Appeal from the Circuit Court of Peoria County; the Hon.
Stephen J. Covey, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 18, 1986.
Following a jury trial in the circuit court of Peoria County, the defendant, Carl Veal, appeals his convictions on two counts of aggravated indecent liberties with a child.
On March 19, 1985, the Peoria County grand jury indicted the defendant on two counts of aggravated indecent liberties with a child pursuant to section 11-4.1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(b)). Both counts involved offenses which allegedly occurred, against a female under nine years of age, sometime between May 1 and June 21, 1984. The charges, however, were not filed against the defendant until March 5, 1985, because the authorities were not made aware of the defendant's alleged misconduct until March 4, 1985. Count I alleged the defendant placed his sex organ in the victim's mouth, while count II alleged he inserted an object in her anus. Following a jury trial, the defendant was convicted on both counts, and this appeal follows. We affirm.
• 1 The defendant initially contends that the two charges of aggravated indecent liberties with a child should have been dismissed because the statute defining such offense was repealed before the charges were filed and because the saving clause of the Illinois Criminal Assault Law of 1984 (Pub. Acts 83-1067, 83-1117), does not preclude the dismissal since the saving clause only applies to prosecutions pending on the effective date of the law.
We recently rejected the same argument in People v. Haggard (1986), 143 Ill. App.3d 860, 493 N.E.2d 693, where we held section 4 of "An Act to revise the law in relation to the construction of statutes" (Ill. Rev. Stat. 1983, ch. 1, par. 1103), as incorporated into the Criminal Code by virtue of section 34-3 (Ill. Rev. Stat. 1983, ch. 38, par. 34-3), as dispositive of the issue. We decline to restate the reasoning of Haggard in detail but, rather, once again hold that to accept the defendant's theory would defy logic and case precedent, and we reject his challenges to the validity of his conviction.
• 2 Defendant next contends he was tried and convicted in violation of his rights under the double jeopardy clauses of the United States and Illinois constitutions. (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 10.) The test for determining whether further prosecution is prevented by double jeopardy principles was stated by the United States Supreme Court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L.Ed.2d 416, 102 S.Ct. 2083, and has been followed in Illinois. (See People v. Davis (1986), 112 Ill.2d 78, 491 N.E.2d 1163; People v. Lovinger (1985), 130 Ill. App.3d 105, 473 N.E.2d 980; People v. Dorsey (1984), 129 Ill. App.3d 128, 472 N.E.2d 101.) In Kennedy, the court held, inter alia, as follows:
"Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeding in aborting the first on his own motion." (Oregon v. Kennedy (1982), 456 U.S. 667, 676, 72 L.Ed.2d 416, 425, 102 S.Ct. 2083, 2089.)
The court went on to state, as follows:
"We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." 456 U.S. 667, 679, 72 L.Ed.2d 416, 427, 102 S.Ct. 2083, 2091.
• 3 We have reviewed the instant record and do not believe the defendant can rely on the principles of double jeopardy to bar his retrial. The facts disclose that during the first trial, the prosecution called the 10-year-old victim to testify. The outcome of her testimony was not favorable to the prosecution. The following day, the prosecution asked the trial court to exercise its discretion and allow the 10-year-old to be recalled. Defendant objected and argued that the prosecutor and child counselors had spoken with the girl and prompted her and that there was no reason to let her testify about the same matters again after such coaching during the trial. (See People v. Pendleton (1979), 75 Ill. App.3d 580, 394 N.E.2d 496.) The trial court allowed her to be recalled.
• 4 The decision to allow the recall of a witness rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (People v. Harris (1979), 74 Ill.2d 472, 386 N.E.2d 60; People v. Ishmael (1984), 126 Ill. App.3d 320, 466 N.E.2d 1334.) Our review of the record discloses defendant's failure to demonstrate an abuse of discretion by the trial court in allowing the prosecution to recall the victim as a witness. The trial court found no evidence that the prosecution's conduct provoked defendant into moving for a mistrial, nor do we.
Next, defendant argues that since the trial court made a finding of fact that the police made promises or suggestions of leniency and counseling to the defendant and that since the defendant testified he was induced to give a statement based upon such promises, the trial court erred in refusing to suppress his statements as involuntary.
• 5 The admission into evidence of a confession not voluntarily made is a violation of an accused's constitutional right to due process of law. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336.) A court, in determining whether a confession is voluntary, must ascertain whether the defendant's will was overborne at the time he confessed or whether the confession was made freely, voluntarily, and without compulsion or inducement of any sort. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336; People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731.) Such a determination must be made by considering the totality of the attendant circumstances. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336; People v. Walden (1976), 43 Ill. App.3d 744, 357 N.E.2d 232.) The details of the interrogation and the characteristics of the accused should be given consideration. (People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870.) Confessions induced by promises or suggestions of leniency have been held involuntary. (People v. Heide (1922), 302 Ill. 624, 135 N.E. 77; People v. Ruegger (1975), 32 Ill. App.3d 765, 336 N.E.2d 50.) However, even where promises or suggestions of leniency have been made, the confession is not necessarily inadmissible. The ultimate question is whether, considering the totality of the attendant circumstances, defendant's will was overcome at the time he confessed. (People v. Hartgraves (1964), 31 Ill.2d 375, 202 N.E.2d 33, cert. denied (1965), 380 U.S. 961, 14 L.Ed.2d 152, 85 S.Ct. 1104; People v. Baine (1980), 82 Ill. App.3d 604, 403 N.E.2d 57; People v. Houston (1976), 36 Ill. App.3d 695, 344 N.E.2d 642, cert. denied (1977), 429 U.S. 1109, 51 L.Ed.2d 562, 97 S.Ct. 1143.) Moreover, mere exhortations to tell the truth or to make a statement do not, without more, render a subsequent confession inadmissible. ...