NO. 4-05-0350 Filed: 3/16/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
ROBERT RANDALL, ) No. 04CF305
Defendant-Appellant. )
) Honorable
) Michael R. Roseberry
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On October 15, 2004, a jury found defendant, Robert
Randall, guilty of attempt (aggravated criminal sexual abuse)
(720 ILCS 5/8-4, 12-16(d) (West 2002)). On December 2, 2004, the
trial court sentenced him to five years in prison. Defendant
appeals, arguing (1) the State engaged in gender discrimination
during jury selection, (2) he was denied a fair trial because the
jury heard the victim "wailing" outside of the courtroom follow-
ing her testimony, (3) the court erred by granting the State's
motion to exclude testimony that defendant did not exhibit
characteristics of a pedophile or that the victim's allegations
could have been the result of a vivid dream, and (4) he should
have been granted a new trial based on newly discovered evidence
that the victim lied. We affirm.
On June 24, 2004, the State charged defendant with
aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West
2002)). Defendant pleaded not guilty and the matter was set for
jury trial. On October 12, 2004, the State filed an amended
information, adding a charge of attempt (aggravated criminal
sexual abuse) (720 ILCS 5/8-4, 12-16(d) (West 2002)). Later, the
original aggravated-criminal-sexual-abuse charge was dismissed on
the State's motion, and the matter proceeded on only the attempt
charge. Regarding that charge, the State alleged defendant, who
was at least 5 years older than the alleged victim, K.S., per-
formed a substantial step toward the commission of aggravated
criminal sexual abuse when he committed an act of sexual conduct
with K.S., who was at least 13 years of age but under the age of
17. Specifically, the State alleged defendant knowingly placed
his hand on K.S.'s upper thigh and moved it toward her vaginal
area.
Prior to trial, the State filed a motion in limine to
exclude the testimony of defense witness Dr. Frank Froman,
alleging the matters to which he would testify were irrelevant,
highly speculative, and would invade the province of the jury.
On October 13, 2004, a hearing on the State's motion was held and
defendant presented the testimony of Dr. Froman, who testified
(1) he interviewed defendant and saw no indication of pedophilia
and (2) K.S.'s allegations could possibly have been the result of
a vivid dream. After considering the evidence presented and the
parties' arguments, the trial court granted the State's motion to
exclude Dr. Froman's testimony.
On October 14, 2004, defendant's jury trial began.
During jury selection, the State exercised four peremptory
challenges. Defendant objected, arguing the State engaged in
- 2 -
purposeful discrimination because its peremptory challenges were
only directed at potential male jurors. The trial court made a
preliminary finding of purposeful discrimination and the State
was given the opportunity to offer gender-neutral explanations
for each of its challenges. The court accepted the State's
explanations and concluded it did not engage in purposeful gender
discrimination.
During the course of trial, defendant moved for a
mistrial, alleging he was prejudiced because the jury heard K.S.
"wailing" outside of the courtroom after she finished testifying.
The trial court noted K.S. started to cry as she left the court-
room and, although it was later reported that she collapsed, the
court did not believe the jurors saw that happen. Instead, it
determined the occurrence was not disruptive and did not affect
the jury. The court denied defendant's motion for a mistrial.
On October 15, 2004, the jury returned a verdict of
guilty and the trial court set the matter for sentencing. On
November 15, 2004, defendant filed a motion to set aside the jury
verdict and for new trial, alleging, in part, that the court
erred when it (1) granted the State's motion to exclude Dr.
Froman's testimony, (2) denied his motion for a mistrial based on
K.S.'s outburst, and (3) determined the State offered gender-
neutral explanations for its use of peremptory challenges against
only male members of the jury venire. Later, on February 14,
2005, defendant filed an amended motion to set aside the verdict
and for a new trial. The amended motion included all of his
- 3 -
previous arguments and added a request for a new trial based on
newly discovered evidence. Specifically, defendant alleged he
located a witness who, after the trial, "discussed the allega-
tions of the case with [K.S.]" and K.S. admitted she "set up"
defendant and "he was in jail for something he did not do."
On December 2, 2004, the trial court sentenced defen-
dant to five years in prison. On December 24, 2004, defendant
filed a motion to reconsider his sentence. On April 4, 2005, a
hearing was conducted on defendant's amended motion to set aside
the verdict and for new trial and his motion to reconsider.
During the hearing, defendant presented the testimony of C.P.,
who testified she attended the same school as K.S. and overheard
K.S. tell other students that she got defendant "put away" to get
revenge on his stepdaughter, A.J. The court continued defen-
dant's motion to reconsider sentence and the newly discovered
evidence issue for further hearing but otherwise denied his
amended motion to set aside the verdict and for new trial.
On April 21, 2005, the State presented the testimony of
K.S., who denied making the statements testified to by C.P. The
trial court stated that, after careful consideration, it found
C.P. was not credible. It then denied both the portion of
defendant's posttrial motion requesting a new trial based on
newly discovered evidence and his motion to reconsider his
sentence.
This appeal followed.
On appeal, defendant first contends the trial court
- 4 -
erred when it failed to find the State engaged in gender discrim-
ination during jury selection. Specifically, defendant maintains
the State utilized its peremptory challenges to discriminate on
the basis of gender and exclude men from his jury. He also
contends the court improperly offered a gender-neutral explana-
tion for the State.
In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d
69, 82-83, 106 S. Ct. 1712, 1719 (1986), the United States
Supreme Court held that the equal-protection clause of the
fourteenth amendment prohibits racial discrimination during jury
selection. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
130-31, 128 L. Ed. 2d 89, 98, 114 S. Ct. 1419, 1422 (1994), it
extended that holding to include intentional gender-based dis-
crimination.
To prevail when alleging intentional gender discrimina-
tion, a defendant must make a prima facie showing that the State
exercised peremptory challenges on the basis of gender. People v.
Blackwell, 171 Ill. 2d 338, 348, 665 N.E.2d 782, 786 (1996). If
the requisite showing is made, "the burden shifts to the State to
give gender-neutral explanations for dismissing the potential
jurors." Blackwell, 171 Ill. 2d at 348, 665 N.E.2d at 786. "The
State's explanation need not rise to the level justifying a
challenge for cause, but must be based on a juror characteristic
other than gender and cannot be pretextual." People v. Hudson,
195 Ill. 2d 117, 127-28, 745 N.E.2d 1246, 1253 (2001). The trial
court decides whether the defendant carried his burden and proved
- 5 -
purposeful discrimination, and its findings of fact will not be
reversed unless clearly erroneous. Blackwell, 171 Ill. 2d at
348-49, 665 N.E.2d at 786-87.
Here, the trial court's decision is not clearly errone-
ous. Defendant correctly points out that the State exercised
four peremptory challenges directed only at male members of the
jury venire; however, in response to defendant's allegations of
intentional gender discrimination, the State offered explanations
for each of its challenges that were based on juror characteris-
tics unrelated to gender. Specifically, the State maintained it
challenged potential jurors Norman Thompson, Tony Wardlow, Robert
Rakers, and James Hays because (1) it had recently prosecuted
Thompson's nephew for murder and the nephew was convicted of
manslaughter, (2) Wardlow twice indicated that his understanding
of the State's burden of proof was proof of guilt "without any
doubt," (3) Rakers was the jury foreman on the previous day's
jury that had returned a not-guilty verdict, and (4) Hays was
also on the previous day's jury and was "good old buddies" with
another man who ended up on defendant's jury.
Further, contrary to defendant's assertions, the
State's proffered explanations were not a pretext for discrimina-
tion. Defendant argues the State's contention that it did not
want jurors from the previous day's jury was merely a pretext for
discrimination because it only challenged men for that reason and
not women. First, defendant has misconstrued the State's argu-
ment. The State never maintained that it did not want any jurors
- 6 -
who had served the previous day but that it did not want two
specific jurors who had served the previous day and who possessed
other gender-neutral characteristics the State found undesirable.
Specifically, Rakers had been the jury foreman the previous day
and the State was concerned he could take a leadership role in
defendant's jury and Hays was good friends with another male
juror who was selected for defendant's jury. The State was
concerned Hays and his friend would follow one another and
decided to challenge Hays because he was on the previous day's
jury and defendant's jury already contained jurors who had also
served the previous day.
Defendant notes that the State did not challenge any
female members of the jury venire who had served on the previous
day's jury. While this is true, there were also several male
members of the jury venire who had been on the previous day's
jury and who the State also did not challenge. Defendant's jury,
including the two alternate jurors, was composed of eight men and
six women. Of those selected jurors, four men and four women had
been on the previous day's jury. The State did not challenge any
potential juror solely based on his jury service the previous
day. Instead, as stated, the two jurors who were challenged for
that reason, Rakers and Hays, were also found undesirable by the
State for other gender-neutral reasons. Thus, the State's
rationale for its challenges to Rakers and Hays was not a pretext
for discrimination.
Finally, defendant contends the trial court erred
- 7 -
because it offered gender-neutral explanations for the State. To
support his assertion, defendant cited to the court's acknowledg-
ment of that error during a hearing on defendant's posttrial
motion. The State maintains the court mistakenly acknowledged
the error because it never improperly supplied the State with any
gender-neutral explanation. The portion of the record detailing
defendant's objection to the State's peremptory challenges, and
the proceedings that followed, supports the State's version of
events, i.e., that it supplied its own gender-neutral rationale
for each peremptory challenge. The record does not indicate the
State was prompted by the court, and defendant failed to cite any
part of the record evidencing the court's alleged error. Al-
though he did support his argument with the court's acknowledg-
ment of the error, that acknowledgment was made months after the
error allegedly occurred and is, itself, not supported by the
record.
Here the State provided gender-neutral explanations for
each of its peremptory challenges and the record refutes defen-
dant's contention that the State's explanations were merely a
pretext for discrimination. Additionally, the record also
refutes defendant's contention that the trial court improperly
supplied the State with gender-neutral explanations for its
peremptory challenges. For those reasons, the court's determina-
tion that the State did not engage in gender discrimination
during jury selection was not clearly erroneous.
Defendant next argues he was denied a fair trial
- 8 -
because the jury heard K.S. "wailing" outside the courtroom
following her trial testimony. He maintains he was prejudiced by
that event and a new trial is warranted.
"A genuine emotional outburst by a witness giving vent
to natural feeling is not always grounds for granting a mis-
trial." People v. Bradley, 43 Ill. App. 3d 463, 468, 357 N.E.2d
696, 700 (1976). Whether to grant a mistrial is within the trial
court's discretion. Bradley, 43 Ill. App. 3d at 468, 357 N.E.2d
at 700.
In this case, on the second day of trial, defendant
requested the trial court make a record that, after testifying
the day before, K.S. left the courtroom and "started wailing ***
within earshot of the court, counsel[,] and all of the jurors."
He also moved for a mistrial. After considering the parties'
arguments, the court stated as follows:
"[K.S.] did walk out of the courtroom
under her own power. I heard her, as she
left the courtroom, start to cry. I did not
see her go down, and I had a better view than
anybody, so I am comfortable that no jurors
actually saw her collapse. In fact, I did
[not] know she collapsed until this morning
in talking to *** the bailiff in these pro-
ceedings. I did hear her crying, being emo-
tionally upset outside of the courtroom, and
I did ask [the bailiff] to go make sure that
- 9 -
she got away from the courtroom. ***
I did not find it to be disruptive. In
fact, we would have proceeded and in fact did
proceed with the proceedings while she was
having her emotional situation. I don't
believe that it affected the jury at all, and
I am denying the [motion for] mistrial."
In this instance, the trial court did not err when it
denied defendant's request for a mistrial. K.S. testified
without incident. The court was in the best position to deter-
mine the effect of K.S.'s emotional outburst on the jury. After
listening to K.S.'s cries and having the opportunity to observe
any reaction by the jury, the court concluded the event was not
disruptive and had no effect. The record does not reflect that
the court abused its discretion in reaching these conclusions.
Defendant further argues the trial court erred when it
granted the State's motion in limine to prevent Dr. Froman from
testifying that defendant was not a pedophile and there was a
significant probability that K.S.'s allegations were the result
of a vivid dream. He contends Dr. Froman's testimony would have
negatively affected K.S.'s credibility and, by excluding Dr.
Froman's testimony, the court denied him the right to present a
defense.
A trial court's decision to grant or deny a motion in
limine allowing or excluding certain evidence will not be over-
turned on review absent an abuse of discretion. People v. Owen,
- 10 -
299 Ill. App. 3d 818, 823, 701 N.E.2d 1174, 1178 (1998). Fur-
ther, expert testimony should be permitted only if:
"(1) the proffered expert has knowledge and
qualifications uncommon to laypersons that
distinguish him as an expert; (2) the ex-
pert's testimony would help the jury under-
stand an aspect of the evidence that it oth-
erwise might not understand, without invading
the province of the jury to determine credi-
bility and assess the facts of the case; and
(3) the expert's testimony would reflect
generally accepted scientific or technical
principles." People v. Simpkins, 297 Ill.
App. 3d 668, 681, 697 N.E.2d 302, 310 (1998).
Generally, a defendant may introduce evidence of his or
her good character or personality through "general reputation"
evidence but not expert personal opinion testimony. In re B.J.,
316 Ill. App. 3d 193, 201, 735 N.E.2d 1058, 1065 (2000). Addi-
tionally, attempts to use purported expert testimony to bolster
or attack the credibility of witnesses should be rejected. B.J.,
316 Ill. App. 3d at 201, 735 N.E.2d at 1065.
At a hearing on the State's motion, Dr. Froman testi-
fied and the parties stipulated that he was a clinical psychology
expert. Dr. Froman stated he conducted a limited, one-hour
interview with defendant and took legal, personal, and social
histories. He also took a sexual history that was not as inclu-
- 11 -
sive as the complete sexual history usually taken during sexual-
offender evaluations. During the interview, Dr. Froman saw
nothing to indicate defendant was a pedophile or had any deviance
that would lead him to molest a 14-year-old girl. Dr. Froman
also testified that if defendant's accuser was asleep prior to
making the accusations and watched a sexually provocative movie
before going to bed, there was "some reasonable possibility" that
she dreamed the abuse. Additionally, he testified that if the
accusations arose at four in the morning, it would suggest the
accuser was asleep. Further, she could possibly have been in
rapid eye movement (REM) sleep, during which a vivid dream is
more likely to occur.
On cross-examination, Dr. Froman acknowledged he did
not know whether defendant's accuser was asleep and it was only
his opinion that one explanation for the allegations against
defendant could be that the accuser experienced a vivid dream.
However, if he interviewed the accuser and she stated she never
went to sleep, it would not be his opinion that she dreamed the
event. Additionally, Dr. Froman reiterated that he saw nothing
during the interview with defendant that would allow him to make
a diagnosis of pedophilia but acknowledged that not all individu-
als who commit a sex offense are pedophiles. Finally, Dr. Froman
admitted the only information he possessed was what defendant had
provided. On redirect examination, Dr. Froman testified that
people are generally asleep at four in the morning, the incident
in question allegedly occurred at that time, and a pedophile is
- 12 -
more likely to sexually molest a young child than someone who is
not a pedophile.
The trial court concluded Dr. Froman's testimony would
be highly speculative and was not based on the facts of the case
regarding whether K.S. was asleep immediately prior to the
alleged incident. It determined that Dr. Froman would, in
essence, be testifying as to whether defendant was being truth-
ful, which the court did not believe was appropriate. Finally,
the court stated it did not believe Dr. Froman's testimony would
be of any value or benefit to the jury and granted the State's
motion in limine.
The court's decision to exclude Dr. Froman's testimony
was not an abuse of its discretion. First, as stated, opinion
testimony is not a proper way to admit evidence of a defendant's
good character. B.J., 316 Ill. App. 3d at 201, 735 N.E.2d at
1065. In B.J., 316 Ill. App. 3d at 200-01, 735 N.E.2d at 1065-
66, this court applied that rule to uphold the trial court's
exclusion of expert testimony that the defendant, who was accused
of inappropriately touching his young child, did not fit the
profile of a sex offender. Similarly, in this case, defendant
sought to introduce evidence from Dr. Froman indicating defendant
was not a pedophile. For the same reasons as expressed in B.J.,
the trial court did not abuse its discretion by excluding Dr.
Froman's testimony.
Second, Dr. Froman's testimony that K.S.'s allegations
could have been the result of a vivid dream are not based on the
- 13 -
facts of this case. Dr. Froman never interviewed K.S. and did
not know whether she had been asleep prior to making her allega-
tions. Further, there was no evidence presented at defendant's
trial that K.S. was asleep at any point on the night in question.
Thus, Dr. Froman's proffered testimony was highly speculative,
would not have provided the jury with any useful information, and
would have invaded the province of the jury to determine the
credibility of witnesses and assess the facts of the case. For
those reasons, the trial court did not abuse its discretion in
excluding this testimony.
Finally, defendant contends he should have been granted
a new trial based on the newly discovered evidence that K.S.
stated she set defendant up and "he was in jail for something he
did not do." Specifically, he alleges the evidence meets all the
necessary requirements for the grant of a new trial and, because
the State's only evidence consisted of statements made by K.S.,
newly discovered evidence that her story changed "would conclu-
sively defeat the [S]tate's case."
Newly discovered evidence warrants a new trial when it
is (1) of such conclusive character that it will probably change
the result on retrial, (2) material to the issue and not merely
cumulative, (3) discovered after trial, and (4) of such character
that the defendant in the exercise of due diligence could not
have discovered it earlier. People v. Orange, 195 Ill. 2d 437,
450-51, 749 N.E.2d 932, 940 (2001). "[T]he recantation of
testimony is regarded as inherently unreliable, and a court will
- 14 -
not grant a new trial on that basis except in extraordinary
circumstances." People v. Steidl, 177 Ill. 2d 239, 260, 685
N.E.2d 1335, 1345 (1997). A court's decision to grant or deny a
motion for a new trial based on newly discovered evidence will
not be overturned by a reviewing court absent an abuse of discre-
tion. People v. Beard, 356 Ill. App. 3d 236, 242-43, 825 N.E.2d
353, 360 (2005).
At defendant's trial, K.S. testified, on April 16,
2004, she intended to spend the night at her friend A.J.'s house.
At that time, A.J.'s mother was defendant's girlfriend and
defendant also lived in the home. After watching movies, K.S.
attempted to fall asleep on a futon bed next to A.J. but could
not sleep. At some point, defendant entered the futon and laid
between K.S. and A.J., whom K.S. believed was asleep. K.S.
testified defendant said, "I know what you and [A.J.] were doing
and if you want me to keep your secret, then you best let me have
a turn, too." While defendant was speaking, he had his hand on
K.S.'s right thigh and was rubbing it back and forth. K.S.
stated defendant also put his hand between her legs and moved it
up toward her vagina.
After K.S. told defendant she did not know what he was
talking about, and twice scooted away from him, defendant left
the futon and sat in a nearby chair. K.S. testified she got up,
sat on the edge of the futon, and felt like she was going to be
sick. After a few minutes, she went to the bathroom and then to
A.J.'s room to collect her belongings. A short time later, A.J.
- 15 -
came to her and asked what was wrong. K.S. told A.J. she did not
want to stay and asked A.J. to help her leave. K.S. testified
the front door to the house made too much noise when it was
opened and she did not want defendant to hear and prevent her
from leaving. A.J. suggested K.S. climb out of a window on the
back porch. After climbing out of the window, K.S. asked A.J. to
leave with her but A.J. refused. K.S. then went to the home of a
friend who lived six or seven blocks away and reported the
incident to her friend's mother.
At the hearing on defendant's motion for a new trial
based on newly discovered evidence, C.P. testified she attended
the same school as K.S. In January 2005, C.P. was at her locker
and overheard K.S., who was standing around the corner from
C.P.'s locker, state that K.S. got defendant "put away" to get
revenge on A.J. C.P. also heard K.S. say that defendant did not
"do any of it and that it was just all to get payback on [A.J.]."
C.P. could not see K.S. when the statements were made but did
see her shortly thereafter. C.P. did not know the people K.S.
was speaking to and could not describe them except to say they
were tall and there were two boys and two girls. Additionally,
C.P. testified she was friends with A.J. but not K.S. because,
although C.P. wanted to be K.S.'s friend, K.S. did not give C.P.
a chance to become one. At a second hearing on defendant's
motion, K.S. testified she never made the statements alleged by
C.P.
The trial court stated it carefully considered the
- 16 -
matter and, initially, it noted defendant's motion stated he had
located a witness who spoke directly to K.S.; however, at a
hearing on the motion, C.P. testified she only overheard state-
ments K.S. made to others. Further, C.P. could not identify who
K.S. was speaking to when the statements were made. The court
also noted C.P. was friends with A.J. but not K.S. Finally, it
pointed out that C.P. testified K.S. admitted lying about defen-
dant to get revenge on A.J. The court found this testimony
remarkable because evidence at defendant's trial established that
K.S. and A.J. were friends at the time of the offense. In fact,
on the night of the offense, K.S. was staying at A.J.'s house,
K.S. sought A.J.'s help in leaving the home after defendant's
advances, A.J. helped K.S. leave, and K.S. asked A.J. to leave
with her. The court concluded K.S. had no reason to seek revenge
on A.J. It then found C.P. was not credible and denied defen-
dant's request for a new trial.
In this case, the trial court did not abuse its discre-
tion by denying defendant's motion for a new trial. Specifi-
cally, the newly discovered evidence was not of such conclusive
character that it would have changed the result on retrial.
C.P.'s testimony concerned an alleged recantation by K.S., which
K.S. denied making. After carefully considering the evidence,
including C.P.'s testimony, the court stated it did not believe
C.P. and determined that a jury could find her not credible. As
detailed above, the record supports the court's findings.
The trial court had the opportunity to observe C.P. and
- 17 -
hear her testimony. It determined she was not credible and
stated it did not believe her. The record supports the court's
findings and its denial of defendant's motion for a new trial was
not an abuse of its discretion.
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT, J., concurs.
COOK, J., specially concurs.
- 18 -
JUSTICE COOK, specially concurring:
I dissented in Beard because the trial court refused to
consider evidence of the witness's recantation, on the basis that
it was hearsay, and the witness was not called at the posttrial
hearing. Beard, 356 Ill. App. 3d at 246-47, 825 N.E.2d at 362-63
(Cook, P.J., dissenting). In the present case, in contrast, the
trial court properly considered C.P.'s testimony of what she
supposedly heard K.S. say, and K.S. took the stand and denied
making the statements alleged by C.P.
- 19 -