The opinion
2025 IL App (1st) 230772
No. 1-23-0772
Opinion filed December 23 , 2025
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 20 CR 60014
)
LONDRE BROWN, ) The Honorable
) Peggy Chiampas,
Defendant-Appellant. ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.
Presiding Justice Mitchell and Justice Tailor concurred in the judgment and
opinion.
OPINION
¶1 Defendant Londre Brown was convicted by a jury of two counts of aggravated criminal
sexual assault and one count of aggravated battery of a person 60 years of age or older. The trial
court sentenced defendant to consecutive 27-year terms for the assault counts and a concurrent 10-
year sentence for the aggravated battery, for a total of 54 years with the Department of Corrections
(IDOC). The victim, E.M., who was born on December 11, 1928, was 91 years old at the time of
the offense and died prior to trial.
No. 1-23-0772
¶2 On this direct appeal, defendant claims (1) that the trial court’s admission of testimonial
out-of-court statements by E.M. to a paramedic, to medical personnel, and to a police detective
violated defendant’s constitutional right to confrontation; (2) that the trial court erred when it
found that other out-of-court statements by E.M., namely to a neighbor and to a responding police
officer, were admissible both as excited utterances and statements made for the purpose of medical
diagnosis; (3) that his counsel’s representation was constitutionally ineffective for failing to
introduce evidence promised to the jury during his opening statement; (4) that the trial court
committed plain error when it denied defense counsel’s request for a nonpattern jury instruction,
which concerned the impact of prior inconsistent statements on the believability of the
nontestifying victim; and (5) that defendant’s 54-year sentence was excessive for a 58-year-old in
ill health.
¶3 On appeal, with respect to the second issue, the State argues only that these statements
were admissible as excited utterances, thereby effectively conceding that they were not statements
made for medical diagnosis. With respect to the third issue, the State concedes that defense counsel
did make promises in his opening statement that he did not keep; however, the State argues that
this error was harmless in light of the overwhelming evidence against defendant. With respect to
the fourth issue, defendant concedes that he failed to preserve this issue for appellate review and,
thus, only plain-error review is available.
¶4 For the following reasons, we affirm.
¶5 BACKGROUND
¶6 At trial, Elease Dobbs testified that the victim, who was her grandmother, lived alone.
The victim had lived for over 15 years in a Chicago Housing Authority (CHA) home. 1 Because
1
CHA surveillance tapes were introduced at trial.
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the offense occurred in the victim’s home, Dobbs explained the layout of the residence to the jury.
When you opened the victim’s front door, the stairway was in front of you. The kitchen, dining
room, and living room were on the first floor, and the stairway led upstairs to three bedrooms and
a bathroom. On December 8, 2019, when Dobbs was visiting her grandmother, defendant knocked
on the door. Dobbs told him to stop coming around to her grandmother’s door trying to sell her
things. Defendant said he would come back, and Dobbs replied that, if he did that, he would have
her husband to deal with.
¶7 Dobbs visited her grandmother again on December 12, 2019, the day before the
offense. Her grandmother was walking through the house, without a limp or cuts. The glass coffee
table was intact, and there was no blood on the rug or on the wall. The next day, December 13,
Dobbs learned that her grandmother had been taken to the hospital, and Dobbs visited her in the
intensive care unit. Dobbs testified that her grandmother did not look like her grandmother and
had gashes, bite marks, and bruises. Dobbs testified that the victim had an injury from her
cheekbone to her ear; gashes and bite marks “out of her leg”; bruises on her back, arm, and leg;
and an injury on her finger that was bleeding. The victim was crying and looked sad and
“defeated,” and she remained in the hospital for three days.
¶8 Dobbs testified that, after the victim was released from the hospital, she never went
back to live in her own home in Chicago and instead went to live at Dobbs’s daughter’s house in
a suburb. Dobbs identified photos of the victim taken while the victim was in the hospital, which
were admitted into evidence with no objection. Using the photos, Dobbs pointed out an abrasion
and bruise on the victim’s shoulder, a large open wound below the victim’s ear, an abrasion on the
victim’s face, scrapes on her neck, a large gash wound on the victim’s arm, bruises on the arm, a
gash on her inner thigh, scars on her leg, an injured finger, and scrapes and bruising on her back.
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Dobbs testified that the victim did not have any of these injuries when she visited the victim on
December 12 but that Dobbs observed these injuries when she visited the victim the following day,
on December 13.
¶9 Dobbs identified photos of her grandmother’s home, including a broken coffee table.
Dobbs explained that the base was a ceramic elephant with a thick piece of circular glass on top.
In the photo, the table is turned over and broken. Dobbs testified that the table was not broken
when she visited on December 12, 2019. Dobbs also testified that the blood stain on the rug and
next to the table, which was depicted in a photo, was also not present on December 12 and neither
were the red marks on the walls by the stairs.
¶ 10 The State played a portion of a CHA surveillance video from December 13, 2019, and
Dobbs identified her grandmother exiting her house and limping across the street with one shoe
on. On cross-examination, Dobbs testified that the glass top of the coffee table was affixed to the
base of the table with four suction cups. Dobbs admitted that, when she visited her grandmother
on December 12, the victim wore long sleeves and leggings. However, Dobbs testified that she
had joked with her grandmother and picked her grandmother up saying that Dobbs was now bigger
than her and so “you can’t hit me with the switch anymore.” Dobbs testified that, if her
grandmother had been hurt, Dobbs would not have been able to pick her up. The victim told Dobbs
to put her down and then asked: “You want to eat?”
¶ 11 Bobby Cain, the victim’s neighbor, testified that at 8 p.m. on December 13, 2019, he
was at home with his mother, when the victim rang their doorbell and then started knocking on
their window. When he opened the door to the victim, who lived across the street, he could see
that she was hysterical, and he had never seen her like that. The victim kept repeating: “ ‘I been
raped. And he still in my house. I been raped. He still in my house.’ ” The victim asked him to call
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the police, which he did. Cain noticed that her hand was bleeding. While he was on the phone with
the police, the victim kept loudly repeating that “ ‘If I had my motherf*** gun, I would have shot
his ass.” While they were waiting for the police, Cain looked across the street and observed a figure
in the victim’s doorway. The figure said “ ‘[First name]. [First name], baby, where you went to?
Where you went to, [first name]? Where you go?’ ” Cain recognized the voice as defendant’s
voice.
¶ 12 Cain testified that he had known defendant ever since Cain was little. Cain said that
they used to play ball together and that defendant had taught Cain “how to stay out of trouble.”
Cain had seen defendant selling things to people in the neighborhood, and defendant had sold stuff
to Cain. When the police arrived, they escorted the victim across the street, and Cain cleaned up
the blood that was on his phone, floor, and table.
¶ 13 On cross-examination, Cain testified that, when the victim arrived at his door, she had
one shoe on and one shoe off. Defense counsel asked if, part of the time, the victim was saying
“ ‘[h]e raped me’ ” and if part of the time she was saying “ ‘[h]e tried to rape me.’ ” But Cain said
“Naw.” Counsel asked if, when Cain provided a videotaped statement to the police, Cain had said
that the victim had said “tried” at some point, and Cain said “Naw.” The last time that Cain had
seen the victim before December 13 was the week before when he took her to the store to buy
some fish. In the month before December 13, Cain had seen defendant at the victim’s house, when
defendant was trying to sell stuff.
¶ 14 Officer Todd Olsen, a 27-year veteran with the Chicago police force, testified that at
8:10 p.m. on December 13, 2019, he received an assignment, with his partner, Rafael Borja, to
respond to a sexual assault call. When they pulled up and Officer Olsen exited their vehicle, he
was approached by a frantic elderly woman with one shoe on and one shoe off and with blood
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coming from the area of her left ear. The victim stated that she had been raped and the offender
was in her home. Olsen then went across the street to her home with his partner and the victim.
They opened the door, and Olsen yelled for anyone inside to exit. Olsen then observed defendant
at the top of the stairs, and the victim yelled “That’s him” and “He raped me.” Olsen instructed
defendant to come down and instructed the victim to stay outside for safety reasons. Olsen placed
defendant in handcuffs and had defendant sit on the living-room couch. In front of the couch, Olsen
observed that a coffee table was flipped over, with its porcelain pedestal damaged and pieces of it
lying in the living room. In response to Olsen’s call for an ambulance, paramedics arrived and took
the victim to an ambulance.
¶ 15 The State played the portion of the CHA surveillance tape that depicted his arrival, his
conversation with the victim, and their walking over to her home. Officer Olsen identified the
people depicted on the video. On cross-examination, counsel asked if the victim told Olsen that
the offender had used a firearm in the assault; Olsen answered ambiguously “Yes. That was the
call that came out.” Olsen did a cursory search for a firearm in the house, by himself and without
his partner, but did not find one. On redirect examination, Olsen explained that, by “cursory,” he
meant that he did “a quick look with my eyes” but did not disturb anything. There was a room
filled with storage items upstairs, and he just put his “head in there and looked.”
¶ 16 On redirect examination, Olsen testified that the victim told him specifically that the
offender had “stuck his penis in her mouth and vagina.” 2
2
In his appellate brief, defendant argues that “Officer Olsen testified that [the victim] said
[defendant] ‘raped’ her *** but *** did not testify that [the victim’s] allegation was based on oral or
vaginal penetration.” However, Olsen’s testimony on redirect examination indicates both oral and
vaginal penetration.
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No. 1-23-0772
¶ 17 Christopher Daly, a paramedic, testified that, on December 13, 2019, at approximately
8:30 p.m. when he arrived at the scene, he observed an elderly woman sitting at the top of the
stairs, who was “stressed out” and “near hysterical.” The victim did not want anyone to touch her;
she was “shaking” and “very scared.” Daly’s partner, Anthony Hoard, coaxed her down the stairs.
After the victim stepped outside, she sat in a chair they had brought, and they took her to the
ambulance. Her demeanor in the ambulance was the same as it had been at the top of stairs:
“anxious, nervous, seemed very scared.” Daly explained that, because he was the paramedic, he
assessed the patient while his partner did the documentation. While Daly was assessing her and
asking, “what happened,” the victim said that defendant had bitten her and had “stuck his penis in
her mouth.” The victim said defendant was holding her down and she was fighting him off and
“that’s why she was hurt all over.”
¶ 18 Daly described the injuries he observed, including a very deep cut in her right thigh
that seemed almost to the bone. Daly explained that doctors at the hospital would want to know
how big the knife was, what kind of knife was used, and whether it was clean or dirty. For this
reason, Daly went back inside the victim’s house and asked defendant “ ‘What kind of knife did
you use to cut her?’ ” Defendant replied: “ ‘I didn’t use a knife. I bit her.’ ” Daly described
defendant’s demeanor as “[a]lmost smug,” like he “didn’t care.” After speaking with defendant,
Daly returned to the ambulance. Because of “her demeanor and her mental state, we didn’t want
to do too much.” As a result, he lightly covered her wounds and transported her to the hospital.
Using the photos of the victim that were previously introduced during Dobbs’s testimony, Daly
described the victim’s injuries. Describing the large deep wound on her leg that prompted him to
ask about a knife, Daly noted that you could “see the fatty tissue going all the way down” and the
wound “goes down pretty deep.”
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No. 1-23-0772
¶ 19 On cross-examination, Daly explained the process by which he and his partner usually
write a report. He explained that his partner generates the report with information, such as the
patient’s condition and vital signs, which will be relayed to the doctors. Daly then reads the report
over and signs off on it. When asked if the report includes information for a police investigation,
Daly replied: “If it needs to happen that way.” On redirect examination, the State played the CHA
surveillance video, and Daly identified himself entering the victim’s residence a second time to
ask about a knife.
¶ 20 Nurse Manda Baker testified that on December 13, 2019, at 10:10 p.m., she was
working in a hospital trauma unit, when she encountered the victim, who had first been brought to
the emergency room and then transferred to the trauma unit. Baker described the victim as “pretty
hysterical, crying, very upset.” Baker testified that the victim, who had injuries all over her body,
reported that she had a bite mark to her right inner thigh. The victim stated that her neighbor had
attacked her and bit her in multiple places and that she was vaginally penetrated with his penis.
Nurse Baker was present both when the victim was examined by a sexual assault nurse examiner
and when a technician from the Chicago Police Department came to take photos. The nurse then
reviewed the photos that had already been described and reviewed by Dobbs and Daly.
¶ 21 On cross-examination, Baker acknowledged that her notes reflected that the victim told
her that the offender put a gun in her mouth. Baker had called nurse Nicole Mattes to do the sexual
assault kit in this case, and Baker acknowledged that this was for evidence collection. When Mattes
came to do the kit, the victim had not yet been bandaged, and the sutures had not yet been done,
but her condition was stable.
¶ 22 Nicole Mattes, the sexual assault nurse examiner, testified that she first encountered
the victim in the trauma unit on December 13, 2019, at 11 p.m. The victim was “crying, basically
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No. 1-23-0772
traumatized for what just happened to her.” The victim stated that a man she knew from the
neighborhood came to her door trying to sell her some socks and that, when she tried to close the
door, he knocked her over with his fists and hit her. The victim stated that he bit her, raped her,
and stuck a gun in her mouth. The victim stated that she was bitten on her right forearm, her left
cheek, and her right inner thigh. Nurse Mattes recorded the victim’s numerous injuries in the rape
kit, including the bite marks on the victim’s left cheek, right inner thigh, and right arm.
¶ 23 Mattes testified that she did a vaginal exam, which revealed blood in the victim’s
vaginal vault. Mattes explained that the vaginal vault was the “tunnel” between the vaginal opening
and the cervix. Mattes explained that, in a postmenopausal woman, “blood can indicate that there’s
either some sort of friction or trauma.” Mattes testified that blood was consistent with trauma. In
addition to the blood in the victim’s vagina, Mattes observed an abrasion to the victim’s “posterior
fourchette.” Mattes explained that, if you look at the vaginal opening as a clock, the posterior
fourchette is the skin at 6 o’clock. Mattes testified that the abrasion to the posterior fourchette was
also consistent with trauma.
¶ 24 As part of the kit, Mattes collected swabs from the interior and exterior of the victim’s
vagina, her anus, and her mouth and bite marks on her right arm, her left cheek, her right thigh,
and her ear. When Mattes later received the victim’s clothing from the emergency room, Mattes
recovered from the pocket of the victim’s sweater an Illinois state identification card and a Ventra
card, both bearing defendant’s name. On cross-examination, counsel noted that a form in the kit
asked if the victim had oral contact with the offender’s penis and that Mattes had indicated that it
was not applicable. Mattes agreed that this was on the form. The form also asked if the offender
had oral contact with the victim’s vagina, and Mattes had originally marked “ ‘No’ ” and then
crossed that out and initialed it and marked it also as not applicable. The victim said that the
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No. 1-23-0772
offender had stuck a gun in her mouth, and Mattes made a note that it was a .38-caliber gun. On
redirect examination, Mattes testified that, where she had written “NA” by the question of whether
the victim had oral contact with the offender’s penis, “it was a mistake.” On recross-examination,
Mattes acknowledged that she had made a mistake about the oral contact question and that she had
also made a mistake when she filled out the date.
¶ 25 The State introduced certified copies of the victim’s birth and death certificates, which
were admitted without objection and which indicated that the victim was born in 1928 and died on
May 14, 2020, five months after this offense.
¶ 26 The State then called Dr. Tai Holland, who testified that, after completing medical
school, he completed an orthopedic surgery residency at Rush Medical Center. As part of his
residency and training, he rotated through different hospitals and different specialties. While a
resident, he rotated through a trauma unit, where he encountered the victim on December 13, 2019,
at 10:10 p.m. When he saw her, she had already been released from the emergency room to the
trauma unit. Dr. Holland reported that the victim was alert and responding appropriately to
questions, although “very distressed.” The victim stated that she had been raped and that she was
in pain. However, Dr. Holland found that she was “medically stable.” Dr. Holland explained that,
as part of a primary survey, the victim had been evaluated for cardiac issues and issues with
breathing and circulation. The victim also had no head trauma. He then proceeded with a secondary
survey, which assessed every injury.
¶ 27 Dr. Holland testified that he asked the victim what happened and she stated that
somebody was at her door, trying to sell her socks, and when she declined, the man forced entry
into her home. She was knocked on her back; he was on top; he had a gun and put it in her mouth.
The offender was hitting and biting her and raped her. Dr. Holland asked what she meant by the
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term “ ‘rape,’ ” and she said that he had placed his penis in her vagina and in her mouth. After the
victim’s wounds were thoroughly washed, he closed the deeper lacerations with sutures.
¶ 28 Dr. Holland then reviewed the injuries documented by the same set of photos that other
witnesses had reviewed. With respect to a wound below the victim’s ear, the doctor explained that
it was “pretty deep,” cutting through the skin layer into the connective tissue below it. He noted
that the wound had a semicircular area that lacked “clean skin edges.” The wound looked like “a
component of puncture wounds throughout the edge” with “a void of tissue” in the center.
¶ 29 Dr. Holland noted that on the victim’s cheek, lower down on her jaw, there was
“another semicircular patterned wound that’s less deep.” Higher up on her cheek, there was yet
another semicircular wound, which was mostly a bruise but that did break the skin at one point.
On her left shoulder, there was an abrasion surrounded by bruising. Her right forearm contained
yet another semicircular wound, which also appeared to be “a mixture of puncture wounds along
the rim of it.” Dr. Holland testified that the semicircular wounds were consistent with bite wounds
and that the victim had stated that “she was bitten all over.”
¶ 30 Dr. Holland stated that the victim’s most significant wound in size and depth was the
wound on her right thigh. Part of the wound was deep; evidence of its depth was the fact that the
viewer could see the “fat globules” or “subcutaneous fat” that is “below the level of the skin
dermis.” Dr. Holland believed this was a bite wound and the victim had mentioned that she had
bite wounds on her thigh, so “those two things together matched up for me.” The doctor noted
other wounds on her leg that were not as deep but appeared to be potential bite wounds based on
the irregular edges. Dr. Holland noted injuries on the victim’s back but that it was hard to say what
had caused them. However, they were consistent with bite wounds as well. Dr. Holland identified
injuries to her middle finger as shown in a photo and said there was further injury to the side of
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No. 1-23-0772
her hand, which was not in the photo. On cross-examination, Dr. Holland stated that he examined
the victim’s mouth and found no signs of injury in her mouth.
¶ 31 Officer Vincent Cervenka, an evidence technician with the Chicago Police Department,
testified that on December 13, 2019, he received an assignment to process a sexual assault crime
scene and that he arrived just before midnight. Officer Cervenka walked through the residence,
labeling certain areas as evidence and then taking photographs. Next he collected evidence, such
as swabbing suspect blood stains and processing the broken coffee table for fingerprints. The
officer identified the photos that he had taken and the suspected blood stains depicted in them. The
officer also went with Detective Combs to the hospital and photographed the victim’s injuries.
¶ 32 Detective Robert Combs testified that on December 13, 2019, he and his partner,
Detective Andrew Neberieza, received an assignment regarding a sexual assault with the offender
in custody. First they went to the hospital to make contact with the staff there and establish the
status of the victim. Then they went to the victim’s three-bedroom residence. Two of the bedrooms
were being used as storage units and were filled almost in their “entirety.” The remaining bedroom,
which was clearly being used as a bedroom, also contained “a large amount of personal property.”
After meeting with the evidence technician, they went to the trauma unit of the hospital, where
they met with the victim and the sexual assault nurse examiner. The victim told him something
that made him return to the residence, namely that the offender had a gun. Although the detective
returned to the residence, he could not find a gun, so he returned to the hospital again to meet with
the victim. When he returned, the victim told him that she also had a gun. The detective returned
to her residence, located her gun, secured it, and inventoried it, but he was still unable to locate the
offender’s gun.
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¶ 33 Detective Combs testified that in the late afternoon or early evening on December 14,
2019, he and an assistant state’s attorney (ASA) met with the victim. He described her condition
at that time:
“She was incredibly exhausted. I don’t think that she had any opportunity to sleep from
the night before between treatment and the amount of pain that she was in. She had
been medicated for pain, but she was still responsive and gave clear and lucid
answers[.]”
When he asked her again “about the firearm,” she said, “there wasn’t one,” and then she fell asleep.
¶ 34 Detective Combs testified that he obtained the CHA surveillance video for the victim’s
residence for the time period from 7:15 to 9:05 p.m. on December 13, 2019. In a clip from 7:27
p.m. to 7:37 p.m., the video showed someone on the front porch of the victim’s residence and then
entering it. At 8:04 p.m., someone exits the residence and walks across the street. At 8:05 p.m.,
someone sticks their head out of the residence’s doorway. At 8:15 p.m., a police squad arrived on
the scene. At 8:30 p.m. the paramedics arrived. At 8:45 p.m., while the paramedics were still on
the scene, someone walked in and out of the victim’s residence. At 8:59 p.m., the video showed
defendant being brought out of the residence and placed in the squad car and the squad car leaving
the scene.
¶ 35 Detective Combs testified that, when he returned to the victim’s home to look for
weapons, there was a room he could not gain access to because it was too full of possessions. The
floor was entirely covered, and the door was blocked. On December 14, 2019, he met with nurse
Mattes, who had recovered a state of Illinois identification card and a Chicago Transit Authority
Ventra card, both bearing defendant’s name, and he inventoried them.
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No. 1-23-0772
¶ 36 On cross-examination, defense counsel asked if, during the first time that the detective
spoke with the victim on December 13, 2019, she had told him that the offender “placed the barrel
of a chrome firearm in her mouth and dragged her up the stairs to her bedroom.” After reviewing
his report, Detective Combs acknowledged that the victim had made that statement to him at that
time. Although he looked for it, he did not find a chrome firearm. When the victim indicated that
she had a gun, she stated her gun was black and the offender’s gun was chrome. The victim told
him that her gun was in a black bag and where it was, namely on a table in the dining area. Later,
the victim told him that the offender did not have a gun.
¶ 37 On redirect examination, the State asked if the victim had told the detective other things
about her offender, besides having inserted a gun into her mouth. The detective acknowledged that
the victim told him that the offender “stuck his d*** in my mouth and tried to choke me with it.”
The victim also related that “he beat me, he dragged me upstairs, and then he raped me.”
¶ 38 The parties stipulated that a proper chain of custody was maintained at all times for the
sexual assault kit, that a technician obtained fingerprints from defendant and those prints were
transported to the Forensic Services Division of the Chicago Police Department, that a buccal swab
standard was obtained from defendant for DNA analysis, and that a fingerprint examiner compared
defendant’s prints to a print lifted from the glass top of the table in the victim’s living room and
the print on the table originated with defendant’s right ring finger.
¶ 39 The parties further stipulated that a forensic DNA scientist with the Illinois State Police
received defendant’s buccal swab and the sexual assault kit that contained, among other things,
the vaginal, oral and anal swabs collected from the victim. The scientist would testify that, when
semen may be present, they use “a differential extraction,” which “attempts to separate out sperm
cells from other cells in the sample.” Two tubes of DNA result from this process, which are called
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No. 1-23-0772
“the non-sperm fraction and the sperm fraction.” The scientist would “testify that male DNA was
depicted in the non-sperm fraction from the vaginal swabs; however, there was too much female
DNA to be able to detect the DNA profile of any males in the sample.” “No male DNA was
detected in the sperm fraction from the vaginal swabs.”
¶ 40 The parties stipulated that the scientist “would testify that male DNA was also detected
in the non-sperm fraction from the oral swabs.” However, “there was too much female DNA to be
able to detect the DNA profile from any males in the sample.” “No male DNA was detected in the
sperm fraction from the oral swabs.” “[N]o male DNA was detected in the non-sperm or sperm
fractions from the anal swabs.”
¶ 41 With respect to the swabs from the right thigh, left ear, and right arm, “[m]ale DNA
was detected in each of the sets of swabs.” However, “there was too much female DNA to detect
the DNA profile from any males in the samples.”
¶ 42 The parties stipulated that another DNA scientist with the Illinois State Police would
testify that she tested other swabs from the victim’s ear and arm and that male DNA was detected
in both samples. However, there was too much female DNA to be able to detect the DNA profile
from any males. The scientist also tested the swabs of suspected blood. A swab from the living
room rug indicated a DNA mixture of two people. A major female DNA profile was identified,
and the victim was “included as a donor.” Defendant was “included as a possible donor” of the
minor DNA profile. With respect to the swabs from the stairwell and from the wall by the
bathroom, the victim was “included as a donor of the female DNA profile.”
¶ 43 Karen Anninanti, a DNA forensic scientist with the Illinois State Police crime lab, was
found by the court, without objection, to be qualified to testify as an expert in forensic DNA
analysis. She testified that she performed “Y-STR DNA analysis,” which is also called “Y
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No. 1-23-0772
chromosome DNA analysis,” and which focuses only on the Y chromosome that only males have.
The scientist explained that this type of testing is used when there is a high amount of female DNA
to a low amount of male DNA. With Y chromosome DNA analysis, she looks “at up to 23 different
locations” on “the Y chromosome.” In the case at bar, she was not able to identify a profile for the
sperm fractions from the vaginal and oral swabs. But she was able to identify a male profile at all
23 locations, for the nonsperm fraction of the vaginal swabs. When she compared this profile to
defendant’s profile, he was “included,” which meant that defendant “could be the donor.” She
testified that “this profile would be expected to occur in approximately one in 2800 unrelated white
males, one in 1500 unrelated black males or one in 2000 unrelated Hispanic males based on a 95
percent confidence limit.”
¶ 44 The scientist testified that, for the nonsperm fraction from the oral swabs, she was able
to identify a male profile at 19 locations. When she compared this partial profile to defendant’s
profile, he was “included.” She testified that the frequency was the same as for the prior profile,
namely, approximately 1 in 2,800 unrelated White males, 1 in 1,500 unrelated Black males, or 1
in 2,000 unrelated Hispanic males.
¶ 45 With respect to the swabs from the victim’s thigh, she was able to identify a male
profile at all 23 locations, and defendant was included, meaning that it was “possibl[e]” that he
could be the donor. The frequency was the same as for the two prior profiles. With respect to two
swabs from the victim’s ear, she again was able to identify a male profile at all 23 locations, and
defendant was included, with the same expected frequency as above for White and Hispanic males,
but for 1 in 1,400 unrelated Black males. With respect to the first arm swab, she located a profile
at all locations, but with the second swab, she identified a male profile at only 17 locations.
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Defendant was included with both but with a different frequency, namely 1 in 1,100 unrelated
Black males for the first swab and 1 in 670 unrelated Black males for the second swab.
¶ 46 On cross-examination, the scientist acknowledged that very distantly related males may
have the same Y chromosome DNA.
¶ 47 The State rested, and defendant exercised his right not to testify. After listening to
closing arguments and jury instructions and deliberating, the jury acquitted defendant of home
invasion but found him guilty of two counts of aggravated criminal sexual assault and one count
of aggravated battery to a person 60 years or older.
¶ 48 ANALYSIS
¶ 49 I. Order of Issues
¶ 50 Although the parties on appeal briefed the confrontation clause issue (see U.S. Const.,
amend. VI) first in their briefs to us, we do not address it first. We address the issues in a different
order because our supreme court has emphasized, time and time again, that constitutional issues
should be addressed last and that cases should be resolved on nonconstitutional grounds, if
possible. See People v. Melchor, 226 Ill. 2d 24, 34-35 (2007) (vacated appellate court opinion and
remanded with instructions to consider the hearsay exception first before proceeding to the sixth
amendment issue); In re E.H., 224 Ill. 2d 172, 178 (2006) (“We have repeatedly stated that cases
should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues
only as a last resort.”).
¶ 51 On appeal, defendant challenges some of the victim’s statements on confrontation
clause grounds and some on the ground of not qualifying under a hearsay exception. However, he
does not challenge any one statement on both grounds. The statements that he challenges solely
on confrontation clause grounds were those made to a paramedic and to medical personnel. The
17
No. 1-23-0772
statements that he challenges solely on hearsay grounds were made to the victim’s neighbor,
Bobby Cain, and to the responding officer, Officer Todd Olsen.
¶ 52 Striving to avoid constitutional issues where possible, we address defendant’s appellate
issues in the following order: (1) the admission of statements to the paramedic and medical
personnel under the excited utterance exception to the hearsay rule, (2) the trial court’s allegedly
plain error in denying a nonpattern jury instruction, (3) the allegedly constitutionally defective
assistance of trial counsel, (4) the alleged confrontation clause violations, and (5) the allegedly
excessive sentence of the 58-year-old defendant. Obviously, we address the sentencing issue after
the trial issues, as there would be no need to address defendant’s sentencing if a trial issue required
reversal.
¶ 53 II. The Excited Utterance Exception to the Hearsay Rule
¶ 54 Defendant argues that the admission of certain statements violated the rule against
hearsay. “The rule against hearsay generally prevents the introduction at trial of out-of-court
statements offered to prove the truth of the matter asserted.” People v. Spicer, 379 Ill. App. 3d 441,
449 (2007); Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). However, the rule has so many exceptions
that it sometimes seems more hole than cheese. See Spicer, 379 Ill. App. 3d at 449 (“[T]he rule
has many exceptions.”). One of those exceptions is the excited utterance exception at issue here.
Ill. R. Evid. 803(2) (eff. Jan. 25, 2023).
¶ 55 The State, as the proponent of the evidence, bore the burden at trial of proving the
necessary elements for admissibility. People v. Torres, 2012 IL 111302, ¶ 53. On appeal, a
deferential standard of review usually applies when a trial court has decided whether a statement
meets the requirement of a hearsay exception. See People v. Perkins, 2018 IL App (1st) 133981,
¶ 53 (citing Spicer, 379 Ill. App. 3d at 449). In the limited and unusual situation where a trial court
18
No. 1-23-0772
misinterpreted what the language of the exception required, this court may apply de novo review.
See Perkins, 2018 IL App (1st) 133981, ¶ 53. However, that is not the argument being made here.
“Rather, defendant argues that, pursuant to the specific facts of this case, the trial court improperly
found the statements fell within the statutory hearsay exceptions.” Perkins, 2018 IL App (1st)
133981, ¶ 53. In such a case, “we will reverse the trial court’s hearsay ruling only for an abuse of
discretion.” Perkins, 2018 IL App (1st) 133981, ¶ 53. An abuse of discretion occurs where the trial
court’s ruling is arbitrary, fanciful, or unreasonable or where no reasonable person could take the
view adopted by the trial court. People v. Jones, 2025 IL App (1st) 230771, ¶ 116; Perkins, 2018
IL App (1st) 133981, ¶ 53.
¶ 56 In the case at bar, the trial court admitted out-of-court statements by the victim to a
neighbor and to a responding police officer as both (1) excited utterances and (2) statements made
for the purpose of medical diagnosis. However, on appeal, the State does not make any arguments
under the latter exception, so we turn our attention to the former.
¶ 57 The “Excited Utterance” exception permits the introduction of “[a] statement relating
to a startling event or condition made while the declarant was under the stress of excitement caused
by the event or condition.” Ill. R. Evid. 803(2) (eff. Jan. 25, 2023). For a hearsay statement to be
admissible under this exception, our supreme court has set forth three “must” requirements:
(1) “there must be an occurrence sufficiently startling to produce a spontaneous and unreflecting
statement,” (2) “there must be an absence of time for the declarant to fabricate the statement,” and
(3) “the statement must relate to the circumstances of the occurrence.” (Emphases added.) People
v. Sutton, 233 Ill. 2d 89, 107 (2009); People v. Williams, 193 Ill. 2d 306, 352 (2000); Jones, 2025
IL App (1st) 230771, ¶ 114; People v. Morales, 2021 IL App (2d) 190408, ¶ 12.
19
No. 1-23-0772
¶ 58 To determine whether these three requirements have been met, courts look at the
totality of the circumstances, “including time, the mental and physical condition of the declarant,
the nature of the event, and the presence or absence of self-interest.” Sutton, 233 Ill. 2d at 107.
With respect to the absence-of-time requirement noted above, our supreme court has stated that
“[t]he period of time that may pass without affecting the admissibility of a statement varies
greatly.” Sutton, 233 Ill. 2d at 107. The key question to ask with respect to time is whether the
statement was made while the excitement of the event still predominated. Sutton, 233 Ill. 2d at
107-08. In Sutton, for example, the defendant argued that several minutes had passed before the
police arrived, thereby giving the victim an opportunity to fabricate. Sutton, 233 Ill. 2d at 108.
Rejecting this argument, the supreme court noted that the victim was staggering, bleeding from
the head, and banging on doors looking for help. Under these circumstances, the court found “it
inconceivable that [the victim] would have spent the minutes before the officers arrived attempting
to fabricate a statement about the event.” Sutton, 233 Ill. 2d at 108.
¶ 59 On appeal, defendant has identified the following statements that he claims were not
excited utterances. First, Bobby Cain, the victim’s neighbor, testified that, at 8 p.m. on December
13, 2019, he was at home, where he lived with his 96-year-old mother, when the victim rang the
doorbell and knocked on their window. Cain was concerned because the victim had “never”
knocked on their window before. Cain testified that, when he opened the door, the victim was
hysterical and bleeding and stated “ ‘I been raped. And he still in my house. I been raped. He still
in my house.’ ” According to Cain, the victim kept repeating this statement. Defendant argues that
this part of Cain’s testimony should not have been admitted as an excited utterance.
¶ 60 Second, defendant argues that statements made by the victim to a responding police
officer were also not excited utterances. Cain described the few minutes before the police’s arrival,
20
No. 1-23-0772
noting that he was the one who had called them. Cain testified that, while he was on the phone
with the police, the victim kept repeating: “ ‘If I had my motherf*** gun, I would have shot his
ass.” Cain testified that the victim kept trying to grab the phone and that she was loud and
hysterical. According to Cain, the police arrived 15 or 20 minutes after he called.
¶ 61 Officer Todd Olsen testified that he responded to the sexual assault call, arriving at
8:15 p.m. After exiting his vehicle, he was approached by the victim, whom he described as
“frantic.” The victim stated that she had been raped and that the offender was still inside her home.
Officer Olsen and his partner then went across the street to her residence, opened the door, and
yelled for anyone inside to exit. Officer Olsen observed defendant at the top of the stairs, and the
victim, who was standing behind the officers, yelled “ ‘That’s him’ ” and “ ‘He raped me.’ ”
Defendant argues that these statements to Officer Olsen and to Cain were not excited utterances.
As noted above, Olsen also testified later on redirect examination that the victim told him
specifically that the offender “stuck his penis in her mouth and vagina.”
¶ 62 While acknowledging in his appellate brief that the victim made the contested
statements to both the officer and the neighbor “shortly after the incident,” defendant argues, first,
that the victim had time to fabricate, because she allegedly did fabricate another statement.
Defendant alleges that the victim (1) fabricated a statement to Officer Olsen and others that
defendant had used a gun and (2) then allegedly admitted lying about it. However, Officer Olsen’s
testimony is ambiguous about whether the victim told him personally that defendant had used a
gun:
“Q. Did she tell you that [defendant] used a firearm in this assault?
A. Yes. That was the call that came out.”
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No. 1-23-0772
Despite his “[y]es” answer, it is unclear from the above testimony whether the victim told him that
the victim had a gun or that he made that assumption because “[t]hat was the call that came out.”
Officer Olsen testified that he did only a cursory search for a gun and did not find one.
¶ 63 Defendant alleges that the victim lied not only to Officer Olsen but also to others about
the assailant’s use of a gun. With respect to the alleged gun, nurse Baker testified that she first
encountered the victim a couple of hours later, at 10:10 p.m. in the trauma ward, and that her notes
reflect that the victim stated that the assailant had put a gun in her mouth. Nurse Mattes, the sexual
assault nurse, testified that she first encountered the victim at 11 p.m. and that the victim told her
that the assailant had put a gun in her mouth. Dr. Holland, who was also part of the trauma team
with Nurse Baker, testified that he also first encountered the victim at 10:10 p.m. and that the
victim stated that the assailant had put a gun in her mouth. However, these statements, which were
made hours after the event, where there was time for reflection and possible fabrication, do not
bear on the admissibility of statements that were made hours earlier and only minutes after the
offense.
¶ 64 As for the victim’s alleged retraction, the facts are not as clear as defendant tries to
make them seem. Detective Combs testified that, late in the evening on December 13, he went to
the trauma unit at Stroger Hospital, where he met with the victim, who told him that the assailant
had a gun. The detective and his partner then returned to her packed home to search for a gun but
did not find one. They then returned to the hospital and informed the victim that they were not able
to find a gun. The victim responded that she owned a black gun, while the assailant’s gun was
chrome. They again returned to her home, located her black gun, and secured it but were unable
to locate the assailant’s chrome gun. In the early evening of December 14, the detective met again
with the victim, with an ASA. The detective testified that the victim was exhausted, had not had
22
No. 1-23-0772
any opportunity to sleep in the last 24 hours, was in pain, and was receiving pain medication but
was still able to give clear and lucid answers. When Detective Combs asked her about the
assailant’s gun, she said there was not one and then fell asleep.
¶ 65 Defendant argues that the victim’s alleged fabrication about the assailant’s gun shows
that she had time, in general, to fabricate. However, the State argues that it is not as clear as
defendant tries to make it seem that the victim stated to Officer Olsen that the assailant had a gun
or that she later affirmatively admitted lying about it to Detective Combs. As we noted above,
Officer Olsen’s testimony is ambiguous on this point, and Detective Combs testified that the
exhausted woman immediately fell asleep after saying there was not one. Unclear and hazy facts
about a possible fabrication are not enough to support finding an abuse of discretion in admitting
other statements.
¶ 66 Defendant also argues that the victim’s mental state was “particularly fragile” and that
her “mental and physical condition” weighed against admitting her statements to her neighbor and
the responding officer. The whole point of the “Excited Utterance” exception is that the declarant
is excited and still under the influence of the startling event and the “stress” that it caused. See Ill.
R. Evid. 803(2) (eff. Jan. 25, 2023) (an excited utterance is “[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement caused by the event
or condition”). We observe that the victim may have been 91, but she still insisted that, if she had
her gun, she could have shot her assailant’s “ass” off. Given these facts and the explicit
requirements of the exception, we cannot find that her mental and physical state is cause for finding
an abuse of discretion here.
¶ 67 Defendant argues that the victim also had a motive to embellish her version of events
to ensure prosecution of defendant, who had injured her that night. However, this argument could
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No. 1-23-0772
be made against almost every injured victim. Having carefully considered each of defendant’s
arguments, we do not find them persuasive.
¶ 68 Further, we note that defendant does not dispute two of the three “must have”
requirements for admission, namely, a startling event and a relationship between the remark and
the event. Sutton, 233 Ill. 2d at 107. As for the time requirement, the victim spoke to her neighbor
almost immediately after the event, and she was bleeding, ringing his door and knocking on his
window, similar to the victim in Sutton. Rejecting a similar time lapse argument, the supreme court
in Sutton noted that the victim in that case was staggering, bleeding, and banging on doors looking
for help. Under these circumstances, the supreme court found “it inconceivable that [the victim]
would have spent the minutes before the officers arrived attempting to fabricate a statement about
the event.” Sutton, 233 Ill. 2d at 108. In the case at bar, the responding officer arrived just 15
minutes later, when the victim was still “frantic” and, thus, still under the stress of the event, as
the rule requires. See Ill. R. Evid. 803(2) (eff. Jan. 25, 2023) (the declarant must be “under the
stress of excitement caused by the event”). Like the court in Sutton, we find an abuse of discretion
“inconceivable” on similar facts. See Sutton, 233 Ill. 2d at 108. For all the above reasons, we do
not find defendant’s arguments persuasive, and we cannot find an abuse of discretion by the trial
court in admitting the victim’s statements to her neighbor and the responding officer.
¶ 69 III. Denial of a Nonpattern Jury Instruction
¶ 70 A. Plain Error Doctrine
¶ 71 Defendant alleges that the trial court committed plain error by denying his request for
a nonpattern jury instruction. To preserve an issue for appellate review, a defendant must object
both at trial and in a posttrial motion. People v. Jackson, 2020 IL 124112, ¶ 81. A defendant’s
failure to do one or both results in forfeiture. People v. Sebby, 2017 IL 119445, ¶ 48. On appeal,
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No. 1-23-0772
defendant admits that, although his trial counsel submitted a proposed nonpattern jury instruction
to the trial court, his counsel failed to preserve the issue by including it in a posttrial motion.
Conceding his procedural default, defendant seeks review on appeal through the plain error
doctrine. “The doctrine serves as a narrow and limited exception to the general rule of procedural
default.” Jackson, 2020 IL 124112, ¶ 81.
¶ 72 The plain error doctrine permits a reviewing court to consider unpreserved error when
(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness
of the defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant alleges
error under both prongs and also alleges that counsel’s failure to preserve the issue is grounds for
finding him ineffective. 3 As for the plain error doctrine, the first step under either prong is to
determine whether a clear or obvious error occurred. Sebby, 2017 IL 119445, ¶ 49. In a plain error
analysis, it is the defendant who bears the burden of persuasion. Sebby, 2017 IL 119445, ¶ 51.
¶ 73 B. Standard of Review: Abuse of Discretion
¶ 74 As defendant acknowledges, on this issue, he has the burden of showing not only plain
error but also that the alleged error constituted an abuse of discretion. See People v. Avdic, 2023
IL App (1st) 210848, ¶ 34.
¶ 75 “The function of jury instructions is to provide the jury with accurate legal principles
to apply to the evidence so it can reach a correct conclusion.” People v. Pierce, 226 Ill. 2d 470,
3
Since we do not find error, we have no need to discuss it in the next section, which discusses
counsel’s alleged ineffectiveness.
25
No. 1-23-0772
475 (2007); People v. Hopp, 209 Ill. 2d 1, 8 (2004). “Although the giving of jury instructions is
generally reviewed for an abuse of discretion, when the question is whether the jury instructions
accurately conveyed to the jury the law applicable to the case, our review is de novo.” Pierce, 226
Ill. 2d at 475; see People v. Parker, 223 Ill. 2d 494, 501 (2006).
¶ 76 In the case at bar, defendant acknowledges that, in this case, our review is only for an
abuse of discretion. Defendant argues that the trial court abused its discretion by denying his
proposed nonpattern instruction because his proposed instruction accurately explained the law and
the pattern instruction given instead by the trial court did not make the same point. As already
noted above, we may find an abuse of discretion only if the trial court’s ruling was arbitrary,
fanciful, or unreasonable or where no reasonable person would take the view adopted by the trial
court. Jones, 2025 IL App (1st) 230771, ¶ 116; Perkins, 2018 IL App (1st) 133981, ¶ 53.
¶ 77 C. The Nonpattern Instruction at Issue
¶ 78 The trial court read into the record the nonpattern instruction requested by the defense:
“[T]he believability of a witness or a non-testifying hearsay declarant may be
challenged by evidence that on some former occasion he or she made a statement or
acted in a manner that was not consistent with his or her testimony or hearsay
declarations in this case. Evidence of this kind may be considered by you only for the
limited purpose of deciding the weight to be given the testimony you heard from the
witness or non-testifying declarant in the courtroom. It is for you to determine whether
the witness made the earlier statement and, if so, what weight should be given to that
statement[.] [I]n determining the weight to be given to an earlier statement, you should
consider all the circumstances under which it was made.”
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No. 1-23-0772
¶ 79 At the jury instruction conference, the State argued in response that (1) there was no
evidence that the victim “acted in a manner that was not consistent” with her statements and
(2) that the State’s proposed instruction No. 14 indicated that the believability of a witness may be
challenged by evidence that, on some former occasion, he or she made a statement that was not
consistent with his or her testimony in this case.
¶ 80 The State’s proposed instruction No. 14 was Illinois Pattern Jury Instructions, Criminal,
No. 3.11 (approved Oct. 17, 2014) (hereinafter IPI Criminal No. 3.11), titled “Prior Inconsistent
Statements.” When reading this instruction to the jury, the trial court stated as follows:
“The believability of a witness may be challenged by evidence that on some former
occasion he made a statement that was not consistent with his testimony in this case.
Evidence of this kind ordinarily may be considered by you only for the limited purpose
of deciding the weight to be given the testimony you heard from the witness in this
courtroom.
It is for you to determine whether the witness made the earlier statement, and, if so.
what weight should be given to that statement. In determining the weight to be given
to an earlier statement, you should consider all of the circumstances under which it was
made.”
¶ 81 On appeal, the State also notes that the trial court read IPI Criminal No. 1.02, “Jury Is
Sole Judge Of The Believability Of Witnesses.” When reading this instruction to the jury, the trial
court stated as follows:
“Only you are the judges of the believability of the witnesses and of the weight to be
given to the testimony of each of them.
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No. 1-23-0772
In considering the testimony of any witness, you may take into account his ability
and opportunity to observe, his memory, his manner while testifying, any interest, bias
or prejudice he may have, and the reasonableness of his testimony considered in the
light of all the evidence in the case.”
¶ 82 At the instruction conference, defense counsel argued that his proposed instruction used
essentially the same language from IPI Criminal No. 3.11 but that it added that the jury could
“consider the inconsistency with a non-testifying hearsay statement.” Defense counsel is correct
that his proposed instruction and the given pattern instruction are virtually identical, except for the
insertion of the phrases (1) “or a non-testifying hearsay declarant” and (2) “or hearsay declarations
in this case.” 4
¶ 83 The trial court observed that the law was “very clear” that pattern instructions are to be
favored in submitting instructions to the jury, that the State had submitted IPI Criminal No. 3.11,
and that the defense had not objected to it. The court then ruled that the State’s submitted pattern
instruction was “directly on point and addresses the argument made by the defense counsel in this
matter,” and for this reason, the trial court denied defendant’s proposed nonpattern instruction.
¶ 84 The trial court is correct that pattern instructions are favored, and defendant does not,
and cannot, dispute this point. Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that
the pattern instructions “shall be used” when the trial court determines that the jury should be
instructed on a subject, so long as the instruction is a correct statement of the law. See People v.
Pollock, 202 Ill. 2d 189, 212 (2002) (“As a general rule, where an appropriate IPI instruction exists
on a subject upon which the trial court has determined the jury should be instructed, the IPI must
4
Defendant’s proposed jury instruction also used “his or her,” whereas the trial court used
solely “his,” but defendant does not raise this point on appeal.
28
No. 1-23-0772
be used.”). A trial court may use a nonpattern instruction only if (1) there is no pattern instruction
on the subject and (2) the court has determined that it is a subject on which “the jury should be
instructed.” Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). When a nonpattern instruction is used, it
“should be simple, brief, impartial, and free from argument.” Ill. S. Ct. R. 451(a) (eff. Apr. 8,
2013); see Pollock, 202 Ill. 2d at 211-12 (a tendered nonpattern instruction must be “accurate,
simple, brief, impartial, and nonargumentative”). Further, we may affirm on any ground supported
by the record. People v. Brown, 2023 IL App (3d) 210460, ¶ 71.
¶ 85 For starters, the defense’s proposed instruction was not “simple.” See Ill. S. Ct. R.
451(a) (eff. Apr. 8, 2013). The instruction assumes that the average juror would understand what
is meant by “a non-testifying hearsay declarant.” Second, as the State argued at the instruction
conference and as we already discussed in the section above, it is far from clear that an inconsistent
statement by the now deceased victim was established, thereby reducing any call for such an
instruction. Lastly, defendant argues on appeal that the trial court did find a need for the subject
matter of his proposed instruction, although the trial court decided that the topic was already
covered by another instruction. However, the trial court did not state that it found a need for such
an instruction regarding a “non-testifying hearsay declarant,” i.e., the victim. For all these reasons,
we can find no abuse of discretion by the trial court. Without an abuse of discretion, there is no
cause for us to consider either the plain error doctrine or any alleged ineffectiveness of counsel on
this ground.
¶ 86 IV. Trial Counsel’s Assistance
¶ 87 Defendant alleges that his trial counsel was ineffective. To determine whether
defendant was denied his right to effective assistance of counsel, we apply the familiar two-prong
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d
29
No. 1-23-0772
504, 526-27 (1984) (adopting Strickland). Under Strickland, a defendant must prove both (1) that
his attorney’s actions constituted errors so serious as to fall below an objective standard of
reasonableness and (2) that, absent these errors, there was a reasonable probability that the
outcome of the proceeding would have been different. People v. Carlisle, 2015 IL App (1st)
131144, ¶ 71.
¶ 88 Under the first prong of the Strickland test, the defendant must prove that his counsel’s
performance fell below an objective standard of reasonableness, as measured against prevailing
professional norms. Carlisle, 2015 IL App (1st) 131144, ¶ 72; see People v. English, 2013 IL
112890, ¶ 34 (counsel’s assessment of the merits of an issue “depends on the state of the law at
the time” of the assessment). Under the second prong, the defendant must show that, “but for”
counsel’s deficient performance, there is a reasonable probability that the result of the proceeding
would have been different. (Internal quotation marks omitted.) Carlisle, 2015 IL App (1st) 131144,
¶ 72. “[A] reasonable probability that the result would have been different is a probability
sufficient to undermine confidence in the outcome—or put another way, that counsel’s deficient
performance rendered the result of the trial unreliable or fundamentally unfair.” People v. Evans,
209 Ill. 2d 194, 220 (2004).
¶ 89 To prevail, a defendant must satisfy both prongs of the Strickland test. Carlisle, 2015
IL App (1st) 131144, ¶ 73. Thus, if one of the two prongs is missing, we need not consider the
other one. Carlisle, 2015 IL App (1st) 131144, ¶ 73. In addition, our analysis does not have to
proceed in any particular order. In re D.F., 2025 IL App (1st) 240914, ¶ 106.
¶ 90 While we are not required to proceed in a particular order, we consider first the alleged
deficiency of counsel. When considering whether counsel’s performance was deficient, a
reviewing court keeps in mind “the wide range of reasonable professional assistance.” (Internal
30
No. 1-23-0772
quotation marks omitted.) People v. Patterson, 217 Ill. 2d 407, 441 (2005). “Generally, matters of
trial strategy will not support a claim of ineffective assistance of counsel unless counsel failed to
conduct any meaningful adversarial testing.” Patterson, 217 Ill. 2d at 441.
¶ 91 Defendant argues that his trial counsel rendered ineffective assistance when his counsel
promised evidence to the jury in his opening statement that did not materialize during trial.
Defendant claims that counsel promised (1) certain testimony by Cain and (2) testimony showing
that the victim made statements establishing that she did not recall what had happened.
¶ 92 First, defendant is correct that defense counsel promised certain testimony by Cain that
Cain did not testify to, as the following quotes show. During the defense’s opening statement to
the jury, defense counsel promised:
“You will hear from Mr. Cain. You will hear that Mr. Cain initially tells the police
‘He tried to rape me’; ‘He tried to rape me,’ were the words that Mr. Cain used when
he was interviewed by detectives. Later he says, Well maybe she said, ‘He raped me.
He raped me.’ But she’s not specific.” 5
However, during cross-examination, that is not what Cain testified to:
“Q. Now, she kind of kept repeating things over and over and over again, right?
A. Yep.
Q. And part of the time she said, ‘He raped me. He raped me. He raped me,’ right?
A. Yep.
Q. And part of the time she said, ‘He tried to rape me. He tried to rape me,’ correct?
A. Naw. ***.”
5
The quote marks and capitalization are given exactly as they appear in the transcript of the
trial.
31
No. 1-23-0772
Following up, defense counsel asked Cain if Cain later went to the police station and provided a
videotaped statement, and Cain acknowledged that he had. Defense counsel asked: “At any time
while you were speaking with those officers, did you characterize the statement that [the victim]
made as ‘He tried to rape me. He tried to rape me’?” To which, Cain again replied: “Naw.” Thus,
the above quotes from the transcript establish (1) that defense counsel promised certain testimony
during his opening statement and (2) that the witness did not testify as defense counsel had
promised.
¶ 93 On appeal, defendant argues that his counsel should have perfected his impeachment
of Cain by introducing Cain’s videotaped statement. However, instead of impeaching Cain,
defense counsel made the strategic decision to rely on Cain’s testimony during his closing
argument to the jury. During his closing, defense counsel chose to rely on Cain’s positive
testimony about defendant. Cain had testified that he had known defendant since they were kids,
that they had played ball together, and that defendant taught Cain how to stay out of trouble. Based
on this testimony and testimony like it, counsel argued during closing:
“You heard from Bobby Cain. And I would submit that Bobby Cain, he provided very
clear and unbiased testimony in this case. Bobby Cain told you that he knows
[defendant] from the neighborhood, they grew up together. And, certainly, Bobby Cain
gave us a picture of what this was like, what [defendant] was like, what he understands
from the neighborhood, what he understands from the [p]eople that are there. He has
his finger on the pulse of the block. [Defendant] is always around; people see him all
the time. He’s there on a daily basis. Cain knows him. His mother knows him. The
other neighbors know him. That’s important testimony and important evidence. And I
want you to consider it.”
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No. 1-23-0772
¶ 94 As we already noted above, strategic decisions by counsel are generally immune from
ineffective assistance claims. People v. Ramirez, 2023 IL App (1st) 221227, ¶¶ 56-57. However,
generally immune is not the same as always immune, and defendant cites in support People v.
Patterson, 192 Ill. 2d 93, 121 (2000). In Patterson, the supreme court found that the failure to
present a defense, which was already promised in an opening statement, rose to the level of
ineffectiveness, where the supreme court could not understand “what” could possibly have led a
reasonable attorney to make such a choice on the facts before it. See Patterson, 192 Ill. 2d at 121.
By contrast, in the case at bar, counsel’s strategy for how to best use Cain’s testimony was made
clear in his closing argument. Thus, we cannot find ineffective assistance on this ground.
¶ 95 Defendant also argues that counsel promised testimony showing that the victim made
statements that she did not recall what happened but that counsel presented no such testimony. In
support, defendant cites the portion of counsel’s opening statement, where he argued: “you are
going to hear at times that [the victim] made statements that she couldn’t remember what
happened.” Defendant also cites the portion of counsel’s opening statement where he argued that
she stated that defendant put a gun in her mouth and later allegedly retracted it. However, the
statements relating to the assailant’s gun and her later alleged retraction were introduced at trial,
thereby lending some support to counsel’s assertion that the victim could not remember what
happened. As a result, this does not serve as a ground for finding counsel ineffective.
¶ 96 Having reviewed carefully the statements cited by defendant on appeal as grounds for
ineffectiveness, we cannot find that counsel’s actions fell below an objective standard of
reasonableness and thus do not satisfy the first prong of Strickland. See Strickland, 466 U.S. at
687-88. Finding no first prong, we need not examine the second. Carlisle, 2015 IL App (1st)
131144, ¶ 73.
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¶ 97 V. Opening the Door
¶ 98 Contrary to defendant’s suggestion, we do not find that defendant’s objection to
Detective Combs’s testimony can be considered a confrontation clause issue. Rather, defense
counsel opened the door to the statements that defendant now objects to.
¶ 99 At trial, Detective Combs testified that he first encountered the victim in the trauma
unit and that he interviewed her four times over the course of December 13 and 14. On direct
examination, the detective stated that, during the first interview, the victim indicated that the
offender had a gun, at which point he went back to her home to search for it. During the second
interview, he informed her that they were not able to find it. At that point, she let him know that
she had a gun. The detective returned to the home, found, and secured her gun but was unable to
locate the offender’s gun. During the fourth and final interview, the detective asked again about
the offender’s gun, and she replied there was not one and fell asleep.
¶ 100 During cross-examination, in response to repeated and specific questions by defense
counsel, Detective Combs testified that the victim stated that her assailant pushed his way through
her door, put a gun in her mouth, and dragged her immediately up the stairs to her bedroom.
¶ 101 On redirect examination by the State, the detective reiterated that the victim stated that
the assailant put a gun in her mouth and dragged her up the stairs. The detective further testified
on redirect that the victim stated that her assailant grabbed her by the throat, pushed her down,
inserted his penis in her mouth, and raped her.
¶ 102 During redirect examination, defense counsel objected to the State’s questions about
the rest of her statements, which was overruled. Later, counsel moved for a mistrial on this ground,
arguing that those statements had not been included in the state’s pretrial motion. The State
responded that its questions on redirect examination were in direct response to the questions asked
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No. 1-23-0772
by counsel on cross-examination, because counsel’s questions left the misleading impression that
this was all the victim had said during the interviews and that was not the case. The trial court
agreed with the State and denied counsel’s motion for a mistrial.
¶ 103 The State reiterates its argument on appeal, and we agree. The common-law
“completeness doctrine” provides that, if one party introduces part of a statement, the opposing
party may introduce the remainder or so much of the remainder as is required so that the trier of
fact is not misled. People v. Hernandez-Chirinos, 2024 IL App (2d) 230125, ¶ 66. Admission of
evidence under this doctrine is limited to evidence that is relevant, material, and regarding the
same subject at the same time. The decision about whether to admit evidence under the
completeness doctrine is left to the sound discretion of the trial court. Hernandez-Chirinos, 2024
IL App (2d) 230125, ¶ 67.
¶ 104 In the case at bar, without the information elicited on redirect examination, the jury
would have been left under the misleading impression that, during four interviews with the
detective, the victim had failed to say a word about being raped, although she described her
assailant’s pushing his way through her door, putting a gun in her mouth, and dragging her
immediately up the stairs to her bedroom.
¶ 105 In his reply brief, defendant argues that the completeness doctrine does not apply here
because there were four different interviews. However, defense counsel did not limit his questions
on cross-examination to specific interviews. For example, counsel asked: “In any of her interviews
did she indicate that her assailant pushed through the door and dragged her up the stairs
immediately?” (Emphasis added.) The detective replied simply: “Yes.” Having failed to
distinguish among interviews on cross-examination, defendant cannot now complain on appeal
that the State followed up by doing the same.
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No. 1-23-0772
¶ 106 Where the defense threw open the door to questions that the State had carefully kept
shut on direct examination, we cannot find that the trial court abused its discretion by overruling
counsel’s objection.
¶ 107 VI. Sixth Amendment Claims
¶ 108 Having examined all of defendant’s other alleged trial errors, we reach his
confrontation clause claims. Defendant claims that reversal is warranted where the trial court
admitted out-of-court statements by the victim, even though she was unavailable to testify at trial
and was never subject to cross-examination.
¶ 109 A. Standard of Review
¶ 110 Neither party discusses the appropriate standard of review for the type of claim in front
of us, namely a claim that the trial court admitted a hearsay statement in violation of the sixth
amendment. Generally, evidentiary rulings are within the discretion of the trial court and will not
be reversed unless the trial court abused its discretion. People v. Clark, 2018 IL App (2d) 150608,
¶ 23. However, our supreme court and various appellate court decisions have acknowledged that
sometimes evidentiary rulings are reviewed de novo on appeal. Clark, 2018 IL App (2d) 150608,
¶ 23 (citing People v. Purcell, 364 Ill. App. 3d 283, 293 (2006), citing People v. Caffey, 205 Ill.
2d 52, 89 (2001)).
¶ 111 Both Spicer, 379 Ill. App. 3d at 451, and Purcell, 364 Ill. App. 3d at 286, examined the
same type of claim, namely whether the admission of hearsay violated the sixth amendment, and
articulated the following standard of review. A reviewing court will defer to the trial court’s
evidentiary ruling, unless the trial court’s exercise of discretion has been frustrated by an erroneous
rule of law. Spicer, 379 Ill. App. 3d at 451; Purcell, 364 Ill. App. 3d at 293.
¶ 112 B. Confrontation Clause
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No. 1-23-0772
¶ 113 The sixth amendment to the United States Constitution provides, in relevant part, that
“[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the
witnesses against him ***.” U.S. Const., amend. VI. This part of the sixth amendment is
commonly known as the confrontation clause and applies to the states through the fourteenth
amendment. People v. Stechly, 225 Ill. 2d 246, 264 (2007).
¶ 114 In 2004, in the watershed case of Crawford v. Washington, 541 U.S. 36 (2004), the
United States Supreme Court “fundamentally altered its approach to confrontation clause
analysis.” Stechly, 225 Ill. 2d at 264-65. Before Crawford, the United States Supreme Court had
held that the sixth amendment permitted the introduction of hearsay statements by unavailable
declarants, so long as the admitted statements had “ ‘adequate “indicia of reliability.” ’ ” Stechly,
225 Ill. 2d at 264 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
¶ 115 In Crawford, this long-held standard changed. The United States Supreme Court held,
“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford,
541 U.S. at 68-69. In the case at bar, all parties acknowledge that there was no opportunity for
cross-examination. Thus, a key question is whether the victim’s statements were “testimonial”
under Crawford and its progeny.
¶ 116 However, as our own state supreme court observed, “the Crawford Court explicitly
declined to define what exactly makes a statement ‘testimonial.’ ” Stechly, 225 Ill. 2d at 266.
Although the United States Supreme Court in Crawford noted several possible definitions of the
word “testimonial,” it expressly declined to adopt one. The Crawford Court stated: “We leave for
another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford, 541
U.S. at 68.
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No. 1-23-0772
¶ 117 With respect to the meaning of the word “testimonial,” the Crawford Court did provide
this guidance: “Whatever else the term covers, it applies at a minimum [(1)] to prior testimony at
a preliminary hearing, before a grand jury, or at a former trial; and [(2)] to police interrogations.”
Crawford, 541 U.S. at 68. The first term is relatively easy to define; the second—not so much.
¶ 118 In Davis v. Washington, 547 U.S. 813, 821-24 (2006), the United States Supreme Court
revised its prior “at a minimum” holding about police interrogations. In Davis, the Court found
that, while some responses to police interrogation were testimonial, some were not. See Davis, 547
U.S. at 821-24. Drawing a dividing line between the two, the Davis Court explained: “Statements
are nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency.” Davis, 547 U.S. at 822. However, responses to police
interrogation “are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.
¶ 119 Application of the above quotes from Davis required a court to determine (1) whether
the questioning qualified as police questioning and (2) whether the primary purpose of the
questioner was to establish past events. Davis, 547 U.S. at 822; Spicer, 379 Ill. App. 3d at 453.
With respect to the first issue, the Court left for another day the question of “when statements made
to someone other than law enforcement personnel are ‘testimonial.’ ” Davis, 547 U.S. at 823 n.2.
In the case at bar, a number of the challenged hearsay statements were made to medical personnel.
¶ 120 With respect to the second issue, the Davis Court listed four factors that indicate the
primary purpose was to meet an ongoing emergency rather than to establish past events: (1) the
declarant “was speaking about events as they were actually happening” as opposed to speaking
38
No. 1-23-0772
hours after the events occurred; (2) the statement was “a call for help against a bona fide physical
threat” and in response to the ongoing emergency; (3) the statements were “necessary to be able
to resolve the present emergency”; and (4) the declarant was not “responding calmly” and was
instead giving “frantic answers,” which showed a lack of formality. (Emphases in original.) Davis,
547 U.S. at 827; Spicer, 379 Ill. App. 3d at 453-54.
¶ 121 In a subsequent case, Michigan v. Bryant, 562 U.S. 344, 366 (2011), the Court stated
in dicta that “whether an ongoing emergency exists is simply one factor—albeit an important
factor” in determining the primary purpose of an interrogation. The Court noted that “there may
be other circumstances, aside from ongoing emergencies, when a statement is not procured with a
primary purpose of creating an out-of-court substitute for trial testimony.” (Emphasis in original.)
Bryant, 562 U.S. at 358. However, in the case before it, the Court held that the statements were
not barred by the confrontation clause because the primary purpose of the interrogation was to
enable a police response to an ongoing emergency. Bryant, 562 U.S. at 377-78. In reaching this
holding, the Court stressed the informality of the situation, where the police arrived in the
aftermath of a shooting and posed fluid questions rather than “a structured interrogation.” Bryant,
562 U.S. at 377.
¶ 122 In sum, when we consider the totality of the circumstances surrounding these questions,
we consider, among other things, who was the questioner, what was the primary purpose of the
interrogation, whether the purpose of the questions was to meet an ongoing emergency, and the
level of formality or informality of the interrogation itself. See Bryant, 562 U.S. at 369 (“In
determining whether a declarant’s statements are testimonial, courts should look to all of the
relevant circumstances.”).
¶ 123 C. Statements at Issue
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No. 1-23-0772
¶ 124 Defendant alleges confrontation clause violations from the admission of testimony by
(1) Christopher Daly, a paramedic with the Chicago Police or Fire Department,
stating that he arrived at the scene at 8:30 p.m. and that, while the victim was in the
ambulance and he was assessing her injuries, she told him that a man bit her, stuck his
penis in her mouth, and was holding her down and that she fought him off;
(2) Mandy Baker, a registered nurse in the Trauma Unit at Stroger Hospital, stating
that E.M. told her at 10:10 p.m. 6 that her neighbor had attacked her, hit her in the face,
had vaginally penetrated her with his penis, and bit her right inner thigh, as well as
multiple other places;
(3) Dr. Tai Holland, a medical resident who was working on a rotation in the trauma
unit at Stroger Hospital, stating that he encountered the victim at 10:10 p.m. and that
she told him that a man had forced entry into her home, knocked her down on her back,
put a gun in her mouth, hit her, bit her, and raped her by placing his penis in her vagina
and in her mouth;
(4) nurse Mattes, the sexual assault nurse examiner, stating that she encountered
the victim at 11 p.m. and that the victim said that a gentleman whom she knew from
the neighborhood came to her door trying to sell her some socks and, when she said no
and tried to close the door, he knocked her over, hit her, bit her, put a gun in her mouth,
and raped her.
6
The nurse testified that she first documented the statements at 10:40 p.m. but that she first
spoke to the victim at 10:10 p.m. The nurse documented that the victim stated that the assailant put a gun
in her mouth, but defendant is not challenging on appeal the admission of that particular statement, which
was brought out on cross-examination by his own attorney.
40
No. 1-23-0772
¶ 125 The nurses and the doctor at the hospital testified that they first encountered the victim
only after the victim had been released from the emergency room into their unit. Nurse Baker
testified that she contacted nurse Mattes, the sexual assault nurse examiner, to come up to perform
the rape kit, which nurse Baker acknowledged was “for evidence collection.”
¶ 126 D. Paramedic
¶ 127 We discuss the paramedic separately from the other medical personnel because the
statements made to him were made on the scene and much closer in time to the offense.
¶ 128 Like the United States Supreme Court in Davis, we need not decide whether a
paramedic with the Chicago Police or Fire Department comes within the ambit of law enforcement,
for reasons we explain below. Daly testified initially: “I am a paramedic for the Chicago Police
Department.” However, when asked how long he had worked as a paramedic, he answered: “Ten
years for Chicago Fire Department, and paramedic for 12 years.” Then, he was asked if, on the
day of the offense, December 13, 2019, he was working as a Chicago Fire paramedic, and he said
“yes.”
¶ 129 Whether Daly was working as a paramedic for the Chicago Police or Fire Departments,
we need not decide whether he came within the ambit of law enforcement, because we find that
the statements made to him were nontestimonial on other grounds. The United States Supreme
Court in Davis also avoided making a decision about the ambit of the police for a similar reason.
In Davis, the Court declined to decide whether 911 operators fell within the ambit of law
enforcement. Davis, 547 U.S. at 823 n.2. Instead, it proceeded with the rest of its analysis,
ultimately deciding on other grounds that the statements at issue were not testimonial. Davis, 547
at 823 n.2, 828-29 (the Court concluded from all the circumstances that the primary purpose of the
41
No. 1-23-0772
questions at issue was to meet an ongoing emergency and therefore the statements were not
testimonial).
¶ 130 In Davis, the Court set forth the following dividing line between testimonial and
nontestimonial statements: they are nontestimonial when the primary purpose is to enable
assistance to meet an ongoing emergency; they are testimonial when there is no ongoing
emergency and the primary purpose is to prove past events potentially relevant to criminal
prosecution. Davis, 547 U.S. at 822. In the case at bar, the paramedic’s primary purpose was to
respond to an ongoing emergency, namely ascertaining the condition of his 91-year-old patient
and its causes, so that doctors could later render accurate and appropriate treatment.
¶ 131 Daly, the paramedic, testified that he arrived at the scene at 8:30 p.m. When he arrived,
he observed an elderly woman sitting at the top of a set of interior stairs, on the second floor, who
was “very stressed out,” “almost near hysterical.” The victim did not want anyone to touch or talk
to her; “[s]he was just shaking and seemed very scared.” Daly and his partner, Anthony Heard,
were able to coax her to come down the stairs, step outside, and sit in a chair, which they had
brought and used to transport her into the ambulance. While Daly was assessing her injuries inside
the ambulance, he asked “what happened,” and she told him how she received her injuries: namely,
that a man bit her, stuck his penis in her mouth, and held her down and she fought him off. The
victim explained that his holding her down and her fighting him off was why she was “hurt all
over.” After observing a deep cut in her right inner thigh that went almost to the bone, Daly went
back inside the building, because he wanted to ask the offender what he had used. Daly explained
that the doctors would want to know what type of knife was used and whether it was clean or dirty,
when they treated her. When Daly asked defendant what type of knife he used to cut the victim,
defendant replied that he did not use a knife and that he bit her. Daly explained that, due to the
42
No. 1-23-0772
victim’s “demeanor” and “mental state,” he did not want to do too much, so he covered all of her
wounds lightly with gauze, covered her with blankets, and transported her to the hospital, where
they arrived at 9 p.m.
¶ 132 A comparison of the facts here to the facts in Spicer establishes that the victim’s
remarks to the paramedic in our case fall on the nontestimonial side of the line. In Spicer, an elderly
rape victim told a doctor the next day at the hospital that she had been tied and raped. Spicer, 379
Ill. App. 3d at 454. The Spicer court held that there was “no doubt that the primary purpose” of
the Spicer victim’s statement was “to ‘prove past events’ rather than to ‘meet an ongoing
emergency.’ ” Spicer, 379 Ill. App. 3d at 453. Applying the four factors set forth in Davis, 547
U.S. at 827, this court found (1) that, far from talking about ongoing events, the Spicer victim was
relating an event that had occurred the day before, (2) that her statement was not a cry for help
because she was safe in a distant hospital, (3) that her statement was not intended to resolve a
present emergency because she did not want to see a doctor and the police waited seven hours
before transporting her, and (4) that nothing in the record indicated that she was frantic when
speaking to the doctor. Spicer, 379 Ill. App. 3d at 453-54.
¶ 133 By contrast, in the case at bar, (1) the victim was still at the crime scene and relating
events that had just happened; (2) her statement was made after having just been carried to an
ambulance, when defendant was still on the scene and the victim was shaking and very scared;
(3) her condition presented the paramedic with an ongoing emergency, namely the need to stabilize
her; and (4) the paramedic testified that the victim was “near hysterical,” indicating a low level of
formality. Thus, we find that the circumstances of Daly’s questions indicate that his “primary
purpose” was to enable him “to render assistance to meet an ongoing emergency,” namely a
shaking and scared victim, and that the whole situation lacked the level of formality needed to
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No. 1-23-0772
qualify as testimonial. See Davis, 547 U.S. at 828 (“[T]he circumstances of McCottry’s
interrogation objectively indicate its primary purpose was to enable police assistance to meet an
ongoing emergency.”); Bryant, 562 U.S. at 377 (“the situation was fluid” and, thus, lacked the
formality that would have alerted the speaker to the possible future prosecutorial use of his
statements).
¶ 134 We make this finding although Daly testified that his partner was “doing the
documentation.” Daly explained that he, Daly, was the paramedic and that his job was to assess
the injuries while his partner’s job was to do the “documentation.” His partner generated a one-
page report, which Daly read over and signed. The report included information such as the victim’s
condition and vital signs, which would then be provided to the treating physicians.
¶ 135 On cross-examination, when Daly was asked whether he included “any additional
relevant information for a police investigation,” Daly responded ambiguously: “[i]f it needs to
happen that way.” On cross-examination, when asked if he wanted to know if a knife was used
because the doctors would want that information, he responded unequivocally: “Yes.” In the next
question, when asked if “that would also be information that the police may want to know,” he
acknowledged: “[i]t could be useful, yes.” Daly confirmed that, as a paramedic, he worked
regularly with the police, in that he responded to scenes and the police were often present. Daly
also acknowledged that his partner had written in the report what the victim was saying about the
offense, namely that the offender had bitten her and had put his penis in her mouth.
¶ 136 However, there is no indication that their report was intended as a substitute for victim
testimony, as opposed to a medical record intended to enable accurate treatment once they reached
the hospital and doctors. Daly’s acknowledgement that their report “could be useful” to the police
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No. 1-23-0772
was not enough to suggest that the victim’s statement was “procured with a primary purpose of
creating an out-of-court substitute for trial testimony.” Bryant, 562 U.S. at 358.
¶ 137 E. Hospital Personnel
¶ 138 By contrast, the hospital personnel spoke to the victim after her condition had already
been stabilized and after she had been released from the emergency room. The emergency had
passed, and her statements were more akin to the rape case described in Davis, 547 U.S. at 828,
and the statements by the rape victim at the hospital in Spicer, 379 Ill. App. 3d at 453-54, which
were found inadmissible. See Stechly, 225 Ill. 2d at 299 (our supreme court found that statements
by a sexual abuse victim to a nurse in an emergency room were “unquestionably” testimonial under
Davis). Thus, defendant is correct that these statements were testimonial and should have been
inadmissible as violating the confrontation clause.
¶ 139 However, we need not reverse based on confrontation clause violations that were
harmless in light of duplicative and other, properly admitted evidence. As the parties agree,
Crawford violations are subject to a harmless-error analysis. Patterson, 217 Ill. 2d at 428
(“Crawford violations are subject to harmless-error analysis.”); Spicer, 379 Ill. App. 3d at 456
(applying harmless-error analysis to a confrontation clause violation); People v. Thompson, 349
Ill. App. 3d 587, 594 (2004) (same). The State bears the burden of proof. Patterson, 217 Ill. 2d at
428. An error is harmless if it appears beyond a reasonable doubt that the error at issue did not
contribute to the verdict obtained. Spicer, 379 Ill. App. 3d at 456; see People v. Nitz, 219 Ill. 2d
400, 410 (2006) (an error is harmless if “the result would have been the same absent the error”).
¶ 140 There are
“three different approaches for measuring error under this harmless-constitutional-error
test: (1) focusing on the error to determine whether it might have contributed to the
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No. 1-23-0772
conviction, (2) examining the other evidence in the case to see if overwhelming
evidence supports the conviction, and (3) determining whether the improperly admitted
evidence is merely cumulative or duplicates properly admitted evidence.” Patterson,
217 Ill. 2d at 428.
¶ 141 Defendant argues, that, without the inadmissible testimony, the jury would not have
found him guilty of each of the three counts for which he was convicted, namely (1) aggravated
battery to a person 60 years or older, (2) aggravated criminal sexual assault for contact between
his penis and the victim’s vagina, and (3) aggravated criminal sexual assault for contact between
his penis and the victim’s mouth.
¶ 142 Turning to the aggravated battery count, defendant argues that, without the hearsay
testimony from the hospital personnel that he bit her, the evidence would have been insufficient to
prove it. However, the evidence that defendant bit the victim was overwhelming (1) where
defendant himself admitted to the paramedic that he bit her, in an admission that remains
unchallenged on appeal; (2) where the bite marks on her body were documented in photos of
“semicircular patterned” wounds, as testified to by Dr. Holland; (3) where the victim told the
paramedic that defendant bit her; and (4) where the identity of the only possible perpetrator was
overwhelmingly established, as we discuss below.
¶ 143 With respect to both the sexual assault and battery counts, the evidence was
overwhelming regarding who the offender was. At trial, the issue was not “who” but “what” was
done. The overwhelming identity evidence included (1) the neighbor’s testimony about hearing
defendant’s voice coming from the victim’s doorway asking where the victim had gone
immediately after the victim had run to the neighbor’s home seeking help; (2) the neighbor’s
testimony that, when he opened his door to the victim, the victim was hysterical, bleeding, and
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No. 1-23-0772
stating “ ‘I been raped. And he still in my house. I been raped. He still in my house’ ”;
(3) defendant’s presence at the top of the stairs in the victim’s home after the police arrived and
yelled for anyone inside to come out and the victim’s yelling “that’s him!” when she observed
defendant at the top of the stairs; (4) defendant’s admission to the paramedic that he bit the victim;
and (5) the surveillance video that placed defendant in the victim’s home when the offenses
occurred. On appeal, defendant makes no arguments that there could have been another possible
offender. In his reply brief, defendant concedes that “there was no dispute at trial about the identity
of the culprit.” Thus, identity is a nonissue and, to the extent that the State proves that the victim
was, in fact, sexually assaulted and battered, then the evidence is overwhelming that it was
defendant.
¶ 144 Defendant argues that he was identified only as a possible donor of the DNA on the
victim’s oral and vaginal swabs. However, this argument overlooks the fact that identity is
conceded and that male DNA was present in both places.
¶ 145 The injuries all over the victim’s body corroborate her statement to the paramedic that
she was physically fighting him off of her body, as did the evidence of the crime scene with its
broken table, with defendant’s fingerprint on it, and the victim’s blood on the carpet and walls.
Further, her statements to the hospital personnel that she was raped and that his penis was in her
mouth were duplicative of admissible statements that she made to her neighbor, the paramedic,
and the responding officer.
¶ 146 With regard to the sexual assault counts, we find, beyond a reasonable doubt, that the
jurors would not have reached a different verdict absent the error, after (1) viewing the photos of
the brutal injuries all over the victim’s body, which evidenced a woman in a desperate struggle;
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No. 1-23-0772
(2) learning of the male DNA in the 91-year-old’s mouth and vagina; 7 (3) being informed by nurse
Mattes that the nurse’s vaginal exam of the postmenopausal 91-year-old revealed blood in the
victim’s vagina and an abrasion to the entrance of the victim’s vagina, which were both indicative
of trauma; and (4) hearing of the victim’s admissible statements of both “rape” and oral
penetration, in particular Officer’s Olsen’s testimony on redirect examination that “[s]he told me
that he stuck his penis in her mouth and vagina.” Thus, we have no doubt that, given this substantial
other evidence, the result would have been the same absent the error. Nitz, 219 Ill. 2d at 410 (an
error is harmless if “the result would have been the same absent the error”).
¶ 147 For all the foregoing reasons, we find harmless any confrontation clause violations due
to the admission of hearsay statements related by the hospital personnel.
¶ 148 V. Sentencing
¶ 149 Because we affirm defendant’s conviction, we turn to the issue that he raises regarding
his sentencing. Defendant argues that his cumulative 54-year sentence is excessive, where it
amounts to a de facto life sentence for a defendant who was 55 years old at the time of the offense,
where he has been a lifetime Chicago resident, and where he is in poor health. The trial court
imposed two consecutive 27-year sentences on the sexual assault counts and a 10-year concurrent
sentence on the aggravated battery, for a total sentence of 54 years. On appeal, defendant asks us
to reduce his sentence to the 12-year statutory minimum or to another appropriate amount pursuant
to Illinois Supreme Court Rule 615(b)(4), which permits the reviewing court to “reduce the
punishment imposed by the trial court.”
7
This is particularly true where defendant concedes on appeal that “there was no dispute at
trial about the identity of the culprit.”
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No. 1-23-0772
¶ 150 Defendant acknowledges that whether a sentence is excessive is a question that we may
review only for an abuse of discretion. “It is well settled that the trial court has broad discretionary
powers in imposing a sentence ***.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). The trial court
receives such deference because it is in a better position than the reviewing court to view, evaluate,
and weigh “such factors as the defendant’s credibility, demeanor, general moral character,
mentality, social environment, habits, and age.” Stacey, 193 Ill. 2d at 209. Our supreme court has
admonished its lower courts not to “substitute its judgment for that of the trial court merely because
it would have weighed these factors differently.” Stacey, 193 Ill. 2d at 209. Generally, a sentence
within the applicable sentencing range, as this one was, is presumed proper. People v. Walker,
2021 IL App (4th) 190073, ¶ 75.
¶ 151 Nonetheless, this discretion is not without limitation, and a reviewing court may reduce
a sentence that is “greatly at variance with the spirit and purpose of the law, or manifestly
disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 209-10. Thus, for example, our
supreme court found that the imposition of two consecutive 25-year sentences on a defendant who
“momentarily grabbed the breasts of two young girls” was manifestly disproportionate and an
abuse of discretion. Stacey, 193 Ill. 2d at 210. The supreme court exercised its discretion to reduce
his sentence to two consecutive 6-year sentences, for a total of 12 years, instead of the 50-year
total that was originally imposed. Stacey, 193 Ill. 2d at 211.
¶ 152 In the case at bar, defendant’s 54-year total sentence is similar in length to the 50-year
total sentence reduced by our supreme court in Stacey. However, this was no “momentar[y]
grab[ ]” as in Stacey. See Stacey, 193 Ill. 2d at 210. The photos of the 91-year-old victim with
missing chunks of flesh are hard to view. Her body looks like it was ravaged by a man-eating
animal. At the sentencing hearing, the trial court noted defendant’s prior criminal history,
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No. 1-23-0772
including that he was on mandatory supervised release for aggravated assault when the acts on the
present victim were committed. Defendant had a total of four prior felony convictions, including
the aggravated assault conviction for which he was on supervised release. We simply cannot find
on these facts that no person would take the view that the trial court did. See Jones, 2025 IL App
(1st) 230771, ¶ 116.
¶ 153 CONCLUSION
¶ 154 For the foregoing reasons, we affirm.
¶ 155 Affirmed.
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No. 1-23-0772
People v. Brown, 2025 IL App (1st) 230772
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-CR-
60014; the Hon. Peggy Chiampas, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Bryon M. Reina, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Eileen O’Neill Burke, State’s Attorney, of Chicago (John E.
for Nowak, Matthew Connors, and Noah Montague, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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