Appeal from the Circuit Court of St. Clair County; the Hon.
Patrick J. Fleming, Judge, presiding.
JUSTICE WELCH DELIVERED THE JUDGMENT OF THE COURT:
A St. Clair County grand jury returned a bill of indictment charging defendant, Edward Johnson, with aggravated indecent liberties with a child. (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1.) A jury found defendant guilty as charged, and he appeals. The issues concern the complaining witness, five-year-old Danielle Willis, defendant's stepdaughter, and seven-year-old Michael Willis, Danielle's brother, whose testimony was recorded on videotape for presentation to the jury; also defendant was not present in the room in which the complaining witness testified.
The indictment in question occurred June 26, 1984. Joyce Willis, the mother of Danielle and Michael and the wife of the defendant, testified at trial as follows. She left the family's apartment at 6:45 that morning. Danielle, Michael and their younger brother Averil were still asleep in their bedroom. Defendant slept in the bedroom-living room, but woke to lock the apartment door behind her when she left. She returned between 9:30 and 9:45 a.m. She knocked on the door; defendant asked who it was; she told him; he opened the door and asked what to do about bleeding. Danielle was sitting on the toilet, and the bowl was "full of blood." She asked Danielle who did this, and she said "it was man." Mrs. Johnson asked Danielle if she would know this man if she saw him again, whether she knew what he looked like, and whether she knew his name. Danielle answered yes each time. Defendant told Mrs. Johnson he was asleep and when he awoke he heard Danielle sniffing and crying; he found her sitting on the toilet. Mrs. Johnson started for the back door, thinking the "man" might be either the upstairs neighbor (Robert Lewis) or the neighbor boy (Emmanuel Wilson, whose nickname was "Man"). Defendant stopped her, but not before she noticed the back door (leading to a common storage room) was unlocked; she had checked that lock before leaving the apartment. Defendant and Mrs. Johnson took Danielle to a hospital by taxi. Danielle later told her defendant "put his ding ding in me" and put water and tissue in her. The latter conversation occurred "a good while" later, because (said Mrs. Johnson) "I said I am not going to talk to her about it too much. So, when I finally did talk to her, she was sitting off by herself and I asked her what was wrong. I asked her what was she thinking about and she said, `I was thinking about that man.' I said, what was that man's name, and she said Edward. I said, `What did Edward do to my baby?' She said, `He hurt me.' I said, `How did he hurt you?' And she said, `He put tissue in me, and he put water in me, and he put his ding ding in me.'" On cross-examination, Mrs. Johnson testified: "I didn't ask her too many times. The only time I would ask her is if I found her sitting off to herself and she would be like off in a daze and I would ask her what was wrong." According to Mrs. Johnson: "When I first started questioning her about it, all she would do is start shaking and crying."
Florinio H. Bernabe, a physician specializing in obstetrics and gynecology, testified: He treated Danielle at the hospital's emergency room. She was doubled up, crying, and complaining of lower-stomach pain. Examination revealed a tear in the tissue between the birth canal and the rectum opening. During surgery "a big roll of tissue paper" was retrieved from her birth canal. Another tear, inside, had penetrated the abdominal cavity, and the doctor could see her intestines through this opening. Exploratory surgery revealed additional tears inside. Her injuries were confined to her genitalia. The doctor stated in his opinion the injuries "can be" consistent with insertion of an adult penis.
After Mrs. Johnson and Dr. Bernabe testified, the videotapes of Danielle's and Michael's testimony were played before the jury. A hearing to determine Danielle's and Michael's competency to testify was held prior to trial in defendant's presence. Danielle was examined first, but according to the transcript gave no audible response to any of the prosecutor's questions. Michael gave audible answers to most of the prosecutor's questions, most of which were leading, but on several occasions resorted to nodding his head on cross-examination and on several other occasions ceased answering altogether. A second attempt was made to question Danielle, during which she gave audible answers to less than one-third of the questions addressed to her; the remaining questions she answered inaudibly or by nodding or shaking her head. The judge found Michael competent to testify but reserved his ruling as to Danielle until after her testimony; he ordered on his own motion and over defendant's objection that both children's testimony be shown to the jury on videotape.
The day after the competency hearing, and after opening arguments, the jury was excused and Danielle was called to testify before the camera in the presence of both counsel, the judge and defendant. Danielle gave audible answers to some preliminary questions, but when questioned concerning the day she "got hurt," she ceased speaking. The prosecutor asked her several times who came into her room, prompting defense counsel to object that the question had been asked several times and not answered. Finally the prosecutor sought a recess, asserting Danielle was "frightened to death," and moved that defendant be removed from the courtroom during Danielle's testimony. Defense counsel objected, arguing defendant had made no remarks or gestures to influence the child. The court ordered defendant be placed in the "control room" where he could view Danielle's testimony simultaneously on video monitor; that defendant be provided a note pad and pencil for taking notes during her testimony; and that defendant be permitted to confer with defense counsel during a recess between direct and cross-examination of Danielle.
On resumption of Danielle's examination, she was initially more verbal in her responses. She testified "Edward" came to the room where she slept with her brothers, took her to "my mom's" bedroom, and "[p]ut his thing in me," pointing between her legs; afterward he took her to the bathroom, "[p]ut tissue in me" (again pointing between her legs) and "[p]ut water in me" (pointing again).
Michael testified (in defendant's presence) as follows. On the day his sister "got hurt," he went to his mother's room to see cartoons. There he saw Danielle on his mother's bed with "Edward." Michael pointed at defendant when asked to show to whom he was referring. (Using two dolls, Michael demonstrated what he saw them doing.) Edward told him to go back to his room. Then Michael saw him put her on the toilet and put tissue and water in her (pointing when asked where); she was bleeding.
Ernestine Crawford, a social worker and counselor for sexually abused children and nonoffending parents, testified she interviewed Danielle at the hospital July 2, 1984; after playing with Danielle awhile, Mrs. Crawford asked her questions about her injury. Danielle answered yes when asked if she was bleeding and if someone made her bleed. Asked who, she said "a man." Asked who the man was, she said "my daddy." Asked if she was speaking of her daddy Edward, Danielle said yes.
Robert Lewis testified: He lived in the same building as the Johnsons. On the date in question he borrowed tools from defendant to use in breaking concrete directly behind the building. Defendant handed him the tools out the back door of the Johnson apartment between 7 and 7:30 a.m. No one came around, and he noticed nothing unusual.
Mary Chappel, Mrs. Johnson's sister, testified: When she heard Danielle was in the hospital she drove there from her residence in Chicago. In the hospital, Danielle told her what happened and that "Edward" did it. Several days later, when Danielle was home from the hospital, she and Danielle were playing with dolls in the presence of Danielle's brothers and within earshot of police officers when Danielle volunteered a demonstration of "the way Edward did me," using her own dolls. Mrs. Chappel admitted arguing with defendant about rent when the Johnsons lived with her.
Sergeant Willy Rich testified he saw Danielle every day she was in the hospital, but she gave no statement until July 3 when she told him what defendant did.
Defendant testified: On the date in question he locked the door when Mrs. Johnson left, then lent the neighbor some tools, then laid down. The next thing he recalled was hearing whimpering or crying. He found Danielle on the toilet. She said her stomach hurt and "man did it." He looked out the back door to see if anyone was around, noticing as he did that the door he locked after lending the tools was now unlocked. Danielle told him she went out the back door. He used tissue paper to stop the bleeding but did not put any in her. Thinking cold water might stop the bleeding, he used a "douche bag" on her three times, and was preparing a fourth when his wife returned. He returned home from the hospital before Mrs. Johnson did, to check on the boys. She arrived with police officers, who talked to the neighbor, looked all over for blood, and examined his penis and undershorts. The apartment was not large and defendant was "pretty sure" he would have heard if someone had broken in.
Defendant argues that Supreme Court Rule 414(a) (87 Ill.2d R. 414(a)) does not authorize the instant videotaping procedure because the witnesses were not "unavailable." at trial, and because what was recorded was not a "deposition." Rule 414(a) reads: "If it appears to the court in which a criminal charge is pending that the deposition of any person other than the defendant is necessary for the preservation of relevant testimony because of the substantial possibility it would be unavailable at the time of hearing or trial, the court may * * * order the taking of such person's deposition under oral examination or written questions for use as evidence at a hearing or trial." (87 Ill.2d R. 414(a).) Rule 206(e) provides for videotaping of depositions. (87 Ill.2d R. 206(e).) The determination of whether to permit use of a videotaped deposition is within the discretion of the trial court. People v. Zehr (1984), 103 Ill.2d 472, 480, 469 N.E.2d 1062, 1065-66.
The witnesses were not unavailable at the instant trial. However, what was required was their testimony, not their mere presence. A fair reading of the rule is that the pronoun in the phrase "it would be unavailable" refers to the last preceding noun, i.e., "testimony." Otherwise, the appropriate pronoun would be "he" or "she" or both. Thus it does not appear our supreme court in its rulemaking function intended Rule 414(a) be inapplicable in the presence of a witness unable to testify for whatever reason.
• 1 Was the testimony in question a "deposition"? To "depose" is to testify under oath. (Webster's Third New International Dictionary 605 (1976).) It is true that depositions are usually taken long before trial as defendant here suggests. However a witness can be deposed after trial has commenced. (Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App.3d 253, 259, 378 N.E.2d 1176, 1180; see 87 Ill.2d R. 201(f).) Rule 414(a) does not purport to limit the time for deposition. In the instant case the trial court was unable to deduce that the critical testimony was unavailable until after the ...