Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Robert L. Massey, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1985.
Following a jury trial in the circuit court of Cook County, defendant, Rocky Coates, was convicted of child pornography (Ill. Rev. Stat. 1979, ch. 38, par. 11-20a) and indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)(3)) and sentenced to concurrent terms of 15 years in the penitentiary. The appellate court affirmed in a Rule 23 order (87 Ill.2d R. 23; 126 Ill. App.3d 1153), and we allowed defendant's petition for leave to appeal (94 Ill.2d R. 315(a)).
The alleged victim of the crimes is the nine-year-old daughter of defendant's wife. The testimony shows that on the night of March 30, 1981, defendant went to the home of Stanley Snyder, a friend, and borrowed a Kodak instant camera capable of developing pictures instantaneously. Sometime after 3 a.m. on March 31, defendant returned home. The child testified that defendant came into the room where she was sleeping next to her 11-year-old sister and 10-year-old brother, awakened her, and told her to change into a shirt and a pair of red underpants. He pulled or dragged her to the bathroom, where he told her to lower her underpants to her knees. He then photographed her in a frontal standing position. Defendant placed her on the bathroom sink with her shorts pulled down to her ankles and his penis against her genital area, and took another picture. Defendant then dragged her into the living room, where he told her to hold his penis in her hand approximately one inch from her mouth. He took three pictures of the victim in this position. Afterward, defendant gave her $5 and told her not to tell anyone what had happened. The child returned to bed and went to sleep. Defendant went into the room that he shared with the victim's mother.
In the morning the child's mother awoke her, her brother and her sister and sent them to school. After the children left for school defendant's wife discovered she had no baby formula. She returned to the room where defendant was sleeping and began to search through his pants pockets for some money. While looking through the pockets she found three pictures. One of the pictures showed her daughter with her undershorts pulled down to her ankles, one showed her holding a penis next to her face, and the third picture showed a penis next to the child's genital area. She obtained a butcher knife from the kitchen and brought it into the bedroom. She had raised the knife above defendant's body but when she heard the baby cry, she dropped the knife, lifted the baby out of its crib and left the apartment. She went to her mother's home and she and her mother went to the police station. After viewing the pictures the police told Mrs. Coates to return to her apartment, where she would be met by some other officers. When she arrived at her apartment, the police were already there. They found defendant sleeping. The police woke defendant and informed him he was under arrest, but before permitting him to dress, one of the officers searched through his pants pockets for weapons. While searching through one of his pockets the officer found two photographs which he later identified at trial as People's exhibit Nos. 7 and 8. Exhibit No. 7 appears to show a child's hand on a penis, and exhibit No. 8 is unclear. The arresting officer testified that he saw no butcher knife on the floor.
Defendant testified in his own behalf. He stated that he had borrowed the Kodak instant camera several days earlier, on March 26, and had left it in his wife's car. One day between March 26 and March 30, he noticed it was gone from the car, but it had reappeared the next day. He testified that he took no pictures with it. He said that on March 30 he finished work at 10 p.m., went to a bar until 4 or 5 a.m., came home, and went to sleep. The next thing he knew he was being awakened by a police officer and was placed under arrest.
Defendant contends first that the circuit court erred in certain rulings concerning the records of defendant's wife, Nanette Coates, with the Department of Children and Family Services (DCFS). Defendant sought to subpoena the DCFS records and use them to impeach her testimony. It was defendant's theory that his wife, the mother of the alleged victim, had a history of problems with her children, which included child neglect and unfounded claims of sexual abuse by various boy friends and husbands. At a hearing, the DCFS authorities argued that pursuant to section 11 of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1981, ch. 23, par. 2061) the records were confidential and should not be disclosed to defense counsel. Concerning the reports of child abuse and neglect made to the DCFS under the provisions of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1981, ch. 23, par. 2051 et seq.), section 11 provides:
"All records concerning reports of child abuse and neglect and all records generated as a result of such reports, shall be confidential and shall not be disclosed except as specifically authorized by this Act or other applicable law. It is a Class A misdemeanor to permit, assist, or encourage the unauthorized release of any information contained in such reports or records." (Ill. Rev. Stat. 1981, ch. 23, par. 2061.)
"A person shall have access to the records described in Section 11 only in furtherance of purposes directly connected with the administration of this Act. Such persons and purposes for access include:
(7) A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it; * * *." (Ill. Rev. Stat. 1981, ch. 23, par. 2061.1(7).)
The circuit court conducted an in camera inspection of the records without either defense counsel or the State's Attorney present and permitted defendant to use certain portions of the documents for impeachment purposes. Defendant contends that, in conducting the in camera inspection in the manner in which it did, the court deprived defendant of a fair trial under the sixth and fourteenth amendments of the United States Constitution and sections 2 and 8 of article I of the 1970 Illinois Constitution and, further, that its action was violative of the provisions of Supreme Court Rule 412(h) (87 Ill.2d R. 412(h)). Relying on People v. Dace (1984), 104 Ill.2d 96, and People v. Phipps (1981), 98 Ill. App.3d 413, defendant argues that the records should have been examined in an in camera hearing attended by counsel for the People and defendant, at which time it should have been determined what information would be relevant and material to the issue of the witness' credibility.
Dace and Phipps are clearly distinguishable. Both cases presented the question whether the mental health records of prosecution witnesses were discoverable for purposes of impeachment. In neither opinion did the court purport to modify the rule that the determination of whether material is discoverable and subject to disclosure is to be made by the circuit court. The opinions are authority for the proposition that if either the witness or the therapist seeks to invoke the statutory privilege, the appropriate procedure is for the court to hold an in camera hearing in the presence of counsel for both sides.
Defendant argues that the court erred in failing to comply with the provisions of Supreme Court Rule 415(f) (87 Ill.2d R. 415(f)) in that it made no record of the proceedings in camera and failed to seal, impound and preserve the records involved. The record fails to show that defendant requested any such action, and under the circumstances, there is nothing before us for review.
Defendant contends next that the court erred in denying defense counsel's pretrial motion to withdraw because of a conflict of interest. Prior to trial, defense counsel, a member of the Cook County public defender's office, moved to withdraw from the case because of a conflict of interest. The basis of the alleged conflict was that his office was also representing the People's witness, the child's mother, in a child-custody case in juvenile court.
Defendant argues that the conflict arose because in the juvenile court case counsel was endeavoring to prove that Mrs. Coates was a fit person to have custody of the child, while in this case he was required to make an effort to prove that the charges against defendant were fabricated by the witness and made for an ulterior motive.
In People v. Robinson (1979), 79 Ill.2d 147, the court held that, in determining whether a conflict of interest exists, individual attorneys who comprise the staff of the public defender, unlike members of a private law firm, are not members of an entity "which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation." (79 Ill.2d 147, 159.) The court stated that a case-by-case examination is necessary to determine whether any facts peculiar to the case preclude the representation of the individuals whose interests were allegedly in conflict. Here, the only relationship between counsel appears to be the fact that both are employed by the public defender. No conflict is shown by the record, and nothing indicates that counsel's representation of defendant was in any manner inhibited. Under the circumstances shown by this record, the court did not err in denying counsel's motion to withdraw.
We consider next defendant's contention that the evidence failed to prove him guilty beyond a reasonable doubt. He contends that the photographic exhibits linking him to the incident are inconclusive and create a reasonable doubt of his guilt. He argues that his wife's reputation for fabrication, the evidence demonstrating her motive for fabrication, and her inconsistent and incredible trial testimony, rendered her an unbelievable witness. He contends, too, that the testimony of the alleged victim was less than clear and convincing, was uncorroborated, and was therefore not sufficient to support the convictions for indecent liberties with a child and child pornography.
It is not disputed that the child shown in the photograph is the complaining witness, but defendant denies that the penis in the photograph is his. He cites the testimony of Dr. John Raba that defendant was not circumcised and that the penis in the photographs was more than likely that of a circumcised ...