Appeal from the Circuit Court of Cook County; the Hon. Thomas
H. Fitzgerald, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1987.
Following a jury trial, defendant, Daniel Escobedo, was convicted of two counts of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, pars. 11-4(a)(2), 11-4(a)(3)) and sentenced to concurrent terms of 12 years' imprisonment for each offense (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(4)). Challenging the validity of his convictions, he raises the following issues for our review: (1) whether the State established his guilt beyond a reasonable doubt; (2) whether the prosecution's evidence prejudicially varied from the dates of the offenses set forth in the State's bill of particulars; (3) whether the defendant was denied a fair trial when a prospective juror who was peremptorily challenged by the defendant and excused by the trial court during voir dire served on the jury which found the defendant guilty of the charges; (4) whether the trial court erred in excluding testimony which defendant attempted to elicit in order to show that the complainant had told her mother the accusations against defendant were not true; (5) whether the defendant was denied a fair trial by the State's cross-examination of defendant and the complainant's mother regarding the complainant's future contact with the defendant; (6) whether defendant was denied a fair trial by the prosecution's presentation of the complainant's father and stepmother as witnesses; (7) whether certain statements made by the State during closing argument denied defendant a fair trial; (8) whether the State's presentation of "other crimes" evidence denied defendant a fair trial. For the reasons set forth more fully below, we affirm defendant's convictions.
On January 10, 1984, defendant was charged in a two-count information with indecent liberties with K.S., the 12-year-old daughter of defendant's girlfriend. The information charged that both crimes occurred between December 13, 1982, and January 3, 1983. The State subsequently furnished defense counsel with a bill of particulars, identifying the dates of the crimes as "[a]pproximately December 27th or 28th 1982 in the evening hours" and "[a]pproximately January 4th or 5th 1983 in the evening hours." The State specified in the bill of particulars that the first incident involved an act of "oral copulation" and the second an act of "lewd fondling." Both offenses were specified to have occurred at 3845 South Wolcott in Chicago. Defendant raised the defense of alibi to the charges.
Defendant's trial began on September 24, 1984. Three witnesses were called by the prosecution: K.S., born February 15, 1970, the complaining witness; Debra, age 28, K.S.'s stepmother, who married K.S.'s father in April 1976; and Francis, age 34, the father of K.S.
The defense called 13 witnesses. Several of them testified regarding the defendant's presence during the time period in question. Some of them corroborated defendant's employment during this period. Two of them testified regarding their relationship with K.S. during the time period in question and thereafter. The last two defense witnesses were the defendant himself and Linda, the mother of K.S., who married the defendant after the filing of the charges which resulted in the convictions from which he now appeals. Defendant testified both that the alleged events never occurred and that he was elsewhere on the dates specified by the prosecution. Linda similarly testified both to facts inconsistent with her daughter's testimony and to facts consistent with the defendant's innocence.
On direct examination, K.S. testified that in December 1982, when she was 12 years old, she lived in Chicago with her natural mother, Linda, and was in the seventh grade at a Catholic school. K.S.'s mother was employed as a salesperson for Sears, Roebuck and Company, and arrived home from work at about 6:30 p.m. one or two days a week, and at 9:30 p.m. at some other times. Defendant had been the boyfriend of K.S.'s mother for almost a year. On school days, K.S. would leave home at 8:15 a.m. and return home at 2:15 p.m. The defendant was there almost every day when she returned home from school, even when K.S.'s mother was not home. Sometimes K.S. and defendant would go to the show or for ice cream; once they went to a shooting range. K.S. would also sometimes go to her paternal grandmother's home after school and usually went there on weekends.
K.S. stated that toward the last week of December 1982, she and defendant were alone in the living room of her mother's home and were sitting on the couch watching television. It was after dinner time; K.S. stated that she normally ate dinner about 5:30 or 6 p.m. K.S. testified that defendant "talked to [her] about two other people that and the things that he did to them. * * * Then he talked to [her] about different things * * * about sex and stuff." K.S. gave detailed testimony to the effect that the defendant then perpetrated an act of oral copulation. She stated that thereafter "it was sort of late. [She] didn't talk to him after that. [She] just went to bed * * *." K.S. stated that her mother was not home at the time and that the incident took "about five to ten minutes." Although K.S. initially could not recall if the incident occurred in the last week of December, she then testified that it may have happened the last week in December and remembered that it happened on a weekday, not on the weekend.
K.S. also testified that during the first week of January 1983, she and defendant were alone in her mother's house, in the living room, and were sitting on the couch watching television after dinner. Defendant "told [her] that what it was is all right, what has happened before that and that there would be nothing wrong * * * if [they] did it again." The witness testified to facts indicating that the defendant then committed an act of lewd fondling and that thereafter she "just left the room." She stated that she never did "these things with the [defendant] again." She did not know approximately when in the week the incident occurred, although she could recall that it was a school day.
K.S. stated that the day following the last encounter, she had a conversation with the defendant in the dining room of her mother's house and that no one else was there. K.S. told him "that [she] didn't want to do this anymore." She testified that she did not often speak to the defendant after the conversation.
In May 1983, K.S. left her mother's house to live with her father in Iowa. Her stepmother, Debra, was the first person whom she told, in July 1983, what had transpired between herself and defendant. She did not tell anyone from January 1983 to July 1983 "[b]ecause [she] was afraid." K.S. stated that she was afraid "[b]ecause [defendant] always had a gun with him * * * almost every day" she saw him. She saw him with the gun in the last week of December and the first week of January. She also testified that she was afraid to tell anyone because if she told her mother, her mother "wouldn't believe [K.S.] * * * she would believe [the defendant]."
On cross-examination, K.S. stated that she never told her father anything about the incidents with defendant and her father never asked her about what happened. Her father did tell her that he was going to file another petition later in 1983 to obtain K.S.'s custody. K.S. testified that she wanted to remain in Iowa with her father and stepmother.
K.S. testified that she did not tell her natural mother or any family members what had happened. She also never told a very close girlfriend she had in Chicago, nor did she tell any of the nuns or teachers at her school. She stated that her natural mother and defendant had told her, after the incidents which formed the basis of the instant prosecutions, that "whatever they said in this house or do in this house, it shouldn't go any further than the house." She also testified that when she told her stepmother, Debra, about the incidents in July 1983, she did not describe all of the details of the assault to Debra and that she did not tell Debra the same things that she told the jury.
K.S. stated that when she lived in Chicago, she baby-sat for the children of her aunt (her father's sister). During the time period of December 1982 to January 1983, K.S. stated, she watched movies that were in her aunt's house on a video cassette recorder that was there. The movies "showed what people did" when they made love to one another. She did not tell her mother, her father, or her stepmother that she had watched the movies. She denied that her testimony was based upon the contents of these movies.
Although K.S. initially stated that defendant lived with her mother and herself during December 1982 and January 1983, she then stated that he did not live with them during this period. K.S. also testified that after the incidents, she went to defendant's apartment by herself to feed and play with the defendant's dog, and that the defendant was there, although there may have also been other persons there as well. She admitted that she was with the defendant after the incidents and explained that she "was afraid that if [she] told somebody that he'd be mad at [her]." She testified that she did not hide from the defendant, and that she did not run away from him.
K.S. testified that on February 27, 1984, her mother's birthday, she telephoned her mother and had a conversation with her. Although K.S. originally denied talking to her mother about the criminal charges against the defendant, when later asked if she had talked to her mother about the accusations that she made in front of the jury, K.S. answered, "Yes, I think I did." When questioned if she told her mother during that conversation that she was "very sorry" that she had "made these accusations," K.S. responded, "I don't remember saying that." When further questioned by defense counsel, "When you spoke to your mother on the phone on her birthday, February 27th, you talked to her about the charges you made against [defendant]," K.S. answered, "Yes."
K.S. could not remember if she went shopping at Water Tower Place with the defendant's sister, Hope Lee, and Lee's son on December 27, 1982, and did not know what time she came home. She also stated that she knew defendant was working at the Amphitheatre in November and December of 1982 and January of 1983, although she did not know the hours he was working. When asked whether she was aware that during that period of time, the defendant was working until 8 or 9 at night, K.S. responded, "No, no." There was no redirect or re-cross-examination of the complaining witness.
Debra, K.S.'s stepmother, testified that in mid-July 1983, she and K.S. had a conversation that was "somewhat lengthy and emotional" outside Debra's bedroom during which K.S. requested that Debra tell no one the contents of their discussion.
Frank, K.S.'s father, testified that K.S. never told him of the incidents with the defendant. He learned of the substance of the allegations from his wife, Debra, in late July or early August 1983. Frank stated that he signed a complaint against defendant in December 1983. He testified that he never telephoned his former wife, Linda, to inform her of K.S.'s accusations of defendant. He also stated that although he did not have custody of K.S. (as a result of the dissolution of his marriage to Linda), he was seeking custody for K.S.'s "mental health." Frank testified that he had not planned, prior to the fall of 1983, to seek a modification of K.S.'s custody. He also stated that he permitted K.S. to telephone her mother on February 27, 1984.
With the stipulation that defendant was born on December 4, 1937, the State rested its case. Defendant's motion for directed verdicts was denied.
Defendant's first witness was Wayne Haeffle, store manager for the concern at which defendant worked in December 1982 and January 1983. Haeffle testified that defendant had been employed by the company, Fur-Real Limited, that defendant never had a gun, and that his hours were from 10 a.m. to 7 p.m., although occasionally it was necessary for defendant to work beyond 7 p.m. Defendant worked weekends, because they were always busy. If defendant "ever needed a day off, it would have been during the week." After reviewing business records to refresh his memory, Haeffle testified that he knew that defendant was working on December 27 and 28, 1982, and on January 4, 1983. Mitsuru Moreles, defendant's nephew who was a part-time employee, also worked on January 4, 1983.
Hope Lee, defendant's sister, testified that on December 27, 1982, she, her son, and K.S. went shopping at the Water Tower Place in downtown Chicago from 9:30 in the morning until 9:30 at night. Lee took K.S. home to her mother's house that night, and her mother was home to receive her. Lee stated that she had sales receipts to evidence the shopping excursion. Lee's daughter, Sherri, also stated that her brother, Lee, and K.S. went shopping at Water Tower Place on December 27, 1982, and that Sherri was with them when they took K.S. home around 9:30 in the evening. Sherri stated that K.S.'s mother was home at the time, and that Sherri spoke to her.
Mariano DiVittorio testified that one afternoon in December 1982, shortly before Christmas, he purchased a jacket from Fur-Real, in the Amphitheater, and saw the defendant working at that time. Renee and Philip DiVitorrio gave substantially similar testimony.
Irene Orlin stated that from November 1982 to March 1983, she was a bartender at a tavern at 3159 South Halsted Street. She stated that defendant would come to the bar when he left work, and would usually arrive between 9:30 p.m. and 9:45 p.m. He usually stayed with Irene as she closed up to make sure she did not have problems and that she would get out all right.
A close girl friend of K.S. when K.S. lived in Chicago testified that K.S. never told her that K.S. had been sexually molested or mistreated by defendant, nor did she either tell or indicate to the girl friend that she was frightened of the defendant. The girl friend's mother also testified at trial that K.S. never told her that she had any sexual problems with the defendant.
The defendant's nephew, Mitsuru Moreles, testified that he worked at the Amphitheatre for the Fur-Real Leather Company beginning in December 1982 and in January 1983 and part of February 1983. He stated that his uncle, the defendant, would pick him up, take him to work, and bring him home at night. The latest he and his uncle would ever leave would be 9 or 9:30 p.m., but regular leaving time was approximately 7, 7:30, or 8 p.m. Moreles stated that during the Christmas rush everyone worked seven days a week.
Moreles' sister, Jodette, testified that defendant used to drive her brother home every day, and that she knew this because she would see them. She testified that they would always arrive before ...