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06/08/89 the People of the State of v. Donald Tyrrel

June 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD TYRREL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

540 N.E.2d 828, 185 Ill. App. 3d 57, 132 Ill. Dec. 906 1989.IL.861

Appeal from the Circuit Court of Warren County; the Hon. Stephen G. Evans, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The defendant, Donald Tyrrel, was convicted of two counts of aggravated criminal sexual assault after the court found he performed acts of sexual penetration against seven-year-old Amity Caldwell. He was sentenced to concurrent 20-year terms of imprisonment, and the remaining charges against him were dismissed. The defendant appeals and raises issues regarding the court's refusal to make certain accommodations for his hearing impairment, the State's bill of particulars, and effective assistance of counsel. We affirm.

The defendant was charged on April 29, 1987, with three counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1).) The State later added two counts of aggravated criminal sexual assault and two counts of indecent solicitation of a child (Ill. Rev. Stat. 1987, ch. 38, par. 11-6(a)). Counts II and V, which alleged that the defendant performed acts of sexual penetration against seven-year-old Amity Caldwell, were severed from the other counts and were tried together.

The defendant was initially represented by a public defender, then he hired a private attorney, whom he later fired. He then requested a public defender be reappointed, and for a period of time, he was represented by his privately retained attorney and a public defender. At various times before trial, the defendant also claimed he was attempting to procure the services of attorneys in Rock Island, Illinois, Montana, and Maryland. The case did not proceed to trial until over one year after the initial charges were filed, because the defendant waived his right to a speedy trial and requested continuances, and because a multitude of pretrial motions were filed, which required numerous pretrial hearings to be held. All of the issues raised on appeal arise out of the proceedings which took place prior to trial.

The defendant suffered from a hearing impairment, and prior to trial, he filed motions requesting, among other things, that an expert be appointed to examine him in order to determine his fitness to stand trial and requesting that the State provide him with a hearing aid. At the hearing on the various motions, the defendant's mother, Nyla Tyrrel, testified that she became aware of the defendant's hearing problem when he was approximately three months old. The defendant received a hearing aid when he was six years old, and he attended a school for the hearing impaired for one year. Mrs. Tyrrel stated that the defendant wore hearing aids almost continuously for several years until 1983 or 1984. She indicated that at the time of his arrest, the defendant had been attempting to obtain a hearing aid from a State agency. The witness further testified that the defendant had difficulty hearing high-pitched voices and that background noise made it hard for the defendant to understand what was said.

The defendant testified he stopped using a hearing aid in 1983 or 1984 when the device slipped out of his pocket and was chewed up by a dog. He stated he attempted to obtain a new hearing aid in 1986. He, too, testified that background noises interfered with his ability to understand what was being said and that he had difficulty hearing children's voices.

The trial court acknowledged the defendant had a history of hearing loss, but determined there was not a sufficient basis to raise a bona fide doubt as to the defendant's fitness to stand trial because of his hearing impairment. The court stated it had been in contact with the defendant during the course of proceedings for approximately a year, in hearings and pretrial conferences, and had observed the defendant and his ability to communicate with his attorney. It noted that the defendant offered notes or suggestions to his attorney and many times, after the court discussed matters with the attorneys, the defendant had asked to be heard upon the points raised. Based on its observations of the defendant and contacts with him, the court concluded that the defendant was able to hear sufficiently to ensure he received a fair trial. The court indicated certain accommodations would be made, such as proceeding slowly and cautiously while making certain everyone could be heard.

The defendant also filed a motion for a bill of particulars on September 17, 1987, seeking the exact date, time, and location of the offenses. Counts II and V alleged that the offenses occurred on or about January, February, or March of 1987. At the October 2 hearing on the motion, the State agreed to respond to the defendant's motion, but informed the court that it would be difficult to provide more specific details due to the young ages of the witnesses and the fact that the incidents occurred over a period of months. The court allowed the defendant's motion and noted the State's response would be as full and complete as it could be, based on what had been said. Subsequently, numerous hearings were held on the defendant's fitness to stand trial and need for testing and a hearing aid, on motions of the defendant's attorneys to withdraw, and on motions to continue. At a May 6, 1988, hearing on various motions, the defendant noted the bill of particulars had not been filed. The State informed the court it would respond by May 10, and the attorney for the defendant stated, "That's fine. I have no objection."

At the Conclusion of a May 13 hearing, the defendant reminded the court that the bill of particulars needed to be filed. The prosecutor stated he had forgotten about it, but would file the response. On May 20, the defendant filed a motion for sanctions against the State for its failure to file the bill of particulars. The State filed the bill of particulars as to counts II and V on May 23. The bill stated that the conduct complained of occurred on several occasions at the defendant's residence at night between September of 1986 and March of 1987.

At the hearing on the defendant's motion for sanctions, the defendant requested that the State be precluded from presenting any witnesses in the case. The State responded that it had provided the defendant with full discovery, including the information contained in the bill of particulars, in May or June of 1987, and that the bill contained as much specific information as the State could obtain from the victim, who was then only eight years old. The court denied the motion for sanctions, noting that the case had been difficult to bring to trial, that the State ...


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