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People v. Lopez

October 17, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ISMAEL LOPEZ, APPELLANT.



The opinion of the court was delivered by: Justice Kilbride

UNPUBLISHED

Docket No. 93758-Agenda 4-March 2003.

In this case we decide whether a trial court can order the physical examination of an alleged sex offense victim. Defendant was charged with aggravated criminal sexual abuse under section 12-16(c)(1)(i) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-16(c)(1)(i) (West 1998)). He sought a gynecological examination of the alleged victim, B.B., who was three years old at the time. The circuit court of Du Page County granted defendant's request, and B.B.'s family refused to comply. As a sanction, the court granted defendant's motion in limine to prohibit the State from introducing any medical expert evidence of its own. On appeal, the appellate court reversed, finding that the record did not establish a compelling need for the examination, and remanded the cause for a hearing on the issue. 328 Ill. App. 3d 563. We granted defendant leave to appeal (177 Ill. 2d R. 315) and now affirm in part, vacate in part, and remand. We hold that a trial court cannot order the physical examination of a complaining witness in a sex offense case. We further hold that, when a trial court rules on the admission of evidence in a sex offense case where a defendant has requested the physical examination of a complaining witness and the witness refuses to submit to the examination, the court must balance the due process rights of the defendant against the privacy rights of the alleged victim, by deciding what medical evidence, if any, the State is allowed to introduce.

I. BACKGROUND

At the behest of B.B.'s family, Dr. E. Anderson examined B.B., who was 20 months old at the time, and concluded that she was a victim of sexual abuse. This conclusion was based in part on Dr. Anderson's finding that her labial origin "show[ed] a small false passage, suggestive of partial tearing" and also on the presence of scar tissue surrounding the vagina. Dr. Anderson reported that he was unable to inspect B.B.'s hymen adequately because B.B. complained of discomfort and "with[drew] from the situation." Dr. Anderson explained that, while he could not "100%" rule out a developmental anomaly, he felt that B.B.'s condition was the result of a traumatic injury. He further commented that:

"[c]ertainly, visualization of the hymen would provide additional useful info[rmation] for a definitive [diagnosis], although the synechia is suggestive of previous scarring and raw edges coming together, suggestive of trauma. *** Due to the swelling of the tissues, I should note that it was difficult to decide whether the tissue adhesion was with the labia minora or with the actual [vaginal] wall, although it would appear to be most likely labial."
Dr. M. Flannery also examined B.B. She prepared 17 colposcopic photographs of B.B.'s vaginal region. Based on her examination, Dr. Flannery concluded that B.B.'s condition was "suspicious for trauma most likely consistent with digital penetration." Dr. Flannery's findings, in part, noted:
"Thin hymenal rim with partial obliteration of the rim posteriorly. Edges of the hymen are thickened. Notched areas at approximately the two o'clock and ten o'clock positions. Widened elongated hymen."
Following B.B.'s medical examinations, defendant was indicted for aggravated criminal sexual abuse under section 12-16(c)(1)(i) of the Criminal Code (720 ILCS 5/12-16(c)(1)(i) (West 1998)). Approximately three months after the medical examinations, the State presented defendant with the reports of Dr. Anderson and Dr. Flannery. On defendant's request, the State later provided defendant with copies of the photographs taken by Dr. Flannery.

Approximately 13 months after the examinations, when B.B. was about three years old, defendant filed a motion to produce B.B. for an independent gynecological examination. Attached to defendant's motion to produce was the affidavit of his medical expert, Dr. R. Slupnik. Dr. Slupnik stated that she had reviewed the medical records and the photographs of B.B. According to Dr. Slupnik, she was "unable to arrive at a conclusion" about Dr. Flannery's finding of a "partial obliteration of the [hymenal] rim posteriorly." Dr. Slupnik opined:

"Partial obliteration of the hymen is not conclusively seen on the photographs submitted to me. Some clarification of the area of the hymen at 6 or 7 o'clock could be obtained by various other exam techniques, including a change of position.
A repeat examination of the alleged victim would resolve whether there is partial obliteration posteriorly. The examination would be conducted with the patient in supine (lying on her back) position, with the knees apart (so-called `frog-leg' position) as well as in the prone position (`knee chest'). One ounce of sterile water would be used to rinse the hymen of any mucus or other debris and to facilitate its depiction. The exam would take approximately 5 minutes. Other than Q-tips, no other instruments would be used during the exam.
Further, `findings' which were allegedly present during Dr. Flannery's exam 14 months ago should still be present now, if they are specific for sexual abuse. A female hymen does not re-grow, re-generate, or re-attach if truly traumatized by blunt force penetrating trauma. Findings that are specific for sexual abuse will be permanent."
A hearing was held on the motion to produce B.B. for an independent gynecological examination. At the hearing, the State contended that an examination as proposed by Dr. Slupik would last longer than five minutes and also denied that the evidence of trauma seen by Dr. Flannery would still be present. The State complained that defendant waited too long to file his motion to produce B.B. The State further clarified that Dr. Flannery did not suggest that there was medical evidence conclusive of "digital penetration," but simply that the condition of B.B.'s genitalia was "suspicious for trauma most likely consistent with digital penetration."

Defendant argued that the chief reason Dr. Slupik wished to examine B.B. independently was that she did not believe the photographs conclusively showed a partial obliteration of the hymen. In response to the State's reference to defendant's delay in requesting the independent physical examination, defendant suggested that the trial court's congested docket was, in part, responsible for the delay.

Following the hearing, the trial court granted defendant's motion for an examination of B.B. by Dr. Slupik. The trial court record is silent as to the rationale behind this decision. The lone comment on the issue is the court's observation during argument that Dr. Flannery would not be permitted to testify at trial regarding her conclusions because Dr. Flannery could not "even testify as to a speculation." The trial court later denied the State's motion to reconsider without hearing argument from the parties.

B.B.'s family refused to produce her for the examination. As a result, defendant moved to dismiss the indictment. Defendant contended that Dr. Slupik's examination "could clearly exonerate" him and that his "due process right to a fundamentally fair trial will be destroyed without the opportunity to obtain the potentially exonerating evidence that could come along only from an independent examination of [B.B.]."

In response, the State sought an evidentiary hearing to determine the appropriate sanction to be levied for the failure to produce B.B. so that the parties could present the testimony of their experts. The trial court stated that it considered the issue of the appropriate sanction "a simple legal issue" and scheduled a hearing for legal argument only. At that hearing, the trial court informed the State that a sanction of dismissal or exclusion of evidence would follow if the State did not produce B.B. for an independent medical examination.

B.B.'s family still refused to produce B.B. for the examination. The State again requested that the court conduct an evidentiary hearing before deciding the appropriate sanction. The court denied the request and dismissed the indictment. In its written order, the court indicated that its decision was based upon "the U.S. Constitution, Illinois Constitution, effective assistance of counsel, due process and reasons more fully set out in the record."

The parties then agreed that it would be more logical from a procedural standpoint to reinstate the indictment and allow the court to address defendant's motion as a motion in limine to exclude evidence. Thus, the court reinstated the indictment. Defendant then filed a motion in limine to bar the State from presenting the testimony of Dr. Anderson and Dr. Flannery concerning their examinations of B.B., as well as any other evidence derived from those examinations.

At the hearing on defendant's motion in limine, the State made its third request for an evidentiary hearing. In response, defendant argued that the court had already "balanced the discovery due process interests of *** defendant against the privacy interests of the victim" when it granted defendant's request for the examination. Defendant also contended that B.B. had already been examined twice and that the proposed examination was "nonphysically invasive." Defendant further urged that fairness would be served neither by the cross-examination of Dr. Anderson and Dr. Flannery nor by the testimony of nonexamining experts concerning the colposcopic photographs, as the photographs would have the physical examinations as their "direct source."

The State answered that the court's previous balancing of the respective interests was inadequate in that the court had not taken into account all of the evidence that the State intended or attempted to present. The State noted that Dr. Slupnik's sole disagreement with Dr. Anderson and Dr. Flannery concerned the finding that B.B.'s genital area showed a partial posterior obliteration of the hymen. The State again suggested that an evidentiary hearing should be conducted to determine whether a finding of a partial posterior obliteration of B.B.'s hymen is necessary to a conclusion that her genital area had been traumatized. The State further asserted that the real concern with another physical examination was its potential psychological impact given its nature and that it would be the third examination for B.B.

Following the hearing on defendant's motion in limine, the court denied the State's request for an evidentiary hearing and granted defendant's motion. The court, in relevant part, found that:

"the body of the young child is effectively still the physical evidence in this case ***. The proposed defense examination of the `evidence' would be more than potentially useful. In light of the incomplete or inconclusive findings of the State's two experts and as it could determine whether or not `findings' specific for sexual abuse are present, that exam could determine whether the alleged victim is a victim indeed (leaving as the only practical issue the identity of the perpetrator of the abuse). There is a clear need for the exam."
The trial court recognized that both defendant's due process rights and the alleged victim's rights were at issue. Nevertheless, the court found that under People v. Newberry, 166 Ill. 2d 310 (1995), and People v. Wheeler, 151 Ill. 2d 298 (1992), cross-examination of the State's experts was insufficient to protect defendant's rights because an expert who has personally examined a victim is in a better position to render an opinion than a nonexamining expert.

In particular regard to Newberry, the court commented:

"[The Newberry court] was concerned with the examination of physical evidence unlike People v. Wheeler which dealt with a psycho therapist's [sic] interview with a rape victim. The People v. Wheeler court barred the State's use of evidence of rape trauma syndrome through the testimony of an examining expert. The State would be allowed to introduce rape trauma evidence through a nonexamining expert. That is, arguably, the State could call an expert to describe the syndrome and its symptoms, and call other witnesses to offer evidence of those symptoms. The People v. Newberry court upheld the dismissal of the charge because of the inability of the State to provide the physical evidence for the defense expert's examination. This is the situation in the case before this court. The State has shown that they are able, and willing, to present the young child, the physical evidence, to State's experts but not to a defense expert."
As a result of these findings, the court ordered that the expert testimony and reports of Dr. Anderson and Dr. Flannery be excluded from evidence. In addition, the trial court precluded the State from introducing the evidence of nonexamining experts.

On the State's appeal, the appellate court reversed, holding that defendant failed to demonstrate a compelling need to have the victim examined by his medical expert. 328 Ill. App. 3d 563. According to the appellate court, the "critical inquiry" involved in applying the "compelling need" test is " `whether the evidence sought by the defendant is of such importance to his defense that it outweighs the potential for harm caused by the invasion of the complainant's privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness.' " 328 Ill. App. 3d at 573, quoting State v. Barone, 852 S.W.2d 216, 222 (Tenn. 1993). The appellate court remanded the cause to the trial court for an evidentiary hearing to determine the need for an independent physical examination of B.B., providing the trial court with detailed instructions on how to proceed. 328 Ill. App. 3d at 572-75. In an unpublished portion of its opinion, the appellate court further held ...


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