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07/28/94 PEOPLE STATE ILLINOIS v. JAMES KERWIN

July 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JAMES KERWIN, APPELLANT.



Heiple, McMORROW, Freeman

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

After a bench trial, defendant James Kerwin was found guilty of three counts of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)). The trial court entered judgment on the first count and sentenced defendant to 15 years' imprisonment. The appellate court affirmed with one Justice Dissenting. (241 Ill. App. 3d 632.) We granted leave to appeal (134 Ill. 2d R. 315), and now affirm the lower courts.

The facts that gave rise to this cause began with defendant's May 1988 divorce from wife, Rita Emig. Joint custody of their four children was awarded, with defendant getting physical custody of their three sons and Rita getting physical custody of their nine-year-old daughter, L.K. In August 1988, Rita was unable to care for L.K., so L.K. moved in with defendant and her brothers. Rita then moved to Colorado, and began a lesbian relationship with a woman named Bernie.

Defendant told Rita's parents about Rita's new-found sexual preference. According to defendant, Rita was angry over the disclosure and threatened to get back at defendant by bringing sexual abuse charges against him.

In February 1989, Rita had her mother pick up L.K. and deliver her to Rita instead of returning her to defendant. Rita returned to Colorado with L.K., and filed a report of sexual abuse against defendant with the Department of Children and Family Services (DCFS). After an investigation, DCFS dismissed the allegations as unfounded.

In June 1989, Rita again leveled sexual abuse charges against defendant. Bernie and Rita then took L.K. to Cecilia Rumney, a youth and victims counselor with the Colorado Springs police department. Rumney interviewed L.K. twice, and these interviews were videotaped.

This time, DCFS found the charges substantiated, and this second set of allegations eventually led to this criminal action. The State's Attorney filed an information charging defendant with three counts of aggravated criminal sexual assault. The explicit nature of the abuse is adequately set forth in the appellate court opinion (241 Ill. App. 3d at 633), and we see no need to reiterate the sordid details of the charges.

Defendant pleaded not guilty and waived a jury trial. Prior to trial, defense counsel filed a motion pursuant to section 3 of the Uniform Act to secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Ill. Rev. Stat. 1989, ch. 38, par. 156-3), asking the trial court to issue an order directing that Rita be taken into immediate custody in Colorado and transported to Illinois to testify at trial. In that motion, defense counsel described Rita as a material witness. At the hearing on the motion, defense counsel informed the court that he had not yet issued a subpoena for Rita's appearance and did not know where Rita was. The court told defense counsel to call Rita's attorney to get her address, and to issue Rita a subpoena. It indicated that if Rita would not comply with the subpoena, it would issue an order for her arrest. However, defense counsel took no further steps to secure Rita, and Rita did not testify at trial.

The following evidence was adduced at trial. L.K. testified in graphic detail to the nature of the abuse. The abuse began when she was six or seven, and ended shortly before she went to Colorado with Rita. She claimed that defendant threatened to withhold food if she told anybody what he was doing.

L.K. admitted that when she was first asked about whether defendant had abused her, she said that he had not. She testified that she did not tell her mother about the abuse because she was afraid she would not be believed, and that she had initially denied the abuse because she was afraid of defendant.

Cecilia Rumney testified about her two interviews with L.K. Rumney has a bachelor of science degree in psychology and a masters degree in counseling, and has worked with sexually abused children in the past. While Rumney was on the stand, the State moved to introduce the videotapes of her interviews with L.K., but cautioned court and counsel that the second tape contained L.K.'s speculation concerning irrelevant matters, and matters to which she had not testified. The State invited defense counsel's objections and offered to redact the inadmissible portions, but defense counsel declined, saying he preferred the court view the tapes in their entirety.

Kae Ecklebarger also testified for the State. Ecklebarger is a social worker with the El Paso County department of social services. She has a bachelors degree in social work, and has received over 50 hours of direct training from the National Center for Child Abuse. However, her entire training in post-traumatic stress syndrome is a single one-day seminar, as well as some unspecified training in "the accommodation syndrome."

Without objection, Ecklebarger was permitted to testify that the accommodation syndrome is "a part and parcel of the entire post-traumatic stress syndrome." She further testified that the accommodation syndrome and the post-traumatic stress syndrome were "commonly accepted in her field of expertise." She then opined that at the time of her interviews, L.K. was suffering from post-traumatic stress syndrome related to sexual encounters. She found nothing unusual in L.K.'s original denial of abuse, or her only partial disclosure of the nature of the abuse when she finally came forward.

Dr. Karen Kuper is the pediatrician who physically examined L.K. in February 1989. Kuper testified to the results of the exam, which included damage to L.K.'s hymen. In addition, Kuper testified to contents of conversations she had with Rita on the day of the exam, where Rita told Kuper that she was concerned over L.K.'s grades and L.K.'s claim that she had been sleeping with defendant and that defendant asked her for massages.

Finally, the State called Agent Craig Koehler, who works with the Illinois State Police division of criminal investigation. Koehler investigated the claims of abuse against defendant, and testified to the events in the investigation. Koehler testified that, during the course of the investigation, he interviewed defendant. Defendant, after being read his Miranda rights, told Koehler that he masturbated in front of L.K. on several occasions, but only when he thought she was sleeping. Defendant told him he had no problems believing that L.K. had been sexually assaulted, and that he was not upset by it. Defendant told him it was "possible" that he performed the acts complained of by Rita and L.K.

In his defense, defendant testified that Rita had threatened him with allegations of sexual abuse after he told her parents of her lesbian relationship. He denied that it was possible that he had abused L.K. He explained that his earlier statements were responses to hypothetical questions posed by Koehler, that by so answering he had meant that it was in the realm of possibility, and "that President Reagan could have done it too, same realm of possibility."

Pat Kerwin, defendant's son, testified briefly that his brother Brian had run into L.K. with his bicycle, hitting her directly in the crotch. With this testimony, defense counsel tried to explain the damage to L.K.'s hymen. Defendant's son Steve also testified. He did not think defendant had abused L.K.

Shelly Arnold, Steve's girlfriend, testified that she had never observed anything unusual between L.K. and defendant. Finally, L.K.'s fourth-grade teacher, Ruth Harre, testified that L.K. had acted quite normally, although she had missed several days of school.

The State called Dr. James Monteleone in rebuttal. He testified that L.K. displayed several strongly positive findings for sexual abuse and penetration. These behavioral indicators of L.K.'s abuse were that she did poorly in school, was having emotional problems, and described very intimate sexual activity. He opined that the damage to L.K.'s hymen could not have been caused by a bicycle accident, because "you are asking for damages inside the vagina without any evidence of damage outside -- odds of that are almost nil."

The trial court found defendant guilty. In so doing, it made the following statement:

"There is no way a nine year old girl, girl that age can make up something like that. You know, this Court has been in court long enough, I am not saying I know every time someone is lieing [sic] to the Court, I don't.

But, I am confident in this case that [L.K.] was telling the truth. You cannot, the things that she could testify to are not within the experience of a girl that age, not only just the, the set of acts, but the whole totality of the circumstances. No one comes up with the fact, for instance, that they observe their father masturbating in front of them. It was something that is really not even related to this and yet the father has admitted to having done that when she was in the room, not being aware that she was awake. But, that basically, the whole nature of the case is disgusting. No way a nine year old, eight, nine, ten year old girl is going to come up with that type of evidence unless indeed it happened. There is no way she is going to testify against her father, particularly especially one to whom she had a close relationship with unless it is true, unless there is some strong reason to try to get back for some reason. And there is absolutely no evidence of that.

Defendant was sentenced to 15 years' imprisonment. The appellate court affirmed, one Justice Dissenting, and this appeal followed.

Defendant makes two arguments to this court: that the trial court erred in assessing L.K.'s credibility by relying on unfounded stereotypes of children, and that he received ineffective ...


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