APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
518 N.E.2d 669, 164 Ill. App. 3d 1055, 116 Ill. Dec. 47 1987.IL.1990
Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Estella Daniels, appeals from her conviction of aggravated criminal sexual assault following a bench trial in Winnebago County. (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1).) The offense was committed against her son, R.G., who was 11 years old at the time of the offense. She received a six-year term of imprisonment.
She contends (1) she was not proved guilty beyond a reasonable doubt; (2) the court erred in admitting and considering irrelevant and highly prejudicial physical evidence; (3) her rights to a fair trial and due process were violated when her attorney was barred from interviewing R.G. and his 10-year-old sister, B.D.; (4) B.D. was not competent to testify; (5) the prosecutor's misconduct prejudiced the trial court's judgment and requires a new trial; (6) she did not receive the effective assistance of counsel; and (7) the sexual assault law is unconstitutional.
The trail of events leading up to the defendant's arrest began on August 27, 1985, when a neighbor, Lori Leng, was told her children were smoking in a cornfield behind her house. When she got to the field, she talked with her children, then examined a grocery bag containing magazines, a notebook and a backpack which belonged to Estella Daniels' son, R.G. Mrs. Leng then telephoned a child abuse agency, and was subsequently contacted by the police. Over defendant's objection, Leng identified the notebook and magazines. Rockford police detective James Thompkins also identified the items in court.
A representative from the Department of Children and Family Services and a Rockford police officer removed R.G. and B.D., the defendant's children, from their home on August 22 and they were placed in a foster home. During the period August 23 to October 11, 1985, the children were interviewed separately by the police, DCFS, and its affiliate, Family Advocate, with varying frequency but initially three to four times per week. Based on information developed during that time period, the defendant and her husband, Vernon Daniels, were arrested on October 12. The defendant was tried separately for the instant offense against her son, R.G.
John Germano, crime scene technician for the Winnebago County sheriff's department, identified two items found in the defendant's home during a search conducted pursuant to warrant: a camera floodlight and an eight-millimeter movie projector found in a hallway closet.
On cross-examination, Germano testified the projector was not tested to see if it worked. An eight-millimeter film was also found but it was not viewed to determine its contents. On redirect examination, Germano described the box cover of the eight-millimeter film as depicting partially nude males and females. On recross, Germano stated that judging by the box cover, the film looked commercially made. Due to the extent of the testimony received concerning the film, the court allowed the State a recess to secure the film, and Germano identified it in court. Holding several frames of the film up to the light, Germano testified he could see a male and female but could not see what they were doing.
B.D., the defendant's 10-year-old daughter, was called to testify for the State. She testified she would be 11 on July 14, 1986, and until a few months prior, she lived at 4339 Brookdale Road in Rockford with her mother, the defendant, and her father, Vernon Daniels. She did not remember the name of the church she attended. She did not know what an oath was, and said that "to tell the truth" means to remember what happened. She did not know what the Judge or her mother would do to her if they found her lying. She named her school and teacher, and said she was in third grade. Her brother, R.G., was 12 and also lived at the Rockford address before they were both placed in the foster home of Rita Tennor.
B.D. testified that in July 1985 she had breakfast with her mother, her father, and her brother, R.G. Afterward, Vernon told them, "We are going to have sexual touching." They all took off their clothes in the living room and she, R.G., and the defendant touched each other's genital areas. Vernon was taking pictures with a black camera about 10 inches wide. At one point, Vernon had to get dressed to go buy more film. When he returned, they all went into her mother's bedroom where her mother told R.G. to put his penis in her vagina. R.G. did so, while Vernon took pictures.
On cross-examination, B.D. stated she was held back in second grade and in kindergarten. She said sexual intercourse was when a person's hands touch another person's vagina. She first heard the words "sexual intercourse" from Assistant State's Attorney Gemignani; she could not remember what he said it meant. She then stated sexual intercourse is the same as sex, and that sex was what it was called when a man puts his penis in a woman's vagina. She denied she ever had sexual intercourse with anybody, or that she ever had sex with her brother, R.G. She did not remember signing a written statement, and she denied having sex with her father or telling anyone that she had. She stated she did have sex with Tim B., however, and clarified her previous denial of sexual relations "with anybody" by stating she meant she never had sexual relations with her family. She denied she had sex with or knew a boy named "Lewis"; she said R.G. knew a boy named Lewis, though. Tim B. lived near her grandmother. She denied ever telling anyone her grandmother was in movies with her, but admitted she told Assistant State's Attorney Gemignani and Lou Gadow (executive director of the DCFS affiliate, Family Advocate) that her grandmother took movies of her. She denied ever telling Gadow that she had sex with her father or her brother. She remembered telling police officer Billy Burgess she had sex with Rodney N., her next door neighbor. It happened one time in his garage in 1984; he put his penis in her vagina and it hurt. She could not describe his penis, how deep he inserted it or how long he kept it in.
She stated she had sexual intercourse with Tim B. more than once but not more than 10 times in his shed. R.G. and Tim's sister were present when she and Tim had intercourse, and Tim also had sex with R.G. on more than one occasion. She saw Tim's penis; it hurt her, and he did not put it in deep. He was seated and she was sitting on top of him. She did not know what an orgasm was and saw nothing come out of Tim's penis. She denied knowing Lewis or that he touched her in any way or that she had told anyone that. She did not have intercourse with her father, but he touched her vagina externally. She knew what a vibrator looked like but not what it was; she denied that either she or her mother used a vibrator on her. She admitted she told Lou Gadow that R.G. put his penis in her, but stated that she also told her it was not true. She stated the last time she saw R.G. have sexual intercourse with her mother was not in 1986 or 1985, but in 1984. She described R.G.'s penis as looking like "a rabbit's tail."
She stated her father was mean to her; he hit her with a board and gave her two black eyes a long time ago. She loves her mother and would like to live with her, not Vernon. Her father sold the pictures he took after breakfast to some of his and her mother's friends; she and R.G. were with them at the time. She stated her father also took movies of her and sold them to somebody.
She did not see her mother shoot somebody. Her mother said she had shot somebody in the butt. B.D. said she told her foster mom about this. She denied she knew anyone named Ross and denied telling Lou Gadow that her mother shot and killed a boy named Ross. She and R.G. buried a dog one time, not a person.
She did not recall being examined by a doctor. She admitted she first told Lou Gadow she never had intercourse with anybody, including Tim B., and stated that she did not know why she lied to her.
On redirect examination, B.D. stated that she and her mother were in a movie titled "Mother Daughter Love." She and her mother, her father, and R.G. were in a movie called "Family Touching." Her father decided what movies would be made. She denied either her grandparents or her Aunt Bonnie (Duke) had anything to do with the movies. She denied being in any movies with a whip, or that she or R.G. were ever in a movie with a dog. She stated she made one movie at a place called "the studio." She stated she loves her mother and would go back to live with her if there was no sex.
On re-cross-examination, she denied telling Officer Burgess that her grandpa was the boss who makes the movies. She denied signing defendant's exhibit No. 3 purporting to be the statement she gave to Officer Burgess on October 23, 1985. She did not know who filmed the movie "Family Touching."
On further redirect examination, she stated that "Family Touching" was made at the studio, but she could not recall who was taking the pictures. On further re-cross-examination, she denied any movies were taken at her Aunt Bonnie's house in Dixon or that she had reported that to Officer Burgess.
On the second day of trial, March 18, 1986, R.G. was called as the State's witness. He testified he was 12 years old. He identified his mother in court, and stated Vernon Daniels was his stepfather. He was presently living with foster parents, Rita and Carl Tennor, and before that lived at 4339 Brookdale Road in Rockford in Winnebago County, Illinois. He lived there with his mother, stepfather, and sister, B.D. He was in fourth grade when he was living at that address. He stated he knew the difference between a lie and the truth and that to take an oath meant to tell the truth. He did not know what the Judge would do to him if he didn't tell the truth. He attends a Lutheran church now, but before that he went to Kishwaukee Baptist Church. He testified that on a morning in mid-July 1985 he, his mother, his stepfather, and sister made a movie in which they all took their clothes off and threw them out of the "set"; they were in the living room. After a while, his stepfather had to leave to get some new film. When his stepfather returned, he, his mother and sister played with each other and, at his mother's and stepfather's suggestion, he put his penis in his mother's vagina. He was on top; his stepfather operated the camera.
He stated he had been in four or five movies; one of them was made at a different house in Ogle County. He stated he thought the films were sold to some people named Virginia and Glen. He saw his father carry some movies in a bag into Virginia and Glen's house and when he came out, he had no bag and he was putting money in his pocket.
R.G. stated he began participating in sexual activities with his mother when he was eight years old. He described sexual contact which occurred between himself, his stepfather, and his sister, and between his sister and his stepfather. He stated his stepfather made his sister and him play with their dog's penis while their mother operated the camera.
He identified People's exhibits Nos. 1A through 1H as "Playboy" magazines and his personal notebook, with captioned drawings of nude males and females, a cow and a pig. (Note: Only People's exhibit No. 1D was a Playboy magazine; three of the magazines had a male homosexual theme and two others were Playboy-type magazines.) He testified that he got the idea for the drawings in his notebook from comics, magazines, and his mother and stepfather.
On cross-examination, R.G. testified he was now in fifth grade and that he was held back in third grade. He testified that he discovered from his aunt in July 1985 that Vernon Daniels was not his real father, but his stepfather. He testified he hates Vernon, that he told his mother he wanted her to divorce him, and that he was mad at her for not doing so.
R.G. didn't tell anyone about the fact he was having sex with his mother because he was too scared to tell anybody and he felt guilty. He said he had sex -- intercourse -- with his sister, B.D.; intercourse meant a boy putting his penis into a girl's vagina. He said it would be a lie if B.D. denied ever having sexual intercourse with him. R.G. testified his parents showed him how to have sexual intercourse by doing it in front of him. He was about nine years old when he first had sex with B.D. He didn't know if his penis went all the way in; they had intercourse "a few" times. He saw his stepfather's penis touch B.D.'s vagina, but he didn't know if it went in. No one told him not to say Vernon went inside B.D.; he had to say it because he had to get his behavior problems straightened out. Before he and his sister went into foster care, his parents told him not to tell anyone about what had happened because he and his sister would get in trouble. He was scared then, but he was not as scared now. He admitted he lied about some sexual things; he said that it didn't happen and it did. He did not know how many times Vernon and B.D. had sex; he had intercourse with his mother a lot of times.
R.G. testified B.D. had sex with Tim B. more than 10 times, and that he saw Tim put his penis in B.D. Tim was sitting in a chair and B.D. sat on top of him. Tim's penis did not go in her vagina; "it was in her rear." R.G. said he also had anal sexual contact with Tim B. a lot of times the previous summer. R.G. said it hurt, but sort of felt good, also.
R.G. said B.D. had sexual intercourse a lot the previous summer in the field with a boy younger than him named Louie who lives in Mississippi now. R.G. said it would not be true if B.D. stated she never had sexual intercourse with Louie. R.G. testified Rodney N. lived next door; Rodney is old enough to drive a car. Rodney N. had sexual intercourse with B.D. in his garage when R.G. was nine years old; Rodney did not have a lot of intercourse with B.D.
R.G. thought the movies made of himself, B.D. and his parents were at Virginia and Glen Higgins' [ sic -- Hagen's] house. They are eight-millimeter films on a little round reel. R.G. said his grandparents were not in the movies, and were not present when the movies of him were made. He admitted he lied to police and Lou Gadow when he told him his grandparents were the bosses of the movies being made. He lied because he was young, and "it was scary for him to do all of this." He just wanted to tell them his grandparents were involved. He also admitted he lied about some other neighbor kids being involved in the movies, too, because he did not like those people. He was trying to get those people in trouble, but he wasn't trying to get his mom and stepfather in trouble.
R.G. admitted that sometimes he lied on purpose to the people questioning him. He lied about seeing his mother kill a person named Ross and putting Ross in a bag, then in a trunk, and burying him. He admitted he brought the police to the place where he thought the body was buried. That was a lie, but his mother did say that she killed somebody; he just didn't have enough evidence to prove that she did. The story he told the police was his way of trying to make it true. He told the story about the burial to Assistant State's Attorney Gemignani; R.G. didn't know whether Gemignani believed him or not because R.G. had told lies before. R.G. said he gets punished for telling lies but tells them anyway because it is sort of fun to tell lies, but sometimes it is not.
On redirect examination, R.G. stated he does not say something just because it is what he thinks someone wants him to say. R.G. admitted he initially told a story that his mom wanted him to kill someone but later placed the blame for the killing only on himself. The reason he gave for killing the man was that he was scared. He said his mom told B.D. and him several times that she killed a person out her window in her room, but he did not see it happen.
The sexual activity with Tim B. took place in Tim's old shed, which is near R.G.'s grandmother's house. He did not know if he bled after he had anal intercourse with Tim, but he sometimes bleeds now after a bowel movement. R.G. did not actually see Vernon put his penis in B.D.'s vagina, but he saw them in position, moving. R.G. stated he had sex with Vernon and his mother before he found out that Vernon was not his natural father. R.G. stated he hates his mother in a way, and that he doesn't hate her in a way. He would like to go home and live with her if she gets her sexual problems straightened out. R.G. stated he felt he had sexual problems, too.
On further re-cross-examination, R.G. stated he never lived with or knew a boy named Ross, but that he read it in a story. R.G. admitted he told Lou Gadow and Mark Morrison (of Family Advocate) that if they didn't leave him alone, he wouldn't say the things they wanted him to say.
R.G. stated that after he was placed in foster care, he was examined by Dr. Miller. R.G. did not tell the doctor that he was having rectal bleeding problems; however, the doctor examined him in that area. R.G. recalled the day after he was taken from his home and placed in foster care an emergency room physician also examined his rectal area.
R.G. stated his mother did not help him draw the pictures included in his notebook, but that he got ideas for the drawings from his parents, books and magazines.
On further redirect examination, R.G. stated he found the magazines under his parents' bed. R.G. stated the pictures in the book showed oral sex, and that he had had oral sex with his mother and his mother performed oral sex on him. R.G. stated they had a disc player at home and that he had seen "Porky's" and "The Godfather," but he had not seen any movies showing something like ...