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05/31/96 PEOPLE STATE ILLINOIS v. FREDDIE FALASTER

May 31, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
FREDDIE FALASTER, APPELLANT.



The Honorable Justice Miller delivered the opinion of the court: Justice Harrison, specially concurring: Justice McMORROW joins in this special concurrence.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Jackson County, the defendant, Freddie Falaster, was convicted of two counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of unlawful distribution of harmful material. The trial judge sentenced the defendant to various terms of imprisonment for those offenses. The appellate court affirmed the defendant's convictions and sentences. 273 Ill. App. 3d 694, 653 N.E.2d 467, 210 Ill. Dec. 562. We allowed the defendant's petition for leave to appeal (155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The defendant makes no challenge to the strength of the evidence used to convict him on the charges, and therefore only a brief summary of the trial testimony is necessary. The victim in this case, A.F., was the defendant's daughter. According to the testimony of the victim, who was 14 years old at the time of the defendant's trial, in 1994, the defendant began sexually abusing her when she was eight or nine years old; the abuse lasted until June or July 1993, when the victim reported it to the authorities. The victim stated that the defendant initially asked her masturbate him or perform fellatio on him; later, the defendant told her to engage in sexual intercourse. The victim testified to specific instances in which she had intercourse with the defendant. The victim also said that the defendant had given her a nude photograph of himself and a pornographic magazine called Three Way Lust.

At trial, the State also presented the testimony of Mary Williams, a registered nurse who obtained a history from the victim prior to a physical examination in August 1993. Williams testified that the victim reported that she had been sexually abused by the defendant since she was eight years old, that oral and vaginal sex had occurred, and that she had never bled as a result of that activity. Williams stated that the absence of bleeding was not unusual.

The defendant was questioned by authorities following the victim's report of the misconduct, and the defendant's statements were introduced into evidence at his trial. The defendant admitted to a police officer and an investigator from the Department of Children and Family Services (DCFS) that he had sexually abused the victim. The defendant said that he had directed his daughter to participate in masturbation, fellatio, and intercourse with him over a period of several years. The defendant initially said that they had sexual relations once or twice, then estimated that it occurred two or three times a week, and finally said that he could not be certain how many times the conduct had occurred.

The State also presented physical evidence corroborating the victim's account. A forensic serologist was able to detect deposits of semen on the carpet next to the bed in the master bedroom where, the victim said, the defendant would often ejaculate when they engaged in sexual activity. The serologist determined that the semen stains were consistent with the defendant's blood type. In addition, a police officer testified that the nude photograph and pornographic magazine given by the defendant to the victim were recovered from a trunk in the victim's bedroom, where she said she had kept the items.

The defendant testified in his own behalf at trial. He denied engaging in sexual activity with the victim or giving her the photograph and magazine. The defendant acknowledged that he had been questioned by a police officer and a DCFS investigator following the victim's report of the abuse, but he denied making the inculpatory statements they attributed to him. Called to testify as a defense witness at trial was Dr. Deanna St. Germaine, the physician who performed the physical examination of the victim in August 1993. Dr. St. Germaine stated that she did not find any physical evidence of sexual abuse. She also testified, however, that because of the victim's age and physical development, it would be unusual to find such evidence unless the abuse had been forceful.

Following the close of evidence, the jury returned verdicts finding the defendant guilty of two counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of unlawful distribution of harmful material. The trial judge later sentenced the defendant to terms of 15 years' imprisonment on each conviction for aggravated criminal sexual assault, to five years' imprisonment for the conviction for criminal sexual assault, and to 364 days' imprisonment for the conviction for unlawful distribution of harmful material, with all four sentences to run concurrently. The judge also ordered the defendant to pay two fines of $100 each pursuant to sections 5--9--1.5 and 5--9--1.7 of the Unified Code of Corrections (730 ILCS 5/5--9--1.5, 5--9--1.7 (West 1994)), and to pay $2,000 toward counseling costs incurred by the victim, as authorized by section 5--5--6(g) of the Unified Code of Corrections (730 ILCS 5/5--5--6(g) (West 1992)).

The appellate court affirmed the defendant's convictions and sentences. 273 Ill. App. 3d 694, 653 N.E.2d 467, 210 Ill. Dec. 562. The court rejected the defendant's arguments that the trial judge improperly excluded several spectators from a portion of the proceedings, that the judge erred in permitting nurse Williams to testify to the victim's identification of the defendant as her abuser, and that the judge erred in asking a question of a prosecution witness. We allowed the defendant's petition for leave to appeal (155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The defendant renews here the three allegations of error he raised in the appellate court. The defendant first contends that the trial judge improperly excluded certain spectators from the courtroom during the testimony of the victim. The persons excluded from the courtroom by the judge's order were two nephews of the defendant and the grandfather of one of the nephews. In granting the State's request that the persons be excluded, the judge invoked section 115--11 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--11 (West 1992)), which permits the exclusion of certain spectators from the court during testimony of a minor victim in specified prosecutions.

The defendant argues that this partial closure of the proceedings during the victim's testimony violated his federal and state constitutional rights to a public trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, ยง 8. Citing Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984), Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982), the defendant contends that the exclusion order imposed in the present case failed to satisfy the limitations prescribed by the United States Supreme Court for the closing of judicial proceedings. Those cases severely limit the circumstances in which a judge may bar the press and general public from judicial proceedings. Although the defendant failed to include this contention in his post-trial motion, we will address the merits of the issue, given the general importance of the question and the division of appellate court authority on the subject. See Hux v. Raben, 38 Ill. 2d 223, 230 N.E.2d 831 (1967).

In excluding the three spectators from the courtroom in the present case, the trial judge relied on section 115--11 of the Code of Criminal Procedure of 1963, which provided, at the time of trial:

"In a prosecution for a criminal offense defined in Article 11 or in Section 12--13, 12--14, 12--15 or 12--16 of the 'Criminal Code of 1961', where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do ...


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