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02/20/97 PEOPLE STATE ILLINOIS v. CHARLES M. DEAN

February 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CHARLES M. DEAN, APPELLANT.



The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

The defendant was charged by information in Warren County with committing aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1992)) of his stepdaughter, E.C., between February 1, 1992, and October 6, 1992. The charge specifically alleged that the defendant, who was 17 years of age or older, knowingly committed an act of sexual penetration upon E.C., who was under 13 years of age when the act was committed, by placing his fingers in E.C.'s vagina. After waiving his right to a trial by jury, the defendant was convicted at a bench trial of aggravated criminal sexual assault and sentenced to 30 years' imprisonment. The appellate court, with one justice dissenting, affirmed the defendant's conviction and sentence. No. 3-93-0659 (unpublished order under Supreme Court Rule 23). We allowed the defendant's petition for leave to appeal (155 Ill. 2d R. 315), and now reverse the judgments of the appellate and circuit courts and remand for a new trial.

FACTS

Prior to trial, the trial court conducted an in camera competency hearing of the five-year-old victim, E.C. The court determined that E.C. was competent to testify. The State began its case by calling E.C. as its first witness. After a few background questions, E.C. became upset and started crying when asked about the defendant. E.C. then refused to respond to the State's questions. The court found that E.C. was not competent to testify at that time; however, the court reserved its ruling on the State's motion to obtain E.C.'s testimony by closed circuit television.

The State proceeded with its case by calling Sherry Dean, E.C.'s mother. Sherry testified that between July and November of 1992 she lived in a second-floor apartment of a three-story building at 509 East Broadway in Monmouth, Illinois, with the defendant and her four children. She married the defendant on October 10, 1992.

Rebecca Harrell, a mental health therapist at the Spoon River Mental Health Center in Monmouth, next testified for the State. Harrell testified that she first interviewed E.C. on November 3, 1992. E.C. was referred by the Illinois Department of Children and Family Services (DCFS) for assessment and possible treatment for alleged sexual abuse. According to Harrell, E.C. told her that she was living with her grandmother because "nasty Charlie hurted [ sic ] me." During their next session, E.C. stated to Harrell that her mother told her not to tell anyone what the defendant had done to her. During subsequent sessions, E.C. demonstrated her ability to identify body parts. E.C., through the use of an anatomically correct female doll, showed Harrell how the defendant had put his hand on her "pee pee" and stuck two fingers inside her and wiggled them around so that it hurt. Harrell also testified that E.C. indicated to her that the incident occurred on the bed in her mother's bedroom, and that after the defendant touched her genital area she tried to stick him with a fork. According to Harrell, E.C. did not make any allegations of sexual abuse against anyone else other than the defendant.

The next witness called by the State was Cherry Richardson, an investigator for DCFS. Richardson testified that she and police lieutenant David Brooks interviewed E.C. in response to an October 22, 1992, hotline report of possible abuse. During a series of interviews, E.C. told her that the defendant had touched her in her "private area." E.C. demonstrated with an anatomically correct female doll how the defendant had put his fingers into her vagina and moved them around. Again, E.C. stated that it "hurted." Richardson next testified that, on January 8, 1993, she and Lieutenant Brooks took E.C. for a drive to determine where the assault had taken place. When they approached the vicinity of 509 East Broadway, the location of the apartment building where E.C. used to live with her mother and the defendant, E.C. indicated that the incident did not happen upstairs or downstairs, but in the middle. When asked if the abuse had occurred at the apartment on Broadway, E.C. indicated that it occurred at "Jimbo's." E.C. referred to her biological father, James C., as "Jimbo." Richardson and Lieutenant Brooks took E.C. to James C.'s apartment, located at 405 South Main Street. Once inside the apartment, E.C. pointed to a rollaway bed in the corner of James C.'s bedroom, which she identified as "mommie's." James C. later testified that the bed had been at Sherry's apartment on Broadway until the children were removed from her care sometime in November of 1992.

Also testifying as a witness for the State was Dr. Sun Park, a pediatrician at Community Memorial Hospital in Monmouth. On October 27, 1992, Dr. Park examined E.C. Prior to the examination, E.C. told Dr. Park that the defendant had hurt her. After an examination of E.C., Dr. Park testified that E.C.'s genitalia displayed a widened vestibule and was missing a membrane usually found present in young girls. In Dr. Park's opinion, E.C.'s condition could have been caused by forcible digital penetration, and had probably occurred at least a few days prior to the examination.

At the close of its case in chief, the State recalled E.C. as a witness. After responding to some preliminary questions, E.C. was asked if anything happened between her and the defendant. E.C. refused to respond in the defendant's presence. The State then renewed its motion to take E.C.'s testimony by closed circuit television. The court granted the State's motion over the defendant's objection.

At the closed circuit television proceeding, E.C. testified that she currently lives with her father, "Jimbo." However, she used to live with her mother, her siblings and the defendant. According to E.C., while she lived at her mother's house, the defendant came into her bedroom and put his fingers into her "private" and moved them around and hurt her. E.C. stated that she told both of her parents that the defendant touched her. E.C. also testified on cross-examination that the defendant had cut off the heads of puppies with a knife. She saw blood on the counter and the floor.

After the State concluded its case in chief, the defense called Sherry Dean, E.C.'s mother. Sherry testified that the puppy incident, referred to by E.C., had occurred in Iowa in 1991, while she was married to her former husband, John Holden. She explained that she left the home after an argument. When she and the children returned, they found that Holden had hung some puppies in a tree, cut them open, and placed them on the kitchen counter. There was blood all over the kitchen. Sherry testified that she and the defendant moved into the apartment on Broadway in May of 1992. Sherry denied that E.C. told her that the defendant had hurt or molested her. James C. also testified that E.C. never told him about being sexually abused or hurt by the defendant.

The defendant had waived his right to a jury trial. After considering the evidence, the trial court found the defendant guilty as charged. The trial court subsequently sentenced the defendant to 30 years' imprisonment.

The defendant appealed his conviction and sentence, which a majority of the appellate court affirmed. The majority rejected the defendant's argument that he is entitled to a new trial because E.C.'s testimony on closed circuit television was admitted pursuant to the Child Shield Act (725 ILCS 5/106B-1 (West 1992)), which was subsequently declared unconstitutional in People v. Fitzpatrick, 158 Ill. 2d 360, 198 Ill. Dec. 844, 633 N.E.2d 685 (1994). The majority recognized that the Child Shield Act was found to be unconstitutional in Fitzpatrick because it violated a defendant's state constitutional right to meet witnesses "face to face." Nevertheless, the majority noted that during the pendency of the defendant's appeal, the Illinois Constitution was amended and the Child Shield Act reenacted. Consequently, the majority determined that the reenacted Child Shield Act would allow for the admission of E.C.'s testimony by closed ...


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