Appeal from the Circuit Court of Cook County No. 99 CR 2748 Honorable Janice Bierman, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
Defendant was convicted of predatory criminal sexual assault and sentenced to 10 years in prison. He argues on appeal that: (1) the trial court improperly barred a psychologist and psychiatrist from testifying; (2) unsupported insinuations during cross-examination denied him a fair trial; (3) the State made improper remarks during closing argument; and (4) the cumulative effect of the claimed errors warrants a new trial. We affirm.
Roy Hok and his wife Emily Ou have two children, a daughter and a son. The children were three and seven, respectively, in 1999. Sim Wood, defendant's wife and Emily's sister, took care of the Hok children while the parents were at work. Roy picked up his children just before 5 p.m. each day. Defendant was charged with sexually assaulting his three-year-old niece, Hok's daughter, on January 5, 1999.
Roy testified at trial that he picked up his children at 4:40 p.m. on January 5, 1999. His son Jeremy told Roy that his sister had a secret. Roy asked his daughter what the secret was. She said that defendant told her not to tell. Roy demanded to know what the secret was. His daughter then said that defendant let her "suck his doing-doing." Roy took his daughter to a doctor that night. Roy admitted that his wife Emily left the children with her sister the next day, January 6. Emily and her sister did not discuss what happened the day before. Roy explained that there was no other babysitter for the children. Roy said that Emily picked up the children after only half a day. Roy explained that Emily's employer told her to pick up her children after learning what had happened the day before. Emily did not testify at trial. Roy made a police report on January 7, 1999.
Detective Joseph Licari testified that he interviewed defendant on January 8. Licari told defendant about his Miranda rights. Defendant said he understood his rights and signed a waiver form. Defendant first denied having sexual contact with his niece. But he later confessed in a written statement that his niece performed oral sex on him. Defendant said that he was masturbating in his office while watching a pornographic slide show. He told his niece not to tell anyone what had happened. Defendant's signed statement was published to the jury. He also consented to a search of his home and seizure of his computer.
Defendant was then interviewed by Assistant State's Attorney Peter Karlovics. Defendant again confessed to having sexual contact with his niece. In a written statement, defendant said he was masturbating as he watched a pornographic slide show that depicted a woman performing oral sex on a man. Defendant's niece entered the room and asked what the woman on the computer was doing. Defendant had his niece come by his side and mimic the action on the computer. Defendant told his niece not to tell anyone about what had happened. Defendant's statement also said that he had been treated well by the police and that he gave his statement freely and voluntarily.
Meghan McGrath works for the Children's Advocacy Center. McGrath testified that she interviewed defendant's niece on January 11, 1999. McGrath asked the child who takes care of her when her mother is at work. The child responded that defendant made her "suck a doing-doing." The child told McGrath that she saw a picture on the computer of one woman and two boys. The woman was nude and was performing oral sex. The child showed McGrath where a "doing-doing" was by pointing between her legs. She told McGrath that defendant made her do what the woman on the computer was doing. The child also mentioned a person named Daniel during the interview in response to McGrath's question if anyone else had touched her. McGrath said that she had no trouble communicating with or understanding the child.
Defendant testified on his own behalf. Defendant said he came home at 3 p.m. on January 5, 1999. He went into his office and checked his email. Defendant then opened a pornographic slide show on his computer. Defendant was watching the slide show when his three-year-old niece came into the office. Defendant did not notice his niece until she asked what the woman on the computer was doing. The slide show depicted a woman performing oral sex on a man. Defendant turned off the show when he noticed his niece was in the room. Defendant told his niece not to tell anyone what she had seen. Defendant denied that he was masturbating.
Defendant testified that he was interviewed by Licari and Karlovics on January 8. Licari asked defendant what happened on January 5. Defendant said Licari immediately read his Miranda rights and that he understood and waived those rights. Defendant denied having sexual contact with his niece. Licari interrupted defendant, called him a liar and told him that he was not telling the truth. Defendant said that Licari screamed at him and told defendant to confess or face "the maximum penalty." Defendant started to cry. He continued to deny having sexual contact with his niece. Licari told defendant that it would be in his interest to say what Licari wanted to hear. Defendant believed Licari and then confessed.
Defendant testified that he was crying when he was interviewed by Assistant State's Attorney Karlovics. Defendant said that he did not tell Karlovics about the discrepancies in his confession because Licari had warned him against changing his story. Defendant said his confessions were false and that he did not sexually abuse his niece.
During cross-examination, the State asked defendant if he had child pornography on his computer. Defense counsel objected on the ground that the question was beyond the scope of direct examination. The trial court sustained the objection.
The State had filed a motion in limine before trial to bar testimony about defendant's state of mind, depression and susceptibility to coercion. Defendant intended to present expert testimony by Drs. Sheldon Greenberg and Tricia Porter on these issues. Drs. Greenberg and Porter had testified at an earlier hearing on a motion to change the conditions of defendant's bond pending trial. The purpose of the bond hearing was to determine whether defendant, who was not in custody, could return home to his wife and two small children. Subsequently, the trial court granted the State's motion in limine in part as to state of mind, depression and susceptibility to coercion, but said that the motion would be revisited during trial.
The State again objected at trial when defendant tried to call Dr. Greenberg as a witness. The trial court sustained the State's objection and barred Dr. Greenberg from testifying. No ruling was made as to Dr. Porter.
During closing argument, the State asked the jurors to imagine themselves in the shoes of the victim and her family. Defendant did not object to this remark. The jury found defendant guilty.
Defendant first argues that the trial court erred in barring Dr. Greenwood and Dr. Porter from testifying about the involuntary nature of his confession. Defendant reasons that this evidence was "directly relevant" to a defense that his confession was the result of his being "susceptible to suggestion and coercion." Defendant claims that this defense requires expert testimony and he concludes that, absent this evidence, the jury did not have the chance to consider or evaluate his defense. We disagree.
We first note that defendant's argument is not relevant to the proposed testimony of Dr. Porter. Porter tested defendant for the limited purpose of determining his sexual preferences. But Porter did not conduct a full evaluation. Porter's report was limited to her interpretation of the test results. Porter found defendant was disturbed but did not share cognitive disorders generally present in child molesters. This testimony and report were used by the court in deciding whether to allow defendant to live with his wife and children pending trial. Porter never assessed defendant's alleged susceptibility to suggestion or coercion. The trial court properly granted the State's motion in limine barring Porter's testimony at trial.
Defendant's argument as to Dr. Greenberg is waived for failure to make an adequate offer of proof. An offer of proof allows a reviewing court to determine whether evidence was properly excluded. People v. Armstrong, 183 Ill. 2d 130, 155, 700 N.E.2d 960 (1998). When evidence is refused, no appealable issue remains unless a formal offer of proof is made. People v. Peeples, 155 Ill. 2d 422, 457, 616 N.E.2d 294 (1993). An adequate offer of proof is made if counsel reveals, with particularity, the substance of the witness's anticipated answer. People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126 (1992). The offer serves no purpose if it does not establish to both the trial and reviewing courts the admissibility of the testimony. Andrews, 146 Ill. 2d at 421.
The record here shows that defense counsel was less than forthcoming when asked by the trial court to state the purpose for which Dr. Greenberg would be called:
"THE COURT: Let's stop the ultimate speculation. What are they going to be testifying to?
DEFENSE COUNSEL: They are going to be testifying to the tests they *** conducted on the defendant.
THE COURT: For what purpose?
DEFENSE COUNSEL: For what purpose? All right, for his mental posture while in custody.
THE COURT: Which would be a state of mind?
DEFENSE COUNSEL: Could be a state of mind, Judge.
THE COURT: That is not going to be admissible. So what else?
DEFENSE COUNSEL: It could be.
THE COURT: It's not going to be admissible-state of mind.
DEFENSE COUNSEL: It could be with regard to his personality, Judge.
THE COURT: Why-are you saying that he was insane at the time?
THE COURT: Well, I'm just trying to see where you are going.
DEFENSE COUNSEL: Judge, as an expert this man is allowed to testify on any issue that will aid the jury in coming to their conclusion.
THE COURT: Only if it's relevant. It has to be relevant here.
DEFENSE COUNSEL: Well, I will have an opportunity to show the relevance of his testimony.
THE COURT: I'll tell you what, I'm going to ask you right now to make an offer of proof as to what they will testify to.
DEFENSE COUNSEL: All right, Dr. Greenberg is going to testify in his capacity as a psychiatrist as to the tests he conducted on the defendant-psychological-or had conducted on the defendant. Okay, the results of those tests-he's going to testify as to the propensity of a child of tender years to give accurate recollection of an event. He's going to testify as to articles in existence that bear on the credibility of a child of tender years recalling events.
THE COURT: So that would be in the nature of rebuttal.
DEFENSE COUNSEL: Of course.
THE COURT: So they are only rebuttal witnesses?
DEFENSE COUNSEL: They may be, Judge, yes. You know when you list witnesses you have to list them for any purpose.
THE COURT: I understand but I'm just trying to get a handle on what the state is seeking to exclude, and some of which may be excludable and some of which may not. Do you want to comment on that Ms. State's Attorney.
PROSECUTOR: Well, Judge, so I'm assuming based on counsel's response to the Court, first of all he's said that they will talk about the propensity. Now is that with respect to the defendant? Because in the reports, Judge, that the doctors prepared, they basically state unequivocally that this defendant could not have committed the crime because he's not a pedophile. Now, obviously, Judge, that is the ultimate issue of fact that the jury is being asked to determine.
THE COURT: They are not going to be able to testify to-any ultimate issues.
DEFENSE COUNSEL: I understand that, Judge. But you know, Judge, I have no idea what evidence the state is going to bring in or who they're going to call, so I have to be ready to rebut any and all of it. And the state coming in and saying well, he can't call this witness, he can't call that witness because it may prejudice ...