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People v. Breitweiser





APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.


Following a jury trial, Spencer Breitweiser was found guilty of taking indecent liberties with a child and was sentenced to four to eight years in the penitentiary. On appeal, he contends: (1) that he was denied his Sixth Amendment right of confrontation and cross-examination when the trial judge excluded him from an in camera hearing to determine the competency of the seven-year-old complaining witness to testify; (2) that the trial court erred in denying his motion for a substitution of judges; and (3) that certain testimony received by the trial court was hearsay and should not have been admitted over defendant's objection. We conclude that none of these contentions has merit and we affirm.

According to Vincent, the seven-year-old complaining witness, he and his younger brother were playing in the woods near their home when the defendant, who was 28 years old at the time, offered complainant two toy trucks if he would let him play with the complainant's "peanuts." Vincent stated that the defendant told him to pull down his pants and played with the part of his body "that you go to the bathroom with." The defendant then took out his own penis and rubbed it against the boy's body. Vincent and his brother told their mother what happened and the police were notified. The complainant knew defendant by his nickname and the defendant was questioned by the Carpentersville Police. After being advised of his rights, the defendant made and signed a statement which was transcribed by the arresting officers. The statement, an edited copy of which was shown to the jury, corroborated the testimony of the complaining witness. The defendant did not testify in his own behalf.

Prior to the introduction of evidence, the trial judge held an in camera hearing to determine whether or not the seven-year-old complainant was competent to testify. The defendant was ordered to leave the chambers and only the two attorneys were present during the judge's examination.

• 1 The competency of such a witness is to be determined by the trial judge and, while his decision is reviewable, it is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that the decision will be reversed. (People v. Ballinger (1967), 36 Ill.2d 620, 225 N.E.2d 10; People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675.) In the instant case, the trial judge conducted an in camera examination of the prospective witness with both attorneys present. The answers elicited through the court's thorough questioning indicate that Vincent clearly exhibited the intelligence, ability to comprehend the meaning of an oath, and the moral obligation to speak the truth necessary to qualify him as a competent witness. (People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1.) Nevertheless, defendant maintains that his exclusion from the examination violated his right to be present at all critical stages of the trial.

The purpose of such a preliminary hearing is not, as the defendant suggests, to cross-examine the witness so that his "perception and memory could be adequately evaluated." The purpose is simply to determine whether a witness of tender years is competent to testify. If the judge, in his discretion, feels that the witness possesses the requisite intelligence, respect for truth, and understanding of the oath, then the object of such a preliminary hearing is fulfilled. Once placed on the stand, this witness may be cross-examined, like any other competent witness to determine the weight and credibility of his testimony. It is here, in open court that the defendant has the right to confront the witness and probe into his capacity for memory and perception.

Illinois courts have frequently held that such hearings may be conducted outside the presence of the defendant without infringing upon his constitutional rights where substantial rights of the accused are not involved or where the defendant's presence would be useless. People v. Pierce (1974), 56 Ill.2d 361, 308 N.E.2d 577.

• 2 Faced with a situation identical to the hearing in this case, the Arizona Supreme Court in State v. Ritchey (1971), 107 Ariz. 552, 490 P.2d 558, rejected the defendant's assertion that his exclusion was error and stated: "We do not find the same compelling need for a defendant to be present at such a proceeding as we find no constitutional right * * * is at stake." (107 Ariz. 552, 555.) We agree. The trial court's discretion in dealing with a child of tender years did not infringe upon the defendant's right to confront or cross-examine the witness, and the competency of Vincent to testify is apparent from the record.

The defendant next contends that the trial court committed reversible error by summarily denying his motion for a substitution of judges. While it is true that a motion for substitution of judges is to receive a liberal rather than a strict construction (People v. Harston (1974), 23 Ill. App.3d 279, 319 N.E.2d 69), the defendant must comply with the statutory requirements for the motion and must file it at the earliest practical moment. (People v. Van Pelt (1974), 18 Ill. App.3d 1087, 311 N.E.2d 184; People v. Ehrler (1969), 114 Ill. App.2d 171, 252 N.E.2d 227.) In this case, the defendant did neither. Nearly four months after being placed on Judge Petersen's call, this matter came to trial on October 22, 1973, and on that date the defendant filed a written motion for a substitution of judges which stated: "* * * the Defendant, SPENCER BREITWEISER, by his attorneys * * * and pursuant to Section 114-5 of Chapter 38 of the Illinois Revised Statutes, respectfully asks this court for a substitution of judges." No affidavits were filed, no supporting testimony was offered, and the motion was denied by Judge Petersen.

Now, on appeal, defendant relies upon that portion of the Illinois Statute which allows him to "move at any time for substitution of judge for cause, supported by affidavit." (Ill. Rev. Stat. 1973, ch. 38, par. 114-5(c).) To support his contention of reversible error, defendant cites the recent decision in People v. Harston (1974), 23 Ill. App.3d 279, 319 N.E.2d 69, wherein this court reversed a conviction because the trial court summarily denied defendant's motion for a substitution of judges. In that case, however, the attorney for the defendant placed his client on the stand and made an offer of proof to support his motion after it had been denied. The testimony elicited indicated that the defendant's case might be prejudiced if heard by the sitting judge. Nevertheless, the trial proceeded and, in reversing the conviction, we stated: "While the premature ruling alone is not necessarily error, still the failure of the court to consider defendant's testimony or rule upon its merits did deprive defendant of a hearing as contemplated by the statute. * * * Without a hearing, defendant's unrebutted testimony with regard to prejudice and the time he first learned of the judge assignment in his case must be taken as true." 23 Ill. App.3d 279, 283.

• 3 The record in the instant case is void of any evidence, either by way of affidavit or testimony, that the defendant could not receive a fair trial before Judge Petersen. The burden rests not upon the court to justify retention of each case it is about to hear, but rests upon the defendant to offer evidence that prejudice will result if his motion for substitution of judges is not granted. Without such evidence, we must affirm Judge Petersen's denial of the motion.

Finally, the defendant contends that certain testimony of the investigating officer was hearsay, and that its admission over defendant's objection constitutes reversible error. After the complaining witness finished testifying, Officer Lagerstrom took the stand and during his direct examination the following colloquy occurred:

"A. I asked him [defendant] to come to the police station with me, that I wanted to talk to him about an incident that ...

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