Appeal from the Circuit Court of Cook County; the Hon.
Rosalind M. Crandell, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Willie Johnson, was convicted of three counts of aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1) and three counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4). Johnson was sentenced to three consecutive 30-year terms (a total of 90 years of imprisonment) in the Illinois Department of Corrections.
On appeal Johnson raises numerous contentions of error concerning evidentiary rulings, proof, and sentencing. We do not find it necessary to address each of these contentions; however, we must remand this case for a new trial based on: (1) the erroneous admission into evidence of the details of a complaint that the minor victim allegedly made to three key prosecution witnesses, and (2) the trial court's error in commenting during closing argument on the sufficiency of the evidence regarding penetration.
On January 24, 1983, Willie Johnson was arrested and charged with three counts of aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1) and three counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4). The offenses allegedly occurred on June 25, 1982, December 15, 1982, and January 22, 1983. The alleged victim is a minor girl, age six, who is the daughter of the girlfriend with whom Johnson was living prior to his arrest.
At trial the State did not call the victim to testify against Johnson regarding the alleged sexual acts. Rather, the State's evidence consisted of testimony by four witnesses who related statements allegedly made to each of them by either the victim or Johnson.
Among the witnesses called to testify in the State's case in chief was Linda Shields, a community service officer with the Schaumburg police department. Shields testified that on January 24, 1983, two days after the alleged third attack, she discovered the victim on Clayton Circle, a street in Schaumburg. The victim was crying. Shields subsequently brought the victim to the victim's home. After speaking to the victim's mother, Shields brought the victim to the victim's school.
Shields also stated that, while in the mother's home, she entered one of the bedrooms and observed a motion picture projector and "pornographic" magazines. Later that day, Shields returned to the victim's school, picked up the victim, and brought her to the police station. Shields, over objection, testified that at the police station the victim complained to her that Johnson sexually violated her on several occasions. Over defense objections, Shields detailed how Johnson allegedly penetrated the child's vagina with his penis as described to her by the victim. Shields then accompanied the victim to the bathroom where she observed that the victim's vaginal area was red and that her buttocks were black and blue.
Cheryl Bogdanowski, a registered nurse at Humana Hospital in Hoffman Estates, states that she examined the victim in the emergency room on the night of January 24, 1983. At that time, she observed a rash on the victim's chest, abdomen, and buttocks, a redness between the inner thighs, and a yellow discharge from the victim's vagina. There were also bruises on the victim's buttocks. Bogdanowski testified that she concluded that the victim was suffering from a staph infection.
Bogdanowski further testified, over objection, that the victim complained to her that her "step dad" had, on several occasions, sexually violated her. Over defense counsel's objections, Bogdanowski related the victim's statements to her that Johnson had rubbed himself against the victim and that he touched her between the thighs and buttocks with his body. According to Bogdanowski, she asked the victim if her "step dad" touched her in these places with the part of his anatomy "that he uses to go to the bathroom," and the victim responded, "Yes."
The State called Assistant State's Attorney Diane Ghaster, who also related the victim's statements to her that her "daddy" would push his "big, long thing" into her. This testimony was also objected to by defense counsel. According to Ghaster, the victim claimed these "attacks" occurred in the victim's mother's bedroom in their Schaumburg home. Ghaster also stated that the victim volunteered to her that she sometimes saw naked women in movies playing on the television screen in the bedroom Johnson shared with her mother. Ghaster finally testified that she also spoke to Johnson in the interrogation room on January 24, 1983, and that Johnson related to her a detailed description of two sexual encounters he had with the victim.
Detective Mickey Bromund testified in the State's case in chief. Bromund said Johnson admitted to him that he engaged in two sexual acts with the victim, one on June 25, 1982, and a second on December 15, 1982. Bromund, like Ghaster, testified to a version of the alleged admissions made by Johnson, however Bromund, also like Ghaster, did not take notes during the interview.
In his own defense, Willie Johnson denied either having sexual contact with the victim, whom he said he considered to be his daughter, or admitting to either Ghaster or Bromund that he was guilty of the acts charged against him. He also testified that he told Ghaster that the child spent the summer of 1982 in New Orleans. Johnson did admit that he was living with the victim and the victim's mother prior to his arrest.
During closing arguments, defense counsel objected to a statement in the State's rebuttal concerning proof of penetration. The trial court denied the objections stating, "The court finds that there is evidence." The jury subsequently found Johnson guilty of three counts of aggravated indecent liberties with a child and three counts of indecent liberties with a child. The trial court later sentenced Johnson to three consecutive ...