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11/25/87 the People of the State of v. Kenneth Sexton

November 25, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH SEXTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

515 N.E.2d 1359, 162 Ill. App. 3d 607, 114 Ill. Dec. 88 1987.IL.1756

Appeal from the Circuit Court of Edgar County; the Hon. Ralph S. Pearman, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

After a jury trial, defendant was convicted of two counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, pars. 12-14(b)(1), 12-16(c)(1).) Defendant argues he was not proved guilty beyond a reasonable doubt and that the trial court erred in admitting: (1) the State's Attorney's testimony; (2) hearsay testimony under the corroborative complaint and treating physician's exceptions to the hearsay rule; and (3) a photograph of complainant's genital area. Defendant argues his due process rights to a fair trial were violated by the mentioning of a possible polygraph test and the prosecutor's closing argument.

We reverse and remand.

The complainant, defendant's 10-year-old niece, testified that she and her brother stayed at defendant's house the previous summer. While she was taking a bath, defendant entered the bathroom and touched her "private." He told her not to tell anyone and left. Defendant bothered her twice while she was on the couch. Her aunt was home on one occasion and gone on the other. The second time, her brother was in the bathroom. Defendant pulled down her pants, said he liked playing with her, and touched her "private with his private." Complainant stated that it hurt and caused bleeding. The third occasion consisted of the same acts as the first two.

Complainant's mother testified defendant is her brother-in-law. After the children returned home, she noticed a personality change in complainant. She and her other sister told complainant that it was illegal for anyone to have touched her. Complainant indicated that defendant had assaulted her.

Gary Wheat, a detective with the Paris police department, testified that on August 1, 1986, in the State's Attorney's office, he and the State's Attorney interviewed defendant. Wheat asked defendant to come to the office for an interview and told him that he was going to be charged. The State's Attorney, Michael McFatridge, did most of the talking. Defendant indicated that since he was going to be charged he might as well admit the offenses. He stated that he had fondled complainant while she was bathing. McFatridge asked defendant to give Wheat a complete statement and left.

Wheat further testified that defendant admitted two incidents during which he touched complainant's genitals with his hands and penis. These events occurred while she was on the couch. Wheat believed defendant was over 40 years of age.

On cross-examination, Wheat stated that he had interviewed complainant twice about an unrelated matter. Carol Sexton, defendant's wife, brought complainant to the police station about the theft of a class ring. Wheat learned the complainant and her brother had taken the ring and lost it. During the first interview about the ring, complainant lied to him.

State's Attorney McFatridge testified that prior to his August 1, 1986, interview with defendant, he talked to Linda Chittick, an investigator for the Illinois Department of Children and Family Services , and Wheat about the case. They had several Discussions and determined the evidence was sufficient. Defendant would be charged regardless of whether he gave a statement. Part of the goal of the August 1 meeting was to obtain a confession. McFatridge told defendant he was the one who would charge him, make sentencing recommendations, and the State's Attorney's office would consider recommending probation if defendant would cooperate with the police. After defendant called his wife, he admitted fondling complainant.

At this point, it should be noted that this cause was prosecuted by an assistant State's Attorney of Edgar County. The record does not show any disqualification of McFatridge, State's Attorney of Edgar County. In response to defendant's pretrial discovery, McFatridge was listed as a potential witness. On cross-examination, McFatridge admitted that he had known the prosecutor for some time. As assistant State's Attorney, the prosecutor took general directions from him. McFatridge asked defendant to come into the office because ...


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