People v. Johnson , 2022 IL App (5th) 180371-U ( 2022 )

NOTICE
2022 IL App (5th) 180371-UNOTICE
Decision filed 03/17/22. The
This order was filed under
text of this decision may be NO. 5-18-0371 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Saline County.
)
v. ) No. 16-CF-55
)
KEVIN A. JOHNSON, ) Honorable
) Walden E. Morris,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Barberis concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying defendant’s motion to suppress or
considering the psychological impact of defendant’s actions in sentencing
defendant. Defense counsel did not provide ineffective assistance of
counsel for failing to admit videotaped police interviews at the suppression
hearing where the recordings did not provide support for defendant’s
contentions of involuntariness.
¶2 Defendant appeals from his convictions for criminal sexual assault and aggravated
criminal sexual abuse, as well as his sentence of 34 years’ imprisonment. He contends the
court erred in denying defendant’s motion to suppress admissions given during police
interviews and considering the psychological impact of defendant’s actions when
sentencing defendant. For the following reasons, we affirm.
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¶3 I. BACKGROUND
¶4 Defendant, Kevin A. Johnson, was convicted of three counts of criminal sexual
assault for performing cunnilingus upon A.G., who was a family member under 18 years
of age, in violation of section 11-1.20(a)(3) of the Criminal Code of 2012 (Code) (720
ILCS 5/11-1.20(a)(3) (West 2016)), and two counts of aggravated criminal sexual abuse
for having A.G., a family member who was under 18 years of age, fondle his penis for the
purpose of sexual gratification or arousal in violation of section 11-1.60(b) of the Code (id.
§ 11-1.60(b)). Defendant was appointed counsel, Nathan Rowland. However, the court
subsequently allowed defendant to waive his right to counsel and proceed pro se.
¶5 On August 19, 2016, the State filed a motion in limine, requesting to bar defendant
from playing his videotaped interviews with police at trial. The State argued that
defendant’s exculpatory, self-serving statements contained on the videotapes would be
inadmissible hearsay if played as substantive evidence because defendant could avoid
taking the stand and being subject to cross-examination. It further alleged that no other
hearsay exception applied that would allow it to be introduced. The court granted the
State’s motion.
¶6 Although the State requested the videotapes not be played, the State disclosed its
intent to use defendant’s inculpatory statements as substantive evidence. On August 23,
2016, defendant filed several pro se motions. In those motions, he requested that, inter alia,
the suppression of the interviews on the basis that his interview was coerced by Agent Colp
and that he was a paranoid schizophrenic coming off his psychotropic medication.
Defendant filed another pro se motion to suppress on August 31, 2016, alleging that Agent
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Colp coerced a confession by telling defendant that a warrant would be issued for his arrest
if he did not come back on January 28, 2016, for a polygraph test and second interview.
The motion also noted that defendant started a new medication on January 28, 2016.
¶7 On October 5, 2016, the court appointed defendant counsel, Tammi Jackson,
because it thought defendant could not properly represent himself. Jackson withdrew as
counsel and the court appointed Amanda Moore (trial counsel). Moore represented
defendant for the remainder of the pretrial proceedings, at the bench trial, and at sentencing.
¶8 On September 29, 2017, defense counsel filed a motion to suppress the videotaped
interviews, arguing defendant’s statements were not voluntary. The motion alleged that
Agent Colp made repeated requests to interview defendant, to which defendant declined,
and threatened defendant by stating he “would never see the light of day” if he did not do
the interview, coerced defendant into making confessions by telling defendant that Agent
Colp would try to get him out of jail if he cooperated, and manipulated defendant into
confessing by agreeing with defendant that this was not all his fault.
¶9 At the hearing on the motion to suppress, Agent Colp and defendant testified. Agent
Colp testified that he interviewed defendant on January 15, 2016, after the Department of
Children and Family Services contacted the police department regarding allegations of
sexual abuse by defendant to a four-year-old, S.G., who was A.G.’s sister. The interview
took place at the Saline County Sheriff’s Office. During the interview, defendant told
Agent Colp that, on three occasions, A.G. took his hand and rubbed her vagina with his
hand on the outside of the clothing. Defendant agreed to submit to a polygraph
examination, and it was scheduled for January 28, 2016. After the interview concluded,
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defendant was told he was free to leave and he left. Agent Colp stated that he did not contact
defendant anytime between January 15 and 28 of 2016.
¶ 10 Agent Colp stated he encountered defendant again on January 28, 2016, at Saline
County Sheriff’s Office, where defendant was in custody on an unrelated matter. At the
conclusion of defendant’s polygraph exam, the polygraph examiner advised Agent Colp
that defendant did not pass the exam and was willing to talk with him. Agent Colp verified
with defendant that defendant was willing to talk with Agent Colp.
¶ 11 Agent Colp stated that he never asked defendant whether he was competent or under
the influence of any medication. He testified that—at that time—defendant did not appear
under the influence of any medication or narcotics, and he was not informed of any kind
of medication that defendant may have taken. Agent Colp clarified that asking whether a
defendant was under the influence would not necessarily be a part of his questioning
especially when a defendant was in custody in the jail at that time. He also denied making
a promise that defendant could meet with State’s Attorney Mike Henshaw if he cooperated.
¶ 12 Agent Colp testified that he never—in either interview—stated that defendant
“would never see the light of day” if he did not cooperate, made threats of violence, or
came into physical contact with defendant. He further averred that he did not promise
defendant that he would get defendant out of jail if defendant cooperated. Agent Colp
denied making any promises on January 15, 2016, or January 28, 2016, that would induce
defendant into signing away defendant’s rights or speaking involuntarily.
¶ 13 Agent Colp stated, “I used tactics such as that it’s not a big deal, that it wasn’t your
fault, that she had come on to you, things of that nature, to make him feel more comfortable
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in admitting the truth.” He learned those tactics at the Reid school, Illinois State Police
Basic Investigator’s Course, and a 40-hour death investigation certification class. Agent
Colp averred that such tactics are commonly used in law enforcement and accepted across
the nation as approved forms of interview techniques. He testified that he did not make
promises in using those tactics and that defendant did not give any indication that he did
not wish to speak with Agent Colp.
¶ 14 Before each interview began, Agent Colp read defendant his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966). He did not, however, ask defendant if he could
read English or have defendant read the form out loud. Defendant then signed the
standardized form that indicated he understood and waived his rights. Agent Colp testified
that he did not coerce or make any promises to get defendant to sign either waiver form,
and defendant signed both forms voluntarily.
¶ 15 On recall, Agent Colp stated that he did not tell defendant that he would set up an
interview with State’s Attorney Henshaw in either interview. Agent Colp also testified that
he never threatened defendant by stating he would not see the light of day and that
defendant never informed him of taking any medication.
¶ 16 Defendant testified that he was 41 years old, completed high school, and knew how
to read and write in English. He stated that after speaking to Agent Colp on January 15,
2016, Agent Colp threatened defendant by saying he would have a warrant out for his arrest
if he did not come back. Defendant admitted he made incriminating statements on January
28, 2016, during his second interview with Agent Colp.
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¶ 17 Defendant was arrested on January 18, 2016, on an unrelated matter. Prior to
January 28, 2016, defendant had never been arrested or had a previous criminal history and
was not aware of his rights. Defendant stated—at the time of his arrest—he was addicted
to Oxycontin and Xanax.
¶ 18 He averred he was in observation for seven to eight days in a small jail cell that had
no TV or bathroom because he tried to hurt himself. However, defendant did not personally
remember trying to hurt himself, as he was coming off Oxycontin and Xanax and did not
understand what was going on around him. During this time, the jail provided food, but he
was not eating. He stated while in observation on January 26, 2016, Agent Colp sent a
correctional officer to threaten defendant by saying defendant would never see the light of
day if he did not take a polygraph examination, after defendant already declined to do so.
¶ 19 Defendant testified that his withdrawal from Oxycontin and Xanax impacted his
ability to understand the interview with Agent Colp, and, but for the withdrawal, he would
have refused to answer Agent Colp’s questions. Defendant also stated that the jail started
him on Prozac the morning of his interview, and he informed the correctional officer,
polygraph examiner, and Agent Colp as such. He felt the Prozac made him “more loopy.”
Defendant averred that Agent Colp used techniques—such as telling defendant it was not
his fault—that made him feel like what he said was not truthful. Agent Colp also told
defendant that if he cooperated and provided the information needed, defendant could
speak with State’s Attorney Henshaw. According to defendant, this promise was the reason
he told Agent Colp what he wanted to hear. Defendant never met with State’s Attorney
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Henshaw. Defendant concluded that he did not believe the statements made on January 28,
2016, were voluntary.
¶ 20 On cross-examination, defendant stated that he remembered being read his rights on
January 15, 2016, but did not remember Agent Colp reading them on January 28, 2016.
However, defendant admitted that he signed both waiver forms. Defendant also testified
that he did not take any Oxycontin or Xanax between his arrest on January 18, 2016, and
his second interview on January 28, 2016.
¶ 21 The court found that defendant’s will was not overborne and that his statements—
in both interviews—“were the product of the defendant’s rational intellect and free will.”
The court further found the statements were made voluntarily, knowingly, and intelligently
without compulsion or unlawful inducement. Accordingly, the court denied the motion to
suppress.
¶ 22 Defendant was found guilty of all counts on October 2, 2017. The convictions
subjected defendant to a possible 4 to 15 years’ imprisonment for each count of criminal
sexual assault (counts I, II, and III) and 3 to 7 years’ imprisonment for each count of
aggravated criminal sexual abuse (counts IV and V).
¶ 23 At the sentencing hearing, the court admitted victim impact statements from A.G.
and A.G.’s mother, Rose Deblase. Both read their statements at the hearing.
¶ 24 Rose averred that in addition to the abuse to A.G., defendant abused her son St. G.
but was not charged. She explained that after St. G. witnessed defendant abusing A.G.,
defendant would drug St. G. with sleeping pills. She had to sleep with her son for over year
due to his fear of defendant hurting him. Her son also told her that defendant tried to kill
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him more than once, but he did not provide details. Her son, who was only eight years old,
attempted suicide over the matter and was admitted to the hospital for 14 days. Now, her
son had to take medications.
¶ 25 With respect to A.G., Rose stated that defendant stole her innocence and made her
grow up too fast. A.G. did not understand how someone who wanted to be her father could
do something like this. Rose believed A.G.’s life would never be the same thanks to
defendant. Rose averred that A.G. also attempted suicide, which put her in the intensive
care unit in the hospital and then the psychiatric unit for 10 days. A.G. also cut herself for
months before her attempted suicide.
¶ 26 Rose also stated that defendant ripped her world apart, because only one of her four
children live with her. A.G., St. G., and S.G. now live with guardians because they feel like
she cannot protect them. Rose contended defendant abused her trust, and as a result, she
tried to take her own life twice. Rose stated that she cried almost daily for the past two
years, became depressed, and must now take medication. She did not believe her heart
would ever be whole again.
¶ 27 A.G. also read her victim impact statement. She stated that defendant stuck his
hands down her pants the first time when defendant dated her sister’s grandmother in 2013.
Soon after, defendant got into a relationship with her mother. After about a year, defendant
would attempt to get close to her and eventually talked her into having sex with him. A.G.
cried about it but did not tell anyone because she wanted her mom to be happy. After that
first time, defendant made having sex a habit. While they lived in Raleigh, the sex would
continue anytime defendant could get her alone. This lasted for almost three months until
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defendant went to jail. A.G. said defendant going to jail made her happy because he could
never hurt her again, but she was unhappy that people found out about defendant abusing
her. At first, she did not believe the police when they told her it was not her fault because
she felt guilty for letting defendant talk her into the sexual abuse.
¶ 28 A.G. stated that she became depressed, and had anxiety, and suicidal thoughts. She
got so overwhelmed that she started to self-harm. She began to “not care” and her grades
suffered. A.G. averred after the trial was postponed for the seventh time, she tried to
commit suicide. She was in the ICU for a week and then the behavioral unit for almost two
weeks. A.G. stated that she developed a lot of fears and would wake up crying every night.
Defendant also changed her relationship between her and her mom because she fostered
hate towards her mom for not protecting her.
¶ 29 The State argued that defendant’s conduct caused or threatened serious harm to A.G.
730 ILCS 5/5-5-3.2(a)(1) (West 2016). It explained that his actions need not cause physical
harm and, here, the actions caused mental harm. The State argued defendant had not only
stolen A.G.’s innocence and self-esteem but also her family, as she now lived with
guardians because she felt her mother could not protect her. The State also contended that
section 5-5-3.2(a)(7) of the Unified Code of Corrections (Unified Code), the necessity in
deterring other from committing the same crime, supported a lengthy sentence. Id. § 5-5-
3.2(a)(7). Accordingly, the State requested a 15-year term of imprisonment for each count
of criminal sexual assault to be served consecutively, and a 6-year term for both counts of
aggravated criminal sexual abuse also to run consecutively, for a total of 57 years’
imprisonment.
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¶ 30 Defense counsel argued the defendant’s action neither caused nor threatened serious
physical harm to another. Id. § 5-5-3.1(a)(1). He also contended section 5-5-3.1(a)(7) of
the Unified Code favored mitigation because—to date—defendant had only a conviction
for a traffic citation. Id. § 5-5-3.1(a)(7). Accordingly, defense counsel requested the
minimum of four years’ imprisonment on counts I, II, and III, and the minimum of three
years’ imprisonment for counts IV and V, to be served concurrently.
¶ 31 After considering the victim impact statements, the parties’ arguments, and the
factors in aggravation and mitigation, the court sentenced defendant to a total of 34 years’
imprisonment. It imposed 10 years’ imprisonment for each count of criminal sexual assault
as charged and found in counts I, II, and II, each to be served consecutively. The court
further sentenced defendant to four years’ imprisonment for each count of aggravated
criminal sexual abuse as set forth in counts IV and V with the sentence for count IV to be
served consecutively with each sentence imposed for counts I, II, and III, but served
concurrently with the sentence imposed as to count V.
¶ 32 On November 3, 2017, defendant filed a document with the court that contended
counsel was inadequate and deprived him of a fair trial. Defendant alleged that his attorney
failed to keep him informed. Attached to the document was another document that provided
further information. Defendant asserted that previous counsel, Nathan Rowland, failed to
contact the jail nurse to testify that defendant was off his medication and not competent to
waive his rights, and that defendant needed rehabilitation for his addiction to meth,
Oxycontin, and Xanax. Defendant also contended that counsel failed to obtain a video of
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Agent Colp threatening defendant to have a second interview on January 28, 2016, and
evidence proving that he was not a family member.
¶ 33 With respect to Amanda Moore, defendant asserted that she failed to obtain
evidence that defendant was not a family member. Defendant also claimed counsel failed
to obtain jail records “proving [defendant] was in observation and not compident [sic] to
sign [his] rights away or give [an] interview,” or to call witnesses that defendant told her
call.
¶ 34 The court denied defendant’s pro se claims. On January 10, 2018, the court granted
a substitution of attorneys and appointed Allen Roe (posttrial counsel).
¶ 35 On February 9, 2018, posttrial counsel filed a motion for a new trial, alleging,
inter alia, that the court erred in admitting defendant’s admissions to Agent Colp because
they were involuntarily made. At the hearing, posttrial counsel argued that while defendant
was told he was free to leave during his January 15, 2016, interview, he had no experience
with the criminal justice system and did not know that he could refuse questioning and
leave at that time. Posttrial counsel also contended that Agent Colp’s threat of defendant
“never seeing the light of day” if he did not come to a second interview made defendant’s
subsequent admission involuntary. Further, posttrial counsel asserted that defendant was
suffering from withdrawals from his substance dependency and started a new prescription
on the date of the interview. As such, counsel argued that defendant was in no condition
physically or mentally to consent to an interview. After a hearing on the matter, the court
denied the motion.
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¶ 36 Late notice of appeal was allowed on August 2, 2018. This court also allowed
defendant to supplement the record with the videotapes of his interviews, pursuant to
Illinois Supreme Court Rule 329 (eff. July 1, 2017). See Nameoki Township v. Cruse, 155
Ill. App. 3d 889, 895 (1987).
¶ 37 II. ANALYSIS
¶ 38 On appeal, defendant argues (1) the court erred in denying his motion to suppress,
(2) trial counsel provided ineffective assistance for failing to admit the videotaped
interviews in arguing the motion to suppress, and (3) the court improperly considered a
factor inherent in the offense when it sentenced defendant.
¶ 39 A. Motion to Suppress
¶ 40 On appeal, defendant argues the court erred in failing to suppress statements made
during his second interview on January 28, 2016. A ruling on a motion to suppress is
subject to a mixed standard of review. People v. Woods, 2019 IL App (5th) 180336, ¶ 27.
We give great deference to the trial court’s findings of fact and review its factual findings
to determine whether they are against the manifest weight of the evidence. Id.Nevertheless, we review the trial court’s ultimate legal ruling as to whether suppression is
warranted de novo. Id.¶ 41 Under the fifth amendment of the United States Constitution, which applies to the
states through the fourteenth amendment (People v. Hunt, 2012 IL 111089, ¶ 23), “[n]o
person shall *** be compelled in any criminal case to be a witness against himself.” U.S.
Const., amend. V. As such, a defendant’s statements or confession obtained during
interrogation must be voluntary; otherwise, it is inadmissible. People v. Sanders, 2021 IL
12
App (5th) 180339, ¶ 41. The State bears the burden to show that the statements were
voluntary by a preponderance of the evidence. People v. Richardson, 234 Ill. 2d 233, 254
(2009).
¶ 42 To determine the voluntariness of a statement, courts consider the totality of the
circumstances, “including the defendant’s age, intelligence, education, experience, and
physical condition at the time of the detention and interrogation; the duration of the
interrogation; the presence of Miranda warnings; the presence of any physical or mental
abuse; and the legality and duration of the detention.” People v. Welch, 365 Ill. App. 3d
978, 985-86 (2005). “No single factor is dispositive, rather [t]he test of voluntariness is
whether the individual made his confession freely and voluntarily, without compulsion or
inducement of any kind, or whether the individual’s will was overborne at the time of the
confession.” (Internal quotation marks omitted.) People v. Murdock, 2012 IL 112362, ¶ 30.
¶ 43 In arguing the State could not have met its burden to prove that defendant’s
confession was the product of free will, defendant contends that circumstances changed
dramatically between his first and second interview. He asserts during his second interview
he was withdrawing from Oxycontin and Xanax and had just started Prozac, which made
him “more loopy.” He notes that he had attempted to harm himself and was being held in
observation. He also states that immediately before his second interview, he was informed
of failing his polygraph test and—due to his lack of prior experience with law
enforcement—did not understand that such exam could not be used against him. Defendant
argues that his testimony to these facts was not refuted where Agent Colp admitted that he
did not inquire as to whether defendant had slept, eaten, or been taking any medications or
13
narcotics in the jail, or if defendant had any physical, mental, or emotional issues.
According to defendant, these facts in conjunction with Agent Colp’s interrogation tactics
rendered defendant’s statements involuntary. We disagree.
¶ 44 Police deception, drug ingestion prior to interrogation, or knowledge of failing a
polygraph exam do not automatically render an admission involuntary. People v. Kashney,
111 Ill. 2d 454, 466 (1986); People v. Kincaid, 87 Ill. App. 3d 552, 556 (1980); People v.
Higgins, 239 Ill. App. 3d 260, 272 (1993). Rather, they are factors to be considered.
Kashney, 111 Ill. 2d at 466; Kincaid, 87 Ill. App. 3d at 556; Higgins, 239 Ill. App. 3d at
272. The pivotal question remains to be whether defendant’s “ ‘will was overborne at the
time the confession was made.’ ” People v. Simpson, 129 Ill. App. 3d 822, 832 (1984)
(quoting People v. Kincaid, 87 Ill. 2d 107, 119 (1981)).
¶ 45 In light of the circumstances of this case and Illinois precedent, we find the
interrogation techniques here did not render the confession involuntary. In People v. Valle,
defendant—who was 18 years old and had never been arrested—confessed to a shooting
after two interviews with police officers. People v. Valle, 405 Ill. App. 3d 46, 49-53 (2010).
Over the course of the interviews, an officer told defendant that there was a recording in
which defendant could be heard admitting to the shooting of the victim, which was untrue.
Id. at 48. The officer also falsely told the defendant that the victim was an FBI informant.
Id. Officers further deemphasized defendant’s potential criminal liability by stating that the
shooting might have been excusable, such as self-defense or that the shooting was an
accident. Id. at 49-50. The appellate court affirmed the trial court’s admission of the
confessions. Id. at 61. It held that the degree of aggression and deception did not result in
14
an involuntary confession where defendant was not particularly susceptible to the police
tactics. Id. In making this conclusion, the Valle court relied on two Illinois Supreme Court
cases, People v. Martin, 102 Ill. 2d 412, 417-18 (1984), and People v. Kashney, 111 Ill. 2d
454, 462 (1986). Id. at 59.
¶ 46 In Martin, defendant made incriminating statements after the police and state’s
attorney knowingly and falsely told defendant that his codefendant named him as the
shooter in a homicide. Martin, 102 Ill. 2d at 416-17. The supreme court found the
statements were voluntarily given where police provided Miranda warnings, and although
not a high school graduate, defendant was literate and understood his constitutional rights.
Id. at 427. The court also reasoned that the interrogation was not lengthy, and defendant
was not subjected to physical abuse or threatened. Id.¶ 47 In Kashney, defendant was charged with a rape and admitted to being in the victim’s
apartment and engaging in consensual sex after an officer falsely told defendant that his
fingerprints were found in the apartment. Kashney, 111 Ill. 2d at 461-62. The supreme
court found defendant’s statements were voluntary despite the misrepresentation based on
facts of that case, including that defendant was a literate and educated man who was
subjected to a four-hour interview in which there was no indication of threatening behavior
or mistreatment. Id. at 466-67.
¶ 48 The police tactics in this case were much less severe than the blatant deception
involved in the above authority. Agent Colp did not deceive or make falsities. Rather,
Agent Colp testified he only minimized the severity of defendant’s culpability. Defendant’s
failure to realize the criminal liability of his actions is insufficient to find the admissions
15
were involuntary. Martin, 102 Ill. 2d at 427; People v. Henderson, 37 Ill. 2d 489, 492
(1967).
¶ 49 Moreover, there is no indication that defendant had a special susceptibility to the
police tactics here. Defendant was a 40-year-old man with a high school education. Before
each interview, defendant signed a waiver form after being read his Miranda rights.
¶ 50 Unlike the above cases, there were allegations of threats and promises here, but
Agent Colp dispelled every allegation of a threat, coercion, or promise in his testimony.
Agent Colp also contradicted defendant’s conclusion that Prozac affected his ability to
understand his rights and the interrogation by testifying that defendant did not appear under
the influence of any medication or drug. Defendant further undermined the severity of any
allegation of suffering from withdrawal symptoms at the time of the second interview by
conceding that it had been 10 days since he last took those medications.
¶ 51 Because the trial court is in the position to observe the conduct and demeanor of the
parties, we will not substitute our judgment for the trial court’s when the evidence is
conflicting and subject to different interpretations. In re Shutters, 56 Ill. App. 3d 184, 188
(1977). Matters of credibility and findings of fact are best resolved by the trial court.
Richardson, 234 Ill. 2d at 265. In light of Agent Colp’s testimony to the contrary, the trial
court was not required to accept defendant’s contention that his admissions were the
product of intoxication, threat, or promises. People v. Govea, 299 Ill. App. 3d 76, 88
(1998).
¶ 52 We further find that defendant’s argument that being informed of his failed
polygraph test coerced him into confessing does not require reversal. There was no
16
evidence presented at the suppression hearing that anyone informed defendant of the exam
results. Agent Colp testified that the examiner informed him that defendant failed, but
neither Agent Colp nor defendant testified that defendant was aware of the results.
Nevertheless, we note that given that defendant was literate and had no particular
suggestibility, we fail to see how the failure of a polygraph exam—that defendant
voluntarily agreed to take—coerced him or overbore his will to subsequently make
inculpatory admissions to Agent Colp. See People v. Thomas, 137 Ill. 2d 500, 516 (1990);
People v. Taylor, 58 Ill. 2d 69, 75-77 (1974).
¶ 53 Accordingly, on this record, we find police did not overbore defendant’s will such
that his admission was involuntary. The court’s denial of defendant’s motion to suppress
was therefore proper.
¶ 54 B. Ineffective Assistance of Counsel Claim
¶ 55 Defendant also argues trial counsel was ineffective for failing to introduce and admit
into evidence his videotaped interviews at the suppression hearing and, as a result, failed
to provide meaningful support for the defense’s theory that defendant’s statements were
involuntary. He contends the inability to review the two videotaped interviews was
significant because the trial court could not observe, compare, and analyze defendant’s
physical and mental conditions during the interviews. Also, without reviewing the
recordings, the trial court could not compare how defendant appeared in the recordings to
his in-court testimony. Defendant asserts how he appeared, sounded, and reacted were
essential to trial counsel’s defense theory on the motion to suppress—that defendant was
17
mentally incompetent to waive his Miranda rights and that Agent Colp coerced, threatened,
and made promises that overbore defendant’s will.
¶ 56 A criminal defendant has a constitutional right to effective assistance of counsel.
U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance
of counsel are evaluated under the two-prong test set forth in Strickland v. Washington,
466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d 504 (1984) (Illinois Supreme Court
adopting the Strickland standard). To prevail, a defendant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness and counsel’s errors
resulted in prejudice. People v. Bailey, 2020 IL App (5th) 160458, ¶ 86. Because we find
defendant failed to prove prejudice, we need not determine whether counsel’s performance
was unreasonable. Strickland, 466 U.S. at 697.
¶ 57 Defendant seemingly contends that the failure to present the recordings to the court
at the suppression hearing establishes prejudice itself because the court could not review
them in making its determination on the motion to suppress. Defendant, however, is
mistaken. To prove prejudice in the context of a motion to suppress, “defendant must show
that a reasonable probability exists that both the motion would have been granted and that
the trial outcome would have been different had the evidence been suppressed.” (Emphasis
added.) People v. Orange, 168 Ill. 2d 138, 153 (1995). If the videotaped interviews fail to
give support for defendant’s contentions at the suppression hearing, the admission of the
recordings would not have changed the outcome of the suppression hearing. Rather, to
establish prejudice, the videotaped interviews must provide convincing support for
defendant’s contentions such that the motion to suppress would have been granted.
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¶ 58 Defendant fails to specify the portion of the videotaped interviews that supports his
position. However, he contends the videotaped interviews would have changed the
outcome of the suppression hearing because they show his physical and mental state during
the interviews.
¶ 59 After reviewing the videotaped interviews, we find they do not provide further
support to defendant’s contentions of coercion and involuntariness. On the recordings,
defendant appears coherent and able to intelligently communicate with Agent Colp. While
visibly remorseful and hesitant to answer at times, there is no indication that defendant
suffered from withdrawal or mental impairment. There is also no evidence of physical
impairment or abuse. Nothing on the recordings suggests Agent Colp coerced or induced
defendant’s statements through a promise to meet with State’s Attorney Henshaw or some
other inappropriate promise. Although the recordings show Agent Colp used techniques
where he downplayed defendant’s fault in engaging sexually with A.G., Agent Colp
admitted as such at the motion to suppress hearing.
¶ 60 Moreover, the recordings show several factors in favor of finding voluntary
admissions. For example, each interview was less than an hour. Also, despite defendant’s
contentions of drug withdrawal, a comparison of the first and second recordings shows
defendant’s demeanor and actions are substantially similar.
¶ 61 The recordings simply did not provide any further support for defendant’s
contentions such that the outcome of the suppression hearing would have been different.
Accordingly, defendant cannot establish prejudice and his ineffective assistance of counsel
claim therefore must fail.
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¶ 62 C. Sentencing Error
¶ 63 Defendant lastly argues that the court erred in considering mental harm when
imposing a 34-year term of imprisonment, because it is presumed that the legislature took
psychological harm into account when creating and defining the charged offenses. He
contends that the record demonstrates that the court considered mental harm in imposing
the sentence because it explicitly noted when it was not going to consider an aggravating
factor argued by the State. Defendant concedes he failed to preserve this issue but requests
plain error review. Under a plain error analysis, we must first determine whether an error
occurred. People v. Hileman, 2020 IL App (5th) 170481, ¶ 47. For the following reasons,
we find the court did not err in considering the psychological impact of defendant’s actions
when imposing a sentence.
¶ 64 “[A] single factor cannot be used both as an element of the offense and as a basis
for imposing a harsher sentence than might otherwise have been imposed.” (Internal
quotation marks omitted.) People v. Phelps, 211 Ill. 2d 1, 12 (2004). Because we presume
the legislature necessarily considered the factors inherent in an offense when designating
the sentencing range for the offense, courts cannot use a factor implicit in the offense also
as an aggravating factor in sentencing. People v. Guevara, 216 Ill. 2d 533, 545 (2005).
Such use of a single factor constitutes impermissible “double enhancement.” Id.¶ 65 Generally, when a sentence falls within the statutorily prescribed range, a trial
court’s sentence is entitled to great deference and will be overturned only for an abuse of
discretion. People v. Bunning, 2018 IL App (5th) 150114, ¶ 16. However, de novo review
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is appropriate when determining whether a court improperly relied upon a factor implicit
in the offense when imposing the sentence. Phelps, 211 Ill. 2d at 12.
¶ 66 In support of defendant’s contention that the psychological harm caused by his
actions was implicit in the offenses for which he was convicted, defendant cites to People
v. Calva, 256 Ill. App. 3d 865, 875-77 (1993), and People v. Huddleston, 212 Ill. 2d 107,
133-47 (2004). We find no support in these cases for his position.
¶ 67 In Huddleston, the Illinois Supreme Court determined whether the statutorily
imposed mandatory life sentence when a defendant is convicted of criminal sexual assault
against two or more children was unconstitutional as applied to defendant. Huddleston, 212
Ill. 2d at 110-11. In doing so, the court acknowledged the psychological damage to children
that results from sexual crimes committed against them. Id. at 134-36. The court, however,
did not address whether such psychological harm was an inappropriate factor in sentencing
a defendant who committed a sexual offense against a child.
¶ 68 Similarly, the First District in Calva did not determine that trial courts could never
consider psychological harm in sentencing defendant for sexual offenses against children.
Rather, the First District specifically found that the court could not infer psychological
harm beyond that inherent in the offense where no evidence was presented to show
psychological harm to the victim. Calva, 256 Ill. App. 3d at 875.
¶ 69 Many courts, including this court, have found that the psychological harm endured
by a child victim as a result of the sexual offense is an appropriate factor to consider when
sentencing a defendant. Bunning, 2018 IL App (5th) 150114, ¶ 18 (collecting cases);
People v. Burton, 102 Ill. App. 3d 148, 154 (1981) (psychological harm was an appropriate
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factor to consider in sentencing defendant for a sex offense because, although the victims
did not testify, the court observed the victims); People v. Nevitt, 228 Ill. App. 3d 888, 892
(1992) (“The psychological harm inflicted on a young victim of a sexual crime has been
held to be a proper consideration.”). In Bunning, this court found Calva distinguishable
and that the sentencing court properly considered psychological harm in sentencing
defendant for aggravated criminal sexual abuse where there was evidence of the specific
psychological harm to the victim. Bunning, 2018 IL App (5th) 150114, ¶¶ 21-22. We
reasoned that the sentencing court observed the victim through her testimony and could
rely upon the victim impact statement of victim’s mother that spoke of the victim’s
experience with psychological treatments and her concern that the victim was not who she
used to be. Id. ¶ 21.
¶ 70 Here, the State presented evidence of A.G.’s psychological harm. The court
observed A.G.’s testimony regarding defendant’s abuse. A.G.—as well as her mother—
submitted victim impact statements that revealed the psychological impact of defendant’s
actions. A.G. testified to self-harm, attempted suicide, necessity of psychological
treatment, and continued distrust of others. We find the record supports a finding—or at
least a reasonable inference—of harm, similar to Bunning. See id. ¶¶ 21-22. Accordingly,
the court did not err in considering psychological harm as an aggravating factor in
sentencing.
¶ 71 III. CONCLUSION
¶ 72 The trial court did not err in denying defendant’s motion to suppress his admissions.
Because the videotaped interviews failed to support defendant’s contentions at the
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suppression hearing, counsel was not ineffective for failing to admit the recordings for the
court’s review. Also, the court properly considered psychological harm as a factor in
sentencing defendant where the record contains evidence of the psychological impact of
defendant’s actions. Accordingly, we affirm the conviction and sentence.
¶ 73 Affirmed.
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