People v. Munoz-Salgado

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Appellate Court Date: 2016.10.26

12:42:29 -05'00'

People v. Munoz-Salgado, 2016 IL App (2d) 140325

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption MUDY MUNOZ-SALGADO, Defendant-Appellant.

District & No. Second District

Docket No. 2-14-0325

Filed September 8, 2016

Decision Under Appeal from the Circuit Court of Kane County, No. 12-CF-2293; the

Review Hon. T. Clint Hull, Judge, presiding.

Judgment Affirmed.

Counsel on Thomas A. Lilien and Fletcher P. Hamill, both of State Appellate

Appeal Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.

Bauer, Joan M. Kripke, and Mary Beth Burns, all of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the

court, with opinion.

Justices Jorgensen and Spence concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Kane County, defendant, Mudy

Munoz-Salgado, was convicted of aggravated criminal sexual assault (720 ILCS

5/11-1.30(a)(2) (West 2012)), aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)), and

unlawful restraint (720 ILCS 5/10-3(a) (West 2012)). He was sentenced to concurrent prison

terms of seven years for aggravated criminal sexual assault and three years for each of the

other offenses. The alleged victim, J.L.,1 resides in another state and did not testify at trial.

However, the statements that she made to an emergency room nurse were admitted into

evidence. Defendant argues that admitting the statements into evidence violated his sixth

amendment right to confront the witnesses against him. Defendant also contends that the trial

court erred by ruling that the rape-shield statute (725 ILCS 5/115-7 (West 2014)) barred

evidence that J.L. reported engaging in sexual activity within 72 hours prior to the emergency

room examination. We affirm.

¶2 At trial, video from a surveillance camera at the Lexington Inn hotel in Elgin was

admitted into evidence and shown to the jury. The video showed that, at about 12 p.m. on

November 13, 2012, defendant approached J.L. in the first floor hallway, spoke with her,

took her by the wrist, and led her upstairs into a hotel room. A short time later, J.L. left the

room and walked downstairs. Minnie Cotton, a housekeeper at the hotel, testified that at

about noon she encountered a woman in the first floor hallway who was crying. The police

were summoned. Officers who spoke with J.L. at the hotel indicated that she was crying.

Based on what J.L. told the police, officers took defendant into custody after encountering

him in the hotel’s parking lot. An officer drove J.L. to the hospital. A search of the hotel

room that J.L. had been taken to led to the discovery of several condoms in their wrappers

and one empty wrapper.

¶3 Defendant was interviewed by police while in custody. An audio recording of part of the

interview was admitted into evidence and played for the jury. Defendant indicated that he

lived in Missouri but was working with a construction crew on a project in the Elgin area. He

had been staying at the hotel for about two weeks. Other members of the construction crew

were also staying there. Defendant was acquainted with J.L., who was, in his words,

“somebody’s woman in the crew.” About a month earlier, defendant had exchanged text

messages with J.L. and spoken with her on the telephone. They had arranged to meet in

Kansas City to have sex. J.L. told defendant to send her $200. Defendant sent her the money,

but she did not show up in Kansas City, and defendant did not see her again until November

13, 2012, when he encountered her at the hotel during his lunch break. He asked her why she

did not show up for the planned meeting in Kansas City. J.L. made reference to defendant

being married. Defendant asked J.L. whether she wanted to go to the hotel room with him.

She declined because she was going to see “her man” during lunch. At that point defendant

grabbed J.L.’s arm and told her to go up to his room. They got to the door, and J.L. started to

walk away while defendant was retrieving his key. He grabbed her and pulled her into the

room. Asked what he was thinking when this took place, defendant responded, “I was pretty

1

We note that, in his briefs, defendant uses the victim’s full name. It is our practice to refer to

victims of sex offenses by initials so as to protect their privacy. We strongly urge the parties to appeals

arising from sex-offense prosecutions to do the same.

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much thinking about my $200 and I was horny.” Defendant understood that J.L. did not want

to go into his room. When they got into the room, they had sex. J.L. said that defendant was

hurting her, but he did not stop.

¶4 Kristy Sheehan testified for the State that she was an emergency room nurse at Sherman

Hospital in Elgin. Her duties included performing sexual assault kits on patients who

reported having been sexually assaulted. A sexual assault kit contains swabs and containers

for the collection of evidence. Sheehan explained that medical personnel performing a sexual

assault kit “are trying to collect any kind of debris, semen, hair follicles, oral swabs, so any

DNA samples inside, and clothes.” Vaginal swabs and urine samples are also taken. On

cross-examination, Sheehan acknowledged that the primary purpose of a sexual assault kit is

to collect evidence. When a female patient reports a sexual assault, a gynecological

examination is performed. Medical personnel also look for bruising, bite marks, and other

signs of trauma.

¶5 Sheehan testified that on November 13, 2012, at about 3:30 p.m., she met with J.L. in a

treatment room. A police officer was present, but the officer left the treatment room before

Sheehan began her examination. J.L. was cooperative but anxious, and she became very

tearful when Sheehan started asking her questions. Sheehan testified, “Like any patient, I ask

what brought her in that day.” Sheehan also asked J.L. how long it had been since the alleged

sexual assault occurred and whether J.L. had taken a shower, removed any clothing, or gone

to the bathroom since it occurred. Sheehan explained that those questions were “[f]or the

collection of evidence.” Sheehan further testified, “We ask multiple questions of what had

happened, meaning, where, if there was any penetration, if so, where the penetration was.”

Sheehan testified that J.L. told her that defendant threw her face-down on a bed, held her

down, put on a condom, and, in Sheehan’s words, “forcefully put his penis inside her.” J.L.

indicated that, prior to the assault, defendant had dragged her by the wrist.

¶6 Sheehan observed bruising on J.L.’s wrist and a black scuff mark on her ankle. Sheehan

collected swabs from J.L. and was present when a physician collected a vaginal swab from

J.L. Sheehan testified that she observed spotting of blood in J.L.’s vaginal vault. Medically,

the presence of spotting blood indicated “[v]aginal trauma or force to the vaginal area.” On

cross-examination, Sheehan indicated that there were “many reasons why somebody could be

spotting.” She acknowledged that it was possible to have spotting with consensual sex “if it is

rough sex” or there was “little to no lubrication.”

¶7 Defendant testified that he had met J.L. while working on a construction job in

Milwaukee. J.L.’s boyfriend was on the construction crew. Thereafter, they spoke on the

telephone and exchanged text messages. They had planned to meet again and to have sex,

and defendant sent J.L. $200. J.L. did not show up for the meeting. Defendant also testified

that he had not actually gone to meet with J.L. He added, “I’m married, so it didn’t matter to

me so I changed my phone number.”

¶8 Defendant encountered J.L. again on November 13, 2012, at the Lexington Inn. He was

surprised to see her, and she appeared to be surprised to see him. J.L. was upset because

defendant had changed his phone number. Defendant asked J.L. to come to his hotel room.

He touched her hand but did not drag her or pull her up the stairs. J.L. was worried that

someone would see them. J.L. started to walk away. Defendant thought she was playing a

game, and he pulled her back. Once they were inside defendant’s room, defendant put on a

condom, and they had sex. At one point she said that defendant was hurting her, so they

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changed positions. J.L. never tried to push defendant away. She never screamed or yelled,

and she was not crying. After they were done, J.L. calmly left the room. Defendant denied

that he forced J.L. to have sex with him.

¶9 We first consider whether defendant’s right to confront the witnesses against him was

violated. The sixth amendment’s confrontation clause provides 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. The right of confrontation applies to testimonial

evidence. Thus, “a testimonial statement of a witness who does not testify at trial is never

admissible unless (1) the witness is unavailable to testify, and (2) the defendant had a prior

opportunity for cross-examination.” (Emphasis in original.) People v. Stechley, 225 Ill. 2d

246, 279 (2007) (plurality opinion) (citing Crawford v. Washington, 541 U.S. 36, 53-54

(2004)). In order to qualify as “testimonial,” a witness’s statement must be (1) made in a

solemn fashion and (2) intended to establish a particular fact. Id. at 281-82.

¶ 10 In Stechley, the parties disagreed as to whether the intent to establish a particular fact

must be that of the declarant (i.e., the witness) or of one eliciting the statement from the

declarant. A majority of the Stechley court concluded that the answer depends on whether the

witness’s statement was elicited through police interrogation.2 In doing so, the Stechley court

answered in the affirmative a question that the United States Supreme Court had reserved in

Davis v. Washington, 547 U.S. 813, 823 n.2 (2006): whether statements to persons other than

law enforcement officers can be subject to the confrontation clause.

¶ 11 As noted in the plurality opinion in Stechley, 225 Ill. 2d at 267-68, Davis teaches that

statements “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” are not testimonial. Davis, 547 U.S. at 822. On the other hand,

statements are testimonial (and thus within the ambit of the confrontation clause) “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.” Id. A majority of the Stechley court agreed that, for

confrontation clause purposes, “police interrogation” is questioning by police “or those

whose ‘acts [are] acts of the police.’ ” Stechley, 225 Ill. 2d at 284 (quoting Davis, 547 U.S. at

823 n.2); id. at 330 (Thomas, C.J., dissenting, joined by Karmeier, J.). (We note that Davis

merely assumed, without deciding, that “police interrogation” includes questioning by those

acting on behalf of the police. Davis, 547 U.S. at 823 n.2.)

¶ 12 In contrast, a majority of the Stechley court held that it is the declarant’s intent that

determines whether statements outside the context of police interrogation are testimonial.

The relevant question in that setting is whether the declarant intended to “ ‘bear testimony

against the accused.’ ” Stechley, 225 Ill. 2d at 291 (quoting United States v. Cromer, 389 F.3d

662, 675 (6th Cir. 2004)). The declarant’s intent may be ascertained by asking whether a

reasonable person in his or her position “ ‘would anticipate his statement being used against

the accused in investigating and prosecuting the crime.’ ” Id. (quoting Cromer, 389 F.3d at

675). The United States Supreme Court has since held, however, that “a statement cannot fall

2

Although there was no majority opinion in Stechley, a majority of the members of the court were in

agreement on this point. Stechley, 225 Ill. 2d at 284, 289; id. at 330 (Thomas, C.J., dissenting, joined by

Karmeier, J.).

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within the Confrontation Clause unless its primary purpose was testimonial.” Ohio v. Clark,

576 U.S. ___, ___, 135 S. Ct. 2173, 2180 (2015). The Court drew no distinction between

statements obtained during police interrogation and statements obtained in other contexts.

Indeed, the statements at issue in Clark did not arise from police questioning; they were

made by a three-year-old to a preschool teacher who observed indications of possible child

abuse.

¶ 13 While declining to adopt a categorical rule that statements to individuals other than law

enforcement officers are beyond the reach of the confrontation clause, the Court observed

that “such statements are much less likely to be testimonial than statements to law

enforcement officers.” Id. at ___, 135 S. Ct. at 2181. The Court concluded that the teacher in

Clark elicited statements from the child primarily for the purpose of ascertaining whether the

child could safely be released to his guardian at the end of the school day. Id. at ___, 135 S.

Ct. at 2181. Because gathering evidence for prosecuting an offense was not the primary

purpose of the conversation between the teacher and the child, the child’s statements were

not testimonial. This was true despite the fact that the teacher was legally required to report

abuse to government authorities. Id. at ___, 135 S. Ct. at 2182-83.

¶ 14 Here, defendant contends that, given the circumstances surrounding Sheehan’s

examination of J.L., “[a]ny reasonable person in [J.L.’s] position would have anticipated that

her statements would be used in a trial.” That alone, however, does not make the statements

testimonial. The record here shows that Sheehan conducted a physical examination with the

two-fold purpose of collecting physical evidence to assist in the investigation and possible

prosecution of a suspected crime and ensuring that J.L. received whatever medical attention

she needed. Attempting to draw a parallel with People v. Spicer, 379 Ill. App. 3d 441 (2007)

(which we will get to shortly), defendant argues that “[e]ven if some of [Sheehan’s] actions

were related to treating [J.L.], the bulk of them were related to gathering evidence on behalf

of the police.” But much of the examination was designed to collect purely physical evidence

that raises no confrontation clause concerns. The germane question is not whether Sheehan’s

actions, collectively, were for the primary purpose of gathering evidence but whether the

verbal exchanges she engaged in with J.L. were primarily for that purpose. We conclude that

they were not. A medical examination was clearly both necessary and appropriate to

ascertain whether J.L. suffered any injuries and whether treatment was necessary. The

examination properly entailed obtaining a history from the patient of the events leading her to

visit the emergency room.

¶ 15 In Spicer, the First District held that a sexual assault victim’s statement to an emergency

room doctor that she had been “raped and tied” was testimonial. Id. at 448. Relying on Davis,

the Spicer court reasoned that the statement did not occur during the course of an ongoing

emergency. (That conclusion rested, in part, on evidence that the victim had indicated that

she did not want medical attention and that the police waited for about seven hours before

taking her to the hospital.) The United States Supreme Court has since made clear, however,

that “whether an ongoing emergency exists is simply one factor *** that informs the ultimate

inquiry regarding the ‘primary purpose’ of an interrogation.” Michigan v. Bryant, 562 U.S.

344, 366 (2011); accord State v. Hill, 336 P.3d 1283, 1288 (Ariz. 2014) (“We cannot say ***

that a statement made in response to a question by a medical provider in connection with

non-emergent medical care necessarily is testimonial simply because the victim does not

require urgent medical attention.” (Emphasis in original.)).

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¶ 16 We also find no error in the trial court’s refusal to permit defendant to introduce evidence

that J.L. had engaged in sexual activity within 72 hours before Sheehan examined her.

Defendant sought to admit this evidence for the purpose of showing that the spotting of blood

that Sheehan observed was not necessarily related to J.L.’s encounter with defendant. The

trial court concluded that the evidence was inadmissible under the Illinois rape-shield statute,

which provides, in pertinent part, as follows:

“In prosecutions for *** aggravated criminal sexual assault *** the prior sexual

activity or the reputation of the alleged victim *** is inadmissible except (1) as

evidence concerning the past sexual conduct of the alleged victim *** with the

accused when this evidence is offered by the accused upon the issue of whether the

alleged victim *** consented to the sexual conduct with respect to which the offense

is alleged; or (2) when constitutionally required to be admitted.” 725 ILCS 5/115-7

(West 2014).

Defendant did not seek to admit evidence that he had a prior sexual relationship with J.L., so

the question is whether the admission of evidence that J.L. engaged in sexual activity with

someone other than defendant within 72 hours of the sexual assault examination was

constitutionally required.

¶ 17 The constitution affords a defendant the right to offer evidence that is “directly relevant

to matters at issue in the case, notwithstanding that it concern[s] the victim’s prior sexual

activity.” (Emphasis in original.) People v. Santos, 211 Ill. 2d 395, 405-06 (2004) (alleged

victim’s past sexual conduct was a collateral matter, so her prior inconsistent out-of-court

statements about that subject were not admissible for purposes of impeachment). “The

‘constitutionally required’ exception to the rape-shield statute ‘should be construed narrowly,

but also fairly.’ ” People v. Summers, 353 Ill. App. 3d 367, 374 (2004) (quoting Santos, 211

Ill. 2d at 416-17 (McMorrow, C.J., dissenting)). In order to avoid harassing or humiliating

the complaining witness, “[m]inimally relevant evidence of prior sexual activity should not

be admitted.” Id. Indeed, evidence of the alleged victim’s history “is not ‘constitutionally

required to be admitted’ unless it would make a meaningful contribution to the fact-finding

enterprise.” People v. Maxwell, 2011 IL App (4th) 100434, ¶ 76 (quoting 725 ILCS

5/115-7(a) (West 2010)).

¶ 18 We will not disturb the trial court’s ruling to bar evidence under the rape-shield statute

unless the ruling was an abuse of discretion, “which ‘occurs where the trial court’s decision

is arbitrary, fanciful or unreasonable [citation] or where no reasonable person would agree

with the position adopted by the trial court.’ ” People v. Johnson, 2014 IL App (2d) 121004,

¶ 42 (quoting People v. Becker, 239 Ill. 2d 215, 234 (2010)). The trial court did not abuse its

discretion here. The evidence in question was not so relevant that its admission was

constitutionally required. Defendant admitted that he had sex with the victim. The theory of

defense was that the sex was consensual. Defendant was allowed to elicit testimony that the

spotting of blood that Sheehan observed could have been the result of rough sex or a lack of

lubrication but did not necessarily signify a lack of consent. The relevance of the spotting of

blood depends, then, on the jury inferring that it is less likely that rough sex is consensual. If

the jury were to draw that inference, however, J.L.’s recent prior sexual activity would be

relevant only to the extent that it was nonconsensual. In other words, to the extent that the

spotting of blood showed that J.L. was sexually assaulted, evidence of a prior sexual

encounter would not exonerate defendant unless the jury believed that the prior encounter

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was a sexual assault. There is no evidence of that, however. We fail to see how the evidence

defendant sought to admit would have made a meaningful contribution to the factfinding

enterprise.

¶ 19 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs

for this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166,

179 (1978).

¶ 20 Affirmed.

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