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Appellate Court Date: 2017.02.10
10:27:33 -06'00'
People v. Applewhite, 2016 IL App (4th) 140558
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KAWQUAUN APPLEWHITE, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-14-0558
Filed December 20, 2016
Decision Under Appeal from the Circuit Court of Vermilion County, No. 12-CF-531;
Review the Hon. Craig H. DeArmond, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Warner S. Brockett, of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
David J. Robinson and Luke McNeill, of State’s Attorneys Appellate
Prosecutor’s Office, of Springfield, of counsel, for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justice Appleton concurred in the judgment and opinion.
Justice Turner specially concurred, with opinion.
OPINION
¶1 Following an October 2013 trial, a jury convicted defendant, Kawquaun Applewhite, of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)). In April 2014,
the trial court sentenced defendant to four years in prison and imposed a $1250 fee for
court-appointed counsel.
¶2 Defendant appeals, arguing that (1) the trial court abused its discretion by admitting
multiple hearsay statements the victim made to others pursuant to section 115-10 of the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)), (2) the court erred by
prohibiting defense counsel from questioning venire members individually about personal
experiences they or their family members had with sexual abuse, and (3) this court should
vacate the fee for court-appointed counsel that the trial court improperly imposed without first
conducting a hearing as required by section 113-3.1 of the Code (725 ILCS 5/113-3.1 (West
2012)). For the reasons that follow, we (1) affirm defendant’s conviction and sentence and (2)
vacate the order regarding the fee for court-appointed counsel.
¶3 I. BACKGROUND
¶4 A. The State’s Charges
¶5 In November 2012, the State charged defendant with (1) predatory criminal sexual assault
of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and (2) aggravated criminal sexual abuse
(720 ILCS 5/11-1.60(c)(1)(i) (West 2012)), alleging that six months earlier, defendant had
sexual contact with G.Z. (born January 4, 2002), who was then under 13 years old.
¶6 In January 2013, the State filed an amended notice of its intent to solicit corroborative
testimony detailing complaints G.Z. made to others under section 115-10 of the Code, which
provides an exception to the prohibition against admitting hearsay testimony as substantive
evidence in cases involving sexual acts perpetrated against a child under 13 years old.
¶7 B. Pretrial Proceedings
¶8 At a February 2013 pretrial hearing, the trial court considered the following evidence on
the State’s amended section 115-10 notice.
¶9 Austin Hardy testified that he was married to Amber Hardy, and they shared a home with
their children, G.Z. (11 years old), Z.Z. (9 years old), A.H. (6 years old), and L.H. (4 years old).
On November 8, 2012, Austin came home from work earlier than usual. After entering
unnoticed through the rear door, Austin heard children playing in the basement but decided to
go to the bathroom before announcing his arrival.
¶ 10 Defendant supervised Austin’s four children while Austin worked. Austin explained that
he met defendant “three, maybe four years” earlier through Amber’s coworker, Emily Newton,
who had been in a relationship with defendant. During that time, Austin’s friendship with
defendant developed to the point where Austin trusted defendant “with my life and my kids.”
Because other people Austin hired proved untrustworthy, Austin asked defendant to supervise
his children during the days he and Amber worked.
¶ 11 As Austin walked to his locked master bedroom, he stopped to get a key from a closet
located directly across from a hallway bathroom. G.Z., who was then 10 years old, emerged
from the hallway bathroom, which Austin noticed was unlit. G.Z. asked Austin to follow her
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because she wanted to show him a dead spider. When G.Z. could not find the spider, Austin
started walking back toward his bedroom. G.Z. then attempted to get Austin to go downstairs.
Austin told G.Z. that he had to go to the bathroom. When Austin turned toward the master
bedroom, he saw light coming from the open hallway bathroom door. Austin estimated that his
encounter with G.Z. lasted about two minutes.
¶ 12 When Austin reached the hallway bathroom, he saw defendant standing in front of the sink.
Defendant inquired about the slow-draining sink. Defendant’s question concerned Austin,
because he and defendant had twice attempted, unsuccessfully, to fix the sink. Austin then
went into his master bedroom. Two minutes later, defendant knocked on the master bedroom
door and asked Austin to call Emily to determine whether she was ready to be picked up from
her work. Defendant subsequently left with Emily’s then four-year-old son, Z.N., whom
defendant had also been supervising. That evening, Amber arrived home from work, and
Austin informed her about his encounter with G.Z. and defendant. Amber went to speak with
G.Z.
¶ 13 Austin was “in and out” of the front room where Amber spoke with G.Z. because he was
taking care of their other children. Shortly after Amber confronted G.Z., Austin heard G.Z.
throw up in the kitchen. After speaking with G.Z. for about 20 minutes, Amber contacted
Emily because she was concerned about Z.N. Police later arrived at the Hardy home and
separately questioned Austin, Amber, and G.Z. Austin acknowledged that G.Z. did not tell him
what occurred with defendant. Austin added that one of the factors that prompted him to speak
with Amber was G.Z.’s unusual and fidgety demeanor that day, commenting that G.Z. is
usually giddy, happy, and wants to talk. However, that night, Austin noticed that G.Z. did not
react as she normally does when he arrived home from work.
¶ 14 Amber testified that on November 8, 2012, defendant was at her home, watching her four
children and Z.N. Amber explained that defendant had been supervising her children during
the week from noon to approximately 5 or 6 p.m. for several months. After Amber arrived
home from work that evening, she had a conversation with Austin. When Austin conveyed his
concerns, Amber decided to speak with G.Z.
¶ 15 During their 10-minute talk, Amber (1) told G.Z. about how Austin got a “funny feeling”
about the hallway bathroom encounter and (2) asked G.Z. if defendant had ever touched her
inappropriately. G.Z. hesitated. When Amber asked again if defendant had touched G.Z.
inappropriately, G.Z. started shaking, got up, and walked into the kitchen, where she threw up.
After doing so, G.Z. returned and, according to Amber, stated the following:
“[G.Z.] said that [defendant] pulled his thing out and asked her to kiss it, and she shook
her head no, and then he turned her around and tried to tie her wrists up, *** placed his
thing between her butt cheeks and started to hump her.”
Amber recalled that G.Z. told her that defendant pulled her shorts down and then pulled his
pants down before he began humping her. Amber observed that during G.Z.’s recitation of
defendant’s acts in the hallway bathroom, G.Z. was “visibly shaken” and hesitant, but she did
not cry.
¶ 16 After informing Austin of G.Z.’s account, Amber met with Emily and told her about
defendant’s conduct with G.Z. because Amber was worried about Z.N. That night, Danville
police officer Jon Stonewall privately interviewed G.Z. in the Hardys’ home. The following
morning, Amber took G.Z. to the police station, where Detective Scott Damilano privately
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interviewed G.Z. Amber could not recall telling Stonewall whether G.Z. stated defendant
asked her to wear a blindfold during the hallway bathroom incident.
¶ 17 Stonewall testified that on November 8, 2012, he responded to a call of a sexual assault at
the Hardy residence. Upon arriving, Stonewall observed Austin, Amber, Emily, and G.Z.
Stonewall conducted a private interview of G.Z. in the living room of the Hardy residence.
Stonewall characterized G.Z.’s demeanor as meek and nervous.
¶ 18 G.Z. told Stonewall that she had been in the basement earlier that day wrestling with her
siblings, Z.N., and defendant. At one point, G.Z. went to the hallway bathroom. When she
exited, defendant was standing in the hallway. After G.Z. “play punched” defendant, he
responded that G.Z. “better stop, or I’m going to make you kiss my balls.” G.Z. returned to the
basement, but she later went upstairs, intending to use the hallway bathroom again. Defendant
followed G.Z. into the bathroom, closed the door behind him, and turned off the lights.
Defendant pulled his trousers and underwear down and did the same with G.Z.’s shorts and
underwear. Defendant then pulled G.Z. away from the sink, and as she faced away from
defendant, he “put his penis on her buttocks and moved it back and forth” for about “10 to 15
minutes.” During this time, G.Z. and defendant did not speak. Stonewall clarified that G.Z. (1)
used the term “wiener” instead of “penis” and (2) did not try to get away from defendant. When
G.Z. left the hallway bathroom, she was startled by Austin’s presence and attempted to get him
away from the hallway bathroom because G.Z. feared getting into trouble.
¶ 19 G.Z. revealed to Stonewall that the hallway bathroom incident was not the first time
defendant touched her inappropriately. In summer 2012, G.Z. recalled an incident at
defendant’s home where she, her siblings, and Z.N. were wrestling with defendant. Later,
when G.Z. was alone with defendant watching television in his bedroom, defendant exposed
his penis and told G.Z. that he wanted her “to kiss his wiener.” G.Z. told Stonewall that (1)
defendant “used his fingers to manipulate her lips and touched his wiener to her mouth” and (2)
“what had occurred in the bathroom at her home had also occurred a couple of times at
[defendant’s] house.” Stonewall then asked Amber to come back into the room for the purpose
of retrieving the underwear G.Z. had been wearing during the hallway bathroom incident.
During the interview, G.Z. did not mention defendant tried to tie her up or asked her to wear a
blindfold.
¶ 20 Damilano testified that on November 9, 2012, he interviewed G.Z. A recording of
Damilano’s interview, which the trial court reviewed, revealed the following.
¶ 21 After engaging G.Z. in general conversation regarding her age, schooling, family situation,
and G.Z.’s basic knowledge of male and female anatomy, Damilano asked G.Z. questions
regarding the circumstances surrounding the November 8, 2012, incident with defendant,
which prompted the following responses from G.Z.
¶ 22 G.Z. characterized defendant as a “good friend of the family,” and although G.Z. had
numerous interactions with defendant over the previous years, defendant began supervising
G.Z. and her three siblings about a month earlier on school days when Austin and Amber were
at work. On November 8, 2012, defendant was supervising G.Z., her three siblings, and Z.N. at
the Hardy home. After play wrestling in the basement, G.Z. went upstairs to the hallway
bathroom. Defendant followed G.Z. into the bathroom and turned off the lights. G.Z. thought
defendant “was still playing around” so she punched him in a playful manner. Defendant then
told G.Z. that she was “going to kiss his penis.” Thereafter, defendant pulled down his trousers
and then proceeded to unbutton G.Z.’s pants and pulled them down as well. G.Z. then felt the
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“back and forth movement” of defendant’s penis on her buttocks, which was not painful but
did not feel good. G.Z. described the contact as warm and nasty. G.Z. pulled up her pants and
walked out of the bathroom, where she saw Austin. Thereafter, G.Z. attempted to get Austin
away from the hallway bathroom because she thought she would get in trouble.
¶ 23 G.Z. added that in summer 2012, defendant engaged in this same behavior on two
occasions. During the first incident, defendant watched her, her brother, and Z.N. in
defendant’s home while Austin and Amber were at work. G.Z. was in defendant’s bedroom
wrestling with defendant on his bed while the other children were playing in another room. At
some point, defendant pulled his trousers down as well as G.Z.’s pants, got on top of G.Z., and
started humping her. G.Z. clarified that defendant’s penis was making contact with her
buttocks as in the hallway bathroom encounter, except that defendant was lying on top of her
as G.Z. was lying on the bed, looking away from defendant. G.Z. stated that “the exact same
thing” happened during the second encounter at defendant’s home.
¶ 24 Following argument, the trial court found that the “time, content, and circumstances of the
statements, the testimony of the witnesses, the credibility of [G.Z.], who has testified here by
way of video, all [the court] believe[s] are sufficient to allow the admissibility of the [section]
115-10 statements.”
¶ 25 In June 2013, the State filed a supplemental notice of its intent to solicit corroborative
testimony detailing statements G.Z. made to Lisa Moment, a nurse, pursuant to section 115-10
of the Code. At a July 2013 pretrial hearing, the State presented the following evidence.
¶ 26 On November 9, 2012, Moment performed a sexual assault examination of G.Z. As part of
that process, Moment asked G.Z. broad questions regarding her understanding of why she was
being examined. Moment recalled that G.Z. told her that “at some point [G.Z.] went to the
bathroom. [Defendant] followed her into the bathroom and turned out the lights and pulled
down his pants and her pants and started humping her.” G.Z. clarified that “humping” meant
“going back and forth.” G.Z. agreed with Moment’s description that defendant put his penis in
G.Z.’s bottom. Moment characterized G.Z.’s demeanor during her recital of the events at issue
as “very calm” and “pretty flat,” which Moment did not find unusual. Moment acknowledged
that she did not find any bleeding or tears during her physical examination of G.Z.
¶ 27 Following argument, the trial court found that the time, content, and circumstances of the
statements provided safeguards of reliability sufficient to permit admission of Moment’s
testimony under section 115-10 of the Code.
¶ 28 C. Voir Dire
¶ 29 In October 2013, the trial court conducted voir dire, where the following exchange
occurred outside of the venire’s presence:
“[DEFENSE COUNSEL]: Due to the nature of the case, I think some inquiry is
going to be made regarding personal and/or knowledge of sexual abuse issues. Our
request *** would be to address those individually due to the obvious circumstances
regarding those kind of issues, and the personal nature that they may—
THE COURT: [The court will] be asking questions about whether they have been
the victim of any criminal offense. [The court will] also be asking them whether once
they hear the nature of this offense, is there anything about that which affects their
ability to be fair and impartial. [The court is] not inclined to inquire or ask people to
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disclose in open court that they’ve been victims themselves. [The court will] ask
questions that are designed to get that information out, and [the court] will also tell
them that if at any time *** [the court] ask[s] a question which causes them any
concern or anxiety and they don’t feel comfortable answering it in open court, they
have a right to talk with me privately. [The court] will call you up to tell you what they
[said]. Nine times out of ten, that’s when they come up, someone will say they were a
victim of a rape, or victim of some sexual offense, and they don’t want to disclose it in
open court. They tell [the court] what the situation is. [The court will] then call the
attorneys up at a side-bar and advise them of the situation, but as far as being allowed to
inquire further about if, no. [The court will] cover it.
[DEFENSE COUNSEL]: You’re barring us as a counsel?
THE COURT: Yes. [The court will] cover it, and if [the court] think[s] it needs
further covering because of a response they give, then [the court will] have even more
questions, but [the court’s] questions are designed to get responses without people
having to go through the stress of acknowledging in open court something of that
nature. *** [I]n almost every jury[,] one or more persons ask to talk to [the court]
privately and they come up and disclose their circumstance, and then [the court] let[s]
the attorneys know. Once you hear the information, if you want further questions asked
of that person, tell [the court] what questions you want asked and [the court will] ask
them. Anything else?
[DEFENSE COUNSEL]: No. I just wanted to make sure our request for the
individual ID—
THE COURT: It won’t be done individually, but [the court] will make sure that
there’s individual inquiry if any of those people respond in a way that gives us some
reason to believe that we need to ask some further questions.”
¶ 30 Thereafter, during voir dire of 14 venire members, the trial court inquired, as follows:
“Have you or any members of your family ever been the victim of a criminal offense?
Any of you have any bias or prejudice against a person merely because they have been
charged with a criminal offense? Is there anything about the nature of the charges in
this case, predatory criminal sexual assault of a child and aggravated criminal sexual
abuse, just the charges themselves, is there anything about hearing those charges that
affects you in such a way that you believe that it would prevent you from reaching a fair
and impartial verdict?”
None of the venire members answered affirmatively.
¶ 31 After a sidebar conference held outside of the jury’s hearing, the trial court asked the
following questions:
“[The court] asked you a little bit earlier about whether either you or family members
have been victims of a criminal offense, and [the court] also asked you about the nature
of the charge in this case. [The court is] not asking you to disclose anything ***. [The
court is] asking whether any of you have any family members or have had any
circumstances, which could affect your ability to be fair and impartial in this case based
upon the nature of the offenses charged?”
None of the venire members answered affirmatively. Shortly thereafter, the court permitted the
State and defense counsel to question the panel.
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¶ 32 After retiring the first 14 venire members to the jury room, the trial court asked a second
panel of 14 venire members whether they or a family member had ever been the victim of a
criminal offense. Two venire members answered affirmatively, recalling that the underlying
circumstances of the respective cases they were referring to were similar to the instant case.
Both prospective jurors acknowledged that based on their experiences with their respective
cases, they could not be impartial jurors. As with the first panel, the court permitted the State
and defense counsel to question the panel. Thereafter, the court dismissed for cause both venire
members who called into question their impartiality. (The court dismissed two other venire
members for cause because of a recent family death and the revelation that the prospective
juror could not be impartial based on his former employment as a police officer.)
¶ 33 Based on proceedings conducted outside of the venire’s presence, the trial court announced
the 12 venire members selected as jurors and returned them to the jury room. Thereafter, the
court questioned a panel of six venire members, intending to select an alternate juror. As with
the prior two panels, the court asked if any venire member or a family member was charged
with a criminal offense. One prospective juror expressed that although she did not “want to say
it would affect [her] judgment,” the circumstances “sicken[ ] me to the point I have an ache in
the pit of my stomach,” adding that she “already felt disgusted,” “physically upset,” and felt
the need to “protect the child.” The court subsequently dismissed the venire member for cause.
The parties eventually selected an alternate juror.
¶ 34 D. The Evidence Presented
¶ 35 At defendant’s October 2013 trial, the parties presented the following evidence to a jury.
(Where possible, we omit detailed testimony that is repetitious because it is substantially
similar to evidence presented at the February and July 2013 section 115-10 hearings.)
¶ 36 1. The State’s Evidence
¶ 37 G.Z. testified that on the night of November 8, 2012, Stonewall interviewed her at her
family’s home. G.Z. told Stonewall that she had been wrestling with her siblings, Z.N., and
defendant in the basement of her home earlier that day. Sometime later, G.Z. went to a hallway
bathroom located on the home’s first floor. After G.Z. relieved herself, defendant opened the
bathroom door, entered, and turned off the lights. Defendant pulled down his pants, revealing
his plaid boxers shorts, which he also removed. G.Z. moved and faced a corner of the bathroom
“because I didn’t know what he was going to do.” Defendant then removed G.Z.’s shorts and
underwear. At that moment, G.Z. felt “scared, like I didn’t know what to do.” G.Z. stated that
defendant then placed “[h]is wiener against my butt” and “started moving back and forth or
humping.” G.Z. clarified that the terms “wiener” and “penis” meant the same thing.
¶ 38 G.Z. estimated that defendant continued humping her for about 15 to 20 minutes. During
this time, defendant did not speak. G.Z. described the encounter as “warm, nasty, and
uncomfortable,” but it did not hurt. G.Z. eventually pushed defendant away because she
“couldn’t stand it anymore.” Afterward, G.Z. put on her underwear and shorts and left the
bathroom. Upon exiting, G.Z. noticed her stepfather, Austin, searching a closet located
immediately across from the hallway bathroom. G.Z. attempted to “get [Austin] away”
because G.Z. thought she would get in trouble. G.Z. told Austin about the spider, because she
did not want him to enter the hallway bathroom. Afterward, G.Z. went into her bedroom, and
Austin walked toward his master bedroom.
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¶ 39 G.Z. noted that defendant left about 20 minutes after she entered her room, and Amber
arrived home about an hour later. G.Z. acknowledged that she spoke with Amber about the
bathroom incident, but G.Z. admitted that she did not disclose “everything” to Amber because
“she didn’t want anything bad to happen.” G.Z. then testified generally to events that later
occurred, which included (1) speaking with a police officer at her home, (2) giving police the
underwear she wore during the bathroom encounter, (3) going to the hospital later that evening
and speaking to a nurse, and (4) providing a tape-recorded statement to police the following
day.
¶ 40 G.Z. revealed that the bathroom incident was not the first time defendant engaged in such
behavior. On two occasions in August 2012, G.Z. and “other kids” were at defendant’s home
wrestling on the bed in defendant’s bedroom. (During cross-examination, G.Z. admitted that
although she thought the two incidents occurred in August 2012, she was “not sure.”) When
the other children left to play video games, G.Z. stayed with defendant. As in the November
2012 bathroom incident, G.Z. stated that the “same thing” happened in that defendant began
“moving back and forth again,” which G.Z. did not like. G.Z. stated that during these two
encounters (1) they were both clothed, (2) she was lying on her stomach, and (3) defendant was
on top of her. After the first incident, defendant told G.Z. that she shouldn’t tell her parents.
G.Z. acknowledged that during the November 2012 bathroom incident, she did not attempt to
run past defendant or scream.
¶ 41 Kelly Biggs, a forensic scientist employed by the Illinois State Police crime lab, testified
that deoxyribonucleic acid (DNA) testing she performed on vaginal and anal samples taken
from G.Z. showed no male DNA was present.
¶ 42 Outside of the jury’s presence, the trial court considered defendant’s objection to the
State’s request to admit into evidence the recorded interview Damilano conducted with G.Z.
Specifically, defendant averred that admitting and subsequently publishing the recording to the
jury would be “obviously cumulative” and “highly prejudicial” given that (1) G.Z. had testified
and was subject to cross-examination and (2) Damilano was scheduled to testify and would be
subject to cross-examination. The State responded that Illinois jurisprudence does not place
limits on the amount of section 115-10 evidence the State can proffer, provided the evidence
meets certain reliability criteria. After considering the parties’ arguments, the court overruled
defendant’s objection and admitted the recording into evidence. Thereafter, Damilano testified
to the authenticity of the recording at issue, which was published to the jury.
¶ 43 Because the testimony provided at defendant’s October 2013 jury trial by Austin, Amber,
Stonewall, and Moment was substantially similar to the testimony each witness provided at the
February and July 2013 section 115-10 hearings, we do not include it in this summary.
¶ 44 2. Defendant’s Evidence
¶ 45 Defendant testified that in November 2012, he was unemployed and would supervise Z.N.
while Emily was at work. Because defendant considered the Hardys friends, he also watched
their four children. Defendant’s normal routine was to watch the Hardys’ children from 11:30
a.m. until 4:45 p.m., when Austin would usually arrive home from work. Afterward, defendant
would remain in the Hardys’ home until Emily finished working, which usually occurred about
5:15 or 5:30 p.m. Defendant estimated that he had been supervising the Hardys’ children for no
more than three weeks.
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¶ 46 Defendant stated that on November 8, 2012, he cared for the Hardys’ children and Z.N.
without incident. After Austin arrived home, defendant began preparing to leave with Z.N.
During that time, defendant entered the hallway bathroom to relieve himself. Defendant
“swung the door behind” him, but “it didn’t shut.” Although the lights in the bathroom
remained off, natural light came “from the [kitchen] window,” which was “located closest to
the hallway.” Defendant was then startled by G.Z.’s entrance into the bathroom. Defendant
believed that G.Z. intended to use the bathroom because “her pants were down *** above her
waist,” which exposed “the top of her buttocks.” Defendant became upset and told G.Z. “to get
her ass out.” G.Z. left the bathroom. When defendant left the bathroom, he encountered Austin.
G.Z. had returned to the basement. Defendant then had a brief conversation with Austin
concerning the slow-draining sink. Defendant denied touching G.Z. “in any way” during the
bathroom incident.
¶ 47 E. The Jury’s Verdict, Defendant’s Posttrial Motion, and
the Trial Court’s Sentence
¶ 48 Following its deliberations, the jury found defendant (1) not guilty of predatory criminal
sexual assault of a child and (2) guilty of aggravated criminal sexual abuse. Later in November
2013, defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a
new trial. In support of his motion, defendant alleged, in pertinent part, that the trial court erred
by (1) preventing him from inquiring whether potential jurors had been the victim of sexual
abuse or had close friends or relatives who were victims of sexual abuse; (2) admitting G.Z.’s
statements into evidence under section 115-10 of the Code because those statements were
inconsistent and, thus, unreliable; and (3) admitting into evidence the audio and video
recordings of G.Z.’s interview with Damilano as cumulative.
¶ 49 At an April 2014 hearing, the trial court considered defendant’s November 2013 motion.
As to defendant’s first claim, the court noted, as follows:
“[T]he [prospective] jurors were asked if they or any family members [were] victims of
the criminal offense. They were asked if the nature of the charges specifically affected
their ability to be fair and impartial ***. There was nothing during voir dire that would
indicate there would be any need for individual voir dire, nor was anything raised
which would indicate that there was a need to conduct individual voir dire. ***
[D]efendant was allowed to ask questions through counsel.”
¶ 50 As to defendant’s claims, which called into question the trial court’s admission of (1)
G.Z.’s statements under section 115-10 of the Code as unreliable and (2) the November 2012
recorded interview Damilano conducted with G.Z. as cumulative, the court noted that G.Z.’s
statements were neither unreliable nor cumulative and were properly admitted pursuant to
section 115-10 of the Code. Thereafter, the court sentenced defendant, in part, to four years in
prison and imposed a $1250 fee for court-appointed counsel.
¶ 51 This appeal followed.
¶ 52 II. ANALYSIS
¶ 53 Defendant argues that (1) the trial court abused its discretion by admitting multiple hearsay
statements the victim made to others pursuant to section 115-10 of the Code, (2) the court erred
by prohibiting defense counsel from questioning venire members about personal experiences
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they or their respective family members had with sexual abuse, and (3) this court should vacate
the fee for court-appointed counsel that the trial court improperly imposed without first
conducting a hearing as required by section 113-3.1 of the Code. We address defendant’s
arguments, in turn.
¶ 54 A. Admission of G.Z.’s Out-of-Court Statements
Under Section 115-10 of the Code
¶ 55 Elaborating on his section 115-10 evidentiary argument, defendant contends that the trial
court denied him a fair trial because the admitted hearsay testimony was “consistent with both
[G.Z.’s] trial testimony and her recorded interview with *** Damilano.” Defendant also
contends that the admitted hearsay testimony provided by Amber, Stonewall, Damilano, and
Moment was unnecessarily cumulative and prejudicial. Thus, as framed by defendant, this
court should reverse his aggravated criminal sexual assault conviction and remand for a new
trial because the court’s section 115-10 findings violated the rules prohibiting the admission of
(1) prior consistent statements and (2) cumulative evidence. We disagree.
¶ 56 1. Standard of Review
¶ 57 “[T]he [trial] court’s decision to admit evidence under section 115-10 will not be reversed
unless the record clearly demonstrates that the *** court abused its discretion.” People v.
Williams, 193 Ill. 2d 306, 343, 739 N.E.2d 455, 474 (2000). An abuse of discretion occurs
when the trial court’s determination is arbitrary, fanciful, or unreasonable or when no
reasonable person would agree with the stance adopted by the trial court. People v. Becker, 239
Ill. 2d 215, 234, 940 N.E.2d 1131, 1142 (2010).
¶ 58 2. Prior Consistent Statements
¶ 59 Illinois Rule of Evidence 613(c) (eff. Jan. 1, 2011), which governs prior consistent
statements of a witness, provides, as follows:
“(c) Evidence of Prior Consistent Statement of Witness. A prior statement that is
consistent with the declarant-witness’s testimony is admissible, for rehabilitation
purposes only and not substantively as a hearsay exception or exclusion, when the
declarant testifies at the trial or hearing and is available to the opposing party for
examination concerning the statement, and the statement is offered to rebut an express
or implied charge that:
(i) the witness acted from an improper influence or motive to testify falsely, if
that influence or motive did not exist when the statement was made; or
(ii) the witness’s testimony was recently fabricated, if the statement was made
before the alleged fabrication occurred.”
¶ 60 “ ‘In general, proof of a prior consistent statement made by a witness is inadmissible
hearsay, which may not be used to bolster a witness’s testimony.’ ” People v. Stull, 2014 IL
App (4th) 120704, ¶ 99, 5 N.E.3d 328 (quoting People v. House, 377 Ill. App. 3d 9, 19, 878
N.E.2d 1171, 1179 (2007)); see also People v. Heard, 187 Ill. 2d 36, 70, 718 N.E.2d 58, 77
(1999). The rationale underlying this prohibition has been explained, as follows:
“ ‘The danger in prior consistent statements is that a jury is likely to attach
disproportionate significance to them. People tend to believe that which is repeated
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most often, regardless of its intrinsic merit, and repetition lends credibility to testimony
that it might not otherwise deserve.’ ” People v. Donegan, 2012 IL App (1st) 102325,
¶ 52, 974 N.E.2d 352 (quoting People v. Smith, 139 Ill. App. 3d 21, 33, 486 N.E.2d
1347, 1355 (1985)).
¶ 61 In this case, the trial court admitted the contested statements at issue pursuant to section
115-10 of the Code. That statutory provision, entitled, “Certain hearsay exceptions,” provides,
as follows:
“(a) In a prosecution for a physical or sexual act perpetrated upon or against a child
under the age of 13 *** at the time the act was committed, including but not limited to
prosecutions for violations of Sections 11-1.20 through 11-1.60 *** of the Criminal
Code of *** 2012 ***, the following evidence shall be admitted as an exception to the
hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that
he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any
complaint of such act or matter or detail pertaining to any act which is an element of
an offense which is the subject of a prosecution for a sexual or physical act against
that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that
the time, content, and circumstances of the statement provide sufficient safeguards
of reliability; and
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of the act
which is the subject of the statement[.]” 725 ILCS 5/115-10(a), (b) (West
2012).
See Pub. Act 82-782 (eff. Jan. 1, 1983) (adding Ill. Rev. Stat. 1983, ch. 38, ¶ 115-9); see also
Pub. Act 82-1057 (eff. Feb. 11, 1983) (renumbering and amending Ill. Rev. Stat. 1983, ch. 38,
¶ 115-9 to ¶ 115-10, now codified at 725 ILCS 5/115-10).
¶ 62 In People v. Holloway, 177 Ill. 2d 1, 9-10, 682 N.E.2d 59, 63 (1997), the supreme court
explained that the legislature enacted section 115-10 of the Code to address the following
concerns:
“Section 115-10 was originally passed in response to the difficulty in convicting
persons accused of sexually assaulting young children. This difficulty occurs because
children’s testimony in sexual assault cases is often inadequate. Problems in proof may
result when the lesser developed cognitive and language skills that children have
hinder them in adequately communicating the details of an assault. The legislature
sought to create a hearsay exception to allow into evidence corroborative testimony
that the child complained to another person about the incident.
***
It appears that the legislature, in providing for the admission of evidence of outcry
statements as exceptions to the hearsay rule in certain cases, was concerned with the
ability of the victim to understand and articulate what happened during the incident and
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the reluctance many victims have relating the details of the incident at trial. Evidence of
an outcry statement made to another by a child under the age of 13 would corroborate
the testimony of a child who, by reason of age, may be reluctant or unable to clearly
express the details of the incident. *** The importance of allowing hearsay testimony
of an outcry *** is not dictated by the age of the victim when the assault occurs.
Instead, it is dictated by the victim’s ability to adequately testify to the alleged
incident.”
See also People v. Bowen, 183 Ill. 2d 103, 115, 699 N.E.2d 577, 584 (1998) (The General
Assembly enacted section 115-10 of the Code to allow admission of “detailed corroborative
evidence of the child’s complaint about the incident to another individual” out of concern that
“child witnesses, especially the very young, often lack the cognitive or language skills to
effectively communicate instances of abuse at trial.”).
¶ 63 Defendant’s contention that the admitted section 115-10 hearsay testimony at issue
violated the prohibition against utilizing prior consistent statements as substantive evidence is
unavailing because by its very nature, section 115-10 of the Code constitutes an exception to
that rule. Based on the rationale underpinning its enactment, the plain language of section
115-10 of the Code provides for the admission, in relevant part, of “testimony of an out of
court statement” made by the minor victim that is solicited from a witness who directly heard
the minor making the statement. 725 ILCS 5/115-10(a)(2) (West 2012). Thus, admission of
out-of-court statements, such as those G.Z. conveyed to Amber, Stonewall, Damilano, and
Moment concerning the surrounding circumstances of defendant’s sexual contact, is
“measured only by whether they meet the [reliability] requirements of section 115-10 of the
Code.” (Emphasis omitted.) People v. Sharp, 391 Ill. App. 3d 947, 954, 909 N.E.2d 971, 977
(2009). See People v. Cookson, 335 Ill. App. 3d 786, 791, 780 N.E.2d 807, 811 (2002) (“The
State bears the burden of proving that the statements were reliable and not the result of adult
prompting or manipulation.”).
¶ 64 To accept defendant’s premise—which we do not—would signify that section 115-10 of
the Code permits the admission of specific hearsay declarations as substantive evidence solely
when a minor under 13 years old testifies inconsistently with the identified corroborative
hearsay statements the minor conveyed to others. The aforementioned plain language of the
statute does not support defendant’s stance. Moreover, we note that the legislature could not
have intended for section 115-10 of the Code to operate in such a fashion because 18 months
after enactment of what is now known as section 115-10 of the Code, the legislature enacted
section 115-10.1 of the Code (725 ILCS 5/115-10.1 (West 2012)) with the heading,
“Admissibility of Prior Inconsistent Statements.” See Pub. Act 83-1042 (eff. July 1, 1984)
(adding Ill. Rev. Stat. 1985, ch. 38, ¶ 115-10.1, now codified at 725 ILCS 5/115-10.1); see also
People v. Davis, 137 Ill. App. 3d 769, 771-72, 484 N.E.2d 1098, 1100 (1985) (acknowledging
the enactment of section 115-10.1 of the Code). “[I]t is presumed [that] the legislature acts
rationally and with full knowledge of all prior legislation.” People v. Jones, 214 Ill. 2d 187,
199, 824 N.E.2d 239, 246 (2005).
¶ 65 Defendant correctly notes that section 115-10 of the Code is a specific hearsay exception
tailored to minors under 13 years old who have been victims of a sexual offense for the reasons
stated in Holloway and Bowen. Defendant’s position, however, that corroborative hearsay
statements are barred from admission under section 115-10 of the Code if they are consistent
with a minor’s trial testimony reveals a fundamental misunderstanding of the following two
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principles. First, that the admission of out-of-court statements under section 115-10 of the
Code is predicated on the trial court’s judgment as to the reliability of the corroborative
hearsay statements. Second, and more important, provided that the remaining provisions of
section 115-10 are satisfied, whether a minor victim testifies consistently, inconsistently, or by
not responding to questions posed regarding the sexual acts alleged does not affect the
admissibility—under section 115-10—of the minor’s out-of-court statements to others that
detailed a defendant’s sexual acts. See People v. Bryant, 391 Ill. App. 3d 1072, 1083, 909
N.E.2d 391, 401 (2009) (affirming the admission of the minor victim’s hearsay statements to
others pursuant to section 115-10 of the Code despite the minor’s unwillingness or inability to
testify on direct examination about specific sexual conduct the defendant forced the minor to
perform).
¶ 66 In Stull, 2014 IL App (4th) 120704, 5 N.E.3d 328, this court addressed essentially the same
argument that defendant makes in this case. We rejected that argument in Stull (id. ¶¶ 96-101),
and we reiterate that rejection here. As we wrote in Stull, “When *** a prior statement is
offered at trial as substantive evidence under an exception to the hearsay rule, the mere fact
that the statement is consistent with the declarant’s trial testimony does not render that prior
statement no longer admissible.” (Emphasis in original.) Id. ¶ 100. Accordingly, in the context
of a section 115-10 hearing, the rule proscribing the admission of a witness’s prior consistent
statements has no application whatsoever. Therefore, we reject defendant’s argument.
¶ 67 3. Cumulative Evidence
¶ 68 In Stull, this court cited numerous cases in which the appellate court addressed and
consistently rejected the argument defendant now raises—that is, that the hearsay statements
the trial court admitted under section 115-10 of the Code were unnecessarily cumulative and
prejudicial. Id. ¶ 93. See People v. Greenwood, 2012 IL App (1st) 100566, ¶ 31, 971 N.E.2d
1116 (rejecting the defendant’s argument that the trial court erred by admitting hearsay
statements of multiple witnesses pursuant to section 115-10 and collecting cases in support of
that conclusion); People v. Lofton, 303 Ill. App. 3d 501, 508, 708 N.E.2d 569, 574 (1999)
(rejecting the defendant’s argument that the trial court’s admission of evidence provided by
four witnesses regarding the victim’s out-of-court statements was cumulative and served to
bolster the State’s case because section 115-10 places no limitations on the number of
witnesses who may testify under its strictures); People v. Moss, 275 Ill. App. 3d 748, 756, 656
N.E.2d 193, 199 (1995) (declining to limit hearsay testimony admissible under section 115-10
to one witness because the statute contains no such limitation); People v. Branch, 158 Ill. App.
3d 338, 341, 511 N.E.2d 872, 874 (1987) (section 115-10 does not limit the number of
witnesses corroborating the victim’s complaint to one).
¶ 69 Defendant acknowledges Greenwood, Lofton, and Moss, but, citing dicta in People v.
Anderson, 225 Ill. App. 3d 636, 587 N.E.2d 1050 (1992), asserts that the cumulative nature of
the section 115-10 statements the State presented at his jury trial tilted the scales of justice
against him in what defendant claims was a closely balanced case.
¶ 70 In Anderson, the defendant argued that “he was denied a fair trial by the repetition of ***
statements by three witnesses” admitted under section 115-10 of the Code. Id. at 648, 587
N.E.2d at 1059. In rejecting that argument, the appellate court quoted, in part, the following
passage:
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“ ‘Youthful victims often suffer an inability to articulate on the witness stand or
lack credibility in general. Their complaints obviously become more credible, reliable
and understandable when supported by corroborative complaint testimony from adults.
Those who are close to the victim or who have interviewed the victim and investigated
the alleged incidents should not be curtailed from testifying and aiding the victim
merely because of their numbers or order of talking with the victim.’ ” Id. (quoting
Branch, 158 Ill. App. 3d at 341, 511 N.E.2d at 873-74).
¶ 71 After finding the analysis in Branch dispositive of the defendant’s argument, the Anderson
court continued, as follows:
“However, we caution that in some future case where the evidence is more closely
balanced we would not hesitate to grant a defendant a new trial if it appears that the
delicate scales of justice have been unfairly tilted by the sheer weight of repetition. We
trust in the sound discretion of the trial courts to maintain the proper balance by
limiting evidence which is unnecessarily cumulative.” Id.
¶ 72 We note that in quoting the aforementioned dicta in Anderson to support his assertion,
defendant did not include the last sentence regarding our deferential review of the trial court’s
section 115-10 evidentiary ruling. In essence, defendant is asking this court to set aside the trial
court’s judgment and implement our own by concluding that the trial court abused its
discretion when it admitted the corroborative hearsay statements G.Z. conveyed to Amber,
Stonewall, Damilano, and Moment because they were unnecessarily cumulative and, by
extension, prejudicial. Under the facts presented, however, we have no reason to conclude that
the trial court’s decision to admit the section 115-10 statements at issue constituted an
arbitrary, fanciful, or unreasonable determination that no reasonable person would agree was
sound.
¶ 73 In so concluding, we note that in raising this argument, defendant implies that section
115-10 should be narrowly construed so as not to violate the rule against cumulative evidence.
In People v. Johnson, 2016 IL App (4th) 150004, ¶¶ 40-45, 55 N.E.3d 32, we specifically
rejected any notion that current Illinois jurisprudence requires section 115-10 to be narrowly
construed. To the extent defendant is claiming otherwise, we reaffirm and adhere to our
conclusion in Johnson.
¶ 74 As we have previously mentioned, section 115-10 of the Code allows for the admission of
a hearsay statement conveyed to another person by a victim of a sexual crime who is under the
age of 13 years old “if, among other things, the trial court ‘finds in a hearing’ that ‘the time,
content, and circumstances of the statement provide sufficient safeguards of reliability.’ ” Id.
¶ 48 (quoting 725 ILCS 5/115-10(b)(1) (West 2014)). Because defendant has not challenged
the court’s reliability determinations, we reject defendant’s section 115-10 challenges.
¶ 75 B. Jury Selection
¶ 76 Defendant argues that the trial court erred by prohibiting defense counsel from questioning
venire members individually about personal experiences they or their family members had
with sexual abuse. Defendant contends that the court (1) impermissibly denied defense
counsel’s request to directly question prospective jurors to uncover their “deep[-]seated biases
and prejudice” and (2) did not consider the factors in Illinois Supreme Court Rule 431(a) (eff.
July 1, 2012) when it denied defendant’s request to directly question prospective jurors. We
disagree.
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¶ 77 Rule 431(a) provides the following guidance:
“The court shall conduct voir dire examination of prospective jurors by putting to them
questions it thinks appropriate, touching upon their qualifications to serve as jurors in
the case at trial. The court may permit the parties to submit additional questions to it for
further inquiry if it thinks they are appropriate and shall permit the parties to
supplement the examination by such direct inquiry as the court deems proper for a
reasonable period of time depending upon the length of examination by the court, the
complexity of the case, and the nature of the charges. Questions shall not directly or
indirectly concern matters of law or instructions. The court shall acquaint prospective
jurors with the general duties and responsibilities of jurors.” Ill. S. Ct. R. 431(a) (eff.
July 1, 2012).
¶ 78 In People v. Mabry, 398 Ill. App. 3d 745, 754, 926 N.E.2d 732, 740 (2010), the First
District succinctly set forth the following pertinent standard of review:
“It is axiomatic that the manner and scope of voir dire rest within the sound
discretion of the trial court. [Citation.] In conducting the voir dire, the trial court is
accorded broad discretion in determining which questions will be asked and which
procedures will be followed. [Citation.] The trial court should always exercise its
discretion in a manner that is consistent with the goals of voir dire—to assure the
selection of an impartial jury, free from bias or prejudice, and grant counsel an
intelligent basis on which to exercise peremptory challenges. [Citation.] Upon review,
the standard for evaluating a court’s exercise of discretion during the voir dire is
whether the questions and procedures created reasonable assurance that any prejudice
or bias would be discovered. [Citation.]”
¶ 79 Based on the record in this case, we find unavailing defendant’s claims that the voir dire
procedures the trial court employed—which included the specific questions the court posed to
three separate panels of venire members—were deficient, which would, by extension, cast
doubt upon the impartiality of the empanelled jurors. In support of his contentions, defendant
directs our attention to People v. Oliver, 265 Ill. App. 3d 543, 637 N.E.2d 1173 (1994).
¶ 80 In Oliver, the trial court asked the entire panel of seated venire members to rise if they had
been a victim of armed robbery, rape, sexual assault, or had a friend or relative who had been
the victim of a homicide. Id. at 549, 637 N.E.2d at 1178. Out of the approximately 15 to 20
venire members that stood up, the court excused one prospective juror. Id. at 550, 637 N.E.2d
at 1178. The appellate court reversed and remanded for a new trial, finding as follows:
“While the trial court’s procedure was to ask about the specific crimes involved in this
case, the trial court abused its discretion. It merely asked questions but did not permit
the jurors to respond individually. Nor was defense counsel afforded the opportunity to
make a determination as to whether jurors were biased or impartial.” Id.
We do not agree with defendant’s assertion that the circumstances presented in Oliver are
“strikingly analogous” to the facts of the instant case.
¶ 81 Here, an experienced trial judge employed a voir dire procedure that balanced the dignity
afforded prospective jurors with regard to their reasonable expectations of privacy with the
primary purpose of a voir dire examination, which is to exclude prospective jurors who are
unwilling or unable to be impartial arbiters. In so doing, the trial court posed specific questions
tailored to elicit responses from manageable panels, which the court was prepared to explore if,
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in the court’s judgment, further questioning was warranted. Indeed, when appropriate, the
court did ask additional focused questions that permitted individual venire members to expand
on their initial answers. At no time did the court prohibit the State or defense counsel from
proffering supplemental questions on the sensitive issue of a venire member’s personal
experiences with sexual crimes. The only requirement the court mandated was that the parties
had to submit any proposed questions to the court, which we (1) do not find unreasonable and
(2) note defendant did not utilize.
¶ 82 Despite defendant’s claims to the contrary, we are satisfied that not only was the voir dire
procedure the trial court implemented in accord with Rule 431(a), but it also created reasonable
assurances that any prejudice or bias would have been discovered, as demonstrated.
¶ 83 C. Fee for Court-Appointed Counsel
¶ 84 Defendant argues that this court should vacate the fee for court-appointed counsel that the
trial court improperly imposed without first conducting a hearing as mandated by section
113-3.1 of the Code. We agree.
¶ 85 1. Section 113-3.1 of the Code and the Standard of Review
¶ 86 Section 113-3.1(a) of the Code provides, as follows:
“Whenever *** the court appoints counsel to represent a defendant, the court may
order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to
reimburse either the county or the State for such representation. In a hearing to
determine the amount of the payment, the court shall consider the affidavit prepared by
the defendant under Section 113-3 of this Code and any other information pertaining to
the defendant’s financial circumstances which may be submitted by the parties. Such
hearing shall be conducted on the court’s own motion or on motion of the State’s
Attorney at any time after the appointment of counsel but no later than 90 days after the
entry of a final order disposing of the case at the trial level.” 725 ILCS 5/113-3.1(a)
(West 2012).
¶ 87 We review de novo whether a trial court complied with section 113-3.1 of the Code when
imposing a fee for court-appointed counsel. People v. Gutierrez, 2012 IL 111590, ¶ 16, 962
N.E.2d 437.
¶ 88 2. The Pertinent Portions of Defendant’s Sentencing Hearing
¶ 89 At defendant’s April 2014 sentencing hearing, the following exchange occurred:
“[THE STATE]: [The State has] marked *** People’s 1 ***. The Public
Defender’s Office filed an affidavit of services ***. Ask to admit People’s 1.
THE COURT: Any objections.
[DEFENSE COUNSEL]: Yeah, we do, object, Judge. I’m not sure why the State’s
seeking to admit People’s 1.
THE COURT: *** [T]he State represents the County. The County incurs expenses
when the Public Defender’s Office is appointed to represent an individual, and they
represented [defendant] for a period of time before you entered your appearance. ***
[DEFENSE COUNSEL]: Well, I guess there could be attached some sort of order
for sentencing. I do have an assignment of bond that covered my fees ***.
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THE COURT: [The court] understand[s].”
¶ 90 Shortly thereafter, the court imposed the following sentence:
“It will be the judgment and sentence of the court that [defendant] be sentenced to the
Illinois Department of Corrections for a period of four years. *** There is a two-year
period of mandatory supervised release to that sentence.
The bond assignment will be honored.
You are also indebted to the County in the amount of $1,250. That’s not to be taken
from the bond assignment.”
¶ 91 3. The Controversy at Issue
¶ 92 Defendant contends that because the trial court failed to conduct even a slight inquiry into
defendant’s financial circumstances, the $1250 fee for court-appointed counsel that the court
improperly imposed must be vacated outright. The State concedes that the court failed to
conduct a proper section 113-3.1 hearing but asserts that this court should remand the matter
for a proper hearing instead of vacating the fee outright as defendant advocates. In support of
its position, the State relies on People v. Somers, 2013 IL 114054, ¶ 14, 984 N.E.2d 471.
¶ 93 In Somers, the supreme court considered whether section 113-3.1(a) of the Code
authorized the appellate court to remand for a rehearing on the defendant’s ability to pay a fee
for court-appointed counsel if more than 90 days had elapsed since the entry of the trial court’s
final judgment. Id. ¶ 9. In addressing that issue, the supreme court focused on the trial court’s
attempt to comply with section 113-3.1(a) of the Code by conducting a hearing within the
aforementioned 90-day period that the appellate court later determined to be insufficient. Id.
¶ 13. Specifically, the trial court conducted a hearing at which the court asked the defendant
three questions concerning his employment status. Id. ¶ 4. Based on the defendant’s answers,
the court imposed a $200 fee for court-appointed counsel. Id.
¶ 94 On appeal, the supreme court affirmed the appellate court’s remand for a proper
public-defender-fee hearing under section 113-3.1(a) of the Code (id. ¶ 20), concluding that
the trial court’s questions about defendant’s employment status were insufficient to satisfy
section 113-3.1(a) of the Code (id. ¶ 14). The supreme court continued, as follows:
“Clearly, then, the trial court did not fully comply with the statute, and defendant is
entitled to a new hearing. Just as clearly, though, the trial court did have some sort of a
hearing within the statutory time period. The trial court inquired of defendant whether
he thought he could get a job when he was released from jail, whether he planned on
using his future income to pay his fines and costs, and whether there was any physical
reason why he could not work. Only after hearing defendant’s answers to these
questions did the court impose the fee. Thus, we agree with the State’s contention that
the problem here is not that the trial court did not hold a hearing within 90 days, but that
the hearing that the court did hold was insufficient to comply with the statute.” Id. ¶ 15.
¶ 95 As noted, the controversy does not concern whether the trial court improperly imposed the
$1250 fee for court-appointed counsel. Both parties agree on this point, and based on this
record, we accept the parties’ concession. Instead, the issue before us concerns whether this
court should (1) vacate the fee for court-appointed counsel outright as defendant urges or (2)
remand the matter for a rehearing that complies with section 113-3.1(a) of the Code as the State
advocates. Defendant contends that Somers is distinguishable because, contrary to the State’s
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assertion, the court never questioned him about his employment status, financial situation, or
ability to pay a fee for court-appointed counsel. Instead, the court imposed the $1250 fee for
court-appointed counsel. We do not agree with defendant that Somers is distinguishable
because the supreme court could have easily stated “some sort of a hearing” must at minimum
include a slight inquiry about the defendant’s ability to pay the fee, but it did not do so. Id.
¶ 96 In this case, defendant appeared before the trial court with his retained counsel after having
been initially represented by the public defender. The State sought to introduce the public
defender’s affidavit of services on defendant’s behalf, and defendant’s retained counsel and
the court discussed defendant’s posting of bond. This exchange between defendant’s retained
counsel and the court did constitute “some sort of a hearing.” Id. Although the hearing was
inadequate, the situation here is distinguishable from one where a court sua sponte addresses
and assesses a fee in a docket entry or written order. See People v. Aguirre-Alarcon, 2016 IL
App (4th) 140455, ¶ 17, 59 N.E.3d 229 (where the court sua sponte assessed a fee for
court-appointed counsel in a supplemental sentencing order without the parties’ knowledge).
¶ 97 Accordingly, we vacate the trial court’s imposition of $1250 fee for court-appointed
counsel and remand with directions that the court conduct a hearing pursuant to section
113-3.1 of the Code.
¶ 98 III. CONCLUSION
¶ 99 For the foregoing reasons, we affirm defendant’s conviction, vacate defendant’s $1250 fee
for court-appointed counsel, and remand for further proceedings.
¶ 100 Affirmed in part and vacated in part; cause remanded.
¶ 101 JUSTICE TURNER, specially concurring.
¶ 102 While I concur in the majority’s opinion, I write separately to express that I take no part in
the majority’s brief discussion in paragraph 73. It is unnecessary for the resolution of this case
and contrary to the views that I have previously expressed regarding the issue of construing
section 115-10. See Johnson, 2016 IL App (4th) 150004, ¶¶ 92-95, 55 N.E.3d 32 (Turner, J.,
specially concurring).
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