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05/13/94 PEOPLE STATE ILLINOIS v. KERRY HARLACHER

May 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KERRY HARLACHER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 90-CF-407. Honorable John W. Nielsen, Judge, Presiding.

Released for Publication June 15, 1994.

Bowman, Inglis, Quetsch

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

The defendant, Kerry Harlacher, was charged by indictment with two counts of aggravated criminal sexual abuse (counts I and III) (Ill. Rev. Stat. 1991, ch. 38, par. 12-16 (a)(1) (now 720 ILCS 5/12-16(a)(1) (West 1992))) and one count of armed violence (count II) (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))). Following the severance of count III, a jury trial was conducted on October 8 and 9, 1991, and the jury returned a verdict of guilty on both counts I and II. Defendant's post-trial motion was denied, and the court sentenced the defendant to a six-year term of imprisonment for his conviction of armed violence. The defendant's other conviction was vacated. A timely notice of appeal was filed. Defendant alleges numerous errors in the trial court's exclusion of evidence which would permit the jury to draw the inference that his statement to police was not voluntary. Defendant also contends that he was not allowed to develop impeachment evidence against the complainant. Defendant further contends that the trial court refused to allow defendant access to complainant's records possessed by the Family Advocate (social service agency) and Dr. Paul White. On these bases, he argues his due process rights were violated. We reverse and remand with directions.

Count one of the indictment charged the defendant with committing an aggravated criminal sexual abuse on or about February 15, 1990, and count three charged the defendant with an aggravated criminal sexual abuse occurring between March 23, 1989, and April 3, 1989.

Defendant was accused of fondling the breasts, thighs, and hips of his stepdaughter, M.G., on these two separate occasions. M.G. wasthe daughter of M.C., to whom defendant was married at the time of arrest. M.G.'s father was P.G., a prominent lawyer in the community. At the time of defendant's arrest, P.G. was married to a Winnebago County associate Judge.

M.G. testified that during the week of March 23 to April 3, 1989, she was on spring break and she and defendant were discussing her riding the school bus. She stated she did not want to do it any longer. The defendant asked her what she would do for him in order to not have to ride the bus anymore. She thought this was strange, so she changed the subject and went into the kitchen to make lunch. As she did so, the defendant cornered her and started to try to kiss her, and rubbed her breasts, upper thighs, and buttocks. Later on, they were sitting on the family room couch, and he proceeded to push her over, feeling her again, and lay on top of her. She struggled to get away and succeeded, going to a friend's house, where she did not tell of the incident with defendant.

On February 15, 1990, complainant and the defendant watched a movie at home. M.G.'s mother was in Kentucky on business. She noticed that defendant was wearing a robe with nothing on underneath it. She went upstairs, called a friend, and talked on the phone for 30 to 60 minutes. After she got off the phone, she got ready for bed in the bathroom. As she opened the bathroom door, defendant was there and requested a goodnight kiss. She pecked him on the cheek and he said that was not what he meant. He kissed her, picked her up, threw her over his shoulders, and eventually threw her on the bed. He pulled out a gun, held it to her left temple, and said, "Shut up or I will kill you." He fondled her. He then placed the gun against his own head and said he was going to kill himself. Eventually, he went to his own room. She went to bed, got up at 4 a.m., and went with friends to Champaign, Illinois. She returned home that afternoon.

On March 20, 1990, M.G. told her friend, R.B., of the February 15, 1990, incident. M.G. told her mother what had happened and M.C. sent the girls back to the B.'s residence. The B.'s called the police. M.G. told the police what happened. At that point, the defendant was at the Harlacher residence, having just returned from playing golf. The police arrived at the Harlacher residence and escorted the defendant to the Winnebago County Public Safety Building. Defendant's wife, M.C., also drove to the public safety building.

Defendant's wife was not permitted to enter the interview room with defendant. Detective Shimaitis accompanied him, read him his Miranda rights, and asked what happened. Defendant talked andShimaitis typed his statement. After reading his statement, defendant signed it. The statement went as follows:

"I don't remember too much of what happened a year ago. I was at home with [M.G.], my stepdaughter. My wife [M.C.] was at work. I really don't remember too much of what happened. I remember that I had my arm around her but I don't remember too much about it. We then sat down on the couch and put my arm around her again and I touched her on the breasts. I don't know why I did that. [M.G.] never said anything to her mother and neither did I. I wanted to talk to [M.C.] and get some help, but I just kept putting it off. About a month ago, [M.C.] was in Green Bay, I think. I was home [alone] with [M.G.]. I was in the basement playing with my gun, putting it to my head to shoot myself, but I didn't have any bullets in the gun. I went upstairs and passed [M.G.] in the hallway. The next thing that I knew, I was carrying [M.G.] into the bedroom. I remember [M.G.] screaming, and I put the gun to my head. I talked to her for about an hour and then she went into her room. I then followed her into her room and talked to her about me getting some help and maybe leaving the house. I talked to her for a while in her room, and then I went into my room and went to sleep. I had thought about suicide for a long time and I know that I need help."

Before trial the defendant made a motion to suppress his statement to the police on the basis that his psychiatrist, Dr. McKinney, concluded that, given defendant's emotional state at the time of arrest the defendant would not have been making voluntary statements to Detective Shimaitis. Dr. McKinney had examined the defendant the day after his arrest, when the defendant's wife brought defendant into the psychiatric ward of SwedishAmerican Hospital. Defendant's wife noted that in the days prior to his arrest the defendant exhibited no unusual behavior. However, after defendant made his statement to Shimaitis, his wife entered the interview room and found defendant emotionally distraught and crying. After hearing arguments of counsel on the defendant's motion to suppress, the court denied it.

The court also considered defendant's motion in limine that day. The first paragraph requested that the prosecution be barred from introducing any evidence concerning a previous incident in which the defendant touched parts of a female relative's body. The court granted this motion. The second paragraph concerned the alleged touching incident of M.G. in 1989. The motion requested that the prosecution not be permitted to ...


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