                               Illinois Official Reports

                                       Supreme Court



                               People v. Stevens, 2014 IL 116300




Caption in Supreme       THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARK
Court:                   STEVENS, Appellant.



Docket No.               116300



Filed                    December 18, 2014



Held                       Where an aggravated-criminal-sexual-assault defendant testified at
(Note: This syllabus trial, the 1977 judicial modification of the older rule limiting
constitutes no part of the cross-examination to the subject matter inquired into on direct
opinion of the court but permitted him to be cross-examined about a pending unrelated sexual
has been prepared by the assault charge where this served to discredit his consent defense and to
Reporter of Decisions test his credibility—no violation of the fifth amendment privilege
for the convenience of against self-incrimination found.
the reader.)




Decision Under           Appeal from the Appellate Court for the First District; heard in that
Review                   court on appeal from the Circuit Court of Cook County, the Hon.
                         Nicholas Ford, Judge, presiding.




Judgment                 Appellate court judgment affirmed.
     Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
     Appeal                   Deputy Defender, and Brett C. Zeeb, Assistant Appellate Defender, of
                              the Office of the State Appellate Defender, of Chicago, for appellant.

                              Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                              State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
                              Annette Collins and Iris G. Ferosie, Assistant State’s Attorneys, of
                              counsel), for the People.


     Justices                 JUSTICE FREEMAN delivered the judgment of the court, with
                              opinion.
                              Chief Justice Garman and Justices Thomas, Kilbride, Karmeier,
                              Burke, and Theis concurred in the judgment and opinion.



                                                OPINION

¶1         Defendant Mark Stevens was convicted of aggravated criminal sexual assault in the circuit
       court of Cook County and contended on appeal that his fifth amendment right against
       self-incrimination was violated when he was compelled to testify on cross-examination about a
       pending sexual assault charge. The appellate court rejected this argument and affirmed
       defendant’s conviction. 2013 IL App (1st) 111075. This court allowed defendant’s petition for
       leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). For the following reasons, we affirm the
       judgment of the appellate court.

¶2                                             BACKGROUND
¶3          Prior to defendant’s bench trial for the sexual assault of B.P., the State filed a motion
       in limine to admit other-crimes evidence pursuant to section 115-7.3(b) of the Code of
       Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3(b) (West 2012)). The motion sought
       to admit evidence that defendant had sexually assaulted R.G.1 At that time, defendant had
       been arrested and charged with assaulting R.G., but the case had not yet proceeded to trial. The
       State alleged in the motion that the other-crimes evidence was relevant to show defendant’s
       propensity to commit sexual assaults as well as to prove motive, intent, identity, the existence
       of a common plan or design, modus operandi, or lack of consent. The trial court granted the
       motion, finding that the evidence was relevant to show propensity, motive and identity. The
       court further determined that the probative value of the evidence outweighed the prejudicial
       value.
¶4          At trial, B.P. testified that defendant sexually assaulted her on October 1, 2002, when she
       was 13 years old. In the early evening hours on that day, B.P. was walking home alone when
       she heard a male voice say “come here.” She ignored the voice but then heard someone running

           1
           The motion also sought to admit evidence that defendant assaulted 17-year-old C.G. in 2003 and
       17-year-old B.M. in 2007; however, that evidence was not introduced at trial.

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     toward her. Defendant grabbed her from behind and forced her into the backseat of a nearby
     car. Defendant got in the driver’s seat and she noticed an object on his hip that appeared to be
     the handle of a handgun. Defendant drove the car for about an hour before exiting the car and
     forcing B.P. out of the car. He grabbed her by the arm and led her to the basement of an
     apartment building. Defendant left her alone for about 10 minutes before returning. He then led
     B.P. to a landing between the first and second floors of the apartment building where the sexual
     assault occurred. He ordered her to perform oral sex and then forced her to have vaginal and
     anal sex. B.P. stated that she could not stop defendant or move from under his weight. B.P.
     heard someone enter the apartment building, which caused defendant to stop the assault and
     leave the building. B.P. then exited the building and rode the bus home. When she arrived
     home, she told her mother about the assault and shortly thereafter went to the hospital where
     doctors performed a pelvic exam. Subsequently, in 2008, B.P. identified defendant as her
     assailant in a photographic array and a lineup.
¶5       On cross-examination, B.P. did not recall having told police officers on the night of the
     assault that defendant pointed a gun at her head, that there were two other offenders who stood
     guard during the attack, and that the assault occurred in an apartment unit within the building.
¶6       The parties stipulated that if called to testify, Dr. Monique Karaganis would testify that she
     examined B.P. on the date of the assault and observed a tear in B.P.’s hymen, two tears in her
     rectum and bloody semen in her vagina and rectum. Dr. Karaganis would also testify that her
     findings were consistent with the use of force or forceful intercourse. The parties further
     stipulated that defendant’s buccal swab matched the male DNA profile obtained from B.P.
     during the pelvic exam.
¶7       Pursuant to the State’s motion in limine to admit other-crimes evidence, the State called
     R.G. to testify. R.G. testified that defendant sexually assaulted her on September 3, 2008. She
     was 21 years old at that time. R.G. stated that on that day, she left work about 9 p.m. and was
     on the “L” train platform when a man approached her from behind, pointed something hard
     and sharp in her back and told her to go with him. Defendant threatened R.G. and directed her
     to a different train platform where they boarded a train. When they exited the train, defendant
     took her to a nearby hotel and forced her into the room. Defendant told R.G. to remove her
     clothes and defendant recovered a switchblade from R.G.’s clothes. He threatened her with the
     knife and forced her to perform oral sex. Defendant then forced R.G. to have vaginal sex and
     attempted to have anal sex. Defendant told R.G. that he would kill her if she told anyone about
     the assault. Later that night, they left the hotel room and boarded another train. Prior to exiting
     the train, defendant again told R.G. not to report the assault to anyone. After R.G. arrived
     home, she went to the hospital where doctors performed a pelvic exam. While at the hospital
     she spoke with two detectives and later accompanied the detectives to the hotel where the
     assault occurred. R.G. further stated that prior to the assault she had received strange phone
     calls, which she later realized were from defendant, but she had no prior knowledge of
     defendant and did not know how he had obtained her phone number.
¶8       Defendant testified on direct examination that he met B.P. on a telephone chat line about
     two weeks prior to October 1, 2002, and during several subsequent telephone conversations
     they agreed to meet for “sexual activity.” According to defendant, on October 1, B.P. came to
     defendant’s home and after she smoked marijuana, they went to an unoccupied third-floor



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       apartment where they engaged in consensual sexual activity. Defendant stated that he believed
       B.P. was 18 years old.
¶9         During the State’s cross-examination of defendant, the assistant State’s Attorney
       questioned defendant about R.G. Defense counsel immediately objected to any questions
       concerning R.G., arguing that since defendant’s direct examination was limited to testimony
       only about B.P., any questions about R.G. exceeded the scope of direct examination. The trial
       judge responded,
               “I don’t know how you can limit it like that. You’re right it’s an active case but he
               chose to testify and part of the evidence that he’s facing on a case that’s currently
               before me is the evidence of proof of other crime[s].”
       The court also stated that defendant’s credibility was at issue. Defense counsel further argued
       “[a]nd he’s got his 5th Amendment Right.” The trial judge responded,
               “under these circumstances, under these condition[s], his credibility, it was introduced
               for propensity obviously whether or not that other incident occurred or how he might
               explain it would be something that would be relevant in this case also.”
       The court then directed the assistant State’s Attorney to continue her cross-examination.
¶ 10       Defendant testified on cross-examination that he first met R.G. at a bus stop and she gave
       him her phone number. They later met on an “L” train platform and rode the train to a hotel
       where they watched television, smoked marijuana and drank alcohol. According to defendant,
       R.G. voluntarily performed oral sex on him and she agreed to have vaginal sex.
¶ 11       In finding defendant guilty, the trial court noted the similarities between the assaults of
       B.P. and R.G. The court also characterized defendant’s testimony as “disturbing in the
       extreme,” and noted that “no one could look at him and listen to the way he testified and not
       come to the inescapable conclusion that he was lying.” The court further stated that even if the
       other-crimes evidence regarding R.G. had not been admitted, the evidence against defendant
       was so strong that it was sufficient to prove defendant guilty beyond a reasonable doubt.
¶ 12       The appellate court affirmed, rejecting defendant’s claim that his fifth amendment right
       against self-incrimination was violated when the trial court permitted him to be
       cross-examined about the R.G. assault. 2013 IL App (1st) 111075, ¶ 54. The court concluded
       that the examination was proper because it discredited defendant’s testimony, was probative of
       his intent and motive, and impeached his claim of consent. Id. ¶ 55.
¶ 13       We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2013).
       We affirm the judgment of the appellate court.

¶ 14                                         ANALYSIS
¶ 15       On appeal, defendant contends that his fifth amendment right against self-incrimination
       was violated when he was compelled to testify on cross-examination about the pending sexual
       assault charge involving R.G. Defendant argues that the cross-examination was improper
       because he did not waive his fifth amendment right with respect to the offense involving R.G.
       by testifying about B.P. and the cross-examination exceeded the scope of his direct
       examination.




                                                    -4-
¶ 16       The United States Constitution provides: “[n]o person shall be *** compelled in any
       criminal case to be a witness against himself.” U.S. Const., amend. V.2 The privilege has also
       been incorporated in the Illinois Constitution, which provides: “[n]o person shall be compelled
       in a criminal case to give evidence against himself.” Ill. Const. 1970, art. I, § 10. The privilege
       against self-incrimination “is an exception to the general principle that the Government has the
       right to everyone’s testimony.” Salinas v. Texas, 570 U.S. ___, ___, 133 S. Ct. 2174, 2179
       (2013). While the privilege prohibits compelled testimony, it does not prohibit a witness from
       testifying voluntarily in matters that may incriminate him. United States v. Monia, 317 U.S.
       424, 427 (1943). The defendant who takes the stand and testifies in his own behalf in a criminal
       case not only offers himself as a witness in his own behalf but thereby subjects himself to
       legitimate cross-examination. People v. Burris, 49 Ill. 2d 98, 104 (1971). Although
       cross-examination is generally limited to the subject matter inquired into on direct
       examination, this rule has been modified to the extent that it is proper on cross-examination to
       develop all circumstances within the knowledge of the witness that explain, qualify, discredit
       or destroy his direct testimony, even if such examination constitutes new matter that aids the
       cross-examiner’s case. People v. Williams, 66 Ill. 2d 478, 486 (1977). Additionally, “[a]ny
       permissible matter which affects the witness’s credibility may be developed on cross-
       examination.” People v. Kliner, 185 Ill. 2d 81, 130 (1998). The extent of cross-examination
       with respect to an appropriate subject of inquiry rests in the sound discretion of the trial court.
       Burris, 49 Ill. 2d at 104. It is only in the case of a clear abuse of such discretion resulting in
       manifest prejudice to the defendant that a court of review will interfere. Id.
¶ 17       We find that defendant’s fifth amendment right against self-incrimination was not violated
       when the trial court allowed the State to cross-examine defendant about the R.G. assault. When
       defendant took the stand and testified in his own behalf he opened himself up to legitimate
       cross-examination. As noted above, legitimate cross-examination includes “all circumstances
       within the knowledge of the witness which explain, qualify, discredit or destroy his direct
       testimony.” (Internal quotation marks omitted.) Williams, 66 Ill. 2d at 486. Cross-examining
       defendant about the R.G. assault did just that. Defendant testified on direct examination that he
       and B.P. met on a telephone chat line and after several conversations, B.P. came to his home
       where they engaged in consensual sexual activity. This testimony was in complete contrast to
       B.P.’s testimony wherein she stated that defendant forced her into a car, drove her to an
       apartment building and forced her to perform oral, vaginal and anal sex. Defendant’s direct
       examination testimony put the issue of consent and his credibility in question. His testimony
       was subject to cross-examination about the R.G. assault to the extent that the cross-
       examination discredited his consent defense as well as his credibility. Defendant’s contention
       that he did not waive his fifth amendment right with respect to the R.G. assault because he
       limited his direct examination testimony to the B.P. assault ignores this essential fact. It was
       the substance of defendant’s direct examination testimony that made cross-examination about
       the R.G. assault permissible. As our Supreme Court stated long ago, a defendant “has no right
       to set forth to the jury all the facts which tend in his favor without laying himself open to a
       cross-examination upon those facts.” Fitzpatrick v. United States, 178 U.S. 304, 315 (1900).
       We conclude that the cross-examination of defendant about the R.G. assault was an

          2
            The fifth amendment’s self-incrimination clause applies to the states through the due process
       clause of the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).

                                                    -5-
       appropriate subject of inquiry and the trial court did not abuse its discretion in permitting the
       exam. Accordingly, defendant was not compelled to give evidence against himself within the
       meaning of the fifth amendment.
¶ 18       This holding is consistent with our precedents. In Williams, the multiple defendants were
       on trial for murder, and one of the defendants who testified on direct examination limited his
       testimony to his whereabouts on the day of the murders. The trial court permitted the State to
       cross-examine the defendant about a supermarket robbery that had occurred about a week
       before the murders. The supermarket robbery had led to a confrontation between one of the
       victims and the defendant shortly before the murders, which provided a motive for the
       murders. We held the cross-examination was proper even though the defendant limited his
       direct examination testimony to the day of the murders. Williams, 66 Ill. 2d at 486.
¶ 19       In People v. Provo, 409 Ill. 63 (1951), the defendant was on trial for the murder of his wife.
       He testified on direct examination that he accidentally shot his wife and that he only fired one
       shot from the gun. The trial court permitted the defendant to be cross-examined as to a bullet
       hole in the wall of his home as well as his actions a week before and immediately after the
       crime. We held the cross-examination was proper because it would “throw light” on the
       essential facts referred to in his direct examination about whether he intended to kill his wife.
       Id. at 69.
¶ 20       Here, similarly, the trial court properly allowed defendant to be cross-examined about the
       R.G. assault despite defendant not having testified about it on direct examination because it
       cast doubt on his consent defense and affected his credibility.
¶ 21       Defendant relies primarily on People v. Nachowicz, 340 Ill. 480 (1930), and People v.
       Geidras, 338 Ill. 340 (1930). However, we find these cases distinguishable. In Nachowicz, the
       defendant’s testimony, which had been given at the trial of his coworker, was subsequently
       admitted at the defendant’s trial for embezzlement. The defendant had testified on direct
       examination that his coworker had not received the proceeds of certain checks. On
       cross-examination, the defendant refused to answer whether he himself had received the
       proceeds, and attempted to assert his privilege against self-incrimination. The court directed
       the defendant to answer and he admitted he had received the proceeds. The defendant argued
       on appeal that the cross-examination was improper. This court rejected the defendant’s
       contention, finding that when “a witness discloses a part of a transaction or conversation
       tending to [in]criminate him he waives his privilege and must answer freely and disclose the
       whole transaction or conversation unless the partial disclosure is made under an innocent
       mistake or does not clearly relate to the transaction as to which he refuses to testify.”
       Nachowicz, 340 Ill. at 493. This court further explained, “[i]f [the witness] waives the privilege
       he does so fully in relation to that act, but he does not thereby waive his privilege of refusing to
       reveal other unlawful acts wholly unconnected with the act of which he has spoken, even
       though they may be material to the issue.” Id.
¶ 22       Here, defendant relies on the above-quoted language to support his contention that by
       testifying about B.P., he did not waive his fifth amendment right against self-incrimination
       with respect to the R.G. assault because it was “wholly unconnected” to the B.P. assault.
       However, defendant erroneously attempts to apply Nachowicz’s holding to an entirely
       different issue in a different context. The issue in Nachowicz concerned a witness’s partial
       disclosure of a transaction on direct examination and whether the witness could be questioned


                                                    -6-
       fully as to that same transaction on cross-examination. The court was not concerned with the
       issue presented in the case at bar: whether the cross-examination of defendant about the assault
       of R.G. was proper to discredit his consent defense and question his credibility. Defendant
       again ignores this critical fact that the substance of his direct examination testimony put the
       issue of consent and his credibility in question, which made them a proper subject of inquiry on
       cross-examination. We are not persuaded by defendant’s reliance on Nachowicz.
¶ 23       In Geidras, the defendant and three others were on trial for robbery. The defendant testified
       on his own behalf and defense counsel did not question the defendant on direct examination
       about his relationship with a codefendant or whether he or the codefendant had ever owned or
       possessed a gun. The defendant was then asked on cross-examination about his relationship
       with the codefendant and whether he or the codefendant had a gun. We held the cross-
       examination was improper because the defendant had not testified about those matters on
       direct examination. Geidras, 338 Ill. at 344. We also explained that the cross-examination,
       along with prejudicial rebuttal evidence, was improper because its purpose and effect was to
       induce the jurors to believe that the defendant and the codefendant were well acquainted and
       had committed other robberies. Id.
¶ 24       Defendant fails to acknowledge that Geidras preceded this court’s decision in Williams
       where we modified the general rule that had previously limited cross-examination to the
       subject matter inquired into on direct examination. As noted above, we modified the rule to the
       extent that “[i]t is proper on cross-examination to develop all circumstances within the
       knowledge of the witness which explain, qualify, discredit or destroy his direct testimony.”
       (Internal quotation marks omitted.) Williams, 66 Ill. 2d at 486. As we have explained, the
       cross-examination of defendant about the R.G. assault was proper to discredit his consent
       defense and test his credibility. Unlike in Geidras, the cross-examination here had a proper
       purpose. We are not persuaded by defendant’s reliance on Geidras.

¶ 25                                        CONCLUSION
¶ 26       We conclude that defendant’s fifth amendment right against self-incrimination was not
       violated when the trial court allowed the State to cross-examine defendant about the R.G.
       assault. We affirm the judgment of the appellate court.

¶ 27      Appellate court judgment affirmed.




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