People v. Dailey

554 N.E.2d 1051, 196 Ill. App. 3d 807, 144 Ill. Dec. 12, 1990 Ill. App. LEXIS 470
CourtAppellate Court of Illinois
DecidedApril 4, 1990
DocketNo. 1-88-0351
StatusPublished
Cited by2 cases

This text of 554 N.E.2d 1051 (People v. Dailey) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dailey, 554 N.E.2d 1051, 196 Ill. App. 3d 807, 144 Ill. Dec. 12, 1990 Ill. App. LEXIS 470 (Ill. Ct. App. 1990).

Opinions

JUSTICE WHITE

delivered the opinion of the court:

Defendant Herbert Dailey was convicted of child pornography in a bench trial, receiving an eight-year prison term for that offense. On appeal he contends: (1) his guilt was not established beyond a reasonable doubt; (2) the information charging him with child pornography was so defective as to require reversal; and (3) his sentence was excessive.

We reverse, finding the evidence insufficient to establish defendant’s guilt.

The State presented two witnesses at trial: Shari T., who was the alleged victim of this offense, and Officer James Moore, to whom Shari reported the offense, two years after its occurrence. Shari was 16 years old at the time of trial. She testified that in the spring of 1985, she began baby-sitting for the defendant and his wife at their home in Robbins. She did this while defendant’s wife worked, which was about three times a week, and she continued to do so for V-k years. She had been baby-sitting for them for “a couple of months” when, on a day in March or April of that year (she could not remember the exact date), the alleged events occurred.

Shari testified that the incident began when defendant touched her on her legs. (Shari admitted at trial that she had never previously told anyone that defendant touched her that day.) When she moved to the other side of the room, he came over there. She then went outside to get the baby, who was at the neighbor’s house, but defendant said to leave the baby over there. When he asked if she wanted to take some pictures, she said yes and suggested they take them outside. He told her he meant nude pictures, and she told him she did not want to do this. He then said if she did not comply he would hurt her or do something to her. She became frightened and went upstairs to his bedroom.

According to Shari, defendant joined her in the bedroom. As she sat on the bed he asked her to take her clothes off. She first refused, but when he threatened her with a gun, she disrobed. Shari testified that she lay on the bed for several minutes while defendant watched her. While holding the gun, he told her to smile and she complied. He then took a Polaroid camera from a drawer and began photographing her, telling her how to pose as he did so. While she was sitting in a chair he grabbed her leg and placed it on the end of the chair. Shari testified that defendant took 11 photographs of her that day. However, when asked where they were taken she responded: “One was in the chair, and one was on the bed, and one was downstairs.”

Although Shari had placed these events in March or April, she also said that the downstairs photograph was taken by a Christmas tree in the living room. When they went downstairs, she did not see the gun, which defendant had put down when he began taking the photographs. At the time of the incident defendant walked with a severe limp. However, she never tried to run from him or escape from the house. When defendant had finished taking the pictures, she asked what he would do with them but he did not respond. She then got dressed and went home.

Shari’s mother and sister were home when she arrived, but she did not tell them what had happened. Shari testified that she ran crying into the house and was asked by her mother what had happened but she did not respond. At trial she explained that she thought her mother would think she had done this on her own.

Several days later Shari was again baby-sitting for defendant when he showed her the photographs for the first time. When she asked what he would do with them, he said he would bury them in the ground. At an unspecified later date, she saw two photographs in the possession of two of his friends, Bernard Campbell and Gary McGee. For two years she did not tell the police what had occurred. Then in April 1987,1 while at McGee’s house, she found one of the photographs under a couch after being told of its location by McGee’s niece. She kept the photograph for several days and then gave it to Nathaniel Rollins, who accompanied her to the police station and gave it to Officer James Moore. She identified a prosecution exhibit as the photograph she had found.

Shari admitted that prior to trial, in July, she had told defense counsel that she would testify to a “story,” that two boys who raped her took the pictures. Her explanation for this, under examination by the prosecutor, was as follows:

“Because they told me — because, really because, my brother— when I first got ready to come up here to see him, he was screaming, and hollering, and' stuff. And they had me confused. And he said, he don’t want me to see him like that.
Q. Who told you that?
A. His lawyer.
Q. Told you he didn’t want to see who like that?
A. He didn’t want to see [defendant] like that.
So I told him that I was going to make up a story, and say that the two boys that supposedly raped me, a long time ago did it.”

Shari testified that it actually was defendant who had taken the photographs. She also testified that the two boys who previously raped her were not prosecuted, because when her mother reported the crime to the police they could not find the two boys.

Shari stated that she had told defendant she was going to tell his wife about taking the pictures, but he indicated he did not care. Indeed, he told her he was going to show one picture to the chief of police. However, she also testified that he told her if she told anybody, or went to the police, he would do something to her.

The only other prosecution witness was James Moore, who was an investigator with the Robbins police department as well as a counselor for the Berman Youth Committee. He testified that Shari and Nathaniel Rollins brought him the photograph on April 27, 1987. He had known Shari for three years because she and her family were in counseling with him. Shari told him “this guy” told her to take some pictures. She had waited over two years to report this because the man threatened to hurt her if she said anything. She also told Officer Moore she had obtained the photograph from Gary McGee’s house, but Moore, who said he investigated the crime, could not recall if he talked to McGee during the investigation. He never recovered a weapon or the camera, nor did he find any other photographs. Moore was aware that there had been an altercation between defendant and Nathaniel Rollins, but he did not know when this had occurred.

The trial court found Shari to be very credible “despite some small collateral impeachment” which the court said was unimportant. The court convicted defendant of child pornography, but acquitted him on a charge of armed violence because the evidence indicated he had placed the gun on the dresser before taking the photographs. Following a sentencing hearing, defendant was sentenced to eight years in prison.

I

Defendant argues that the evidence presented against him was insufficient to establish his guilt beyond a reasonable doubt.

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 1051, 196 Ill. App. 3d 807, 144 Ill. Dec. 12, 1990 Ill. App. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dailey-illappct-1990.