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08/24/88 the People of the State of v. Tommy Nevitt

August 24, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TOMMY NEVITT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

528 N.E.2d 307, 174 Ill. App. 3d 326, 123 Ill. Dec. 762 1988.IL.1300

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Tommy Nevitt, was convicted by a jury of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)). The trial court sentenced him to 18 years' imprisonment. Defendant appeals and raises the following contentions: (1) defendant was not proven guilty beyond a reasonable doubt and the trial court erred in denying his motion for a directed verdict where the State's evidence failed to corroborate defendant's confession; (2) defendant was denied a fair and impartial trial where the trial court erroneously showed favoritism toward the prosecution and bias against the defense; (3) defendant received ineffective assistance of counsel where his counsel failed to object to inadmissible evidence and failed to introduce medical evidence to show the victim was not sexually abused; (4) the prosecutor's closing argument to the jury was unduly prejudicial and denied defendant a fair trial; and (5) the 18-year sentence is excessive.

For the reasons stated below, we reverse the judgment of the circuit court.

The record indicates the following. Pamela testified that she is the mother of the alleged victim, a boy 3 1/2 years old at the time of the alleged incident. On August 27, 1984, around 7:30 a.m., Pamela bathed her son and as part of her daily routine, checked the boy's body, including his genital area. Pamela found no unusual conditions on the boy's body. After dressing, the mother and son went to the Accounters Community Day Care Center at 81st Street and Racine Avenue in Chicago, approximately two blocks from their home. The boy had been attending the center for seven to eight months. Pamela took her son to his classroom and gave her son's hand to his teacher, Tommy Nevitt, the defendant. Pamela identified defendant at trial as that teacher.

Around 3 p.m. on August 27, 1984, Pamela returned to the day care center to pick up her son. The boy was sitting in the lobby with other children. He was not talking and said nothing to his mother when he saw her. Pamela took her son to her car, and they both got in. The boy said nothing. Pamela testified that her son's behavior was unusual, since he normally kisses her and talks to her. Instead, the boy was "withdrawn."

When they arrived home, Pamela and her son went to the kitchen of their second-floor apartment. The boy sat at the table, and Pamela gave him a cupcake, his usual afternoon snack. Pamela stated that normally, her son "[devours]" the cupcake. On that day, however, the boy merely "picked at" the cupcake. Pamela left the kitchen for about two minutes. When she returned, the boy was still sitting quietly, slowly eating the cupcake. Pamela then asked the boy what was wrong. The boy blurted out, "Teacher Tony, bit my dingdong." At trial, the prosecutor asked Pamela if she knew someone by the name of "Teacher Tony." Pamela said the person was her boy's teacher, Tommy Nevitt. Pamela testified that after the boy made the statement, he demonstrated what he meant by gnawing on the end of the table.

Pamela stated that she then went downstairs to the first-floor apartment where her mother, Doris, lives. Pamela asked her mother to come upstairs. The women went into the kitchen, and Pamela told her mother what had happened. Doris placed the boy on the counter and pulled down his pants to examine him. When Doris touched the boy's penis, the boy hollered and said, "[It's] sore," and "[Ouch]." Pamela saw a pinkish discoloration around the head of the boy's penis. Pamela had not seen the discoloration that morning when she bathed the boy.

Pamela telephoned the day care center and asked to speak to Mrs. Mays, the center's director. Mays was unavailable, and Pamela spoke to Betty Powell. Pamela then walked to the center. She spoke with Powell regarding what happened with her son. Pamela then spoke to Mays. At Mays' request, Doris and the boy then came to the center. When the three returned home, Pamela called the child abuse hotline. Police officers Radigan and Pancer arrived at Pamela's home and discussed the alleged incident with Pamela in the presence of the boy and Doris.

Doris, the alleged victim's grandmother, testified that on August 27, 1984, her daughter Pamela came to her door, "crying, very hysterical." Doris went upstairs with Pamela and went to the kitchen, where Doris saw her grandson. He was sitting at the table, "pinching" a cupcake, being very quiet and keeping his head down. Doris stated that the boy's behavior was unusual, as normally he would hug and kiss her. After Pamela told Doris what the boy had said, Doris picked up the boy, placed him on the counter, and pulled down his pants. Doris looked at the boy's genitals. When she touched his penis, the boy said, "[Ouch], sore." Doris stated that the tip of the boy's penis was red in an area about the size of a dime. Pamela telephoned the day care center and then went to the center. Around 6 p.m., after Pamela telephoned, Doris took the boy to the center. She and the boy went to Mays' office, where they saw Mays and Pamela. Mays questioned the boy. After approximately 30 minutes, Doris, Pamela and the boy went home.

Chicago police officer William Radigan testified that on August 27, 1984, he was assigned to investigate a reported sexual abuse case which occurred at the Accounters Center. He and his partner, Officer Pancer, went to the home of the alleged victim. The officers spoke to the boy's mother, in the presence of the boy and his grandmother. The officers were not able to interview the boy, as he was very quiet and was wringing his hands. The officers took the boy and his mother to the hospital.

The next day, August 28, 1984, Radigan and Pancer went to the Accounters Center in an attempt to locate the offender. They obtained the home address and telephone number of defendant and left at the center a card containing their telephone number and address. Later that day, defendant called the officers at the police station. The officers arranged for defendant to come to the station at 10:30 p.m. When defendant failed to arrive, the officers contacted defendant and arranged to meet him at 41st and South Prairie Street and then take him to their office on East 111th Street. The officers and defendant arrived at the station around 11:30 p.m.

Radigan and Pancer took defendant to an interview room, gave defendant Miranda warnings, and then asked defendant questions regarding the reported abuse. Initially defendant denied the allegations. Then defendant confessed that he committed the offense. The police asked defendant to give a written statement, which defendant did. At trial, Radigan read defendant's written statement into the record as follows:

"Dated: 8/2/84 [ sic ]. Accounters Community Center, 1155 West 81st. In washroom on first floor, on Monday, August 27th. I took to the washroom and pulled out his penis and began to suck it, perenthesis [ sic ], , age 3.

I did this on [ sic ] my own free will."

Defendant signed the statement and Radigan and Pancer witnessed the statement. After obtaining defendant's statement, the officers telephoned the State's Attorney's office.

Assistant State's Attorney Georgia Buglass testified that about 1 a.m. on August 29, 1984, she received a telephone call from Officer Pancer of the Area 2 police station. Buglass proceeded to the station, talked with Officers Pancer and Radigan, then reviewed police reports and the written statement of Tommy Nevitt. Buglass then saw defendant, gave him Miranda warnings, and questioned him regarding the alleged abuse. Buglass wrote down the substance of defendant's oral statement. Buglass read the statement aloud to defendant. Defendant then signed the statement in the presence of Buglass and Pancer. As Buglass was preparing to leave the room, defendant made another oral statement. Buglass wrote down the second oral statement at the end of the first statement she recorded. She read the second statement to defendant. Defendant signed the statement, and Buglass and Pancer witnessed it. At trial Buglass read defendant's statements into the record as follows:

"My name is Tommy Nevitt. I am employed as a pre-school teacher at Accounters Community Center. And I've worked there for two years.

On Monday, August 27, 1984, I got to work at about 8:30 a.m. was already there when I got there. And Marcus, a program aide was watching , and other -- and the other two kids, girls, got there right after I did. And then, (Celia and Tiffany Adams) [ sic ] Marcus was the only other aide on duty. And I was in charge.

10:15 a.m. is snacktime. So, at ten o'clock a.m., I told to come to the washroom with me to wash his hands. The girls were sitting at the table when I took to the boy's [ sic ] washroom. And Marcus was watching the girls. I asked , if he had to use the toilet, but he said, no, he just had to wash his hands. So, I lifted him up to the sink so he could wash his hands. Then, I pulled his pants down. He laughed. While he stood on the floor, I kneeled down and put his penis in my mouth. I had his penis in my mouth for about one minute, but, I only sucked on it for 30 seconds or so. I didn't bite his penis, and I didn't hurt him. I did this to , just because I wanted to try something new. I figured it would be safe with him.

The police have treated me fine, and no one has threatened me or promised me anything."

Defendant signed the statement and Buglass and Pancer witnessed the statement. Below the two signatures, defendant's second statement appears. Buglass read it into the record as follows:

"I have never had sex with a male before, but some of my male friends have. I figured it would be safe to try it with .", Defendant signed this second statement, and Buglass and Pancer witnessed it.

Chicago police officer James Pancer testified that after defendant gave the statement to Buglass, the police asked the alleged victim and his mother to come to the police station. The officers asked the mother and child to go to an interview room that had a two-way glass so that the child would be able to observe defendant. Before the boy was able to look at defendant, however, defendant looked through the glass and stated, "[There] is the boy right there. That's the one I was with."

At trial the defense attempted to call as its first witness Betty Powell. The State objected and the trial court ruled that Powell would not be allowed to testify since the defense failed to include her name in its answer to the State's discovery request.

Defendant then called Mary Mays, who testified that she has been the executive director of the Accounters Center since 1967. She stated that defendant was on vacation from work on August 27, 1984. Mays stated that during the week of August 27, 1984, the center was being cleaned and repaired in preparation for the opening of the school in September. The center normally is open for 65 children; however, during that week, the school was open only for those parents unable to find a service for their children outside the school. There was a "skeleton crew" of employees working at that time. Mays stated that the outer door of the center is left open. In order to enter the inner door, however, a person must be "buzzed in" by someone inside.

Mays stated that she spoke to Pamela at the center on the afternoon of August 27, 1984. First she spoke to Pamela alone, and then the alleged victim was brought to the center. Mays stated that the child did not appear to be withdrawn. Mays asked Pamela to show her the boy's penis. Pamela unzipped the boy's pants and moved the boy's penis around. Mays stated that the boy did not say "ouch" or make any other noises, but sat quietly playing with a toy Mays had handed to him.

On cross-examination, Mays testified that the name "Accounters" has a religious meaning and that Mays gave theological lectures at the center every Sunday. Mays also was questioned on cross-examination regarding the accounting procedures relating to defendant's employment at the center.

Harry Cox testified that he performed maintenance and security work for the Accounters Center. He stated that on August 27, 1984, he arrived at work at 7 a.m., his usual time. The buzzer system on the front door at the center was working on that date. Cox stated that on that day, he and Steve Rogers were painting the hallway and boys' bathroom, which is located approximately five feet from the front door of the center. Cox stated that there were three or four students, one teacher, and two teacher's assistants at the school that day.

Cox saw defendant enter the school on August 27, 1984, some time after the children went to sleep. Cox stated that the children ate at 11 a.m. and then slept from 11:30 a.m. until 2:30 p.m. Cox "buzzed" defendant into the building, and defendant remained at the center for 15 to 20 minutes "at the most." Cox saw defendant enter the time keeper's office in the center. ...


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