
	No. 3--96--0470

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	IN THE



	APPELLATE COURT OF ILLINOIS



	THIRD DISTRICT



	A.D., 1998



THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 14th Judicial Circuit,

	)	Rock Island County, Illinois,

Plaintiff-Appellee,			)	

	)

v.						)	No. 95--CF--346

	)	

ANGELO M. OUSLEY,               )	Honorable

                                )  John D. O'Shea,

Defendant-Appellant.		)	Judge, Presiding.

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JUSTICE SLATER delivered the opinion of the court:

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After a jury trial, defendant, Angelo M. Ousley, was found guilty of home inva­sion, two counts of aggravated criminal sexual assault, rob­bery, and residential burglary (720 ILCS 5/12--11, 12--14(a)(2), 12--14(a)(4), 18--1, 19--3 (West 1994)).  The jury returned a not guilty verdict on the charge of crimi­nal sexual assault (720 ILCS 5/12--13 (West 1994)).  On appeal, defendant con­tends, among other things, that:  (1) his convictions for aggra­vat­ed crimi­nal sexual assault should be reversed out­right because they are legally inconsistent with his acquittal on the lesser-includ­ed charge of criminal sexual assault; and (2) his other convic­tions should be reversed and remand­ed for a new trial due to the trial court's error in admitting certain inadmissi­ble, 

plea-related state­ments.  For the reasons that follow, we reverse each of defendant's convic­tions and remand defendant's cause for a new trial on the charges of home inva­sion, robbery, and residential burglary.  Due to our disposi­tion of defendant's cause, we decline to address the other claims of error raised in defendant's brief.

FACTS

At trial, Teresa Hammond testified she went to the home of JoAnn McConville, a friend, on April 5, 1995, to do her laundry.  Hammond took her laundry to the basement and returned upstairs.  She then ob­served a man, whom she identified in court as defendant, stand­ing at a sliding glass door which opened onto the kitchen.  She opened the door to ask whether she could help the man.  The man then forced his way into the house, pushed her into the living room, and informed her that he had a knife.  The man struck Hammond in the face, pulled off her sweat­pants and underpants, and had forced sexual intercourse with her.  After the attack, the man demand­ed money.  Hammond retrieved $31 from the basement which she surren­dered to her assailant.  The man fled.  Hammond called for emer­gency assis­tance.

Susan Lenger, a neighbor of JoAnn McConville, testified that on April 5, 1995, she observed a man, whom she identified in court as defendant, run towards the alley.  She then saw the man struggle to open the driver's side door of a light blue car and watched him as he experienced difficulty starting the vehi­cle.  The man eventually succeeded in starting the car and driving away.  In court, Lenger identi­fied the car in photo­graphs as the vehicle she had seen.  Lenger also identi­fied a jacket and a pair of pants as the same type of clothing worn by the man.

Police investigator Stephen Harder testified he questioned defendant on April 7, 1995.  At that time, defendant confessed to sexually assaulting and robbing Hammond.  Defendant told Harder that he and Demerick Pugh
(footnote: 1) were walking to school on April 5, 1995, when Pugh pointed out a parked car which Pugh said was unlocked and could be started without a key.  Defendant stated he drove the car until he saw a woman carrying laundry into a house.  Defendant forced his way into the house, had sex with the woman, and took her money.  Defendant made a ­state­ment recorded on audiotape which was played for the jury.

Defendant testified on his own behalf.  On direct examination, defendant denied he ever went to Teresa Hammond's house, ever entered her house and robbed her, or ever entered her house with the intention of assaulting her.  In view of the fact that defendant was charged with sexually assaulting Hammond at the McConville residence, rather than Hammond's residence, it is likely defendant's answers were intended as a denial that he ever entered the McConville home or committed the crimes as alleged by the State.  On cross-exami­na­tion, defen­dant denied he was in the light blue car on the day Hammond was assaulted.  Defen­dant also testified that he was home from school on the day of the assault and was not in the company of Demerick Pugh.  Defen­dant testi­fied his confes­sion to police was false.  Defen­dant ex­plained that he made the statement because he was led to believe he would be allowed to go home if he did so.  

The prosecutor then asked defendant whether he had stated a week before "in open court" that he "stayed in the car while Demetrius went in."  Defen­dant denied making the state­ment.  The prosecutor's question referred to a state­ment defendant made at an aborted guilty plea hearing.  At that hearing, the trial court had refused to accept defendant's plea in light of defendant's re­spons­es to the court's ques­tions aimed at eliciting the factual basis for the plea.  

At a conference on jury instructions, the trial judge expressed his concern about the prosecution's reference to the state­ment made at the aborted guilty plea hearing.  The trial judge assert­ed that the prosecu­tion had an obligation to follow up its impeachment of defendant.

The prosecution moved for leave to reopen its case in order to perfect impeachment of defendant's testimony.  The trial court allowed the motion.  The prosecution called Investigator Harder to the stand.  Harder testified he was present in court when defendant was asked whether he entered the McConville home.  Harder recalled that defendant stated:  "Dude did it.  Dometric went in.  I almost went in but I stayed in the car."  The prosecution then called Sherry Bolt, the court report­er at defendant's aborted guilty plea hear­ing.  Bolt testi­fied her typed notes from the proceeding indicate defendant made the following statement at the hearing:  "Well, it was a dude.  Dude was with me.  Dometric.  That's the one that did it.  I almost went in the house."

Defendant requested that the jury be allowed to consider the lesser-included offense of criminal sexual assault.  The court granted defendant's motion.  People's In­struc­tion No. 6C (Illinois Pattern Jury Instructions, Criminal, No. 2.01R (3d ed. 1992) (modified)) in­struct­ed the jury, in perti­nent part:

"Under the law, a person charged with two counts of Aggravated Criminal Sexual Assault may be found (1) not guilty of both counts of Aggravated Criminal Sexual Assault, and not guilty of Criminal Sexual Assault or (2) guilty of one count of Aggravated Criminal Sexual Assault, and not guilty of the other count of Aggravated Criminal Sexual Assault, and not guilty of Criminal Sexual Assault, or (3) guilty of both counts of Aggra­vated Criminal Sexual Assault, and not guilty of Crimi­nal Sexual Assault, or (4) guilty of the lesser includ­ed offense of Criminal Sexual Assault, and not guilty of either count of Aggravated Criminal Sexual Assault."

People's In­struc­tion No. 100 (Illinois Pattern Jury Instruc­tions, Criminal, No. 26.01R (3d ed. 1992) (modified)) instructed the jury, in rele­vant part:

"Under the law, the defendant cannot be found guilty of both Aggravated Criminal Sexual Assault and Criminal Sexual Assault.  Accordingly, if you find the defendant guilty of either count of Aggravated Criminal Sexual Assault, or both counts of Aggravated Criminal Sexual Assault, that verdict would mean that the defendant is not guilty of Criminal Sexual Assault.  Like­wise, if you find the defendant guilty of Criminal Sexual Assault, that verdict would mean that the defendant is not guilty of Aggravated Criminal Sexual As­sault."

The jury found defendant guilty of both counts of aggravated criminal sexual assault and not guilty of criminal sexual assault.  The jury also returned guilty verdicts on the charges of home invasion, robbery, and residential burglary.  The trial court entered its judgment on these verdicts.

ANALYSIS

I.  Legally Inconsistent Verdicts

On appeal, defendant contends his convictions for aggra­vat­ed crimi­nal sexual assault should be reversed out­right because they are legally inconsistent with his acquittal on the lesser-included charge of criminal sexual assault.  

Logically inconsistent ver­dicts may stand, while legally incon­sistent verdicts cannot.  
People v. Klingenberg
, 172 Ill. 2d 270, 665 N.E.2d 1370 (1996).  Where proof of one offense (
the predi­cate offense) is an essential element of another offense (the compound offense), verdicts acquitting the defendant of the predicate offense and convicting the defen­dant of the compound offense are legally inconsistent.  
People v. Frias
, 99 Ill. 2d 193, 457 N.E.2d 1233 (1983).  Where the charges of criminal sexual assault and aggra­vated crimi­nal sexual assault arise out of a single act of sexual penetra­tion, criminal sexual assault is a predicate offense of aggravat­ed crimi­nal sexual assault.  
People v. Smith
, 245 Ill. App. 3d 712, 614 N.E.2d 1326 (1993).  In the case at bar, the verdicts acquit­ting defendant of criminal sexual assault and convicting him of two counts of aggravated criminal sexual assault are based on a single act of sexual penetration.  Therefore, the ver­dicts are legally incon­sistent and defendant's convictions for aggravated criminal sexual assault must be reversed.

The State maintains the verdicts are not legally inconsistent because the inconsistent verdicts resulted from the jury's faithful application of the court's erroneous instructions.  The State, howev­er, cites no author­ity to support this proposition.  Al­though it is pre­sumed that a jury follows the court's instruc­tions in arriving at its verdict (
People v. Boshears
, 228 Ill. App. 3d 677, 592 N.E.2d 1187 (1992)), it does not necessarily follow that, but for the faulty in­struc­tions, the jury would have found defendant guilty of crimi­nal sexual assault.  The trial court's misstatement of the law is almost certainly the cause of the legally inconsistent verdicts in this case.  The trial court's error, howev­er, does not reconcile the inconsistent verdicts or render them any more reliable.  See 
Klingenberg
, 172 Ill. 2d 270, 665 N.E.2d 1370 (legally inconsis­tent verdicts cannot stand because they are inherently unreli­able).

Neither can it be maintained that defendant's failure to object to the errant jury instructions constitutes a waiver of his claim concerning the legally inconsistent verdicts.  Although a defendant who fails to object to a jury instruction waives any error concerning the propriety of the instruction (
People v. Anderson
, 201 Ill. App. 3d 75, 559 N.E.2d 267 (1990)), defendant in the case at bar does not claim the court's instruction of the jury was error.  Rather, defendant argues that the jury's verdicts were legally incon­sis­tent.  Moreover, defendant's failure to raise the issue of the jury's legally incon­sis­tent ver­dicts at trial or in a post-trial motion does not result in a waiver of that issue because legally inconsistent verdicts present plain error, the exception to the rule of waiver.  
People v. Fornear
, 283 Ill. App. 3d 171, 669 N.E.2d 939 (1996).  

Having determined defendant's convictions for aggravat­ed criminal sexual assault must be reversed, we must now deter­mine whether he may be retried on those charges.  The doctrine of collateral estoppel and the guarantee against double jeopardy contained in the Illinois and federal constitutions preclude the State from retrying a defendant on the compound offense where the defendant has been acquitted of the predicate of­fense.  
Klingenberg
, 172 Ill. 2d 270, 665 N.E.2d 1370; Ill. Const. 1970, art. I, § 10; U.S. Const. amends. V, XIV.  Moreover, an acquit­ted defen­dant may not be retried even where it appears that the acquittal is based upon an egregiously erroneous foundation.  
Klingenberg
, 172 Ill. 2d 270, 665 N.E.2d 1370 (citing 
Arizona v. Washington
, 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978)).  We hold, therefore, that the State may not retry defendant on the charge of aggravated criminal sexual assault as he has already been acquitted on the predicate charge.

II. Admission of Guilty Plea Hearing Statements

We turn next to defendant's claim that he was denied a fair trial when, at the trial court's suggestion, the prose­cu­tion reopened its case and introduced statements defendant made at an aborted guilty plea hear­ing.  We note at the outset that defendant neither objected to the admission of these statements at trial, nor included the issue in a post-trial motion.  Under such circumstances, this issue normally would be considered waived.  See 
People v. Enoch
, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).  In recognition of the devastating effect the use of plea negotia­tion testimony may have, however, Illinois courts have held that the use of such testi­mony is so prejudicial as to require reversal as plain error.  
People v. Friedman
, 79 Ill. 2d 341, 403 N.E.2d 229 (1980).

Supreme Court Rule 402(f) pro­vides, in pertinent part:  "if a plea of guilty is not accept­ed or is with­drawn, *** neither the plea discussion nor any result­ing agree­ment, plea, or judg­ment shall be admissi­ble against the defendant in any crimi­nal proceeding."  134 Ill. 2d R. 402(f).  The State concedes that the statements at issue are inadmissible plea-related statements.  The State maintains, however, that any error resulting from the introduction of the statements is harmless.  We disagree.

Defendant's statements during the aborted guilty plea hearing tend to contra­dict defendant's trial testi­mo­ny as to whether he ever went to the McConville home, whether he was in the light blue car on April 5, 1995, and whether he was with Demerick Pugh on that day.  Inves­tigator Harder and Sherry Bolt testi­fied defen­dant made the state­ments in open court.  The jury was left to speculate as to the nature of the hearing at which defen­dant made the statements and to wonder whether he made the statements under oath.  Under these circum­stances, we hold that the admis­sion of defendant's plea-related state­ments was plain error.  See 
People v. Benniefield
, 88 Ill. App. 3d 150, 410 N.E.2d 455 (1980).  Accord­ingly, defendant's convic­tions for home inva­sion, rob­bery, and residen­tial burglary must be reversed and his cause remanded for a new trial on these charges.

Finally, we must agree with defendant that the trial judge acted improperly when he urged the prosecution to reopen its case in order to perfect its impeachment of defendant's testimony.  To direct the jury to disregard the prosecutor's reference to the aborted guilty plea hearing would have been the better course.  We believe the trial judge crossed the line of judicial propriety  when he urged the prosecution to reopen its case in order to intro­duce highly preju­di­cial, inad­missible evidence against defen­dant.  Accord­ingly, in order to remove any appearance of judicial bias, on remand this matter should be as­signed to a differ­ent trial judge.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Rock Island County is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

HOMER and HOLDRIDGE, J.J., concur.

FOOTNOTES
1: The trial transcript contains references to "Demerick," "Demetrius," and "Dometric."  The parties agree that these names all appear to refer to the same person.


