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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.

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

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

The victim, Brittaney, is the defendant's granddaughter. She was three years old at the time of the alleged abuse. Shelly, Brittaney's mother, was divorced from William, Jr., the defendant's son, a year and a half after Brittaney was born. William, Jr. lived with his parents and had visitation with Brittaney every other weekend. Usually, the defendant or his wife would pick up Brittaney for visitation.

At the section 115--10 hearing and at trial, Shelly testified that on March 22, 1993, she discovered Brittaney fondling herself and asked her if anyone had touched her there. Brittaney said her grandpa touched her there and then immediately stated that it was her father who did the touching. When Shelly told Brittaney that it was very important to tell the truth, Brittaney said that the defendant had told her to say her father did it.

Nine days after seeing Brittaney fondle herself, Shelly took Brittaney to a pediatrician, Dr. You Sim Kim. Thereafter, Shelly took Brittaney to the emergency room at St. Mary's Hospital. After emergency room personnel called the police, Shelly went to the Momence Police Department.

Shelly saw Brittaney fondling herself again on March 28, 1993. At the time of this incident, Brittaney said that her grandpa had put his fingers between her legs and played a game. Later that evening, with Shelly's mother present, Brittaney said the defendant played this game with her on several occasions.

Shelly's mother, Linda Duke, also testified at the section 115--10 hearing and at trial. Duke stated that Brittaney would not kiss the defendant goodbye after a visit and complained to her about pain in her lower stomach and anus. She said that Brittaney could not go to the bathroom, and in response to a question if anyone had hurt her, Brittaney said that the defendant had put something in her and it got bigger and bigger and hurt. While making this statement, Brittaney pointed to her vaginal area and anus.

Christy Horn testified that she was present with Shelly and Brittaney when Brittaney spontaneously told Horn that the defendant had touched her and hurt her bad and she was going to spank him for it. Again, Brittaney pointed to her vaginal area when making this statement.

Sergeant Jo Mulcahy, a 17-year veteran of the Kankakee County Sheriff's Department, testified that she had a private meeting with Brittaney at Shelly's residence. Sergeant Mulcahy used anatomically correct dolls during the interview. Brittaney told Mulcahy that the defendant had put his finger in her vagina several times. Brittaney demonstrated how this occurred by using dolls which represented the defendant and herself. At first, Brittaney said that her father did this to her as well. Later, she clarified her statement by saying that only the defendant had abused her.

At trial, Dr. Kim testified that she had never prescribed or recommended a stool softener for Brittaney. Dr. Patricia Tiernan, an obstetrician-gynecologist, testified that during her examination of Brittaney she discovered a "skin tag" on Brittaney's anus. Dr. Tiernan testified that a skin tag is caused by the stretching of the skin around the anus. On cross-examination, Dr. Tiernan admitted that a skin tag could be caused by an oversized stool.

Brittaney testified that during one visitation the defendant led her to the bedroom and took her clothes off. He turned her over on her stomach and stuck his "private" into her "butt." She tried to get away, but he held her down. Brittaney testified that the defendant had done this to her "a lot." Brittaney said that, on another occasion, she was sleeping and woke up when the defendant touched her with his "private" and stuck his finger in her vagina.

The testimony at trial indicated that Brittaney had a history of urinary and bowel movement difficulties. The defendant and his wife testified that they would insert rectal suppositories into Brittaney to help Brittaney go to the bathroom. Brittaney denied that her grandparents had ever given her any medication for her elimination problems. The defendant testified that he had inserted the suppositories on occasion, but only when his wife was present. The defendant denied ever sexually abusing Brittaney.

The defendant's initial trial attorney, Michael Kick, first appeared as the defendant's counsel on September 21, 1993. Kick represented the defendant by making numerous court appearances, answering discovery and filing various documents in the case. Kick withdrew as the defendant's counsel on November 10, 1994, because the defendant could not pay him. However, Kick was subsequently appointed public defender to again represent the defendant. A few days after Kick was assigned to be the defendant's public defender, the defendant's representation was reassigned to Public Defender Alan Kuester. ...


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