People v. Peppers

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN D, PEPPERS, Defendant-Appellant.

Court: APPELLATE COURT OF ILLINOIS THIRD DISTRICT

Date published: Sep 16, 2015

Facts

The State charged defendant with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2010)). The charges alleged that the defendant was more than five years older than 15-year-old T.T. and he placed his penis and fingers inside T.T.’s vagina. ¶ 7 The State filed a motion in limine, seeking to bar admission of any testimony addressing T.T.’s sexual activity with anyone other than the defendant. The motion argued that any such testimony was prohibited by section 115-7 of the Illinois Code of Criminal Procedure of 1963 (rape shield statute) (725 ILCS 5/115-7 (West 2010)). The defendant argued that T.T.’s alleged sexual history with the State’s witness, Nicholas Ferreira, was admissible under the exception to section 115-7(a) for testimony that was “constitutionally required to be admitted.” 725 ILCS  5/115-7(a) (West 2010). The defendant argued that the sexual relationship between T.T. and Ferreira supported the defendant’s theory of the case and was necessary to adequately confront Ferreira. ¶ 8 According to the defendant, Ferreira’s testimony was potentially biased because the sexual relationship between T.T. and Ferreira was criminal, but Ferreira had not been charged with a crime. Ferreira was therefore subject to impeachment. Furthermore, the sexual relationship between Ferreira and T.T. showed that Ferreira was more likely to fabricate testimony to protect someone with whom he shared an intimate relationship. In addition, the defendant’s awareness of the sexual history between T.T. and Ferreira bolstered the defendant’s defense theory that the defendant reasonably believed T.T. to be 17 years of age. That is, the defendant would have reasonably believed that any sexual relationship between Ferreira and another person was legal, and therefore that T.T. must have been at least 17 years of age. The court denied the motion. The cause proceeded to a jury trial. ¶ 9 Nicholas Ferreira testified that he had known the defendant for a few years. On the night of February 27, 2010, Ferreira, the defendant, T.T., and two other people were socializing and drinking alcohol at Ferreira’s parents’ house while his parents slept. Ferreira discovered the defendant and T.T. having sex in the bathroom. He told them to relocate to the basement, which they did. Ferreira went to the basement to get a drink and saw defendant and T.T. again having sex. Later that night, T.T. joined Ferreira and another friend while they sat in Ferreira’s car. T.T. was upset and told Ferreira that defendant had raped her. When Ferreira went back inside the house, defendant seemed aggravated. Earlier that day, Ferreira told defendant that T.T. was 16 years of age.  ¶ 10 After Ferreira’s testimony, defendant moved for a mistrial. He argued that the State’s discovery suggested that Ferreira had told defendant about T.T.’s age months before February 27, 2010, and not earlier that day. Defendant argued that he wanted to impeach Ferreira based on his potentially inconsistent statements but could not because the only witnesses to Ferreira’s pretrial statements were the two State Attorneys conducting the trial. The court denied the motion. ¶ 11 T.T. testified that on the night of February 27, 2010, she was using the bathroom at Ferreira’s parent’s house when defendant entered, pushed her against the wall, stripped her of her clothes, and inserted his fingers and penis into her vagina. He stopped when Ferreira entered the bathroom. T.T. exited the bathroom and tried to call a friend to come get her. Defendant grabbed T.T. and took her to the basement, where he again had vaginal sex with her. Afterward, he said he was sorry. The following day, T.T. had a rape kit conducted. T.T. testified that she was 15 years of age on February 27, 2010. She had previously met defendant in November 2009, when she was in a car with both defendant and Ferreira. At that time, both she and Ferreira told defendant that she was 15 years of age. ¶ 12 J. Nicholas Miller testified that, after defendant was charged in the present case, defendant told Miller that he planned to beat the charges by testifying that he thought T.T. was at least 17 years of age. Defendant told Miller that at the time of the alleged crimes, he knew T.T. was 15 years of age. Defendant explained that he was in a car when Ferreira told him T.T.’s age, but defendant planned to testify that music playing in the car was too loud for him to hear what Ferreira said. ¶ 13 During Miller’s testimony, the State’s questioning revealed that Miller and defendant were in the custody of the Will County sheriff’s department when the conversation occurred, in violation of the court’s pretrial order, which barred the State from mentioning that defendant and Miller met while in custody. Defendant moved for a mistrial. The court denied that motion, electing instead to admonish the jury not to consider defendant’s presence in custody. Miller testified that he did not receive consideration from the State in exchange for his testimony. ¶ 14 Defendant testified that he had consensual sex with T.T. on February 27, 2010. At that time, he did not know T.T.’s age but believed that she was at least 17 years of age. ¶ 15 The jury found defendant guilty on both counts. Defendant filed a motion for a new trial, arguing, in part, that a new trial was necessary because Ferreira testified that he told defendant T.T.’s age on February 27, 2010, rather than three months earlier, as the State’s discovery suggested. The court granted a new trial on that basis and barred the same State’s Attorneys from prosecuting the new trial. ¶ 16 The cause proceeded to a bench trial. Before trial, the court asked the defense counsel if he had any motions to argue. Counsel responded that he had “none other than my understanding there [were] motions already argued prior, and I believe all those arguments and the rulings would stand.” The parties stipulated that the witnesses’ testimony and exhibits from the first trial would be admitted at the new trial, except that T.T. and Ferreira would testify anew. ¶ 17 T.T. testified that in November 2009, she met defendant and told him that she was 15 years of age. She did not tell him her age on the night of February 27, 2010. She testified consistently with her earlier testimony as to the events of February 27, 2010. ¶ 18 Ferreira testified consistently with his previous testimony. He again testified that on February 27, 2010, prior to the sexual conduct between defendant and T.T., Ferreira told defendant that T.T. was 16 years old. Ferreira did not remember telling defendant about T.T.’s age at any time prior to February 27, 2010.  ¶ 19 The court found defendant guilty on both counts and sentenced him to concurrent sentences of 5½ years’ imprisonment, in addition to various costs, including a $10 preliminary hearing fee; a $50 appeal fee; a $10 mental illness fee; and a $100 Violent Crime Victims Assistance Fund (VCVA) fine. Defendant appeals.

Issue

Decision

The judgment of the circuit court of Will County is affirmed in part and vacated in part. The cause is remanded for further proceedings. ¶ 35 Affirmed in part and vacated in part; cause remanded. ¶ 36 PRESIDING JUDGE McDADE, concurring in part, dissenting in part. ¶ 37 The majority has found that the performance of the trial counsel of defendant, Brian Peppers, was deficient, but that other evidence presented at trial precluded a finding required by the second prong of Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), that counsel’s errors prejudiced defendant. For this reason, the majority declined to find counsel was ineffective. The majority also vacates certain enumerated fines and fees and remands the matter to the circuit court to correct a procedural error relative to this sentencing issue. ¶ 38 I concur with the finding that the trial counsel’s performance was deficient, but, for reasons that follow, I believe, on this record, a finding that the error was prejudicial is compelled. I also concur with the majority’s decision on the issue of fines and fees. 10 ¶ 39 The basis for the majority’s finding that defendant was not prejudiced by his attorney’s error in failing to argue that he should be allowed to introduce evidence of T.T.’s prior sexual history is the existence of other evidence that he knew T.T. was younger than 17. The majority concludes that “because of the other evidence establishing that defendant knew of T.T.’s age, there was not a reasonable probability that the result of the proceeding would have been different.” That position cannot, in my opinion, withstand scrutiny. ¶ 40 Defendant does not deny having sex with T.T. on February 27, 2010, but he claims it was consensual and that he reasonably believed that T.T. was 17 years old and not a minor protected by the statute. The facts that could support the reasonableness of his belief include 1. T.T. was at a party with 19 and 20-year-old males at 1 or 2 a.m. when the incident occurred. Although her friend had left earlier to go home, T.T. had stayed and had been drinking alcohol. 2. Peppers knew that the State’s witness, Nicholas Ferreira, had had sex with T.T. on at least one prior occasion, that Ferreira was 20 years old and that he could have been charged with the same crime as Peppers had T.T. been younger than 17. 3. Peppers assumed T.T. was of age and was not informed that night or on any prior occasion that T.T. was in fact under 17 4. T.T.’s conduct was that of a willing sexual partner in that she remained in the bathroom while he used the toilet; she initiated the foreplay; and she made neither objection nor outcry when Ferreira came into the bathroom and told them to take it to the basement, when Peppers carried her downstairs or when Ferreira, seeing them engaged in sex later on the basement sofa, told them to “have fun.” He opined that 11she accused him of rape because she was upset that he did not know or remember her name. ¶ 41 The evidence at trial attacking the reasonableness of his belief that T.T. was 17 at the time of the incident was: 1. The testimony of Ferreira that he had told defendant on the night of the charged incident that T.T. was 16, although he could not remember the context in which the subject had come up. Ferreira denied having introduced them or told defendant T.T.’s age on any other occasions. Defendant was, however, unable to challenge the credibility of this testimony because the true nature of the relationship between Ferreira and T.T. had been barred by the court. 2. The testimony of T.T., contrary to Ferreira, that she and Ferreira had told defendant in November or December 2009 and definitely before New Year 2010 that she was 15 years old. T.T. was insistent about the time frame, but the record shows defendant was incarcerated at that time and was not released until January 8, 2010. She also testified that she did not tell defendant at the time of the incident that she was only 15. 3. The testimony of Nicholas Miller, a jailhouse snitch who claimed defendant had acknowledged to him that he had known T.T. was not 17 because he had been so told by a mutual friend, presumably Ferreira, in a car that T.T. was only 15. Miller’s testimony was suspect because (a) both Peppers and Ferreira denied any such discussion in a car, (b) Ferreira believed T.T. was 16, not 15, and (c) he was adamant 12that defendant told him the act was done on a washer/dryer and defendant and all other witnesses agreed it occurred on the sofa. Not only does the content of the testimony not ring true, it is also highly unlikely that defendant would have disclosed information to a hate-mongering snitch that is not only inculpatory but also contrary to his assertions of fact. ¶ 42 In sum, having doubt cast on the reliability and credibility of Nicholas Ferreira in conjunction with the major holes in the testimony of T.T. and Miller, makes it reasonably likely that an objective, discerning, and intelligent fact finder could conclude that defendant was not aware of T.T.’s true age at the time that they had what he believed to be consensual sex.

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