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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable Frank W. Meekins, Presiding.

As Corrected July 27, 1994.

Tully, Rizzi, Cerda

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Defendant Herman Flagg was indicted for ten counts of Aggravated Criminal Sexual Assault, ten counts of Criminal Sexual Assault, and one count of Unlawful Restraint. Defendant was found guilty of two counts of aggravated criminal sexual assault and sentenced to twenty years' imprisonment in the Illinois Department of Corrections.

On the night of November 13, 1988, Dominique L. was in the third grade at Goodman School. At the time of the alleged assault, Dominique and her sister Tomisena were sleeping in their mother's bedroom. Their mother, Olivia L., Tony Julious and defendant were in the living room watching video movies and drinking beer. The facts are in dispute as to whether the three were just drinking or whether they were also "shooting dope" and ingesting cocaine. Inany case, Olivia and Tony left the apartment either to look for more beer or cocaine, leaving defendant to watch the girls.

According to Dominique, the nude defendant crawled into her bed. Defendant picked up Dominique and carried her to the couch where he did not attempt to pull or remove her night gown. Dominique then ran back to the bedroom pursued by defendant, who then sat next to her on the bed. Using two anatomically correct dolls, Dominique demonstrated how defendant pulled her night gown up and then put his finger, tongue and penis into her vagina. Although she attempted to awaken her sister, defendant threatened that if she told anyone he would kill her. When her sister eventually awoke, defendant left the bedroom.

When Dominique's mother arrived at home at approximately 4:30 a.m., the children informed her that defendant had sex with Dominique. Defendant explained to Olivia Lewis that he had taken off his clothes with the aim of sleeping in Olivia's room.

After defendant dressed and left the apartment, Olivia contacted the police and took Dominique to St. Bernard's Hospital. Olivia told the treating physician, Dr. Gulan Siddiqui, what had happened. Siddiqui found no visible marks on Dominique's body though he did find a white sticky substance in the area of her labia which later tested negative for semen. However, a pelvic examination revealed an inflamed, stretched-out hymen, probably penetrated by a foreign object. In Siddiqui's expert opinion, Dominique had been the victim of a sexual assault.

Chicago Police Officer Dennis Kettering testified that on the following day, at approximately 11:25 a.m., defendant flagged him down and confessed that he had "gotten high" and had had sex with an eight-year-old girl. Defendant was taken into police custody. Chicago Police Detective Frank Connolly then read defendant his rights and questioned him about the events of the prior evening. Defendant explained that he had been drinking and "shooting dope" all night and that cocaine made him sexual. When he saw Dominique, he climbed into bed with her and performed an act of cunnilingus upon her. He could not recall if he had sexual intercourse with Dominique. The Assistant State's Attorney gave defendant his Miranda warnings, then defendant made a statement similar to the one given to detective Connolly.

Several of Dominique's teachers testified as to Dominique's learning disabilities. Joan Savoy had taught Dominique in the first grade and stated that Dominique was below average in most areas of study, requiring her to repeat the first grade. She also explained that Dominique had trouble distinguishing between fact and fantasy. Tamley Lewis testified that she had counseled Dominique as a special student. She described Dominique as moderately learning disabled.

Defendant testified that he had known Olivia L. for approximately twenty years and claimed that he would often socialize with Olivia while drinking and taking drugs. On the night of the incident, defendant claims that he, Olivia and Tony Julious were ingesting cocaine and engaging in sexual activity in the back bedroom and in the children's bedroom. Around 3:00 a.m. Olivia and Tony left the apartment in search of cocaine but instead returned with alcohol. Defendant denied having been naked when they returned as well as having sex with Dominique.

The first issue raised on appeal concerns whether certain courtroom expressions by the trial Judge served to create prejudice against the defense counsel and deny defendant a fair trial. The trial court made several candid observations about the trial testimony during the course of the trial, which defendant has reiterated in his brief on appeal. However, defense counsel failed to object to these comments during trial or to preserve them in his post-trial motion. It is well established that unless a matter is both objected to at trial and specified in a post-trial motion it is waived on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, 119 Ill. Dec. 265. The only exception to this is the doctrine of plain error where the evidence is so closely balanced that the alleged error deprived the accused of a fair and impartial trial. People v. Howard (1992), 232 Ill. App. 3d 386, 597 N.E.2d 703, 173 Ill. Dec. 729.

We find that the evidence in this case is not so closely balanced that the remarks of the trial court require reversal pursuant to the plain error doctrine. The testimony of Dominique, her mother, officers Connolly and Kettering and the physical ...

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