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01/26/87 the People of the State of v. Robert E. Morgan

January 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT E. MORGAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

504 N.E.2d 172, 152 Ill. App. 3d 97, 105 Ill. Dec. 303 1987.IL.51

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Samuels, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a jury trial, defendant, Robert Morgan, was found guilty of the offenses of rape, deviate sexual assault, and two counts of aggravated incest (Ill. Rev. Stat. 1983, ch. 38, pars. 11-1, 11-3, 11-10, respectively) committed against his minor stepdaughter on the evening of April 14, 1983. The trial court entered judgment on the verdict, merged the convictions for aggravated incest into the convictions for rape and deviate sexual assault, and sentenced defendant to concurrent terms of 20 years' imprisonment. On appeal, defendant contends that: (1) the voir dire was inadequate to disclose the potential bias and prejudices of the jurors; (2) exclusion of the public during two days of trial violated defendant's right to a public trial; and (3) the admission of evidence of other crimes and the court's failure to limit that evidence and to properly instruct the jury as to the use of that evidence denied him a fair trial. For the reasons that follow, we affirm the judgment of the trial court.

The record sets forth the following facts pertinent to this appeal. At trial, the victim testified that on the evening of April 14, 1983, while her mother was at work, her stepfather awoke her in her upstairs bedroom and asked her to come downstairs where he forcibly raped her and performed deviate sexual acts. Following the incident, the victim went back upstairs and told her stepsister and brother that defendant had "hurt" her again. The victim was referring to the fact that defendant had committed the same offenses to her in September 1980, for which he had been arrested and convicted.

Following the victim's testimony, Mary O'Keefe, the registered nurse who was present during the hospital examination of the victim on the morning following the incident, testified as to her observations during the examination. The victim's 15-year old brother then testified as to his conversation with the victim on the night of the 1983 incident. When questioned about the prior 1980 sexual offense, the victim's brother could not remember what, if anything, had occurred between his sister and stepfather. Following the brother's testimony, court adjourned for the day.

The next day, prior to the testimony of the victim's 11-year old stepsister, the court ordered all those not directly interested in the case to wait outside the courtroom. The witness then testified as to certain of the events which had occurred on the evening of April 14, 1983. Next, the victim's mother testified as to the events surrounding the 1983 incident as well as the 1980 incident. Regarding the 1980 offense, the mother stated that the victim, age 12 at the time, had told her that defendant had had sex with her, and that, following his arrest, defendant admitted to the mother that he had sexually molested the victim. Defendant objected to testimony regarding his admission to the prior offense on the ground that it violated the marital privilege and that the testimony exceeded the bounds for proof of other crimes. The trial court overruled defendant, but agreed to admonish the jury that the evidence regarding the 1980 offense was being presented for a limited purpose.

Over defendant's objection, Captain Roger Corray, chief investigator for the Champaign County sheriff's department, testified regarding the 1980 incident. The extent of Captain Corray's testimony was that he had received a telephone call asking for his assistance in the investigation of a rape and deviate sexual assault allegedly committed by defendant to his 12-year-old stepdaughter. Based upon Corray's interview with the victim, her stepsister, and her mother, defendant was charged with the offense of rape. Following Captain Corray's testimony, Officer Patrick Fitzgerald of the Park Forest police department testified as to the investigation of the April 1983 incident. Trial was then recessed for the day.

The next day, Investigator Thomas Fikjeys of the Cook County sheriff's police department and David Metzger, forensic serologist, testified on behalf of the State. Following their testimony, the court denied defendant's motion for a directed verdict, both the State and defendant rested, and closing arguments ensued. Thereafter, judgment was entered on the jury's verdict of guilty on all counts. Defendant's motion for a new trial and arrest of judgment was denied, and the court sentenced defendant to concurrent terms of 20 years for deviate sexual assault and rape, finding that the convictions for aggravated incest merged. Defendant's timely appeal followed.

Defendant first contends that the trial court's refusal to ask the venire during voir dire specific questions that he had submitted deprived him of his constitutional rights to due process and a fair trial. Defendant submitted questions which he claims were designed to address four areas of potential prejudice: (1) the nature of the charges; (2) the young ages of the State's occurrence witnesses; (3) the fact that several witnesses were police officers; and (4) defendant's decision not to produce any evidence. Defendant further requested that the court ask the questions to each prospective juror individually rather than to the venire as a whole and, as a final question, that the court ask, "Is there any reason why you would not want to sit on this jury?"

This trial court denied defendant's request, adding that, if the individual questionnaires completed by the prospective jurors suggested the need to make additional inquiries of certain individuals, it would do so. Thereafter, the ...


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