Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, Honorable Stanley Steines, Judge, Presiding. Circuit No. 08--CF--225
The opinion of the court was delivered by: Justice O'brien
JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
¶ 1 Defendant Robert Cunningham was convicted of aggravated criminal sexual abuse following a bench trial at which two overhears that recorded conversations between Cunningham and his daughter, the alleged victim, were admitted into evidence. Cunningham contends that the statutory requirements for an overhear were not satisfied, that he was denied a fair trial when the overhear recordings were improperly admitted at trial, and that he was denied effective assistance of counsel. We affirm his conviction.
¶ 3 In May 2008, Natalie P. contacted Whiteside County law enforcement alleging that she had been sexually abused by her father, defendant Robert Cunningham, in the summer and fall of 1998, when the family lived in Prophetstown. Based on her complaint, and with the approval of Whiteside State's Attorney Gary Spencer, Sergeant Andrew Henson of the Whiteside County sheriff's department submitted, along with his affidavit, an application for an overhear to trial judge Stanley Steines. A hearing ensued on the overhear application at which Henson testified, and Natalie appeared and consented to the use of the eavesdropping device. The trial court approved the application and two subsequent conversations between Natalie and Cunningham were recorded. Based on the evidence revealed in those conversations, an indictment issued charging Cunningham with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b), (d) (West 2008)).
¶ 4 A bench trial took place at which the following evidence was presented. Natalie testified that her date of birth was July 12, 1982, and that sometime between June 1 and October 31, 1998, when she was 14 or 15 years old, she was alone in the family home with her father. Her mother and sister were out of town for the day. She and her father were sitting on the couch. She had her legs extended from one end of the couch to the other. Cunningham offered to massage her legs, which was a typical family activity. He massaged her calves and moved his hands up to her thigh area. He then "touched the outside of [her] underwear above [her] vagina and tried to massage [her] there." The incident lasted about two seconds until she moved away from him. He asked her whether she had ever masturbated and whether she would let him "masturbate" her. When she refused, he tried to touch her again but only touched the outer part of her leg. She grabbed a book of catechism and read to her father a passage on the sins of masturbation. Cunningham asked her not to tell her mother about the incident. He then left the room and she went downstairs to shower. While she was in the shower, she felt someone watching her, looked out of the shower, and saw her father crawling along the floor toward the shower. She yelled at him, to which Cunningham replied, "Sorry, sorry, sorry," and ran upstairs.
¶ 5 A few days later, Natalie told her older sister, Vanessa, about the incident. Vanessa told Natalie that she had been "worried that it would happen to [Natalie] because it had happened to [Vanessa]." They told their mother about the incident and the three of them confronted Cunningham, who admitted to touching Natalie after initially denying the incident. He said, "so what if I did?" As the confrontation continued, Cunningham eventually said he did not know why he committed the acts or what was wrong with him but promised not to do it again. Natalie was unaware of any subsequent incidents. Natalie explained that she waited 10 years to report the incident because she had learned to trust her father again. However, she and her family had temporarily moved into her parents' home. Cunningham wanted to take her five-year-old daughter to the park and did not want Natalie to accompany them. She was concerned that Cunningham had not resolved his sexual issues, stating she "didn't see a whole lot of repentance on his part." On cross-examination, she acknowledged that while staying at her parents, she and her husband had been investigated by the Department of Children and Family Services (DCFS) based on a complaint made by her parents who alleged that Natalie improperly disciplined her children. The allegation was deemed unfounded after a DCFS home visit. Natalie's family subsequently moved out of her parents' home and her relationship with her parents remained strained. Nevertheless, her parents continued to visit Natalie and her family at their new out-of-state home.
¶ 6 Natalie identified the compact disc (CD) with the two recorded conversations she had with her father, which was admitted into evidence. Her mother participated in the second conversation along with her father. During the conversations, Cunningham never explicitly admitted abusing his daughter. He did admit that he attempted to improperly touch Natalie but she stopped him. The recordings of the overhear conversations were played and the State rested. The defense moved for a directed verdict, which the trial court denied. The trial court stated that Natalie's testimony was detailed, noting that she admitted to the DCFS investigation and the potential bias she had as to her parents. While the strained family relationship may have prompted Natalie to come forward after 10 years, in the trial court's opinion, it did not detract from her credibility when combined with the evidence from the overhear. The trial court described much of the recorded conversation as ambiguous and stated that there was no admission from Cunningham as to specific behavior of touching Natalie's vagina "but there certainly [was] some strong implication."
¶ 7 Terri Cunningham testified for the defense. She was the defendant's wife and Natalie's mother. She recalled a time in the summer or fall of 1998 when the family had a discussion concerning her husband's physical contact with their daughters. Her two daughters had told her that they were uncomfortable during some of the leg massages their father gave them. Natalie never said that Cunningham touched her vagina or that he tried to "masturbate" her. During the family discussion, her husband never admitted to inappropriate touching, although he did admit to having unwanted lust for his daughters. She participated in the second taped phone conversation between her husband and Natalie as recorded with the overhear and agreed that her husband said, "I never even touched you; at one time I attempted to and you stopped me and that was the extent of it." Terri denied that her husband tried to inappropriately touch Natalie, and despite his admission as captured on the recording, stated, "that's what he knew she believed and he was appeasing her." She also denied hearing Cunningham make any incriminating statements on the recordings.
¶ 8 Vanessa Kolb, Natalie's sister and Teri and Cunningham's daughter, testified for her father. She recalled that in the summer of 1998, Natalie told her she was uncomfortable with their father's massages. At that time, Natalie denied being touched inappropriately by Cunningham. They expressed their concerns to their mother to whom Natalie said only that she was uncomfortable with the massages. The three of them confronted Cunningham, who never admitted that he had touched or tried to touch any of Natalie's sexual organs. Her father apologized for making his daughters uncomfortable. He did not state that he had lustful thoughts about them. Kolb described the relationship with her father as close but not sexual.
¶ 9 Following the close of evidence, the trial court found Cunningham guilty of both counts of aggravated criminal sexual abuse. At a subsequent sentencing hearing, the trial court sentenced Cunningham to a term of probation of 48 months and 3 days in the county jail. Cunningham filed a motion for a new trial, arguing in part that trial counsel was ineffective for failing to object to the admission of the overhear CD and for failing to challenge the validity of the overhear based on improper procedure used in obtaining it. Cunningham's motion was heard and denied. He appealed.
¶ 10 After Cunningham had filed his original brief on appeal, the State asked this court to order the Whiteside County clerk's office to supplement the record with any documents and transcripts relating to the overhear application. The State's motion was granted, and the record on appeal was supplemented with an application and complaint for an overhear; Natalie's written consent to the overhear; the trial court's May 16, 2008, order granting the overhear application; an order dated September 4, 2008, directing that the recording "shall be sealed"; and notice on Cunningham served on October 7, 2008. Cunningham then sought and was granted leave to file a supplemental brief.
¶ 12 There are three issues on appeal: whether the trial judge erred when he failed to recuse himself from conducting the trial because he had approved the overhear application; whether the statutory requirements for an overhear were violated; ...