People v. Schneider

SUPREME COURT CASES

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People v. Schneider

State: Illinois

Court: 2nd District Appellate

Docket No: 2-05-0819 Rel

Case Date: 08/03/2007

Preview:No. 2--05--0819

Filed: 8-3-07

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ ) Appeal from the Circuit Court ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--1147 ) KENNETH R. SCHNEIDER, ) Honorable ) Daniel D. Doyle, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE GROMETER delivered the opinion of the court: Following a jury trial in the circuit court of Winnebago County, defendant, Kenneth R. Schneider, was convicted of two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2002)). The trial court sentenced defendant to consecutive 20-year prison terms. On direct appeal, defendant raises three arguments. First, defendant asserts that the State's motion for automatic substitution of judge was untimely and should not have been allowed. Second, defendant complains that the trial court committed reversible error when it prohibited defense counsel from cross-examining a police officer about whether the officer was being investigated for coercing a confession from a suspect in another case. Third, defendant contends that comments made by the prosecutor during closing argument deprived him of a fair trial. We affirm. I. BACKGROUND THE PEOPLE OF THE STATE OF ILLINOIS,

No. 2--05--0819 In a document file stamped April 24, 2003, defendant was charged by criminal complaint with two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1) (West 2002)). On May 21, 2003, the grand jury issued a two-count indictment against defendant. The indictment charged that, while displaying a knife, defendant, by the use of force, placed his penis in the vagina and anus of Sherry S. On May 27, 2003, pursuant to section 114--5(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--5(c) (West 2002)), the State filed a motion for substitution of judge, which it later amended. The trial court granted the motion. A jury trial before Judge Daniel Doyle commenced on February 22, 2005. The following evidence was adduced at the trial. Frank Ciprys testified that at approximately 12:42 a.m. on April 17, 2003, he awoke to the sound of his dog barking. Ciprys proceeded to the front of the house, where he saw a woman sobbing on his porch. Ciprys and his wife let the woman into their home. According to Ciprys, the woman appeared to be in "a state of shock." She repeatedly stated that she had been "raped in the ass," that "he" had a knife, and that she thought that "he" was going to kill her. Ciprys called 911. A sheriff's deputy and paramedics soon arrived. Ciprys testified that the woman was dressed and that he did not notice any cuts or bruises on her. Winnebago County Sheriff's Deputy Joseph Boomer responded to Ciprys's call. Inside the home, Boomer observed Sherry "crying hysterically." Sherry's face was red, and she was speaking quickly. Sherry told Boomer that she had been raped vaginally and anally. Sherry testified that in April 2003, she was living on the streets of Rockford, working as a prostitute. At the time, she was pregnant and using crack cocaine. On the evening of April 16, 2003, Sherry drove to the area of 8th Street and 16th Avenue where she typically found her "dates." There,

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No. 2--05--0819 Sherry and another prostitute went to a shop where Sherry bought some cigarettes, candy, and lemonade. As the two women were walking back to the car, Sherry's companion found a "date." Sherry continued walking to her car as a blue Bronco pulled up beside her. At trial, Sherry identified the driver of the Bronco as defendant. Sherry got into the Bronco and asked defendant his name. He responded that it was "Randy." Defendant then drove Sherry to a dark, empty parking lot. After defendant parked the vehicle, he told Sherry that he had to urinate. Defendant got out of the vehicle and told Sherry to "take off [her] fucking pants." Sherry stated that she sat there in "shock." The next thing she remembered was defendant at the passenger-side door, with a knife in his right hand. Sherry estimated that the blade of the knife measured five or six inches. Defendant opened the door and instructed Sherry to leave the vehicle. Defendant then told Sherry to put her hands up and not to scream or say anything. According to Sherry, defendant was "really aggressive" and started taking off her clothes. Defendant also began "thumping" Sherry in the head until she told him that she was six months pregnant. Defendant then turned Sherry around, pushed her to the ground, and forced his penis into her mouth. Defendant turned Sherry around again and inserted his penis into her vagina and then into her "behind." Sherry told defendant that it hurt, and he told her not to make a sound. Defendant then reinserted his penis into Sherry's vagina before ejaculating in her. Subsequently, defendant got up, threw Sherry's clothes at her, and stated, "You fucking whores. I can't stand you fucking whores." Sherry did not move until defendant drove away. After defendant left, Sherry fled, dressing as she ran. At the end of the road she saw three houses. No one answered at the first two. However, a couple came to the window of the third house. Sherry told the couple that she was six months pregnant, that she had just been raped, and that she needed help. The couple let Sherry in, and the police arrived soon thereafter. Later, an

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No. 2--05--0819 ambulance took Sherry to the hospital, where a rape kit was administered. On April 22, 2003, a detective showed her a set of photographs and she selected defendant as the perpetrator of the rape. Sherry admitted that in May 2003, she pleaded guilty to burglary and received probation. At the time of her testimony, Sherry was in custody for failing to appear in court in relation to the burglary charge. On cross-examination, Sherry testified that she had been a prostitute for three years. She denied using any narcotics or alcohol on the day in question. However, she was "pretty sure" that she had done some the day before. Sherry also admitted that she had been using crack cocaine for four years and that, prior to April 16, 2003, she smoked the substance "every day all day." She also stated that she probably used crack in the days before she spoke to the police about the case. In addition, Sherry admitted that she continued to use crack between April 23, 2003, and the date she was placed in custody on the burglary charge. Sherry denied being "under the influence" when she gave police a statement regarding the incident. However, she stated that there was a "possibility" that she used drugs the day before. Sherry stated that she had entered drug rehabilitation on four occasions. The longest time she had been sober was for the six months following the birth of her child. Sherry could not recall how she got into defendant's vehicle or what she said before she got inside. However, she acknowledged entering the truck willingly. Sherry recalled asking defendant where they were going and him telling her that he was taking her to his house. Sherry told defendant that she did not feel comfortable "goin' way far out." However, defendant related that he wanted to leave the city limits because of the police. According to Sherry, at no time between the time she entered defendant's vehicle and the time defendant drove away was there a discussion about Sherry

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No. 2--05--0819 being hired for sex. Sherry explained that sometimes her clients discuss sex and sometimes they do not. Susan Oca, an emergency room nurse at Rockford Memorial Hospital, testified that at approximately 2 a.m. on April 17, 2003, she assisted in administering a rape kit for Sherry. According to Oca, Sherry was "very distraught and upset." Sherry told Oca that a man pulled her into a vehicle, took her to a quarry, and sexually assaulted her. After administering the rape kit, Oca gave it to a Deputy Phillips. Oca did not see any cuts, bruises, or lacerations on Sherry. Rockford police officer Randy Berke testified that he and his partner were on patrol in the early hours of April 19, 2003, when they overheard a dispatch reporting that a suspect in some recent rape cases was seen driving a red truck north on 7th Street. A short time later, Berke observed a red Ford pickup truck turn directly in front of his vehicle. Berke followed the truck. At about 1:35 a.m., Berke observed the driver commit a traffic violation. Berke activated his emergency lights and pulled the truck over. Berke approached the driver's side of the truck while his partner went to the passenger side. Berke asked the driver, whom he identified in court as defendant, for his driver's license and proof of insurance. Defendant told Berke several times that he could search the truck if he wanted to, so Berke asked defendant to step out of the vehicle. Berke asked defendant what he was doing in the area and defendant responded that he was out buying cigarettes. Berke mentioned that the address on the driver's license was 19 blocks away, and defendant responded that he liked driving around that area, which Berke described as the "main area" for prostitution in Rockford. A short while later, another officer arrived. After learning that defendant had consented to a search of the vehicle, the third officer searched and photographed the truck. Among the items

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No. 2--05--0819 photographed were two types of knives and a police scanner. Berke acknowledged that defendant was cooperative during these events and that he was ultimately released. Having prevailed in a pretrial motion to introduce evidence of other crimes, pursuant to section 115--7.3 of the Code (725 ILCS 5/115--7.3 (West 2002)), the State presented testimony from two other prostitutes who claimed to have been sexually assaulted by defendant. Danielle J. testified that she was working on 7th Street on the evening of November 1, 2002, when a man driving a black Ford Bronco approached. She asked the man, whom she identified as defendant, if he was a police officer. Defendant responded in the negative, and Danielle had him touch her breasts to make sure. After Danielle entered the vehicle, defendant told her that he was taking her to his house but that he would drive her back. After talking for a while, Danielle asked defendant for $20 in exchange for "sexual favors." At that point, defendant pulled out a knife and put it to her throat. Defendant then instructed Danielle to buckle her seat belt so that they would not be pulled over by the police. Defendant told Danielle that he would kill her if she made any noise. Defendant drove Danielle down some dirt roads before stopping at a locked gate. Defendant unlocked the gate, drove the vehicle past the gate, and relocked the gate. He then drove to a building that resembled a factory. Defendant parked the vehicle, got out, urinated, and opened the passengerside door. Defendant then told Danielle to "take [her] fuckin' clothes off" or he would kill her. Danielle complied. She then exited the vehicle, and defendant told her to perform oral sex on him. Defendant held a knife against Danielle's throat as she abided by his demand. Danielle then turned around and bent over the truck seat. At that point, defendant alternated inserting his penis in Danielle's vagina and "butt" before ejaculating in her vagina. Defendant then gave Danielle a baby wipe and told her to clean herself. According to Danielle, defendant acted as if "nothing even

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No. 2--05--0819 happened." He then related to Danielle that he used to be a Rockford police officer, and he told her about safer areas in which to work. Danielle begged defendant to take her back to Rockford, and he agreed. According to Danielle, defendant talked like he was from the south. After exiting defendant's truck, Danielle walked around the vehicle to look at the license plate number. She then called 911 from a pay phone to report that she had been raped. A short time later, a police officer arrived. Danielle was then transported to SwedishAmerican Hospital, where a rape kit was administered. On cross-examination, Danielle denied having a substance-abuse problem. Danielle stated that she never tried to get out of the truck or roll down the window and scream. She also stated that she did not attempt to drive away or lock the doors when defendant got out of the truck. Danielle related that on the way back to Rockford, defendant did not display his knife. However, he did tell Danielle that he would kill her if she told anybody what occurred. Danielle admitted that defendant never cut her or touched her skin with the knife. Officer Christopher See of the Rockford police department responded to Danielle's call. See testified that Danielle was "visibly shaken." She was breathing heavily and stated that she had been raped. See escorted Danielle to SwedishAmerican Hospital and took possession of the rape kit that was administered in the emergency room. Kathleen Williams testified that in November 2002, she was working as a staff nurse in the emergency room at SwedishAmerican Hospital. On the evening of November 1, 2002, Williams helped administer a rape kit for Danielle. During the procedure, Danielle told Williams that she was a prostitute, that a man had pulled up to her, that she asked the man to "[s]uck on [her] tit," and that she exposed herself. Danielle then got into the car, and the man held a knife to her throat and

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No. 2--05--0819 threatened to kill her if she did not cooperate. The man then took her into the country and told her to take off her clothes. When she did not comply, he again threatened her. The man then had oral, vaginal, and anal sex with her. After administering the rape kit, Williams gave it to Officer See. Williams did not notice any cuts, bruises, or lacerations on Danielle. Stacey C. testified that she worked as a prostitute to support her drug habit. In May 2000, Stacey pleaded guilty to cocaine possession, and in September 2004, she was placed on probation after pleading guilty to possession of cocaine with intent to deliver. Stacey stated that she last used drugs in July 2004. Stacey testified that sometime late in March 2003 or early in April 2003, she was at 6th Street and 15th Avenue. In the early morning hours, defendant pulled over in his truck and Stacey asked him if he was looking for a "date." Defendant responded in the affirmative. Stacey then asked defendant to touch her breasts, and defendant complied. Defendant told Stacey that his name was Ken, and he drove her to a place near Meridian Road. After parking the truck, defendant told Stacey that he had to urinate. According to Stacey, defendant then exited the truck, came around to the passenger side of the vehicle, reached in, hit Stacey in the mouth, grabbed her, and scarred her face. As he held a knife, defendant threw Stacey out of the truck and told her that if she did not take off her clothes, he would cut her. Stacey took off her pants, and defendant proceeded to penetrate her vaginally and anally. After ejaculating in Stacey's anus, defendant stood up, threw $20 at her, and told her to get dressed. Stacey asked defendant for a ride back, and he agreed, adding that he was sorry and that he had never done that before. Defendant also told Stacey that the knife was not real. During the ride back, defendant again apologized for his behavior and he offered to buy her a steak dinner if he ever saw her again. When he dropped Stacey off at 7th Street and 15th Avenue,

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No. 2--05--0819 he pointed at a house and asked her if she was going there. Stacey asked him why, and defendant related that he was "affiliated with the police" and that the police were going to raid the building. Stacey did not report the incident to the police until a couple of days later because she was a homeless drug addict and did not think that the police would care or believe her. In May 2003, Stacey identified defendant from a police lineup as the man who attacked her. On crossexamination, Stacey testified that she used drugs on the day of her encounter with defendant but that she was sober at the time of the incident. Dennis Aubuchon, a forensic biologist with the Illinois State Police, tested vaginal swabs taken from Sherry and Danielle. Aubuchon found semen on both swabs. Laurie Lee, a forensic scientist with the Illinois State Police, performed DNA testing on samples from Sherry, Danielle, and defendant. Lee testified that the semen found on the swab taken from Sherry contained a mixture of DNA profiles from at least three donors. Lee concluded that "[defendant], Sherry [S.], and at least one other individual cannot be excluded from having contributed to this mix profile." Based on a comparison of three loci, 1 out of 37 black, 1 out of 2 white, or 1 out of 2 Hispanic unrelated individuals could not be excluded. Lee noted that she ordinarily bases comparisons on 13 loci, but that she could not do that with the sample taken from Sherry because of the number of contributors. Lee also found a mixed profile on Danielle's swab. One DNA profile matched the DNA profile of defendant and would occur in approximately 1 in 10 quintillion blacks, 1 in 1.7 quintillion whites, or 1 in 540 quadrillion Hispanics. Based on this information, Lee testified that the semen recovered from the vaginal swab taken from Danielle originated from defendant. Rockford police detective Paul Swanberg testified that he and Detective Glen Heidenreich interrogated defendant at around 8:15 p.m. on April 23, 2003. According to Swanberg, defendant

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No. 2--05--0819 was first given Miranda warnings, and he indicated that he understood them. He then initialed a rights form and signed it. The detectives then spoke with defendant for about 1 hour and 20 minutes before taking a bathroom break. Swanberg noted that during the interrogation, defendant spoke with a southern drawl. Defendant was also given water at his request, and the interrogation resumed at 9:47 p.m. At about 10:51 p.m., defendant agreed to provide a written statement. Swanberg typed the statement on a laptop computer. He then printed the statement and reviewed it with defendant. Swanberg had defendant read the first sentence or two out loud to determine if defendant could read and understand English. Swanberg then read the rest of the statement to defendant. Once Swanberg finished, defendant was given a pen to make any changes to the statement. Defendant changed some grammar and spelling on the first page. Defendant then initialed the changes and signed his name and wrote his address on the second page. Immediately after the first statement was taken, the detectives obtained a second written statement from defendant using the same procedure. Defendant was returned to his jail cell at about 1:20 a.m. At about 9:30 a.m. on April 24, 2003, Swanberg spoke with defendant again. At that time, defendant was again advised of his rights. Swanberg spoke with defendant until about 1 p.m. On cross-examination, Swanberg testified that the interrogation room measured 6 feet by 10 feet or 6 feet by 12 feet. Swanberg stated that defendant never asked to speak with an attorney. Swanberg also stated that defendant was not wearing glasses during the interview and that, as far as Swanberg knew, defendant did not need glasses. Swanberg added that defendant never told him that he was sick or in pain, defendant never put his head in his hands, and defendant never laid his head down on the table.

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No. 2--05--0819 The State then read defendant's two statements to the jury. In the first statement, defendant admitted picking up a woman on 16th Avenue. The woman asked defendant if he was a cop and then took defendant's hand and put it on her breasts. She also placed her hand on defendant's crotch. Defendant then drove the woman to the west side, in his Bronco. The two began to discuss how much defendant would pay to have sex with the woman. They eventually agreed on the amount of $25. Defendant pulled into a parking lot off of Harrison Road and exited the car. He urinated and then walked to the passenger side of the vehicle, opened the door, and gave the woman the money. The woman refused to do anything unless defendant gave her more money. At that point, defendant pulled out a knife with a folding five-inch blade and told her to take off her clothes. The woman complied and defendant put away the knife. Defendant proceeded to penetrate the woman vaginally and anally. Defendant was not sure if he ejaculated. As defendant pulled up his pants, the woman kicked him in the thigh. He then told the woman he was leaving her there, and he drove home. In the second statement, defendant explained that as a result of certain life events, he wanted to die "the easiest way out," so he decided to contract AIDS and "fade out." Accordingly, defendant had been having unprotected sex with prostitutes for about 18 months. At first, defendant paid the prostitutes. However, five or six months prior to giving the statement, he began to force the prostitutes to have sex with him, because he did not have any money. Defendant would drive the women to a location near where he used to work. When they arrived, he would show a knife. Defendant never used a condom, because he was hoping to catch something from the women. Defendant related that, with one or two exceptions, he drove the women back to town. One of the women he picked up had her own knife and cut defendant's left arm and stomach. Defendant told some of the women that his name was "Randy."

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No. 2--05--0819 Defendant testified on his own behalf. Defendant stated that in early 2003 he was living on 8th Street in Rockford with his girlfriend, her son, and her brother. Defendant was unemployed at the time and his emotional condition was "not too good." Defendant had recently learned that his divorce had been finalized and that his ex-wife's daughter was not his biological child. Moreover, defendant's mother recently passed away, and he lost his job after padding his time card. Defendant thought about committing suicide, but did not have "the guts" to shoot himself. He did not want anyone else to get hurt, so he devised a plan to contract AIDS and "fade out." Defendant did not tell anyone else of his plan. In October or November of 2002, defendant started picking up prostitutes along 7th Street, mostly at night. At the time, defendant had two vehicles, a red 1993 Ford F-150 pickup truck and a black 1999 Ford Bronco. Defendant testified that normally he would drive the pickup truck to look for prostitutes. Defendant explained that he would pull up to a particular woman and she would ask if he wanted a "date." If he responded yes, the woman would enter the vehicle, and defendant would drive away. The pickup truck had electric door locks, but a person in the truck could manually unlock the door. The truck's windows were not tinted. Once in the vehicle, the woman and defendant would discuss the price and the particular sex act desired. Defendant usually took the woman to a place about five miles from where he picked her up. Defendant would usually give the woman her money before he exited the vehicle. After exiting, he would "relieve himself," go to the passenger side of the truck, tap on the window, open the door, and ask the woman to take down her pants. Defendant would leave the keys in the ignition. Defendant testified that when he first started going to prostitutes he did use a condom because he was not sure he wanted to contract a disease. However, he later stopped using protection. After having sex, defendant would offer the woman a

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No. 2--05--0819 towelette to clean herself off and he would drive the woman back to town. Defendant admitted owning several knives. He testified, however, that he normally did not keep knives in his vehicles. If he had a knife in the pickup truck, he kept it in a nylon case under a box of tissues in the console. Defendant also had a scanner, which he used to listen to fire and police calls. Defendant admitted picking up Sherry in the vicinity of 8th Street and 16th Avenue, but was sure it happened on April 16, 2002, not 2003. At the time, defendant was driving his Ford Bronco. Defendant approached Sherry and she got into the vehicle. Sherry asked defendant if he was looking for a "date" and whether he was a police officer. Defendant responded that he was not a police officer, and Sherry touched defendant's genital area. Defendant then asked Sherry if she was a police officer. Sherry responded in the negative, and defendant reached over and touched her breasts or her genitals. According to defendant, Sherry appeared to be "strung out," "agitated," and "hyped up." Sherry was wearing a coat and defendant was not aware that she was pregnant. Sherry agreed to oral, vaginal, and anal sex in exchange for $25. After arriving at his usual spot, defendant paid Sherry, and they engaged in consensual sex. After they completed the transaction, Sherry asked for more money. Defendant told Sherry that he did not have any more money. Sherry became upset and started calling defendant names. Sherry then kicked defendant in the left thigh. Defendant told Sherry that if she was going to act like that, he would leave her there. He then drove away without her. Defendant denied hitting Sherry, threatening to kill her, or holding her at knifepoint. Defendant initially denied knowing Danielle. Later, however, defendant admitted having sex with her in exchange for $20 or $25. Defendant denied holding a knife to Danielle or threatening to kill her. Defendant also acknowledged picking up Stacey. In exchange for $20 or $25, the two had consensual sex. Defendant denied punching Stacey or threatening her life.

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No. 2--05--0819 Defendant explained that on the evening he spoke with Swanberg and Heidenreich, he had a migraine headache. Defendant stated that at the time of the interrogation, he had been suffering from migraines for about 2

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