Appeal from the Circuit Court of Marion County. No. 99-CF-239 Honorable Patrick J. Hitpas, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
After a bench trial in the circuit court of Marion County, Christopher Fletcher (defendant) was found guilty of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1998)) and sentenced to 12 years in the Department of Corrections. Defendant raises the following issues on appeal: (1) whether defendant was denied his constitutional right to confront witnesses (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) and his constitutional right to counsel (U.S. Const., amend. VI) when the trial court allowed the child victim to testify via closed-circuit television without providing defendant a method of electronic communication with his attorney, (2) whether defendant was denied a fair trial when his statements, made without the benefit of Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) to an investigator employed by the Department of Children and Family Services (Department), were admitted into evidence, (3) whether the trial court committed reversible error by allowing testimony relating to a polygraph test administered to defendant, and (4) whether the trial court violated defendant's due process rights by comparing defendant's signature with a document not admitted into evidence. We affirm.
On October 14, 1999, defendant was charged by information with one count of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). On the day of the trial, the State filed an amended information. The first count of the amended information charged defendant with aggravated criminal sexual assault. The second count charged defendant with predatory criminal sexual assault of a child. The charges stemmed from the victim's allegations that defendant fondled her and placed his finger in her vagina. There were discrepancies about when the assault took place. Information provided to the State indicated that the offense could have occurred as early as 1996 or as late as 1999. Therefore, the first count alleged that the acts took place sometime between January 1996 and December 31, 1997. The second count alleged that the acts took place between January 1998 and September 13, 1999. The allegations in both counts were identical, with the exception of the dates. The State alleged in both counts as follows, "[Defendant], a person 17 years of age or older, knowingly committed an act of sexual penetration upon [the victim], a person under 13 years of age, in that he placed his finger in the vagina of [the victim]."
On May 11, 2000, the trial court conducted a pretrial hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 1998)) to determine whether statements allegedly made by the victim to her mother and to a Department caseworker were admissible. The trial court ruled that the statements were admissible. On July 19, 2000, defendant waived his right to a jury trial. A bench trial followed on September 29, 2000.
The victim, age nine at the time of the trial, was the first witness to testify. Prior to her testimony, the State told the trial court, "[P]ursuant to our rights to[,] we'd like to call [the victim] by closed-circuit television." The trial court inquired whether a television was set up, and the prosecutor replied that he had taken the liberty of putting a television in the jury room. The trial court directed defendant to go to the jury room, and the court asked defendant whether he had any trouble hearing. Defendant replied that he was almost totally deaf. The trial court then informed defendant once again how it was going to proceed, and the court told defendant that if for some reason he could not hear the victim's testimony, he should notify the bailiff immediately. The State's Attorney volunteered one of his employees to perform a sound check. Defense counsel noted that while he did not object to the sound check, he was preserving his objection for the closed-circuit television in general. The trial court noted the objection but replied, "[T]he Supreme Court in Illinois says it's proper." The State's Attorney began by asking the victim some preliminary questions, whereupon the State's Attorney's employee returned and reported that defendant could not hear. Some minor adjustments were made to the equipment, and then the employee reported that defendant could hear.
The victim testified that she was in fourth grade and that her aunt used to be married to defendant. She explained the difference between the truth and a lie. She described a bad touch as "somebody touching you in your privates when you don't want them to." She said that defendant gave her bad touches. She testified that this occurred at her cousin's (defendant's son's) birthday party. Defendant asked her to accompany him to the store. While they were in the car, defendant put his hand down her pants and touched the front of her and put his fingers inside of her.
The victim explained why she did not tell her parents immediately: "Because I was scared I would get hurt and so would my family." The victim finally told her mother about the incident long after it occurred. The victim was in the bathtub and started crying but did not know why. According to the victim, this event happened at her cousin's third or fourth birthday party. She testified that her cousin was six or seven at the time of the trial. The victim was specifically asked whether this was the only time defendant touched her in this manner. The victim replied, "I don't remember, so it's probably the only time." After the victim was finished testifying, the trial court asked defendant whether he was able to hear the victim's testimony, and defendant assured the trial court that he had heard everything.
The victim's mother (mother) testified that she and defendant's ex-wife are sisters. She first learned about the abuse in the summer of 1999. According to the mother, the victim was in the bathtub and started crying. When she asked the victim what was wrong, the victim was reluctant to discuss the matter but ultimately admitted that defendant touched her private parts. The victim told her that it happened at her cousin's birthday party. The mother told the victim's father (father), and they decided they would try to handle the matter privately; however, two or three months later, the father reported the incident to the Department's hotline.
The mother admitted that in the summer of 1999, defendant and his wife were going through a divorce, but she denied that this was the reason she reported the alleged abuse. The mother explained that in September of 1999, the defendant's son, her nephew, was in her backyard playing with a neighbor's child. The neighbor came rushing over to her house and told her that her nephew had "his pants down and was trying to perform sexual acts on the little neighbor boy." The mother went outside and grabbed her nephew and asked him who had taught him to do that, and he replied that his father (defendant) had taught him. The mother then told the father that they needed to tell her sister and the Department about the victim's abuse.
Dennis Smith, the polygraph training coordinator at the Southern Illinois Crime Lab, testified that he met defendant on September 28, 1999. Defense counsel then objected to any testimony relating to a polygraph. The trial court allowed the testimony for the limited purpose of showing that defendant changed his original statement.
According to Smith, he verbally admonished defendant that the procedure was voluntary and that defendant could end the questioning at any time. Smith also said that defendant signed a waiver, but the record does not contain a waiver. Smith testified that when he first questioned defendant, defendant was aware of the general allegations made by the victim. Defendant initially denied that he ever touched the victim inappropriately; however, during a second interview, defendant admitted that he touched the victim's private parts. According to defendant, the incident occurred in a bedroom. He was talking with the victim and asked her if it would be okay if he touched her. According to defendant, the victim said that it would be okay if he touched her, so he pulled down her underpants and proceeded to rub her vagina for a few seconds. He said that he did not insert his finger, but he admitted that the tip of his finger may have entered the victim's vagina. Mr. Smith then left the room and notified the Department investigator, Mimi Rapp, about defendant's admission.
Mimi Rapp testified that she was assigned by the Department to investigate the allegations of sexual abuse by defendant against the victim. She interviewed the victim, who told her that defendant touched her a "few times," including at defendant's house, in his car, at the victim's house, and at the park. The victim told her about an incident that occurred at her cousin's birthday party. The victim told Ms. Rapp that she was in defendant's car when he reached down in her pants and touched her. Defendant told her not to tell anyone. The victim explained how she felt after it happened: "I was so sad that when I got out of the car, I dropped some sodas and got yelled at." Ms. Rapp testified that she continued to question the victim about other alleged incidents. At one point, the victim began to cry, and she said: "He said, 'It doesn't hurt,' but it did. He said, 'No, it doesn't hurt. Just let me do this a little bit more.' " The victim also told her: "His finger went in me. It hurt."
After interviewing the victim, Ms. Rapp interviewed defendant. She met him at his residence and informed him of the victim's allegations. Defendant denied touching or fondling the victim or any other child. Rapp asked defendant to take a polygraph examination, and he agreed to do so. Rapp drove defendant to the crime lab in Carbondale, where a polygraph was administered. The polygraph examiner called Ms. Rapp into the room and said that defendant needed to talk to her. Defendant admitted that he touched the victim's privates and that his finger might have gone in her vagina, but only up to his fingernail. Rapp took the victim back to an office in Salem and wrote out a statement reflecting defendant's earlier admission. Defendant signed the statement. The next morning, Rapp realized that she had made an error in the statement about how the victim came to be sitting on the bed where the abuse occurred. Rapp called defendant at his house and told him that the statement needed to be clarified. She then drove to his residence, where she rewrote the statement. She went over the new statement with defendant. Defendant signed the statement. Both statements were introduced into evidence. Rapp testified that she did not remember telling defendant that he did not need to call his lawyer.
After the State rested, defendant called Donna Mattmiller, a friend of defendant. She rode with defendant and Mimi Rapp to the crime lab in Carbondale in order to give defendant "moral support." Mattmiller testified that during the ride to the crime lab, defendant asked Rapp whether he should have called his lawyer before he left home. According to Mattmiller, Rapp told him that it was not necessary for him to call his lawyer. Mattmiller further testified that she had left her grandchildren alone with defendant both before and after the charges were filed against him. Mattmiller admitted that she was unaware that defendant had signed two statements admitting that he had molested his niece. Defendant, age 33 at the time of the trial, testified that his marriage first started to break down in August 1998 but that he did not move out of the marital home until January 1999, because he could not find a place to live. According to defendant, his divorce was still pending at the time of the trial. Defendant testified that he graduated from high school and went to technical ...