Opinion
No. 2-12-0216
06-27-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR MUJICA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Boone County.
No. 05-CF-321
Honorable
Fernando L. Engelsma,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Burke and Spence concurred in the judgment.
ORDER
¶ 1 Held: Defendant showed no plain error or ineffective assistance of counsel as to the trial court's barring of a witness: the court barred the witness not because, as defendant argued, counsel did not disclose her, but because the witness's proposed testimony was improper collateral impeachment; defendant did not contest that actual ruling, which in any event was not an abuse of discretion. ¶ 2 Following a bench trial, defendant, Victor Mujica, was convicted of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2010)) and sentenced to seven years' imprisonment. He appeals, contending that (1) the trial court erred in barring the testimony of a proposed defense witness because the witness was not disclosed during discovery and, (2) alternatively, defense counsel was ineffective for not disclosing the witness. After a careful review of the record, we find that the trial court barred the evidence not as a discovery sanction, but because it was irrelevant. Defendant does not contest this ruling on the merits. Therefore, we affirm. ¶ 3 The victim, M.A., was defendant's stepdaughter. She testified that she lived in Belvidere with her mother, Lora; her sister, Nikita; and defendant. Lora would generally take Nikita to the bus stop at 6:30 a.m. and M.A. would leave for school around 7:40. ¶ 4 On October 19, 2005, M.A. was having breakfast in the kitchen while defendant was in the bathroom. Defendant "drug" her by her arm into her mother's room and laid her on the bed. He put his hands under her shorts and put his finger in her vagina. As she tried to push his hand away, her mother came home. M.A. told her mother what happened. She saw defendant hiding by the bedroom closet. ¶ 5 Officer Thomas Jones and Detective Matthew Wallace responded to the call. M.A. and Lora were upset and crying. They took M.A. to the hospital. Wallace said that, in 2005, the police could not locate defendant. On August 12, 2010, they were notified that defendant had been arrested in Lake County. ¶ 6 Lora testified that, after walking Nikita to the bus stop, she would usually go straight to work at McDonald's. However, on October 19, 2005, she forgot her uniform and had to go back home to get it. When she got home, M.A. was sitting on Lora's bed, looking scared. After talking to M.A., she found defendant by the bedroom closet. His jeans were unbuttoned and the zipper was down. ¶ 7 Lora went to her older daughter, who lived nearby, to call the police. Defendant took off in his truck before the police arrived. Lora testified that she had not seen defendant since October 19, 2005, and did not know where he had been from that time until trial. ¶ 8 On cross-examination, Lora admitted that defendant had come over to her house between four and six times, usually to bring Nikita school supplies. He never came inside. She did not know that defendant was living in Jefferson, Wisconsin, and never visited him there. She conceded that she, Nikita, and M.A. might have visited defendant in Janesville, Wisconsin, but she could not remember. ¶ 9 After the State rested, the prosecutor told the court, "I don't recall there being any answer to discovery listing any witnesses." (The common-law record contains defendant's answer to discovery stating that defendant might call anyone listed in the State's disclosure, or that defendant might testify.) Defense counsel said that he intended to call witnesses to rebut Lora's testimony. The trial court ruled as follows:
"Besides what's being said, that's where I am saying that part of what Attorney Perez [defense counsel] may seek to introduce can—could actually fit into rebuttal. There hasn't been an answer filed, so there isn't an affirmative defense—witnesses to ascertain an affirmative offense [sic].The State introduced evidence of flight, and there was some questioning of [Lora] concerning contact she had with him, so I would permit witnesses concerning that limited issue. That's the only rebuttal that I could see."¶ 10 Defendant testified that, on October 19, 2005, he got up, got Nikita ready for school, and had breakfast. Lora took Nikita to the bus stop at 6:45 and returned home about five minutes later. While Lora was gone, defendant made his lunch and went to brush his teeth. M.A. was in her room. As defendant was coming out of his bedroom, Lora stopped him in the hallway and asked what he was doing. He said that he was going to work and left. Lora called him later and said that she had called the police on him. He tried to call her back later from a pay phone, but she did not answer. ¶ 11 Defendant called his cousin who lived in Jefferson and told him what Lora had done to him. Defendant drove to his cousin's house a few days after the incident. He called Lora and made arrangements with his friend Jaime Leon to return the truck to her. ¶ 12 Defendant testified that, while he was living in Jefferson, Lora came to visit him on a Saturday and stayed overnight. When defense counsel asked him if he saw Lora again after that, the State objected on the ground of relevance. Defense counsel argued that the evidence was relevant because Lora had testified that she saw defendant five or six times between 2005 and 2010 and counsel wanted to impeach her with evidence that she saw defendant more often than that. The trial court sustained the objection, stating:
"At best, that's all collateral. I've allowed it so far just on the issue of flight. We're well beyond that. How many times she saw him is no longer relevant."¶ 13 Defendant denied that he ever took M.A. in the bedroom and that he ever touched her. He did not know why she would accuse him of such an act. ¶ 14 Jaime Leon testified that defendant called him to arrange for him to pick up his truck in Janesville and deliver it to Lora. Leon did not know where defendant was. He delivered the truck to Lora in Belvidere. ¶ 15 After questioning Leon, defense counsel told the court that he had one additional witness, but that "much of what I have to ask her was objected to by the State, and sustained by the court." Counsel said that the witness, Patricia Guillen, would testify that in "2007 and 2010 " defendant and Lora had "constant association," that she knew where he lived, and that he visited her monthly for about three years. The trial court, assuming counsel's statement to be an offer of proof, found the evidence "still *** to be irrelevant at this point, but the offer of proof stands." ¶ 16 Finding M.A.'s and Lora's testimony credible, the trial court found defendant guilty. The court sentenced him to seven years' imprisonment. We allowed defendant to file a late notice of appeal. ¶ 17 Defendant first argues that the trial court erred "in barring the testimony of a defense rebuttal witness on the ground that the witness was not disclosed to the State prior to trial." Alternatively, defendant contends that his counsel was ineffective for not disclosing the witness. ¶ 18 Initially, we note, as defendant concedes, that he did not raise in a posttrial motion the issue of the exclusion of Guillen's testimony. Generally, both an objection at trial and a written posttrial motion raising the issue are necessary to preserve an alleged error for review. See People v. Enoch, 122 Ill. 2d 176, 186-88 (1988). Defendant requests that we review the issue for plain error. ¶ 19 The plain-error doctrine allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances. First, where the evidence in a case is so closely balanced that the conviction may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted. People v. Herron, 215 Ill. 2d 167, 186-87 (2005). Second, where the error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process. Id. at 187. The supreme court has equated the second prong of plain-error analysis with structural error. See People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (quoting Herron, 215 Ill. 2d at 186) (automatic reversal required only where an error is deemed " 'structural,' " i.e., a systemic error that serves to " 'erode the integrity of the judicial process and undermine the fairness of the defendant's trial' "). ¶ 20 The first step in plain-error analysis is to decide if error occurred at all. People v. Hudson, 228 Ill. 2d 181, 191 (2008). This requires us to review the issue substantively. People v. Walker, 232 Ill.2d 113, 25 (2009). Thus, we must decide whether the trial court erred by barring Guillen's testimony. ¶ 21 We find that defendant's first issue is a red herring. The trial court did not bar Guillen from testifying because she was not disclosed as a potential witness. Rather, as the above-quoted passage makes clear, the court rejected counsel's offer of proof because the proposed evidence was irrelevant collateral impeachment. We note that, after the prosecutor's initial reference to the lack of a witness disclosure, the subject was not mentioned again. When defense counsel asked defendant specific questions about his relationship with Lora, the court sustained the prosecutor's objection on the ground of relevance, noting that the evidence would be improper collateral impeachment. When counsel proposed calling Guillen, he noted that the court had already sustained the State's objection to much of the evidence, and the court responded that Guillen's proposed testimony was "still *** irrelevant." ¶ 22 Quite simply, nothing in the record supports defendant's assertion that the trial court barred Guillen from testifying because she was not disclosed as a witness before trial. The trial court simply found that the evidence would have been improper collateral impeachment, exactly as it did when defendant tried to testify to the same information himself. ¶ 23 Moreover, although defendant does not specifically argue the point, we note that the trial court's ruling was not an abuse of discretion. Generally, the latitude allowed counsel on cross-examination and rebuttal is within the trial court's sound discretion, and we will not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. People v. Collins, 106 Ill. 2d 237, 269 (1985). Any permissible type of impeaching matter may be developed on cross-examination, since one purpose of cross-examination is to test a witness's credibility. Id. However, the cross-examiner may not impeach a witness on a collateral matter; he must accept the witness's answer. Id. The test is whether the matter could be introduced for any purpose other than to contradict. Id. ¶ 24 Here, defendant all but concedes that testimony about how often defendant and Lora saw each other after the offense was not relevant for any purpose other than to contradict Lora's testimony. The trial court ruled that it would allow limited evidence on the subject of defendant's flight, which may show consciousness of guilt. See People v. Harris, 225 Ill. 2d 1, 23 (2007). The State's evidence was that defendant abruptly left home right after the offense and went to live with a cousin in Wisconsin, which tended to show that he was attempting to flee the jurisdiction and hide from authorities. By cross-examining Lora, defendant was able to show that he came to her home several times in the years between the offense and his arrest. Moreover, the trial court allowed defendant to testify that Lora spent the night at his house at least once and thus knew where to find him. Thus, defendant was able to rebut the inference that he was "hiding out" in Wisconsin. The trial court did not abuse its discretion by ruling that the precise number of times Lora saw defendant was not relevant for any purpose except to contradict Lora's testimony about a collateral matter. ¶ 25 In any event, any error in excluding the testimony was not reversible. See People v. Naylor, 229 Ill. 2d 584, 602 (2008) (no plain error without reversible error). While defendant correctly notes that this case came down to a credibility battle, the witnesses whose credibility was primarily at issue were M.A. and defendant. The court found M.A. credible and defendant not credible. As defendant himself notes, Lora testified only to things that occurred after the offense was committed. Thus, even had the court completely discounted Lora's testimony, it still would likely have found defendant guilty. ¶ 26 Because we find that the trial court barred Guillen's testimony solely on the ground of relevance, it follows that defense counsel was not ineffective for failing to disclose her as a witness. Doing so would not have changed the court's ruling on the issue of relevance. We note that the court allowed Leon to testify although he, too, was not disclosed as a potential witness. ¶ 27 The judgment of the circuit court of Boone County is affirmed. ¶ 28 Affirmed.