Appeal from the Circuit Court of Kane County; the Hon. Paul W.
Schnake, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 3, 1984.
The defendant, Morland Steele, appeals from his convictions of two counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(3)). He raises three assignments of error in this court: (1) that the State's failure to establish beyond a reasonable doubt that the incident in question occurred on the date specified in the bill of particulars constituted a fatal variance entitling him to a reversal of his conviction; (2) that letters from the State's Attorney's office advising the State's witnesses that they had no obligation to talk to anyone constituted a thinly veiled obstruction of communication between defense counsel and the witnesses, and that the trial court's failure to apply sanctions for the misconduct amounts to reversible error; and (3) that the trial court committed reversible error when it allowed the defendant to be impeached by the use of a prior misdemeanor conviction. We affirm.
The indictment, filed on August 20, 1982, alleged that on or about May 8, 1982, the defendant lewdly fondled J.S. and K.M., who were both under the age of 16. In a bill of particulars which the State filed on August 23, 1982, the prosecutor claimed that the offenses took place at 6:30 p.m. on May 8, 1982, at a Clark gas station located on Highland Avenue in Elgin, Illinois. An amended bill of particulars, which the State filed 10 days prior to trial on November 8, 1982, stated that the crimes occurred between 3 and 4 p.m. on May 5, 1982.
On October 2, 1982, the defendant filed a motion which requested dismissal of the indictment or other less drastic relief due to the refusal of two prosecution witnesses to speak with the defendant's investigators. The motion alleged that the witnesses refused to cooperate as a result of a letter the Kane County State's Attorney's office sent to each of them. The letters in question stated, in part, that potential witnesses had "no obligation to talk to anyone" if they did not wish to do so and that the witnesses had the right to have someone from the State's Attorney's office present during any questioning session.
At the hearing on the motion, the prosecutor stipulated that the office of the State's Attorney sent copies of the letter to the mothers of the two complaining witnesses sometime after the return of the indictment and before personnel from the office of the public defender contacted the mothers. Both mothers related that they received the letters in August 1982 and then refused to speak with the public defender's investigator. Bonnie Van Wembeke, the mother of K.M., stated that she was never told not to talk with personnel from the public defender's office. After hearing the testimony summarized above, the trial court denied the defendant's motion for dismissal or other sanctions.
The cause proceeded to a bench trial on November 18, 1982. In his opening statement at trial, the State's Attorney remarked that although the indictment alleged that the offenses took place on May 8, the events actually occurred on the afternoon of May 5. Subsequently, defense counsel advised the court that he had neglected to notice the change in date on the amended bill of particulars, changing the alleged offense from a Saturday to a Wednesday. He therefore advised that he had entered into a stipulation with the State's Attorney essentially setting forth that "as far as May 5th is concerned, we are asserting an alibi defense."
Eleven-year-old J.S. testified that after school on the afternoon of May 5, 1982, she and a number of friends, including K.M. and H.M., the younger sister of K.M., went to the Clark gas station located on Highland Avenue in Elgin to have a friend's bicycle tire repaired. After entering the gas station office, J.S. spoke with the defendant, with whom she was acquainted. According to the witness, the defendant took her into a back room and told her that if she gave him a kiss, he would give her a candy bar. She agreed and went to give defendant a kiss on the cheek, at which time he grabbed her "[i]n the upper private." Then he gave J.S. a kiss and squeezed her breast; she struck him on the arm and ran outside. The witness told her mother about the incident five days later.
J.S. saw K.M. go to the back room with the defendant and testified that H.M. kissed the defendant at the front counter; both K.M. and H.M. had candy bars. J.S. related that K.M. told her what had happened in the back room. J.S. also stated during cross-examination that she did not remember the particular date of the incident.
Ten-year-old K.M. related that she and her friends went to the Clark station on May 5. The witness stated that, after she entered the back room, the defendant grabbed her in the genital area. She did not tell anyone about the incident until a couple of days later, when the mother of J.S. telephoned K.M.'s home.
K.M. testified during cross-examination that the day in issue fell on a weekend and was not a school day. She observed J.S. enter the back room, and stated that J.S. told her, within one hour of leaving the station, that the defendant had kissed her.
H.M., aged eight, testified that the defendant offered to give her a candy bar on the condition that she would kiss him. She recounted that the defendant grabbed her and kissed her and then touched her in the genital area. She tried to pull away from him and called out for J.S. According to the witness, when J.S. entered the back room, the defendant released H.M. Then H.M. went outside, cried and told J.S. what had happened. H.M. could not remember whether the incident occurred on a school day; however, her sister told her the event took place five days before May 9, the Sunday on which their mother was married.
The defendant testified on his own behalf. He denied that he put his hands on the girls, that he gave them candy, or that he had them in the back room of the gas station. He stated that he saw J.S. at 4 p.m. on May 8 when she came to the station where he was working. According to the defendant, J.S. told him she wanted to buy cigarettes for her mother; he responded only that she needed a note. In addition, he said that no other children accompanied J.S. to the station, although his seven-year-old son was there with him. At 5 p.m. that day J.S., her mother and a man visited the station and accused him of committing the instant offenses; he was arrested a short time later.
The defendant related further than he was a 29-year-old married man with four children. He worked full-time for the Illinois Department of Transportation as a surveyor and worked part-time at the Clark station on weekends only. He testified that he ...