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05/30/97 PEOPLE STATE ILLINOIS v. WILLIAM COURTNEY

May 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM COURTNEY, SR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 93--CF--539. Honorable Daniel W. Gould, Judge Presiding.

As Modified on Denial of Rehearing July 16, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice McCUSKEY delivered the opinion of the court. Slater and Homer, JJ., concur.

The opinion of the court was delivered by: Mccuskey

MODIFIED UPON DENIAL OF PETITION FOR REHEARING

The Honorable Justice McCUSKEY delivered the opinion of the court:

Following a bench trial, the defendant, William Courtney, Sr., was convicted of four counts of aggravated criminal sexual assault (720 ILCS 5/12--13(a)(3) (West 1994)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(b) (West 1994)). The defendant was sentenced to two concurrent 16-year terms of imprisonment in the Illinois Department of Corrections.

On appeal, the defendant claims: (1) his trial counsel was ineffective; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court erred in not appointing a special prosecutor after the defendant's initial attorney was appointed State's Attorney; (4) the trial court committed reversible error in admitting hearsay statements pursuant to section 115--10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10 (West 1994)); and (5) he was denied a fair trial because the trial court pre-judged the case.

After carefully reviewing the record and applicable law, we reverse the defendant's conviction and remand the case for a new trial because we find a per se conflict of interest existed which required the appointment of a special prosecutor.

We find no merit to the defendant's claim that the trial court erred in admitting section 115--10 statements. Moreover, there is no support in the record for the defendant's contention that the trial court was prejudiced against him and his claim that he was not proven guilty beyond a reasonable doubt. As a result, we find these issues are without merit. Additionally, due to our decision to reverse the defendant's conviction and remand the cause for a new trial, it is not necessary for this court to address the defendant's claim that he was denied the effective assistance of counsel.

FACTS

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The victim, [O>BrittaneyBrittaneyBrittaneyBrittaneyBrittaney
At the section 115--10 hearing and at trial, Shelly testified that on March 22, 1993, she discovered [O>BrittaneyBrittaneythe touching. When Shelly told [O>BrittaneyBrittaney
Nine days after seeing [O>BrittaneyBrittaneyBrittaney
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Shelly's mother, Linda Duke, also testified at the section 115--10 hearing and at trial. Duke stated that [O>BrittaneyBrittaneyBrittaneyBrittaney
Christy Horn testified that she was present with Shelly and [O>BrittaneyBrittaneyBrittaney
Sergeant Jo Mulcahy, a 17-year veteran of the Kankakee County Sheriff's Department, testified that she had a private meeting with [O>BrittaneyBrittaneyBrittaneyBrittaney
At trial, Dr. Kim testified that she had never prescribed or recommended a stool softener for [O>BrittaneyBrittaneyBrittaney
[O>Brittaneystomach and stuck his "private" into her "butt." She tried to get away, but he held her ...

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