People v. Stewart

799 N.E.2d 1011, 343 Ill. App. 3d 963, 279 Ill. Dec. 208, 2003 Ill. App. LEXIS 1345
Appellate Court of Illinois·Decided November 5, 2003·No. 2-02-1005·Published·Cited by 16 cases

Opinion

JUSTICE CALLUM

delivered the opinion of the court:

I. INTRODUCTION

A jury found defendant, William V Stewart, guilty of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(d) (West 2000)) and criminal sexual assault (720 ILCS 5/12 — 13(a)(4) (West 2000)), and the trial court sentenced him to consecutive terms of 7 and 10 years’ imprisonment, respectively. On appeal, defendant argues that (1) the trial court erred by refusing to suppress recorded telephone conversations between defendant and the victim, (2) he was denied his right to an impartial jury because the trial court recited in detail to the venire the allegations in counts of the indictment that were dismissed before the trial and because the prospective jurors heard the remarks of other prospective jurors about the reprehensible nature of the offenses as charged, (3) the trial court erred in admitting photographs of the victim and of defendant’s apartment, and (4) he is entitled to an additional day of credit against his sentence and a $365 credit against his fines. We grant defendant an additional day of sentencing credit and a $200 credit against his fines but affirm in all other respects.

II. BACKGROUND

Shortly after bringing in the prospective jurors, the trial court read the charges to them. Count II of the indictment alleged that defendant committed aggravated criminal sexual abuse by fondling the sex organ of the victim, Keith D., for the purpose of the sexual gratification or arousal of defendant. Counts VI, VII, and VIII alleged that defendant committed criminal sexual assault by placing his mouth on Keith D.’s penis. Counts IX, X, and XI alleged that defendant committed criminal sexual assault by placing his finger in Keith D.’s anus. Counts XII, XIII, and XIV alleged that defendant committed criminal sexual assault by placing his tongue in Keith D.’s anus. After reading the charges, the trial court admonished the venire that defendant was presumed innocent until the State proved his guilt beyond a reasonable doubt and that the indictment should not be considered as evidence against defendant.

When asked if there was anything about the nature of the charges that would cause them to be less than impartial, several prospective jurors answered affirmatively. Prospective juror No. 45 stated, “I have a young kid. I am very protective and situations like that bother me. *** Visions of my kid having these problems, I am not saying it would happen, but I would be prejudiced, I am very protective of any children.”

Prospective juror No. 42 stated, “When I was a very young child, I was in the very situation. It was an adult that was in charge and very close.” Defense counsel objected, and the trial court continued the examination outside the presence of the venire.

The following exchange occurred during the trial court’s examination of Prospective juror No. 15:

“A. No, I am very disgusted of [sic] what I heard. I think a violation of trust is just disgraceful.
Q. You understand those are the allegations in this case? It hasn’t been proved?
A. I have just been walking around in your parking lot, trying to calm myself down from—
MR. MARTIN [defense counsel]: Objection, Judge.
JUROR: —being very upset.
THE COURT: Q. The question I need to know from you, sir, are you capable, if you were a juror in this case, [of] listening to the evidence and deciding the case solely based on the evidence that you hear in this case, or is the very nature of the charge such that you could not do that?

A. I could not do it.”

The trial court dismissed each of these prospective jurors. Immediately after the trial court dismissed prospective juror No. 15, defense counsel requested a conference outside the presence of the venire. The trial court obliged, and defense counsel expressed concern over how defendant was going to receive a fair trial in light of the prospective jurors’ comments, which counsel argued were creating a “very damaging sentiment.” He requested that the court identify the prospective jurors who might have similar concerns and examine them outside the presence of the other prospective jurors. The trial court responded that it would conduct a sequestered examination of prospective jurors only if there were an indication that a person could not be impartial.

After the first six jurors were selected, the trial court brought in a new group of prospective jurors. Again, the trial court read the charges to the venire and gave them the same instructions that the first group received. During the examination of this second group, if a prospective juror stated that there was something about the charges that would cause him or her to be less than partial, the trial court stopped the questioning and continued the examination outside the presence of the other prospective jurors.

After the jury was selected but before the trial began, the State nol-prossed counts XII, XIII, and XTV of the indictment. Apparently, shortly before the trial, Keith stated that he could no longer remember the incident that formed the basis for counts XII, XIII, and XIV The trial court informed the jury that those counts, which had been read the previous day, were not going to be presented and instructed it to disregard those charges.

During the trial, the parties stipulated that Keith was born in September 1985 and defendant was born in August 1957. Keith’s mother, Kimberly K., testified that in 1999 she became a friend of defendant. Defendant worked with Chris K., the brother of Kimberly’s fiancé, Mark K. Defendant was a friend of Chris and his wife, Natalie, and often attended family functions at their home in Wheaton. Defendant lived in an apartment in Lombard, was not married, and had no children. Kimberly and Keith lived in De Kalb with Mark. At the time, Mark was in the process of earning his Ph.D. and therefore did not have much time to spend with Keith. Keith was withdrawn and awkward, had few friends, had attention deficit disorder, and had been receiving counseling. Kimberly had learned that Keith and defendant had common interests, such as motorcycles and video games.

In July or August 1999, Kimberly and Keith attended a party at Chris’s home. Kimberly became upset when she saw Keith sitting on defendant’s lap. Defendant had his arms around Keith. Kimberly ordered Keith to get up and told defendant that he should have known that such behavior was inappropriate. During the Labor Day holiday 1999, defendant invited Keith and Kimberly to attend a motorcycle racing event, but Kimberly declined. Kimberly and Keith celebrated Thanksgiving at Chris’s house. Defendant was present and told Kimberly that he did not really have any male friends, he missed Keith, who reminded defendant of himself when he was younger, and he would like to be Keith’s mentor.

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People v. Stewart, 799 N.E.2d 1011, 343 Ill. App. 3d 963, 279 Ill. Dec. 208, 2003 Ill. App. LEXIS 1345 (Ill. Ct. App. 2003).

799 N.E.2d 1011 (People v. Stewart) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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