Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 99-CF-787 Honorable Joe Vespa Judge, Presiding
The opinion of the court was delivered by: Justice Lytton
The defendant, Anthony Roy W., was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1 (West 1998)), and criminal sexual assault (720 ILCS 5/12--13) (West 1998)). He was sentenced to 20 years' imprisonment. The defendant filed a post-trial motion alleging ineffective assistance of counsel based on: (1) trial counsel's failure to present evidence that the victim had pending delinquency charges and was in the custody of the juvenile authorities at the time of trial; and (2) trial counsel's failure to present a witness who would testify that he had sexual intercourse with the victim one to two months before she made the allegation against her father. After careful consideration of the record and counsels' arguments, we reverse the defendant's convictions and remand for a new trial.
At trial, the following facts were presented. The victim is the defendant's daughter. The victim's mother voluntarily transferred custody of her to the defendant in 1993. She lived with him or his mother from 1993 until these allegations were made in 1999. The victim was 12 years old at the time of the complaint. On the day before she filed the complaint, the victim had an altercation with another child in the neighborhood. The victim went into the house and returned to the altercation carrying a large-bladed kitchen knife. She threatened the other child with the knife, but then returned home. When the defendant returned home and was told about the incident, he pushed the victim into a chair and grounded her. The next day when the defendant arrived home he found a note from the victim saying that she had gone to her grandmother's house. Before the defendant could determine where the victim was, the police arrived at his home and arrested him based on the victim's complaint. The victim was placed in the custody of her mother.
While in her mother's custody, the victim was arrested for retail theft and placed on house arrest at her mother's home. After she violated the terms of the house arrest, she was placed in the juvenile detention facility, and she was also charged with domestic battery against her mother. At the time of trial, the victim was facing both charges and was being held in the juvenile detention facility.
The victim testified that her father frequently beat her with an electrical cord. She said that he would make her take all her clothes off, and then he would beat her with the cord. During these beatings he would sometimes remove his clothing and sexually penetrate her vagina or her anus with his penis. At trial she testified that this happened 14 times. She also testified that in the past she had a close relationship with two of her aunts, her father's girlfriends, and her grandmother. During the course of her testimony the victim occasionally smiled and appeared to laugh. At one point during cross-examination, defense counsel asked the victim, "Is this funny to you?" because of her demeanor.
Dr. Kay Saving testified that she is a pediatrician and a pediatric hematologist oncologist. She is the director of the Pediatric Resource Center, a program which provides medical evaluations for children who are possible victims of neglect or physical or sexual abuse. The doctor testified that she performed a full examination of the victim. The victim's hymen had a cleavage in the six o'clock position, which the doctor opined was consistent with sexual trauma to the vagina. The doctor stated that the victim also had some irritated tissue around her vagina and opined that this irritation was consistent with sexual abuse. On cross-examination, however, the doctor admitted that this type of irritation could be caused by sources other than sexual abuse, including poor hygiene. The doctor also stated that an examination of the rectum and anus revealed no unusual findings. Additionally, through the doctor, the State admitted several pictures of scarring on the victim's arm, buttocks and upper legs. The doctor opined that these scars were consistent with a child having received corporal punishment with an implement such as a folded electrical cord.
The police investigator assigned to the case testified that the victim told him that the defendant had sexual relations with her on nine occasions, and at another point in the interview she said the defendant had had sexual relations with her too many times to count. He also testified that they did not remove any physical evidence from the home, such as bed sheets or underwear, because they did not believe these items would have any evidentiary value.
The defense presented the victim's grandmother, two of her aunts, and her father's girlfriends as witnesses. All of these women testified that they had a good relationship with the victim. They all testified that the victim confided in them on personal subjects such as boys and her menstrual cycle. They all also testified that they spent time with the victim out of the presence of her father and that the victim had never told them about this alleged sexual abuse.
The victim's grandmother also testified that at times the victim had a hygiene problem, and her grandmother would have to ensure that she changed her underwear.
One of the defendant's girlfriends testified that she was with the defendant at the time the victim alleged the most recent incident of sexual abuse had occurred.
The defendant testified that he did use corporal punishment and that on occasion he would discipline his daughter with a belt. He denied that he made her take off all her clothes before he punished her. He also denied ever performing any sexual acts with his daughter.
The jury convicted the defendant. After his conviction, the defendant filed a pro se motion entitled, "Discovery Order." In this motion, he alleged that trial counsel was ineffective for failing to interview and call as a witness a juvenile, T.R. The defendant alleged that T.R., who was 14 years old, would testify that he and the victim had sexual intercourse in the summer of 1999 before the victim made the allegations against her father. New counsel was appointed for the post-trial proceedings. The new counsel filed a motion for a new trial, reasserting the defendant's complaint and also alleging that trial counsel was ineffective for failing to present evidence that the victim had pending charges and was in State custody at the time of trial.
At the hearing on that motion, T.R. testified that he was two years older than the victim. He lived next door to the victim's grandmother. One day in the summer of 1999 he and the victim had consensual sexual intercourse at his house when no one was home. He stated that this ...