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People v. Boand9/30/2005
Following a jury trial, defendant, Joshua Boand, was convicted of the drug-induced homicide (720 ILCS 5/9--3.3(a) (West 2004)) and involuntary manslaughter (720 ILCS 5/9--3(a) (West 2004)) of Nicole Levin and the criminal sexual assault (720 ILCS 5/12--13(a)(2) (West 2004)) of Tavia Shepherd. The trial court sentenced defendant to concurrent prison terms of 20 years for drug-induced homicide, 5 years for involuntary manslaughter, and 11 years for criminal sexual assault.
Defendant appeals, alleging that several trial errors entitle him to a new trial or a reversal of his convictions. He contends that (1) the trial court erroneously declined to sever the criminal -sexual-assault count from the homicide counts; (2) the trial court erroneously admitted evidence of other uncharged sex offenses that he committed before the night of the incident; (3) the trial court denied him the right to confront Shepherd and Paul Hoerer, his co-defendant, about their motives to testify for the State; (4) the State failed to prove him guilty beyond a reasonable doubt of criminal sexual assault; (5) the trial court erroneously permitted the State to cross-examine another witness, Becky Goldman, about her telephone conversation with Shepherd three days after the incident; (6) the trial court erred in refusing to instruct the jury that suicide qualifies as an intervening cause of death that would relieve defendant of criminal liability for a homicide; and (7) the drug-induced-homicide statute is unconstitutionally vague and overly broad. The State addresses each of these issues and raises another, asserting that we must remand the cause for the trial court to impose mandatory consecutive sentences. We conclude that the trial court erred in denying the motion to sever the criminal-sexual-assault charge from the drug-induced-homicide and involuntary-manslaughter charges. This error was compounded by the erroneous admission of evidence of defendant's other sex crimes and the corresponding jury instruction. Therefore, we reverse defendant's convictions and remand the cause for further proceedings consistent with this opinion. This disposition also considers other issues raised in this appeal that might arise again on remand.
I. FACTS
Defendant was charged by indictment with "committ the offense of drug-induced homicide in that he violated subsection (a) of section 401 of the Illinois Controlled Substances Act [(720 ILCS 570/401(a) (West 2004))] by knowingly delivering methadone, a controlled substance, to Nicole Levin and Nicole Levin thereafter died as a result of the ingestion of a portion of that methadone into her body, in violation of 720 ILCS 5/9--3.3(a) [(West 2004)]." Defendant was also charged with involuntary manslaughter in that he, "acting in a reckless manner, performed an act likely to cause death or great bodily harm to Nicole Levin, in that failed to request emergency medical assistance for Nicole Levin, knowing Nicole Levin was suffering from a possible overdose of drugs, in violation of 720 ILCS 5/9--3(a) [(West 2004)]." Finally, defendant was charged with committing criminal sexual assault, in that he, "knowing Tavia Shepard was unable to give knowing consent, committed an act of sexual penetration with Tavia Shepard , in that placed his penis in the vagina of Tavia Shepard , in violation of 720 ILCS 5/12--13(a)(2) [(West 2004)]."
By the date of her death, May 26, 2002, Levin was 19 years old and had a history of abusing antidepressants and street drugs including cocaine. In February 2002, Levin's relationship with her boyfriend ended and she suffered a miscarriage. From February 17, 2002, to April 2, 2002, Levin was hospitalized four times for attempting suici
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