W. PEPPER JR., District Judge
Henry Curtis Jackson, Jr., an inmate confined to the Mississippi Department of Corrections, files application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the otherwise final capital murder convictions and four sentences of death imposed on him by the Circuit Court of Leflore County, Mississippi. Having considered the alleged circumstances, the cited authorities, and the record in this matter, the Court denies the application for the reasons set forth herein.
Background and Procedural History
Around 7:00 p.m. on November 1, 1990, Martha Jackson and four of her grandchildren left her home in the Rising Sun community, south of Greenwood, Mississippi, to attend church services. Her daughter, Regina Jackson, stayed home with her two daughters, Dominique, age five, and Shunterica, age two. Four of Regina's nieces and nephews also stayed home from church services that evening. Eleven year old Sarah, three year old Antonio, two year old Andrew, and one year old Andrea, were watching The Cosby Show on television with Regina and her children when Regina's brother, the petitioner in this cause, knocked on the door. Regina let Petitioner into the house, and he asked her to give him a cigarette and to mix him a remedy for an upset stomach. Shortly thereafter, Petitioner asked Regina why the telephone was not working, and she discovered that the telephone line was dead. Regina and Antonio left and were on their way to a neighbor's home to report the telephone problem, but Sarah called Regina back to the home upon Petitioner's request. When Regina returned to the home, Petitioner asked her if the children could talk. When Regina told him that they could, he told her to take them into Martha's bedroom, which she did. After some discussion about what Regina did with money from her check, she stated that Petitioner grabbed her from behind and told her that "he wanted twenty dollars for some ass." (Trial Tr. Vol. 6, 563). When Regina told him that she did not have the money, he stabbed her with a knife. Hearing Regina's calls for help, Sarah jumped onto Petitioner's back. Regina stated that she began pleading with Petitioner not to kill them as all three struggled, and that Petitioner told her "I love you but I have got to kill you." (Trial Tr. Vol. 6, 566).
The State court record in this case comprises 18 volumes. There are eleven sequentially numbered volumes in the record. The first three volumes contain State court papers ["SCP Vol. ___", the following seven volumes contain the transcript of trial proceedings ["Trial Tr. Vol. ___, ___"], and the final sequentially numbered volume is the trial judge's report to the Mississippi Supreme Court.
By all accounts, Petitioner was at the home that evening in order to get money from a safe that Martha kept in her closet. The safe actually belonged to Eddie Self, Martha's son. According to Regina, only Tara, Self's daughter, and Martha knew the combination to the safe. Regina testified at trial that Sarah told him to get the safe and leave, but that Petitioner said "he came to kill us that Thursday and didn't kill us and he came to kill us that Saturday and he didn't kill us and he said he was going to kill all of us tonight." (Trial Tr. Vol. 6, 567). Petitioner took Regina and Sarah into Tara's bedroom in order to get the combination to the safe, and he began stabbing Sarah in the neck. He then took them into another bedroom and began to tie them up when Regina began striking him with some iron rods that were in the bedroom. She stopped trying to hit him when he picked up Andrea, the baby, and began to use her as a shield. Regina let Petitioner tie her up, and he stabbed her again in the neck. Petitioner also stabbed Antonio and Shunterica. Regina stated that she began to go in and out of consciousness, but she remembered hearing Petitioner dragging the safe down the hallway. The noise woke Dominique, who began calling for Regina. Regina testified that Petitioner called Dominique to him, told her that he loved her, then stabbed her and tossed her body to the floor. Petitioner returned to Regina, stabbing her in the neck and twisting the knife, at which point she pretended to be dead until she heard him leave.
Petitioner had tied Sarah's hands behind her back. Sarah testified that Petitioner stabbed her in the neck with a pocket knife, and that when the knife broke off in her neck, he retrieved a steak knife from the kitchen and continued stabbing her. She testified that she pretended to be dead, and that she ran out of the house while Petitioner was, ostensibly, stabbing Antonio. She said that she hid behind a tree, and she ran to her cousin when she saw him drive up to a neighbor's house. The police were called after Sarah was taken into the home and told everyone what had happened. Regina and Sarah both identified Petitioner as the person who had committed the crimes.
Members of the Leflore County Sheriff's Department responded to Martha Jackson's home, where they discovered Regina and the children. Sarah underwent surgery for five stab wounds across her abdomen, chest, and neck. Regina underwent surgery to repair five stab wounds in her neck, one of which almost completely severed the jugular vein on the right side of her neck. Andrea, the youngest child involved in the attacks, suffered one stab wound to the neck that resulted in tracheal and spinal cord injury. She cannot walk and has no fine motor control in her arms as a result.
Dominique, Shunterica, Antonio, and Andrew were pronounced dead at the scene. The pathologist testified to the numerous lethal and non-lethal injuries inflicted upon the children. Shunterica suffered three stab wounds to the neck, two of which were lethal. Her right jugular vein was severed, and her spinal cord was torn. Andrew suffered three lethal wounds to the neck, and the force severed his carotid artery, jugular vein, and spinal cord. Dominique suffered four stab wounds to the neck, three of which were lethal. Her left jugular vein and trachea were cut through. Antonio suffered four stab wounds, two of which were lethal. Antonio was stabbed through the heart, and his trachea was cut.
Also on November 1, 1990, Eupora Police Officers had set up a roadblock and were conducting a license check when they received a report that there was a wrecked 1977 green Monte Carlo approximately fifty yards away from the roadblock. They discovered that the tag on the vehicle was registered to Martha Jackson's 1973 station wagon, while the car was registered to Petitioner. After receiving a call approximately thirty minutes later that police were searching for Henry Curtis Jackson, Jr., a Eupora Police officer returned to the car and retrieved the wallet on the console. Petitioner's identification was inside, and a massive manhunt for Petitioner began. Petitioner eluded the search teams by traveling through the woods and eventually jumping a train from Eupora to West Point. On Monday, November 5, 1990, he turned himself in at the West Point Police Department and was placed under arrest. He was read his rights, executed a waiver of rights, and gave a statement. After Leflore County Sheriff Ricky Banks arrived, Petitioner signed a written waiver of his rights and gave an audiotaped statement concerning the events that took place on November 1, 1990. In his statement, which was admitted at trial, Petitioner said that he went to his mother's house to get the safe, and that he knew his mother would be at church services at the time. He said that he cut the telephone lines with a knife that he brought with him, and that he unsuccessfully attempted to remove the safe from the house after he stabbed Regina and the children. He fled by climbing out of the bathroom window and running to his car, which was parked approximately two blocks away from the house.
Petitioner was indicted by the Circuit Court of Leflore County on four counts of capital murder while engaged in the commission of the crime of felonious child abuse, two counts of aggravated assault, and one count of armed robbery. He was charged with the capital murder of two year old Shunterica, five year old Dominique, three year old Antonio, and two year old Andrew. He was charged with the armed robbery and aggravated assault of Regina, and he was charged with the aggravated assault of Sarah. He pled not guilty on all seven counts of the indictment.
Trial was set in the Leflore County Circuit Court for August 26, 1991. During the course of voir dire, defense counsel Johnnie Walls sought and obtained a change of venue. Petitioner's trial began on September 9, 1991, in the Copiah County Circuit Court. Petitioner was convicted and sentenced to death on four counts of capital murder. Petitioner's convictions and sentences were affirmed on direct appeal. Jackson v. State, 684 So.2d 1213 (Miss. 1996) ( "Jackson I"), cert. denied, Jackson v. Mississippi, 520 U.S. 1215 (1997). Petitioner's subsequent motion for post-conviction relief was denied. See Jackson v. State, 860 So.2d 653 (Miss. 2003) ( "Jackson II"). Petitioner then filed the instant petition.
Petitioner was also sentenced to thirty years' imprisonment on the armed robbery count and twenty years on each of the two counts of aggravated assault, with the sentences to run consecutively.
Petitioner's attorney on direct appeal did not file a petition for rehearing, so the original opinion was published as Jackson v. State, 672 So.2d 468 (Miss. 1996). After new counsel was appointed, the Mississippi Supreme Court granted Petitioner's out-of-time petition for rehearing and substituted the original opinion with the one cited above.
Applicable Standard
Federal habeas jurisdiction is limited to the question of whether a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Concerned only with whether a prisoner's constitutional rights have been afforded, the district court is not a "forum[] in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Rather, the federal court applies a "highly deferential standard" in evaluating the judgment of a state court. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted). The limits of federal habeas review are codified in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Bell v. Cone, 535 U.S. 685, 693 (2002). Pursuant to the AEDPA, habeas corpus relief cannot be granted in connection with any claim adjudicated on the merits in State court proceedings unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Wiggins v. Smith, 539 U.S. 510, 520 (2003); and 28 U.S.C. § 2254(d)(1) (2). The factual findings of the State court are presumed correct, and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d) have been held to have independent meanings. See, e.g., Bell v. Cone, 535 U.S. 685, 694 (2002); Penry v. Johnson, 532 U.S. 782, 792 (2001). Federal habeas relief may be granted under the "contrary to" clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the "unreasonable application" clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08; see also Brown v. Payton, 544 U.S. 133, 141 (2005). Whether a decision is "unreasonable" is an objective inquiry that does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Williams, 529 U.S. at 410-11; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (habeas relief merited where state decision both incorrect and objectively unreasonable).
A petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State. See Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004). A federal court may not grant federal habeas relief on an unexhausted claim, but relief may be denied on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir. 1999).
Where a petitioner fails to exhaust his State remedies, but it is clear that the State court to which he would return to exhaust the claim would find the claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas corpus review. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). Likewise barred from federal habeas review are claims that the State court held procedurally barred on review on the basis of independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 729-30 ("The doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds."); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977). Where a State court holds a claim barred on independent and adequate State law grounds and reaches the merits of the claim in the alternative, the bar imposed by the State court is not vitiated. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Hughes v. Dretke, 412 F.3d 582, 592-93 (5th Cir. 2005) (alternate holding on merits by state court did not preclude imposition of bar on federal habeas review for petitioner's failure to contemporaneously object on federal constitutional grounds in state court); Thacker v. Dretke, 396 F.3d 607, 614 (5th Cir. 2005) (procedural bar imposed for petitioner's failure to contemporaneously object and preserve claim for review not circumvented by State court's alternative holding that constitutional claim lacked merit).
In order to receive federal habeas review of procedurally defaulted claims, Petitioner must demonstrate "`cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Coleman, 501 U.S. at 749-50 (internal citations omitted). In order to demonstrate cause, a petitioner must show "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice may be demonstrated by showing that the errors "worked to [the petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Carrier, 477 U.S. at 494 (internal quotations omitted). If a petitioner is unable to demonstrate cause and prejudice, he may obtain review of his claim by demonstrating that the application of the procedural bar would result in a miscarriage of justice because he is actually innocent of the crime. See House v. Bell, 547 U.S. 518, 537-38 (2006). An allegation of actual innocence requires that a petitioner support his claim "with new, reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman v. Anderson, 188 F.3d 635, 655 (5th Cir. 1999) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). In terms of the sentencing phase, "miscarriage of justice" also means that, but for constitutional error, no reasonable juror would have found Petitioner eligible for the death penalty under the applicable state law. Sawyer v. Whitley, 505 U.S. 335, 336 (1992).
Counsel's failure to preserve a claim in State court can constitute cause sufficient to overcome a procedural default. See Coleman, 501 U.S. at 753-54. However, a petitioner claiming ineffective assistance of counsel for the purpose of having the underlying substantive claim reviewed on its merits must ordinarily have presented the ineffective assistance of counsel claim independently in State court before it may be argued as cause to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). A federal habeas petitioner's claim that he was denied the effective assistance of counsel at trial is generally measured by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, Petitioner must establish that (1) his trial counsel's performance was so deficient that it cannot be said that he was functioning as "counsel" within the meaning of the Sixth Amendment, and (2) the deficient performance prejudiced his defense. See id. at 687; see also Boyle v. Johnson, 93 F.3d 180, 187 (5th Cir. 1996) (ineffective assistance of counsel claims analyzed under Strickland framework). As claims of ineffective assistance of counsel involve mixed questions of law and fact, claims previously considered and rejected by the State court may be overturned only if "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Strickland, 466 U.S. at 698.
With the foregoing principles in mind, the Court considers each of the sixteen claims raised by Petitioner. Though individually considered, the claims have been consolidated and renumbered for the sake of convenience.
The petition for writ of habeas corpus was filed in this case on December 18, 2003. The Court considers the claims as briefed. This Opinion and Order extensively refers to the document filed in support of the petition as "Pet. Memo," even though it is not styled by Petitioner as a memorandum. ( See docket entry no. 30).
I. Felonious Child Abuse
Petitioner raises three separate claims that involve Mississippi's use and construction of felonious child abuse as a predicate felony for capital murder.
A. Lesser-Included Offense Instruction
Petitioner was found guilty of four counts of capital murder while engaged in the commission of child abuse and/or battery pursuant to Miss. Code Ann. § 97-3-19(2)(f). That statute provides that "[t]he killing of a human being without the authority of law and by any means or in any manner shall be capital murder . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony." Miss Code Ann. § 97-3-19(2)(f). At trial, the court refused to instruct the jury on lesser-included offenses, and it instructed the jury that it must convict Petitioner of capital murder if it was shown beyond a reasonable doubt that the killings took place in the course of felonious child abuse. (SCP Vol. 2, 373-76).
Petitioner argues that in Butler v. State, 608 So.2d 314 (Miss. 1992), the Mississippi Supreme Court recognized that the felony murder statute and the capital murder statute, as it pertains to felonious child abuse, are essentially identical. See id. at 320. Butler, whose child ultimately died after she punched him in the abdomen to stop him from crying, was convicted under Mississippi's capital murder statute. See id. The Mississippi Supreme Court determined that Butler was entitled to a manslaughter instruction. Petitioner maintains that he was entitled to a jury instruction on manslaughter under Butler, as well as an instruction that explained to the jury that it had to find that he intended to commit child abuse in order to find him guilty of felony child abuse. Additionally, he argues that the overlap in the felony murder statute and the capital murder statute as it addresses child abuse gives the jury unfettered discretion to impose a sentence of death or a sentence of manslaughter, which violates the Eighth and Fourteenth Amendments.
The Mississippi Supreme Court rejected this claim when it was presented on direct appeal. The court found that evidence of Petitioner's intent precluded a finding that a manslaughter instruction was warranted, and it determined that there was no evidence to support a determination that any of the children were killed in the heat of passion. Jackson I, 684 So.2d 1213, 1227-28 (1996). It also found that the overlap between the felonious child abuse provisions in the capital murder statute and the felony manslaughter statute did not violate the Eighth Amendment or give prosecutors and juries unfettered discretion as to which sentence to impose, as a conviction for capital murder does not automatically result in a sentence of death. See id. at 1228-29. This claim was again presented on post-conviction review, and the court held it barred by res judicata. Jackson II, 860 So.2d at 663. Petitioner argued that the bar was excepted by Kolberg v. State, 704 So.2d 1307 (Miss. 1997), but the court determined it was not an intervening decision. See id.
At the time of Petitioner's trial, abuse to a child that resulted in the child's death could be punished as either capital murder or manslaughter, depending upon the circumstances of the offense. The felony manslaughter statute provides that a murder committed without malice during the commission of any felony, beyond those specifically enumerated in the statute, is manslaughter. See Miss. Code Ann. § 97-3-27. At the time of Petitioner's trial, the felonious abuse of a child was not one of the excepted felonies. The capital murder statute provides that a murder that occurs during the course of an act of felonious child abuse is capital murder. However, harm must be intentionally inflicted in order for an act to constitute felonious child abuse. See Miss. Code Ann. § 97-5-39(2) (statute providing that "[a]ny person who shall intentionally (a) burn any child, (b) torture any child or (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike, or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child . . ."). Unlike the case in Butler, where there was no evidence that the mother attempted to kill the child or intended that the child die, there is no evidence that Petitioner killed any of the four children without an intent or attempt to do so. See, e.g., Butler, 608 So.2d at 320. The facts of Petitioner's case are more akin to the circumstances in Walker v. State, 671 So.2d 581, 598 (Miss. 1995), where the court found that no reasonable juror could find that Walker acted without malice where he strangled and drowned the victim. Walker, 671 So.2d at 598. Petitioner's jury heard testimony that Petitioner told his victims that he came with the intention of killing everyone in the house. Petitioner stabbed each of these children multiple times in the neck, and he stabbed Antonio through the heart, as well. There is no evidence that would allow a reasonable juror to conclude that he did not intend to kill the children. See id. A criminal defendant is entitled to a lesser-included offense instruction only where the evidence would allow a rational jury to convict on the lesser charge and acquit on the greater. See Hopper v. Evans, 456 U.S. 605, 611-12 (1982); Beck v. Alabama, 447 U.S. 625, 639 (1980); see also Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988), overruled in part on other grounds as recongized by Vanderbilt v. Collins, 994 F.2d 189, 195 (5th Cir. 1993) ("In other words, due process and the Eighth Amendment require that, in a capital case, the jury must be allowed to consider a lesser included noncapital offense if the jury could rationally acquit on the capital crime and convict for the noncapital crime."). Petitioner has not demonstrated that it is unreasonable to conclude that he was not entitled to a manslaughter instruction under § 97-3-27 (felony manslaughter) or § 97-3-35 (heat of passion).
Moreover, the prosecutor and jury were not given "unfettered discretion to impose either the death penalty or convict of manslaughter" as suggested by Petitioner. First, the Court notes that "[s]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Additionally, Petitioner was not sentenced to death when the jury found him guilty of four counts of capital murder. Rather, the jury in this case returned verdicts of death after hearing evidence and receiving instructions on how to consider and weigh the evidence. Petitioner has not demonstrated that the decision to reject this claim was unreasonable within the meaning of the AEDPA, and it shall be dismissed.
B. Edmund v. Florida
In Enmund v. Florida, 458 U.S. 782 (1982), the United States Supreme Court held that the death penalty may be imposed only upon a defendant who kills, attempts to kill, intends to kill, or contemplates that lethal force will be employed in carrying out a felony. Id. at 796; see also Tison v. Arizona, 481 U.S. 137 (1987) (holding that major participation in the felony with reckless indifference to human life is an additional category that satisfies the culpability requirement). In order to satisfy the constitutional requirements as determined by the Court in Enmund, the Mississippi Legislature enacted Miss. Code Ann. § 99-19-101(7), which requires the jury to find at least one of the four Enmund factors before it can impose a sentence of death. On habeas review, Petitioner maintains that he is ineligible for the death penalty because the jury did not find that he intended the death of any of the victims, citing West v. State, 725 So.2d 872, 895 (Miss. 1998) in support. See West, 725 So.2d at 895 (Mississippi Supreme Court holding that "the jury cannot return a death sentence at all if it cannot conclude that a capital defendant intended the death of his victim."). Petitioner raised this claim on post-conviction review, and the Mississippi Supreme Court found it barred for Petitioner's failure to raise the issue at trial or on direct appeal. See Jackson II, 860 So.2d at 664. In the alternative, the court found Petitioner's claim without merit, as the jury found that Petitioner actually killed and attempted to kill his victims, which was sufficient to satisfy the culpability requirements under state law and Supreme Court precedent. See id.
This issue is barred from this Court's consideration pursuant to an independent and adequate State law procedural ground. See, e.g., Coleman, 501 U.S. at 729-30; Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) (recognizing that Mississippi Supreme Court regularly and strictly applies the bar). Petitioner has not demonstrated the requisite cause and prejudice to overcome the bar, or that a fundamental miscarriage of justice would result from this Court's failure to consider the claim.
Even if the Court were to find that Petitioner's claim is cognizable, he fails to demonstrate an entitlement to relief. Petitioner has not demonstrated that an Enmund/Tison analysis is applicable where the capital murder defendant is the actual killer. See, e.g., Murray v. Delo, 34 F.3d 1367, 1376 (8th Cir. 1994) (holding that petitioner who actively participated in the circumstances of the death could not successfully raise Enmund and Tison claim, as those are felony murder cases that apply in situations in which the defendant was not the shooter); Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003) ( Enmund/Tison analysis is not required under the Eighth Amendment in a child abuse murder conviction where the defendant actually killed his victim). Even where such an analysis is required, the jury need only find the presence of one culpability factor in order for the death penalty to be imposed, and Petitioner's jury specifically found the presence of two factors. This claim is barred and otherwise does not entitle Petitioner to relief.
C. Felonious Abuse/Battery of a Child
Petitioner argues that Mississippi's capital murder provision for child abuse/battery, as well as the death penalty scheme as a whole, fails to properly narrow the class of death-eligible defendants as required by the Eighth Amendment. He argues that Mississippi allows a criminal defendant to be death-eligible without any proof of intent to kill or commit the underlying felony, such that death-eligibility is rendered even if one accidentally or negligently kills a child during the commission of a felony. He also argues that only eight states authorize the death penalty for felony-murder simpliciter, and that only Florida joins Mississippi in making felonious child abuse the basis for capital murder. He maintains that a form of capital murder that exists, at most, in only one other state offends the "evolving standards of decency" in this country. See, e.g., Kennedy v. Louisiana, 128 S.Ct. 2461 (2008).
The Court notes that Petitioner argues that in Florida, an intentional or foreseeable injury to the child is required. The Court also notes that Petitioner cites no authority for his claim that only eight states authorize the death penalty for felony murder simpliciter, but the Court notes that the Supreme Court found that to be the case when Enmund was decided in 1982. See Enmund, 458 U.S. at 789.
The Mississippi Supreme Court held this claim barred when it was presented on post-conviction review, as Petitioner failed to raise it at trial or on direct appeal. Jackson II, 860 So.2d at 666. It alternatively held that it had repeatedly found the State sentencing scheme constitutional, despite the lack of a deliberate design requirement in the capital murder statute. See id., citing Miller v. State, 748 So.2d 100, 103 (Miss. 1999).
This claim is barred from federal habeas review on an independent and adequate state law ground. See, e.g., Coleman, 501 U.S. at 729-30; Stokes, 123 F.3d at 860. Petitioner has not demonstrated cause for the default or actual prejudice as a result. Respondents argue, and this Court agrees, that Petitioner has never presented to a State court his argument that the legislative scheme offends the "evolving standards of decency," and it is likewise barred from habeas review. See, e.g., Ruiz v. Quarterman, 460 F.3d 638, 642-43 (5th Cir. 2006) (holding that a petitioner who fails to present same "facts and legal theory" upon which current assertions has failed to properly exhaust his claim in state court and must show cause and prejudice or the miscarriage of justice exception to obtain review).
The Court notes that it is counsel's failure to raise the issue at trial or on direct appeal that bars this claim in federal habeas, and not the res judicata finding on post-conviction review. See Cone v. Bell, 129 S.Ct. 1769 at 1781 (2009).
Even in the absence of a procedural bar, Petitioner fails to demonstrate that he is entitled to relief on this claim. The United States Supreme Court has held that a state's death penalty scheme "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983). However, the Supreme Court has never required that a state define felony murder to include an intent element as to the killing. See Hopkins v. Reeves, 524 U.S. 88, 99-100 (1998) (noting that the lower court "read Tison and Enmund as essentially requiring the States to alter their definitions of felony murder to include a mens rea requirement with respect to the killing. In Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), however, we rejected precisely such a reading . . ."). Mississippi's capital murder statute expressly states that the jury cannot return a sentence of death unless it makes a determination that the defendant actually killed, attempted to kill, intended that a killing take place, or contemplated that lethal force would be employed. See Miss. Code Ann. § 99-19-101(7). Petitioner's jury found that he actually killed and attempted to kill his victims, which satisfies the requirement that the jury find that he had a culpable mental state before imposing a sentence of death pursuant to Enmund and Tison.
The Fifth Circuit recently noted that Mississippi "designates as murder (as opposed to capital murder) any homicide `by any person engaged in the commission of any felony other than' certain enumerated felonies." Crawford v. Epps, 2009 WL 4324990 n. 12 (5th Cir. Dec. 2, 2009) (citing Miss. Code Ann. § 97-3-19(1)(c)). Therefore, Mississippi law initially narrows its class of death-eligible defendants in its statutory definition of crimes. See id. At sentencing, the jury must find the presence of at least one aggravating circumstance beyond a reasonable doubt and the presence of a culpability factor before a defendant is eligible for the death penalty. See Miss. Code Ann. § 99-19-101.
This claim is barred, and Petitioner has not otherwise demonstrated that he is entitled to relief on this claim. It shall be dismissed.
II. Mental Health Evaluation
A. Denial of Independent, Conflict-Free, Reliable, and Competent Evaluation
Petitioner argues that the trial court's appointment of Dr. Michael Whelan to conduct his mental health evaluation denied him an independent and neutral mental health evaluation as required pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985). He maintains that Dr. Whelan was his treating psychologist at the Mississippi State Penitentiary at Parchman, thereby rendering him ethically conflicted and unable to conduct the evaluation ordered by the court. He also contends that Dr. Whelan failed to review records, failed to interview anyone during the course of the evaluation, and failed to complete essential neurological testing. He also maintains that Dr. Timothy Summers, the expert the court allowed the defense to obtain, was unable to meaningfully assist the defense due to time constraints that prevented a full battery of neurological testing. Petitioner notes that he has now been evaluated by both Dr. Criss Lott and Dr. Summers, and each concludes that he is brain damaged. ( See PCR Ex. 10, 25). Petitioner maintains that this evidence of brain damage would have influenced the jury, and that the State cannot carry its burden of proving that the trial court's failure to provide him with an independent, competent, and reliable evaluation was harmless beyond a reasonable doubt.
Throughout this opinion, the Court uses "PCR Ex. ___" to refer to exhibits attached to the petition for post-conviction relief that was filed in State court. Supplemental Exhibits were also filed, and they are noted as "Supp. PCR Ex. ___" throughout the Opinion and Order.
Dr. Michael Whelan was a psychologist at the Mississippi Department of Corrections ("MDOC") who treated Petitioner for depression following his November 23, 1990 and March 8, 1991, suicide attempts. ( See PCR Ex. 3, Greenwood-Leflore Hospital Records; PCR Ex. 4, Bolivar County Hospital records; see also PCR Ex. 5; Trial Tr. Vol. 9, 1076). While hearing motions in the case in April of 1991, Judge Evans stated he would enter an order appointing a psychiatrist and a psychologist to conduct a mental examination of Petitioner. ( See Trial Tr. Vol. 4, 23-24). Prior to entering an order selecting a psychiatrist and psychologist to conduct the evaluation, the trial court ordered the parties to inform it within four days of any special tests to be conducted, particular questions that needed to be answered, or areas that the doctors needed to explore. ( See SCP Vol. 1). In June of 1991, the court appointed Dr. Whelan and Dr. Robert McKinley, a psychiatrist, to conduct an evaluation of Petitioner's competency and criminal responsibility, and each was ordered to also assess any possible mitigating circumstances. ( See, e.g., SCP Vol. 1). Their evaluations were to be joint and separate, and they were ordered to submit their reports to both the defense and the prosecution. ( See id.; Trial Tr. Vol. 4, 24). Dr. Whelan and Dr. McKinley each examined Petitioner and opined that he was competent to stand trial and responsible for his actions at the time of the crimes. ( See PCR Ex. 7 and Supp. PCR Ex. B).
At a hearing on April 12, 1991, the State called up its motion for a mental examination to determine Petitioner's competency to stand trial, sanity at the time of the crimes, and his competency to be executed. ( See Trial Tr. Vol. 4, 6-7). Walls noted that the court had already granted the defense's motion for an examination to assist the defense, and he objected that the State's examination was, therefore, unnecessary. ( See id. at 7). After the State's objection to the appointment as being outside the purposes authorized by statute, the court rescinded the order granting the defense's motion and took the matter under advisement. ( See id. at 7-14). The trial court later entered an order appointing Drs. Whelan and McKinley.
Defense counsel Walls objected to the court's appointment of Dr. Whelan at a motion's hearing on August 21, 1991, and he argued for an independent expert to be appointed to assist in the defense. ( See Trial Tr. Vol. 4, 197-99). Walls specifically argued that Dr. Whelan was affiliated with MDOC, and that Petitioner needed the assistance of someone not affiliated with the State. ( See id.). At some point after the hearing, but before the original trial date of August 26, 1991, the court authorized Walls to hire a psychologist, but Walls informed the court that he was unable to secure the assistance of an expert on such short notice. ( See, e.g., Trial Tr. Vol. 5, 244-45). On August 26, 1991, the court granted Walls' motion for a continuance and change of venue, and the trial was moved to Copiah County. ( See id. at 398; Trial Tr. Vol. 6, 401-02). Trial began on Monday, September 9, 1991.
Defense counsel then filed a motion to reconsider the sentence. In it, counsel argued, inter alia, that the court "improperly considered in aggravation matters that are implicit in the offense." The court denied the motion, stating that the sentence was "reasonable" but "significant [because] the crime was significant and the prior record significant also." Defendant then filed this appeal from his conviction and sentence.
Defendant first argues that the circuit court committed reversible error in admitting Dr. Hanna's testimony that B.A. had "never had sex before" in violation of section 115 — 7(a) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-7(a) (West 2004)), which limits the admissibility of evidence related to the prior sexual history or reputation of a sexual assault victim. In response, the State argues that Dr. Hanna's testimony was admissible under section 115 — 13 of the Code ( 725 ILCS 5/115-13 (West 2004)), which makes a sexual assault victim's out-of-court statements to a doctor made for the purpose of medical treatment or diagnosis admissible as substantive evidence.
Defendant concedes that he did not preserve this issue for appeal and that it is forfeited. Nevertheless, we may review this issue for plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The plain error doctrine permits a reviewing court to consider unpreserved errors where: (1) an error occurs and the evidence is so closely balanced that the error alone "threatened to tip the scales of justice against the defendant," regardless of the seriousness of the error; or (2) an error occurs which is so serious that it affected the fairness of the trial and undermined the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
Defendant argues that the court's error requires reversal under either prong of a plain error analysis. He argues that the evidence was closely balanced because there was no physical evidence to support B.A.'s claim of sexual assault and the testimony provided was inconsistent. Thus, Dr. Hanna's testimony "tipped the scales" against him because the State relied on that testimony as proof that B.A. had been assaulted. Defendant also argues that the court's admission of the testimony, in contravention of section 115 — 7, was so serious that it denied him a fair trial.
Nevertheless, if there is no error, there can be no plain error. Thus, we must first determine whether admitting Dr. Hanna's testimony was error. Piatkowski, 225 Ill. 2d at 565.
In Illinois, we do not have a uniform system of codified evidentiary rules; rather, our rules of evidence generally derive from the common law. But see Ill. R. Evid. 101 et seq. (adopted Sept. 27, 2010, eff. Jan. 1, 2011). However, in certain circumstances, our legislature has created statutory rules of evidence. See, e.g., 725 ILCS 5/115-5 et seq. (West 2008). The challenged evidence in this case is arguably governed by two statutory rules of evidence, sections 115 — 7(a) and 115 — 13 of the Code. Thus, we must examine the applicable statutes and determine which statute the legislature intended' to apply to the admissibility of Dr. Hanna's testimony.
• 1 Section 115 — 7(a) of the Code, commonly referred to as the "rape shield statute," was first enacted in Illinois in 1978 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 7) and has since been amended several times. The statute in effect at the time of the offense in this case provided in relevant part:
"In prosecutions for predatory criminal sexual assault of a child [ 720 ILCS 5/12-14.1 (West 2004)] *** the prior sexual activity or the reputation of the alleged victim *** is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim *** with the accused when this evidence is offered by the accused upon the issue of whether the alleged victim *** consented to the sexual conduct with respect to which the offense is alleged; or (2) when constitutionally required to be admitted." 725 ILCS 5/115-7(a) (West 2004).
Our supreme court has on two occasions interpreted section 115 — 7(a) as "absolutely bar[ring] evidence of the alleged victim's prior sexual activity or reputation, subject to" the two exceptions contained in the statute. People v. Santos, 211 Ill. 2d 395, 401-02 (2004); People v. Sandoval, 135 Ill. 2d 159, 170-71 (1990). The court concluded that the statute is "neither vague nor ambiguous" in preventing either party from introducing evidence of the victim's prior sexual history, specifically noting that it "does not limit its proscription to a defendant's attempts to introduce evidence of the victim's prior sexual encounters." Sandoval, 135 Ill. 2d at 170. Furthermore, the statute makes "no exception based on the purpose for which the evidence is offered." Santos, 211 Ill. 2d at 395. Thus, section 115 — 7(a), as interpreted by our supreme court, is unambiguous in making evidence of the victim's prior sexual history inadmissible.
•2 The General Assembly subsequently enacted section 115 — 13 of the Code, which provides:
"In a prosecution for violation of Section *** 12 — 14.1 *** of the [Code], statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of the symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule." 725 ILCS 5/115 — 13 (West 2004).
Section 115 — 13 is a "codification of the common law rule permitting the hearsay use of information revealed in medical treatment." People v. Falaster, 173 Ill. 2d 220, 229 (1996), citing People v. Roy, 201 Ill. App. 3d 166, 179 (1990). The admission of such testimony is limited to those cases involving certain sex offenses, including the offense for which defendant was prosecuted. 725 ILCS 5/115-13 (West 2004).
We have previously observed that the plain language of section 115 — 13 "evinces a legislative intent to apply this provision broadly," encompassing testimony from nurses, treating doctors, evaluating doctors, or any other medical professional that is reasonably pertinent to diagnosis or treatment where it provides details of the sexual act committed, "including how, when, and where the act occurred." Roy, 201 Ill. App. 3d at 178; see also People v. Davis, 337 Ill. App. 3d 977, 990 (2003). In In re T.T., we explained that a doctor's testimony regarding other circumstances of the attack, including "how [the victim] was penetrated, the pain, and the offender's use of a lubricant," was admissible because it was relevant to the doctor's assessment that the victim sustained sexual abuse. In re T.T., 384 Ill. App. 3d 147, 164 (2007). Significantly, in Falaster, our supreme court further expanded the scope of admissible testimony to include statements regarding the victim's prior sexual history with the defendant. See Falaster, 173 Ill. 2d at 223, 229. In that case, the court admitted a nurse's testimony in which she recounted the victim's disclosure that she had begun engaging in oral and vaginal sex with the defendant, her father, approximately five years earlier. Falaster, 173 Ill. 2d at 222-23. Thus, section 115 — 13, as interpreted by our supreme court and appellate courts, is unambiguous in making a doctor's testimony recounting a victim's sexual history admissible, provided that it is relevant to the doctor's opinion that the victim was, in fact, sexually abused. See Falaster, 173 Ill. 2d at 228-29; In re T.T., 384 Ill. App. 3d at 164-65.
Thus, we are confronted with one statutory rule of evidence that would make Dr. Hanna's testimony that B.A. had "never had sex before" inadmissible and one statutory rule of evidence that would make the statement admissible. Ordinarily, when two rules of evidence conflict, courts may consider whether the evidence is admissible for one purpose, but not for another. See, e.g., People v. Moss, 205 Ill. 2d 139, 156 (2001) (evidence of other crimes is generally inadmissible to demonstrate a propensity to commit another crime; however, other-crimes evidence is admissible to prove intent, modus operandi, identity, motive, or absence of mistake). In such cases, trial courts exercise their broad discretion to make those determinations in light of the parties' arguments for and against admissibility. Moss, 205 Ill. 2d at 156.
However, in this case, we are presented with two unambiguous legislative enactments that make the same piece of evidence simultaneously admissible and inadmissible; thus, we must turn to the rules of statutory construction to resolve this conflict. See Moore v. Green, 219 Ill. 2d 470, 479 (2006). Where the plain language of one statute appears to conflict with the plain language of another statute, we must look beyond the plain language of the statutes to determine the legislature's intent, which is of paramount importance. Moore, 219 Ill. 2d at 479. The legislature is presumed to know of existing statutes at the time it enacts new statutes. People v. Jones, 214 Ill. 2d 187, 199 (2005). Thus, we cannot presume that the legislature would enact a law that completely contradicts an existing law, thereby repealing the predecessor statute by implication. Moore, 219 Ill. 2d at 479. Rather, we must attempt to construe the conflicting statutes together, in pari materia, where such an interpretation is reasonable. Moore, 219 Ill. 2d at 479. Additionally, to resolve this conflict, we may ascertain the legislature's intent by considering the purposes of the statutes, the problems that they target, and the goals they seek to achieve. Moore, 219 Ill. 2d at 479-80.
As Sandoval recounts, prior to the enactment of section 115 — 7, evidence of a victim's sexual history was admissible at trial when the defendant asserted an affirmative defense of consent. Sandoval, 135 Ill. 2d at 167-68. However, consistent with traditional evidentiary rules regarding the admissibility of evidence of a witness's character and reputation, such evidence was limited to testimony regarding the victim's general reputation for immorality and unchastity and did not include specific acts of immorality or promiscuity. Sandoval, 135 Ill. 2d at 167-68, citing People v. Ellison, 123 Ill. App. 3d 615, 624 (1984); see also Fed. Rs. Evid. 404(a) (with limited exceptions, evidence of a person's character is inadmissible for proving conformity therewith), 608(b) (with limited exceptions, specific instances of a witness's conduct are inadmissible for demonstrating truthfulness). Because lack of consent was an element of the sexual assault offense, it was deemed permissible to allow a defendant to introduce evidence of the victim's general reputation for unchastity and immorality as it was more likely that "`an unchaste woman would assent to such an act than a virtuous woman.`" Sandoval, 135 Ill. 2d at 168, quoting People v. Collins, 25 Ill. 2d 605, 611 (1962).
However, with the passage of section 115 — 7, the legislature prohibited defendants from introducing any evidence of the victim's sexual history, except as between the defendant and the victim where it was pertinent to a consent defense. Ill. Rev. Stat. 1979, ch. 38, par. 115 — 7. In enacting the statute, the bill's sponsor declared that its purpose "is to protect the rape victim from being harassed and abused as they have been in the past." 80th Ill. Gen. Assem., House Proceedings, May 11, 1977, at 65 (statements of Representative Jaffe). Speaking in favor of the bill, Representative Geo-Karis stated that the statute would prevent defense attorneys from "destroy[ing] and victimiz[ing] a victim in a rape case." 80th Ill. Gen. Assem., House Proceedings, November 3, 1977, at 58 (statements of Representative Geo-Karis). Representative Cunningham added that the bill is a "compassionate" one, "designed to protect the dignity" of sexual assault victims. 80th Ill. Gen. Assem., House Proceedings, November 3, 1977, at 58 (statements of Representative Cunningham).
Representative Jaffe also referred to a floor debate on an earlier, albeit unsuccessful, version of the bill in which he summarized the findings of the General Assembly's Rape Study Committee, which concluded:
"We have the problem [that] many women never report rape because they fear the publicity and the rapist[s'] threats and, .they fear the police and the court system. *** [A] woman who has claimed to be raped can be questioned about her past sexual behavior even [if] it has nothing to do with the case, which in effect turns her into the defendant. *** Whenever you have a rape case you have the victim really being turned into the defendant. The victim is constantly asked over and over and over again about here [
sic] sex history. It happens on the trial level and it happens when the State's Attorney interrogates her. It happens when the police interrogate her. So as a result of that *** you'll find that women are very hesitant to come forward and report the crime of rape and they're very hesitant to go through the entire of [
sic] rape because they felt that they are abused time and time and time again." 79th Ill. Gen. Assem., House Proceedings, March 19, 1975, at 29-30 (statements of Representative Jaffe).
The evidentiary rationale for precluding a defendant from introducing evidence of the victim's sexual history with people other than the defendant is rooted in the fact that such evidence is irrelevant to the issue of whether the victim consented to sexual relations with the defendant. See Sandoval, 135 Ill. 2d at 177-78; see also Ellison, 123 Ill. App. 3d at 624 (quoting Senator Washington in a floor debate as stating, "`I find just impossible to understand how past sexual conduct is relevant at all to the case`"), quoting 80 Ill. Gen. Assem., Senate Proceedings, November 22, 1977, at 8-9 (statements of Senator Washington). We summarized this policy in People v. Summers by stating that section 115 — 7 was intended to:
"prevent the defendant from harassing and humiliating, the complaining witness with evidence of either her reputation for chastity or specific acts of sexual conduct with persons other than defendant, since such evidence has no bearing on whether she
consented to sexual relations with the defendant."
Summers, 353 Ill. App. 3d 367, 373 (2004),
aff'd,
214 Ill. 2d 548 (2005).
Moreover, in Santos, the supreme court rejected the defendant's attempt to introduce two conflicting statements made by the victim involving a false allegation of rape as an improper attempt to introduce evidence that was collateral to any material issue in the case. Santos, 211 Ill. 2d at 405-06 ("[w]hether [the victim] had, unbeknownst to defendant, engaged in sexual relations with someone else is wholly unrelated to the question of whether defendant reasonably believed that [the victim] was of age when the act of sexual penetration took place, which was the only controverted issue on this charge" (emphasis in original)).
However, the policies underlying section 115 — 7 took shape long before the legislature had enacted section 115 — 13 and in a different context. Section 115 — 13 was enacted in 1998 as a codification of the holding in People v. Gant, 58 Ill. 2d 178, 186 (1974), in an effort to prevent the inconsistent application of that legal rule in the trial courts. 85th Ill. Gen. Assem., House Proceedings, May 22, 1987, at 268 (statements of Representatives McCracken and Homer).
In Gant, the supreme court adopted the proposition:
"`Statements of a presently existing bodily condition made by a patient to a doctor consulted for treatment are almost universally admitted as evidence of the facts stated ***. *** [T]heir reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician. ***
[]The exception [to the hearsay rule] might be taken one step further to encompass statements made to a physician concerning the cause or the external source of the condition to be treated.`"
Gant, 58 Ill. 2d at 186, quoting E. Cleary, McCormick on Evidence § 292, 690-91 (2d ed. 1972).
The legislature made clear that it only intended for the rule to apply in those cases involving certain sexual offenses. 85th Ill. Gen. Assem., House Proceedings, May 22, 1987, at 269 (statements of Representatives Homer and McCracken) (Representative Homer: "Your bill codifies [ Gant] with regard to sex offenses. *** [W]as it your intent to change the current rule with respect to the admissibility of such statements in the prosecution of other kinds of cases[?]" Representative McCracken: "No. Not at all and it should not be interpreted as such"); 725 ILCS 5/115-13 (West 2004). Moreover, the sexual assault victim's statements must be admitted "as evidence of the facts stated." 85th Ill. Gen. Assem., House Proceedings, May 22, 1987, at 268 (statement of Representative Homer).
As discussed above, section 115 — 13 codified a common law rule of evidence. Historically, the evidentiary rationale for admitting such hearsay testimony as substantive evidence was rooted in the "substantial guarantees of trustworthiness" and "special guarantees of credibility" inherent in such statements made by patients to medical personnel because patients know that a false statement may cause misdiagnosis or mistreatment. White v. Illinois, 502 U.S. 346, 355, 116 L. Ed. 2d 848, 859, 112 S. Ct. 736, 742 (1992) (construing section 115 — 13); see also Roy, 201 Ill. App. 3d at 179 (medical hearsay testimony has historically been regarded as highly reliable because a patient's desire for proper diagnosis and treatment outweighs any motive to lie).
In light of the above, we can construe sections 115 — 7(a) and 115 — 13 together so as not to offend the purpose of either statute: their construction turns on relevance. The purpose of excluding evidence under section 115 — 7(a) is to bar irrelevant and prejudicial evidence of the victim's sexual history that has no bearing on whether the victim consented to sex with the defendant but instead is used to harass the victim. The purpose of admitting evidence under section 115 — 13 is to admit evidence that is otherwise relevant and reliable, but would be barred by the hearsay rule. Thus, a victim's sexual history, or lack thereof, taken by the examining doctor following a sexual assault examination comports with both statutes because it is relevant to a determination of whether the victim was sexually assaulted but does not have the effect of harassing the victim.
We find support for this conclusion in Sandoval. In examining Michigan's rape shield statute, Sandoval acknowledged the possibility that under certain "extraordinary circumstances," a sexual assault victim's prior sexual history could be relevant and admissible to explain "`"a victim's physical condition indicating intercourse."'" Sandoval, 135 Ill. 2d at 184-87, quoting People v. Hackett, 421 Mich. 338, 355 n. 4, 365 N.W.2d 120, 128 n. 4 (1984), quoting United States v. Kasto, 584 F.2d 268, 271 n. 2 (8th Cir. 1978). Similarly, Sandoval recognized that a New Hampshire court permitted evidence of a victim's prior sexual history where it was relevant to explain physical injuries. Sandoval, 135 Ill. 2d at 187, citing State v. LaClair, 121 N.H. 743, 746, 433 A.2d 1326, 1329 (1981).
•3 Here, Dr. Hanna testified that the fact that B.A. had "never had sex before" was relevant to his examination and ultimate conclusion that she had been sexually assaulted. Dr. Hanna testified that the lack of prior sexual contact was an important fact that explained the presence of the recent tear he observed in the hymen. Additionally, he altered the internal vaginal exam to avoid further damage to the hymen. Moreover, the combination of the hymen tear and the external vaginal bruising led Dr. Hanna to conclude that "there was some force or attempt at penetrating the vagina. Usually it's assumed from intercourse or attempt at intercourse." Thus, we conclude that Dr. Hanna's statement that B.A. had "never had sex before" was admissible under section 115 — 13 as relevant evidence of the fact that a sexual assault occurred, without offending the legislature's intent in enacting section 115 — 7 to avoid undue harassment of B.A. Because there was no error in admitting the testimony, there can be no plain error and, thus, defendant's argument is procedurally defaulted.
•4 Defendant next argues that the circuit court erred in administering a "blanket policy" of reserving ruling on his motion in limine to exclude prior convictions for impeachment purposes until after the defendant has testified, despite that fact that he did not ultimately testify in this case. At the time that defendant filed his appellate brief, the supreme court had issued its opinion in People v. Patrick, 233 Ill. 2d 62, 80 (2009), a consolidated case addressing our holdings in People v. Patrick, No. 1 — 04 — 1895 (2006) (unpublished order under Supreme Court Rule 23), and People v. Phillips, 371 Ill. App. 3d 948 (2007). The supreme court held that a circuit court abuses its discretion if it administers a "blanket policy" of refusing to rule on a pending motion in limine and that the error is reversible where the defendant testified notwithstanding the court's failure to rule. Patrick, 233 Ill. 2d at 74-75. However, Patrick also held that if the defendant chose not to testify, then he had forfeited review of the circuit court's failure to rule on his motion. Patrick, 233 Ill. 2d at 77.
The supreme court had also granted petitions for leave to appeal in People v. Averett, 381 Ill. App. 3d 1001 (2008), appeal allowed, 231 Ill. 2d 671 (2009), and People v. Tucker, No. 1 — 06 — 2619 (2008) (unpublished order under Supreme Court Rule 23), appeal allowed, 231 Ill. 2d 684 (2009), at that time. The court then issued a subsequent per curiam order clarifying that it allowed those appeals to consider the specific question of whether a defendant could seek review based on the circuit court's "blanket policy" of refusing to rule on his motion in limine, even if he ultimately chose not to testify. People v. Averett, 237 Ill. 2d 1, 5 (2010).
It appears that defendant's argument on appeal was premised on the possibility that the supreme court would find a circuit court's "blanket policy" of refusing to rule on pending motions in limine to be so egregious that it would overcome the forfeiture that resulted from a defendant's failure to testify. However, after reviewing the issue as a matter of structural error, constitutional error, and plain error, Averett reaffirmed the holding in Patrick, further concluding that a circuit court's application of a "blanket policy" of refusing to rule on a pending motion in limine is not reviewable on appeal where the defendant did not testify at trial. Averett, 237 Ill. 2d at 15-16.
Here, as in the case of defendant Phillips, the circuit court did not, in fact, apply a "blanket policy" of refusing to rule on a motion in limine. See Patrick, 233 Ill. 2d at 77. Rather, the court determined that it would be "premature" to rule on the motion before defendant testified and that it would have to "speculate" on defendant's testimony in order to determine whether the prejudicial effect of the prior convictions outweighed their probative value. See Patrick, 233 Ill. 2d at 77; see also Averett, 237 Ill. 2d at 15 ("In [defendant] Phillips' case [in Patrick, 233 Ill. 2d at 77], the trial judge did not use a blanket policy"). However, it is a distinction without a difference; defendant did not testify in this case. Thus, regardless of whether the court had a "blanket policy" to reserve ruling on motions in limine, we conclude that the issue is unreviewable under either Patrick or Averett. See Patrick, 233 Ill. 2d at 77 (a circuit court's discrete decision to defer ruling on a motion in limine is not preserved for review where the defendant does not testify at trial); Averett, 237 Ill. 2d at 7, 15 (although applying a "blanket policy" to defer ruling on a motion in limine is an abuse of discretion, it is ultimately unreviewable where the defendant does not testify* at trial).
Additionally, contrary to defendant's contention, we cannot review this issue for plain error. Averett, 237 Ill. 2d at 12. As explained above, the plain error doctrine bypasses normal forfeiture principles and permits review of unpreserved errors in certain circumstances. Averett, 237 Ill. 2d at 11. However, defendant's decision not to testify "goes beyond normal forfeiture." Averett, 237 Ill. 2d at 12. By not testifying, a reviewing court is deprived of an adequate record with which to evaluate the circuit court's decision on the admissibility of the prior convictions. Averett, 237 Ill. 2d at 12. The reviewing court would be forced to speculate on the substance of the defendant's testimony as well as the questions asked by the prosecution on cross-examination. Averett, 237 Ill. 2d at 12. Thus, we cannot apply the plain error doctrine to review an otherwise unpreserved error because there would be nothing to review.
•5 Finally, defendant argues that the circuit court impermissibly considered B.A.'s age as an aggravating factor in sentencing where it was also an element of the crime for which he was convicted, resulting in a "double enhancement." Although neither defendant nor the State addressed the issue, we must conclude that defendant has forfeited this argument as well. The supreme court recently reiterated the "well settled" proposition that to preserve a claim of sentencing error, a defendant must object to the error at the sentencing hearing as well as raise the objection in a postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544 (2010), citing People v. Bannister, 232 Ill. 2d 52, 76 (2008); see also People v. Hall, 194 Ill. 2d 305, 352 (2000). Although defendant included the double enhancement argument in his postsentencing motion, he did not make a contemporaneous objection at the sentencing hearing. Thus, he has not preserved the issue for review.
The State argued in passing that defendant waived the sentencing issue because defense counsel withdrew his argument in the postsentencing motion that defendant erroneously received an "enhanced penalty." See Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007) (waiver is the "intentional relinquishment of a known right"). However, defense counsel withdrew an argument based on an "extended-term sentence," which rightly did not apply because defendant's sentence was within the statutory range.
Nevertheless, forfeited arguments related to sentencing issues may properly be reviewed for plain error. Hillier, 237 Ill. 2d at 545. As with trial errors, a defendant must show either that: "(1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545. Under either prong of the plain error rule, defendant bears the burden of persuasion. Hillier, 237 Ill. 2d at 545. We must "hold the defendant to his burden of demonstrating plain error" and if he fails to meet that burden, we must honor the procedural default. Hillier, 237 Ill. 2d at 545, 549.
The supreme court continually expresses that one of the most important functions of this court is to determine whether an issue has been properly preserved for review. People v. Smith, 228 Ill. 2d 95, 106 (2008) (the other paramount function is to determine whether we have jurisdiction to entertain the appeal). Thus, we must perform a proper forfeiture analysis to avoid the "regrettable" consequence that results when the supreme court "allows leave to appeal on an issue that it deems sufficiently important for [its] consideration and then must find the issue forfeited" as a result of an appellate court's failure to first determine whether the issue had been properly preserved for review. Hillier, 237 Ill. 2d at 549. Because defendant failed to recognize his forfeiture on this issue, he has not made any argument under either prong of the plain error doctrine. As such, he "obviously cannot meet his burden of persuasion." Hillier, 237 Ill. 2d at 545. Thus, he has forfeited plain error review. Hillier, 237 Ill. 2d at 545.
However, the supreme court has recently clarified that the forfeiture rule may be relaxed and an issue substantively reviewed where "the basis for the objection is the conduct of the trial judge." People v. McLaurin, 235 Ill. 2d 478, 485-88 (2009). Notwithstanding trial counsel's obligation to raise contemporaneous objections to allow for the immediate correction of trial errors, forfeiture may be relaxed in certain "extraordinary circumstances" under People v. Sprinkle, 27 Ill 2d 398, 400-01 (1963). McLaurin, 235 Ill. 2d at 487-88. Specifically, forfeiture may only be relaxed where: (1) counsel's objection to the court's inappropriate comments to the jury risk alienating the jury by appearing disrespectful of the court's authority; (2) defense counsel's objection to the court's conduct outside the presence of the jury "`would have fallen on deaf ears`"; or (3) the court relies on social commentary, rather than evidence, in sentencing a defendant to death. McLaurin, 235 Ill. 2d at 487-88; People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963). Such a limited application of the Sprinkle principle "underscores the importance of uniform application of the forfeiture rule except in the most compelling of situations." McLaurin, 235 Ill. 2d at 488.
Arguably, only the second exception applies to defendant's double enhancement argument. McLaurin notes parenthetically that in People v. Saldivar, 113 Ill. 2d 256, 266 (1986), the supreme court held that counsel need not "interrupt the judge and point out that he was considering wrong factors in aggravation" in order to preserve a sentencing issue for review because such an objection would "fall on deaf ears." McLaurin, 235 Ill. 2d at 488. However, McLaurin also suggests that a defendant must specifically invoke the Sprinkle principle in order to take advantage of its leniency, which defendant did not do here. McLaurin, 235 Ill. 2d at 487 n. 1 ("a defendant who successfully invokes Sprinkle is not limited in the same ways as a defendant relying solely on plain-error review"). Nevertheless, in the interest of completeness, we apply the Sprinkle principle here and conduct a substantive review of the merits of defendant's argument as though the error were properly preserved.
Defendant contends that the court improperly considered B.A.'s age, which is an element of the crime for which he was convicted, as an aggravating factor in imposing his 12-year sentence. It is well settled that generally, a factor that is implicit in the offense for which the defendant has been convicted cannot also be used as an aggravating factor in determining his sentence. People v. Phelps, 211 Ill. 2d 1, 11 (2004). The rationale for this prohibition against "double enhancement" is based upon the assumption that the legislature considered the factors inherent in the offense in designating the range of punishment. Phelps, 211 Ill. 2d at 12.
Defendant relies on People v. White, 114 Ill. 2d 61 (1986), in support of his argument. In White, the supreme court held that because a victim's age is an element of the crime of aggravated battery of a child, age cannot also be considered as an aggravating factor in sentencing a defendant for that offense. White, 114 Ill. 2d at 66; see also Phelps, 211 Ill. 2d at 12. Defendant argues that the same logic applies where, as here, defendant was convicted of predatory criminal sexual assault of a child under the age of 13. See 720 ILCS 5/12-14.1(a) (West 2004).
At the sentencing hearing, the court referred to B.A. as the "12-year-old" girl more than a dozen times, rarely referring to her by name. In many instances, the court used B.A.'s age to comment on the nature of the crime by underscoring defendant's abuse of a position of trust, refuting defendant's contention that B.A. was "like family" to him and explaining that sex with a 12-year-old girl could not be a "misunderstanding," as defendant maintained. Nevertheless, at one point, the court noted that B.A.'s age was one of many "aggravati[ng] circumstances" in this case. In light of that comment, and the frequency with which the court invoked her age, we must conclude that, under White, the circuit court improperly considered the victim's age as an aggravating factor in sentencing. See White, 114 Ill. 2d at 66.
However, as White went on to explain, reliance on an improper factor in aggravation does not require that we remand for resentencing. White, 114 Ill. 2d at 66-67. Improper double enhancement occurs only if consideration of that factor results in a "`harsher sentence than might otherwise have been imposed.`" Phelps, 211 Ill. 2d at 11-12, quoting People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). Thus, if it appears from the record that the weight placed on the improperly considered factor was so insignificant that it did not result in a greater sentence, then we need not remand for resentencing. White, 114 Ill. 2d at 67, citing People v. Bourke, 96 Ill. 2d 327, 332 (1983).
Predatory criminal sexual assault of a child is a Class X felony. 720 ILCS 5/12-14.1(b)(1) (West 2004). At the time of sentencing in this case, the offense was punishable by 6 to 30 years' imprisonment, with the possibility that a court could impose an extended term sentence of 30 to 60 years' imprisonment. 720 ILCS 5/12-14.1(b)(1) (West 2004); 730 ILCS 5/5-5 — 3.2(c) (West 2004) (the court may impose an extended term sentence "upon any offender who was convicted of *** predatory criminal sexual assault of a child *** where the victim was under 18 years of age at the time of the commission of the offense"); 730 ILCS 5/5-8 — 2(a)(2) (West 2004) ("for a Class X felony, [an extended-]term [sentence] shall be not less than 30 years and not more than 60 years").
Defendant, who was 18 years old at the time of the assault on B.A., had been convicted of three felony offenses in as many years. In fact, defendant was serving a three-year probation sentence at the time that he committed the instant offense. Both of these circumstances by themselves constitute statutory aggravating factors. 730 ILCS 5/5-5 — 3.2(a)(3), (a)(12) (West 2004). Moreover, the court noted that defendant previously served 194 days in an adult prison on his. first conviction, which "apparently didn't phase [him] in the slightest." Additionally, the court found that defendant displayed no remorse for his actions, calling him "insensitive" for suggesting that the sexual assault of B.A. was a "misunderstanding." The court also noted that defendant, as the father of B.A.'s nephew, was in a position of trust, and that he took advantage of that position with B.A. in her own home. Defense counsel did not argue that any statutory mitigating factors applied here, and the court cited none. The court recognized defendant's difficult upbringing, but found that that did not "condone" the crime or minimize the effect that the assault would have on B.A. in the future.
As in White, the record in this case disclosed the presence of two statutory aggravating factors and the absence of any mitigating factors. See White, 114 Ill. 2d at 67-68. Additionally, the court here acknowledged the defendant's lack of remorse. As a result of these findings, the court sentenced defendant to 12 years' imprisonment, rather than the 30 or 60 years for which he was eligible. Thus, we find that the weight placed on the improperly considered factor of the victim's age did not result in a "harsher sentence than might otherwise have been imposed." Phelps, 211 Ill. 2d at 11-12. Therefore, as in White, we decline to remand the matter for resentencing. See White, 114 Ill. 2d at 67-68.
For the foregoing reasons, we affirm defendant's conviction and sentence.
Affirmed.
CUNNINGHAM and KARNEZIS, JJ., concur.