudice to the defendant if the other-crimes
evidence is admitted. 725 ILCS 5/115–7.3(c) (West 2006). The fact
that the defendant has been tried and acquitted of the other crime, the
defense he raised in that case, and his ability to rebut the other-crimes
evidence are facts and circumstances that affect this analysis.
In the present case, the trial court found the earlier offense
sufficiently similar to the charged offense and that the two offenses
were close enough in time to make the other-crimes evidence relevant
to defendant’s propensity. The trial court was aware that defendant
had been acquitted in an earlier trial in which he raised a consent
defense and that the alleged victim in that case was going to testify
for the State and be subject to cross-examination by the defense. On
this basis, the trial court allowed the State to admit the other-crimes
evidence.
-25-
Second, once other-crimes evidence has been allowed, the
defendant’s proffered rebuttal evidence is subject to the generally
applicable rules of evidence. Under the generally applicable balancing
test, proffered evidence, if relevant and otherwise admissible, is to be
admitted unless its “probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Ill. R. Evid. 403 (eff.
Jan. 1, 2011). Under this rule, the party urging admission of the
evidence does not argue prejudice if it is not admitted–he argues that
the evidence is highly probative in his favor. The party opposing
admission of the evidence argues unfair prejudice to his case,
confusion of the issues, or other Rule 403 considerations.
“Undue prejudice,” in this rule, does not refer to “hatred,
contempt, or horror” as the majority suggests. Slip op. at 12. Rather,
it refers to the “harm resulting from a fact-trier’s being exposed to
evidence that is persuasive but inadmissible *** or that so arouses the
emotions that calm and logical reasoning is abandoned.” Black’s Law
Dictionary 1299 (9th ed. 2009). Prejudice, in this sense, is equated
with confusion of the issues, such as might occur if a jury improperly
equates a verdict of acquittal with a finding of actual innocence.
Indeed, each party seeks to present evidence that will undermine, i.e.,
prejudice, the opposing party’s case. This is the nature of the
adversarial system. The test is whether that prejudice is “undue.” See
id. at 1666 (defining “undue” as “[e]xcessive or unwarranted”).
In the present case, the evidence proffered by defendant–the fact
of his prior acquittal–has little probative value because it does not
establish his innocence of that offense and because the jury in the
present case was able to make its own assessment of L.S.’s credibility
based on its direct observation of her during direct and crossexamination. The State’s case would be unduly prejudiced by this
piece of evidence because the other-crimes evidence was properly
admitted for a proper purpose and the evidence of acquittal had the
very real potential of misleading or confusing the jury.
In my opinion, the trial court did not abuse its discretion by
excluding the acquittal evidence because, even if it had some minimal
probative value, that value was more than outweighed by the potential
for undue prejudice to the State’s ability to present its case in full
-26-
compliance with the Rules of Evidence and the intent of the
legislature in enacting section 115–7.3 of the Code.
Treatment of Case Law
Defendant cites two cases from the appellate court to argue that
it is “settled law” in Illinois that when other-crimes evidence is
admitted, and the defendant has been acquitted of the other crimes, he
should be allowed to offer evidence of his acquittal. He argues that in
these two cases, other-crimes evidence was admitted for
nonpropensity purposes and asserts that when, as in the present case,
such evidence is allowed to show propensity, it is even more “risky”
to exclude evidence of acquittal.
The majority states that in People v. Bedoya, 325 Ill. App. 3d 926
(2001), the appellate court reversed the murder conviction and
remanded the case for a new trial because the jury was not told that
defendant, whose previous murder conviction had been overturned on
appeal, was acquitted of firearms charges in his first trial. The
majority notes that “[i]n addition,” the Bedoya court relied on People
v. Overton, 281 Ill. App. 3d 209 (1996), a case in which it reversed
an armed robbery conviction “based on the erroneous admission of
other-crimes evidence.” Slip op. at 8-9. While acknowledging that the
Bedoya court’s discussion of the acquittal was “arguably dicta,” the
majority would nevertheless give this discussion “considerable
weight” as judicial dicta. Slip op. at 8.
The majority’s discussion obscures the actual basis for the
decision in Bedoya and elevates dicta of the appellate court to the
level of deserving deference by this court.
The Bedoya court granted the defendant a new trial because the
jury heard testimony that before he was involved in an altercation
with a bouncer at a bar that resulted in the bouncer’s death, he was
“wildly firing at random buildings from a moving car.” Bedoya, 325
Ill. App. 3d at 939. These two incidents were not sufficiently similar
to justify admission of the earlier gunplay for the nonpropensity
purpose of showing intent to murder the bouncer. Id. at 939. Not only
was the other-crimes evidence irrelevant to the murder charge, the
“detail and repetition” of the other-crimes evidence “served no
purpose other than to inflame the jury.” Id. at 940-41.
-27-
In its discussion of whether this error required reversal of the
murder conviction and a new trial, the Bedoya court mentioned the
trial court’s failure to give a timely limiting instruction and its refusal
to tell the jury that Bedoya had been acquitted of charges that he fired
his gun at three buildings prior to shooting the bouncer. Id. at 940.
The court also noted that the United States Supreme Court in
Dowling v. United States “made a point of saying the trial judge did
tell the jury the defendant had been acquitted of the other offenses.”
Id. at 942-43 (citing Dowling v. United States, 493 U.S. 342, 346
(1990)).
However, in Dowling, the Supreme Court merely noted in its
summary of the facts of the case, before beginning its analysis, that
when the complaining witness in the earlier case “left the stand, the
District Court instructed the jury that petitioner had been acquitted of
robbing [her], and emphasized the limited purpose for which [her]
testimony was being offered.” Id. At no point in the Supreme Court’s
analysis of the constitutional issues in Dowling or in its holding did
it mention the fact that the jury was informed of the prior acquittal.
Thus, the significance attached by the Bedoya court to the brief
mention of the Dowling jury’s having been told of the acquittal is not
justified. Nevertheless, the Bedoya court concluded that “[f]airness
required disclosure” of the acquittal to the jury, in part because the
limiting instruction given at the close of the case could have left the
jury with the false impression that the firearms offenses were “alive
and pending.” Id. at 943.
The entire discussion of evidence of acquittal in Bedoya is dicta,
because it had no bearing on the determinative issue in the case. The
appellate court failed to recognize that once it determined that
admission of evidence that the defendant shot at several buildings
was reversible error, the defendant’s acquittal of the firearms offenses
became entirely irrelevant. This was not a situation in which the
appellate court addressed an issue in dicta because the issue was
likely to come up on remand. Because the other-crimes evidence was
to be excluded on retrial, there would have been no need for the trial
court to consider the admissibility of evidence of the acquittal.
The present case is readily distinguished from Bedoya because the
other-crimes evidence of the attack on L.S. was properly admitted at
trial. Thus, Bedoya’s dicta that “fairness requires disclosure” of
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acquittal after other-crimes evidence has been improperly admitted
offers no support for defendant’s position.
The majority, however, concludes that this discussion “constituted
an extensive and integral part of the court’s decision.” Slip op. at 8.
The discussion was neither extensive (it consisted of less than a full
page) nor integral to the decision. Nevertheless, the majority
characterizes the Bedoya court’s brief discussion of this question as
“judicial dicta *** warranting considerable weight,” citing Hawes v.
Luhr Brothers, Inc., 212 Ill. 2d 93, 100 (2004). Slip op. at 8. In
Hawes, this court said that judicial dicta “have the force of a
determination by a reviewing court and should receive dispositive
weight in an inferior court.” (Emphasis added.) Hawes, 212 Ill. 2d at
100.
As we are not an inferior court, we need not give any weight at all
to this dicta. Indeed, this court does not owe any deference to holding
of the appellate court, let alone its dicta. Further, even if we were
inclined to cite Bedoya with approval, it stands only for the narrow
proposition that when other-crimes evidence is found to have been
improperly admitted, that error may be rendered harmless by proper
and timely limiting instructions and evidence that the defendant was
acquitted of the alleged other crimes.
Defendant’s reliance on Overton is similarly misplaced. In
Overton, the defendant was on trial for the armed robbery of a gas
station. He had previously been tried and acquitted for two similar gas
station robberies. The State was allowed to present evidence
suggesting the defendant’s involvement in one of the other crimes.
Overton, 281 Ill. App. 3d at 211. The appellate court concluded that
the State failed to show the relevance of the other-crimes evidence for
the nonpropensity purpose of showing modus operandi. Id. at 216.
Thus, admission of the other-crimes evidence was error. After
observing that “the jury was never informed of defendant’s acquittal,”
the court found that the State failed to show that “the evidence was
not prejudicial” and ordered that the defendant be given a new trial.
Id. at 216-17. Again, the clear implication was that the error might
have been deemed harmless if the jury had been informed of the
acquittal.
The majority’s summary of Overton (slip op. at 9) fails to note
that the appellate court did not hold that when other-crimes evidence
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is properly admitted, it is error to exclude acquittal evidence. Instead,
Overton and Bedoya both stand for the proposition that when othercrimes evidence is admitted in error, admission of acquittal evidence
may cure the resulting prejudice. Neither case supports the
proposition that it is reversible error to bar evidence of acquittal
when, as here, other-crimes evidence was properly admitted for a
proper purpose and the jury was properly instructed.
Harmless-Error Analysis
The State argues that any error in excluding evidence of the
acquittal was harmless, noting that the jury was repeatedly instructed
as to the proper use of L.S.’s properly admitted testimony.
Because I do not agree with the majority that the trial court abused
its discretion, I would not reach the State’s harmless-error argument.
However, the majority’s resolution of this issue calls into question the
correctness of the jury instruction (slip op. at 14-15), so I address only
this part of the harmless-error analysis.
As the majority notes, the trial court admonished the jury prior to
L.S.’s testimony that it was to “determine whether the defendant was
involved in that offense and if so, what weight should be given to the
evidence on this issue.” Slip op. at 4. This instruction was repeated
after L.S. testified and, “both orally and in writing, before the jury
began its deliberations.” Slip. op. at 4-5.
The majority gives substantial weight to the “repeated references
to defendant’s prior ‘offense’ [which] implicitly supported a jury
inference that defendant had been charged, and perhaps even
convicted, on L.S.’s claims.” Slip op. at 13. In its harmless-error
analysis, the majority concludes that “the language of that instruction
likely led the jury to speculate about the outcome of the proceedings
on defendant’s prior ‘offense.’ ” Slip op. at 14-15. The implication is
that use of the word “offense” in the jury instruction subtly
communicated to the jury that defendant had been charged and
convicted of a crime.
Each of the terms “crime,” “conviction,” and “offense” has a
“plain meaning within a jury’s common understanding.” See People
v. Hope, 137 Ill. 2d 430, 493 (1990). The average juror understands
that while one may be accused by a witness of having committed an
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offense, he has not necessarily been charged or convicted of a crime.
The average juror should also understand that not all offenses are
crimes. Some offenses are sins or insults, but are not crimes. See, e.g.,
Webster’s II New College Dictionary 759 (1999) (defining “offense”
as a “breach of a social or moral code: SIN”; a “violation of the law:
CRIME”; or “[s]omething that outrages moral sensibilities”).
Thus, the use of the word “offense” in the jury instruction does
not carry the weight the majority ascribes to it. The jury was told to
determine, based on its own assessment of L.S.’s credibility, whether
defendant committed the offense she described and, if so, how much
weight to give to that fact when considering his propensity to commit
the crime charged and his defense of consent. The majority’s reliance
on this single word in the instruction calls into question the
appropriateness of the jury instruction in all future cases.
Unintended Consequences
The majority holds that the trial court’s ruling barring admission
of evidence of defendant’s prior acquittal was “unreasonable under
the facts and circumstances of this case.” Slip op. at 14. Yet it is not
clear what facts and circumstances are referred to. However, by
stating, earlier in the opinion, that evidence of an acquittal is part of
the “context” of the other offense, the majority implies that acquittal
evidence must be admitted when other-crimes evidence is admitted
under section 115–7.3. The majority has, in effect, created a new rule
of evidence that is not contained in section 115–7.3 itself and is not
supported by the Illinois Rules of Evidence.
Further, the dicta in Bedoya that is given such weight by the
majority, combined with the majority’s holding, suggests that
evidence of an earlier acquittal must always be admitted when othercrimes evidence is used because the earlier trial has become part of
the context of the earlier offense. This implicitly expands this new
rule to application when other-crimes evidence is properly admitted
for a nonpropensity purpose. See Ill. R. Evid. 404(b) (eff. Jan. 1,
2011) (“Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith except as provided by [statute]. Such evidence
may also be admissible for other purposes, such as proof of motive,
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opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.”).
Thus, in a future case, when the State is allowed to use othercrimes evidence to show the defendant’s identity (see, e.g., People v.
Robinson, 167 Ill. 2d 53, 65 (1995) (evidence that defendant
previously attacked other similar victims in similar manner properly
admitted under theory of modus operandi to show identity of
perpetrator in prosecution for armed robbery and armed violence)), or
for any of the other permissible nonpropensity purposes, the trial
court will have no discretion to disallow evidence of an acquittal even
when, as here, the jury will hear testimony from the alleged victim of
the other crime and will be able to make its own assessment of her
credibility.
For this and all of the foregoing reasons, I respectfully dissent.
JUSTICES THOMAS and KARMEIER join in this dissent.
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