Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 96-CF-657 Honorable John O'Shea Judge, Presiding
The opinion of the court was delivered by: Justice Holdridge Delivered The Opinion OF The Court:
Following a jury trial, defendant, Michael L. Westpfahl, was acquitted of one count of aggravated criminal sexual abuse of L.B., a 13 year old minor, and convicted of one count of aggravated criminal sexual abuse of the same individual. He was sentenced to a term of 4 years in prison. Defendant maintains on appeal that: (1) the trial court committed reversible error when it sua sponte conducted a competency examination of L.B. in the presence of the jury and then declared to the jury that she was "competent" to testify; (2) the trial court erred in not declaring a mis-trial based upon the erroneous examination in the jury's presence; (3) he was not proven guilty beyond a reasonable doubt of the offense of criminal sexual abuse; and (4) the trial court abused its discretion in denying defendant's motion to continue the trial. We affirm.
As the parties are familiar with the facts of this case, we need not recite the evidence and findings of the trial court in detail. The parties may, however, be assured this court thoroughly reviewed the record in considering the propriety of those findings. We will discuss the facts only as needed to explain the holding in the case.
The defendant was charged with sexually abusing L.B., the daughter of his estranged paramour. Specifically, one count alleged that he reached under L.B.'s shirt and bra, placing his hand on her breasts. The second count alleged that he placed his hand on L.B.'s vagina.
L.B. was the first witness presented at trial. The prosecutor began the direct examination of L.B. by asking some introductory questions. The trial Judge then interrupted the prosecutor and declared that he was required to make a "preliminary inquiry" of the witness due to her age. The Judge then, in the presence of the jury, asked the witness several questions designed to determine whether she was capable of understanding the difference between the truth and a lie under oath, and whether she understood that it was morally wrong to lie under oath. After questioning the witness, the trial Judge proclaimed that the witness was "competent to testify." Defense counsel did not immediately object to the trial court's questioning, however an objection was registered a short time later, outside the presence of the jury.
After this examination by the trial Judge, L.B. then testified that defendant engaged the two instances of sexual contact while on an afternoon outing. Her testimony regarding defendant's touching her breasts was very detailed and definite. Her testimony regarding the other incident was somewhat vague. She testified that defendant unzipped her pants, however her testimony as to where he touched her was equivocal. Despite several attempts by the prosecutor to elicit testimony from L.B. that defendant had touched her vagina, no such testimony was given. L.B. testified that she asked defendant what he was doing, and he told her that he wanted to have sex with her.
L.B. further testified that she immediately informed her mother of the incidents, and that she was present when her mother confronted defendant about L.B.'s accusations. L.B. testified that defendant admitted to her mother that the accusations were true.
L.B.'s mother testified that immediately after the incident, L.B. told her what happened. She then confronted defendant and asked him "if he stuck his hands down inside [L.B.'s] bra." The defendant replied, "yes." She then asked him if "he unzipped pants." and he again replied "yes." She asked defendant why he did those things to her daughter, and he responded that he was "trying to love" her.
Defendant testified, denying the allegations. However, as to his alleged admissions to L.B.'s mother when she confronted him with the allegations, he stated that he "might have" made the admissions in an effort to "calm her down."
Defendant was convicted of the count related to touching L.B.'s breasts, but was acquitted of the count related to touching her vagina.
On appeal, defendant first maintains that the trial court committed reversible error when it conducted a competency examination of L.B. in the presence of the jury, and then declared to the jury that the witness was "competent" to testify. Defendant maintains that the examination of L.B. by the Judge, in the presence of the jury violated section 115-14 of the Code of Criminal Procedure of 1963 (724 ILCS 5/115-14 (West 1994)). He further maintains that the trial Judge's pronouncement of her as "competent" to tell the truth prejudiced him by giving the appearance to the jury that the Judge also found her testimony to be credible.
Before reaching the merits of defendant's position, we must address the People's contention that the defendant waived this issue by not immediately objecting to the Judge's examination of L.B., rather than waiting until after the examination had been completed to make the objection. In addition, the People claim that the issue was waived by the defendant's failure to state the statutory basis for the objection at the time the objection was made. See, People v. Farella, 79 Ill. App. 3d 440 (1979).
We hold that defendant has not waived this issue. Although there is a general rule that failure to raise a timely objection at trial waives consideration of an issue on appeal (See, People v. Enoch, 122 Ill. 2d 176 (1988)), we note precedent holding that a less rigid application of the rule prevails were the basis for the objection is the conduct of the trial Judge. People v. Tyner, 30 Ill. 2d 101, 106 (1964); People v. Sprinkle, 27 Ill. 2d 389 (1963); People v. Dorn, 46 Ill. App. 3d 820 (1977). As the issue in the instant matter involves the questioning of a witness by the trial Judge, we hold that the defendant properly preserved this issue for review by registering an objection outside the presence of the jury and prior to the introduction of further evidence.
Turning to the merits of defendant's argument, we must first determine whether the trial Judge erred in conducting its sua sponte examination of L.B. in the presence of the jury and in announcing to the jury that it found her "competent." Prior to conducting the examination, the trial Judge announced that, as the witness was under 14 years ...