People v. West

598 N.E.2d 1356, 234 Ill. App. 3d 578, 174 Ill. Dec. 419, 1992 Ill. App. LEXIS 1311
Appellate Court of Illinois·Decided August 19, 1992·No. 2-90-0121·Published·Cited by 20 cases

Opinions

JUDGE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, Thomas West, was convicted of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)) and was sentenced to serve a term of three years’ imprisonment in the Department of Corrections. Defendant appeals, raising the following issues: (1) whether the admission of the victim’s out-of-court statement was reversible error; (2) whether the defendant was proved guilty beyond a reasonable doubt; (3) whether the defendant was denied a fair trial due to certain evidentiary rulings by the trial court; (4) whether defendant was denied a fair trial by the prosecutor’s closing argument; and (5) whether defendant was denied the effective assistance of counsel.

MOTION TO SUPPRESS

Prior to trial, defendant filed a motion to suppress a written statement he gave to Officer Ralph Henriquez of the Waukegan police department. At the hearing held on the motion, Officer Henriquez testified that on August 30, 1989, at approximately 10:30 p.m., he interviewed the defendant at the Waukegan police department concerning allegations of certain actions between himself and his seven-year-old niece, S.W. After the defendant had been given Miranda warnings, he told Henriquez he would talk to him. Defendant then gave a statement, which Henriquez typed up and defendant signed. According to the statement, defendant admitted putting his arms around S.W. from behind and touching her private area; that he showed S.W. a poster with some women on it; and that he had pulled down his pants exposing himself to her and signaled to her to come over to him but that S.W. had then left the room. Henriquez denied ordering the defendant to sign the statement or promising him anything in return for his signature on the statement. Henriquez further testified that before signing the statement defendant told him that the statement was true and accurate.

On cross-examination, Henriquez testified that defendant was not in custody during the interview. He denied telling defendant that if he signed the statement Henriquez would help him get out of jail the next morning. Henriquez denied that defendant told him he had never touched S.W.

Defendant testified that he was locked in a cell at the Waukegan police department for two to three hours prior to his interview with Officer Henriquez. After Henriquez advised him of his rights, defendant agreed to talk to him. In response to Henriquez’ questions, defendant told him that he never touched S.W. According to defendant, Henriquez gave him a piece of paper to sign which defendant read. When he got to the part of the statement which said that he had touched S.W., defendant told Henriquez that the statement was not true. Henriquez then told him that if he signed the statement it would go easier on him in court and that he would probably be released the next morning. Defendant also testified that Henriquez told him that he had to sign the statement.

On cross-examination, defendant denied that Henriquez had threatened him but reiterated that Henriquez had told him that he had to sign the statement and that he would go easy on him in court.

The trial court found Officer Henriquez’ testimony to be the more credible and denied the motion to suppress.

THE TRIAL

Outside the presence of the jury, a hearing was held to establish the competency of seven-year-old S.W. Under questioning by the State, S.W. demonstrated that she could spell her name, knew where she attended school, what grade she was in, what her teacher’s name was and what subjects she studied. She could also recall past events and knew the difference between the truth and a lie. The trial court found that she was competent to testify.

FOR THE STATE

David W., S.W.’s father, testified that on the afternoon of August 30, 1989, he received a telephone call at work from his son, David, Jr. Over the objection of the defendant, but with a limiting instruction, David W. was permitted to testify that David, Jr., told him that defendant had “messed” with S.W. and had tried to fondle her in some way. The witness told David, Jr., to go with S.W. to his fiancee’s house, and he would meet them there. After talking to S.W., David W. returned to his house, obtained a knife and would have gone after defendant. However, he was stopped by his mother and sisters, and defendant ran out the back door. The police were called. S.W. identified a picture of a semi-nude woman that the police showed her.

On cross-examination, David W. testified that S.W. not only told him that defendant had exposed himself to her, but he had rubbed up against her behind. He further testified that he did not tell David Asma, the investigator from the public defender’s office, that defendant had rubbed up against S.W.

S.W. testified that she was in the basement of her home helping the defendant with his laundry. Defendant showed her a picture of a naked woman. Defendant then touched her behind. S.W. demonstrated this act by putting the pubic area of an adult male doll against the buttocks area of a small female doll. S.W. stated that defendant did not touch her anywhere else. According to S.W., defendant then went upstairs but returned to the basement and went inside a curtained area that he used as a bedroom. He called to S.W. to come into his bedroom, but she only went as far as the curtains. She saw defendant with his pants down exposing his “privates” to her. Defendant signaled her with his finger to come to him, but S.W. ran upstairs.

On cross-examination, S.W. testified that the prosecutors had told her what places on the dolls defendant had touched her. She did not know exactly where defendant was when he was behind her. She did not remember telling her Aunt Pat that the defendant had not touched her. She did remember telling her Aunt Bianca that defendant had just bumped her. She did not remember talking to David Asma.

On redirect examination, S.W. testified that the prosecutors had not told her what happened but that she had told them what had happened.

Out of the presence of the jury, a hearing was conducted to determine if S.W.’s out-of-court statement to Officer Henriquez was admissible pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10).

Henriquez testified that on August 30, 1989, at approximately 10 p.m., he questioned S.W. in the advocacy room of the Waukegan police department. S.W.’s father sat just outside of the room, and the door to the room was open. Henriquez asked S.W. to tell him what the defendant had done to her. She told him that defendant bumped his private part against her private part in back and demonstrated this with the use of male and female dolls. S.W. also told him that defendant put his hands around her placing his hands on her tummy. Defendant then lifted his hand and placed it on her private part. She identified her private part as the groin area on the female doll. S.W. then told Henriquez that defendant then gave her a book with naked ladies in it. She gave the book back to the defendant, who then went into his room. S.W. heard defendant call to her, at which time she saw defendant with his pants down and his private part out, motioning to her with his finger. S.W.

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People v. West, 598 N.E.2d 1356, 234 Ill. App. 3d 578, 174 Ill. Dec. 419, 1992 Ill. App. LEXIS 1311 (Ill. Ct. App. 1992).

598 N.E.2d 1356 (People v. West) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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