F.H., In re
| Decision Date | 19 October 1989 |
| Docket Number | No. 1-87-0455,1-87-0455 |
| Citation | 190 Ill.App.3d 321,137 Ill.Dec. 692,546 N.E.2d 637 |
| Parties | , 137 Ill.Dec. 692 In re F.H., a minor. (The People of the State of Illinois, Petitioner-Appellee, v. F.H., a minor, Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
Randolph N. Stone, Public Defender (Ellen Fishbein and Hugh Stevens, Asst. Public Defender, of counsel), Chicago, for respondent-appellant.
Cecil A. Partee, State's Atty. (Inge Fryklund and Marilyn F. Schlesinger, Asst. State's Attys., of counsel), Chicago, for petitioner-appellee.
Following a bench trial, respondent was found delinquent of criminal sexual abuse, adjudicated a ward of the court and sentenced to one year probation and ten consecutive weekends in the Juvenile Detention Center, which was later reduced to five weekends. On appeal, respondent contends that (1) the delay between the filing of the delinquency petition and the adjudicatory hearing violated his constitutional right to due process; (2) the testimony of the minor complainant was so inconsistent and uncorroborated as to be insufficient to prove him guilty beyond a reasonable doubt; and (3) the trial court abused its discretion by restricting his cross-examination of the complainant's mother regarding a prior false statement and possible bias.
On June 21, 1985, a petition for adjudication of delinquency and wardship was filed charging respondent, then 15 years old, with aggravated sexual assault, based on sexual intercourse, of the nine-year-old complainant, ("K.D."), on or about March 9, 1985. A probable cause hearing was held on June 27, 1985, at which Chicago police officer Massey testified that in response to his questions on the night of June 20, 1985, K.D. described an act of sexual contact performed upon her by respondent sometime after her birthday which, Massey testified, is April 15. She further recounted that respondent's sister, Charlene, entered the room during the incident and pulled respondent off of her. In her testimony, Charlene denied that she witnessed or extricated K.D. from any such assault. Following the hearing, the State was granted leave, over respondent's objection, to amend the petition to allege that the offense occurred "on or about April 17,
1985." The trial court found probable cause and released respondent to the custody of his mother.
The case was set for July 22, 1985, on which date respondent requesteda continuance to substitute private counsel for the public defender and because his mother was hospitalized. The trial court continued the case to August 5 for the appearance of The case was continued, on the State's motion, to October 11 and marked "final." Due to problems with the court's schedule on October 11, the case was continued to December 19. On that date, the State advised the court that it had not yet received K.D.'s emergency room records and requested that the case be continued to late January. Over defense counsel's objection, the case was continued to January 31, 1986. When the parties appeared on January 31, the State informed the court that it had still not obtained the medical records and asked for another continuance, stating that it would be prepared for trial "without fail" on the next date. The trial court granted the State's motion but admonished the assistant State's Attorney that "with or without medical records, we will proceed to trial" on March 13.
[137 Ill.Dec. 694] private counsel and to set a trial date. On that date, respondent's father advised the court that the family had determined it could not afford private counsel and that respondent's mother would be convalescing from surgery for about 30 more days. The public defender then requested a date for trial and the matter was continued by agreement to September 4 for a trial on the merits. When K.D. and her mother failed to appear for trial on September 4, the State requested "one final continuance." Defense counsel stated that he had no strong objection so long as the case was marked "final."
On March 13, defense counsel answered ready for trial and requested that the State either go forward with its case or that the matter be dismissed. The State, however, requested another continuance for the reason that K.D.'s mother was unable to accompany her to court because of certain medication she was taking. Defense counsel moved for dismissal, arguing that contrary to the State's representation, K.D. had not been present on every preceding court date; that respondent and representatives of his family had been in court on at least eight prior occasions; that he (counsel) had been answering ready for trial for several months; and that the numerous and extensive delays in the case had served to deprive respondent of his constitutional rights to due process and equal protection. The trial court noted the numerous continuances notwithstanding that the case had been marked "final" on several preceding occasions, but denied respondent's motion to dismiss and granted the State's motion for a continuance to April 29.
On that date, without prior notification to defense counsel, the assistant State's Attorney stated that because several other cases already in progress involving minors in custody had been scheduled for hearing that afternoon, she had elected, with permission from the court, not to begin the trial on this case and had told K.D. and her mother not to come to court that day. Defense counsel objected, arguing that respondent and his family had been severely hardshipped by the numerous continuances of this case. The trial court apologized to defense counsel and respondent's family, noting that the case had been pending for "an unusually long time"; that respondent had come to court on each and every scheduled court date; and that there had been other occasions on which defense counsel also was not notified of delays in the proceeding. The court also confirmed, however, that it had informed the State that the other cases in progress were to take precedence over any others scheduled for that day. The court stated that it would accept responsibility for the failure to go to trial on that date and, over defense counsel's objection, continued the case to June 18.
Prior to trial on June 18, defense counsel renewed his motion to dismiss on the grounds that respondent had been deprived of his constitutional rights to due process and equal protection by the numerous continuances and resulting delays in the trial of this case. The motion was denied, and trial commenced.
K.D. testified that her ninth birthday was March 15, 1985. She and her mother lived with her mother's family next door to respondent's family. She played with respondent's 13-year-old sister, Charlene, almost every day. K.D. testified that she had been inside the home occupied by respondent, Charlene, and other members of When asked by the assistant State's Attorney to describe the events of April 17, 1985, K.D. testified that at approximately 2:30 p.m., she and Charlene went to Charlene's house. She could not recall if she attended school that day but she did remember it being a very hot day. While they were watching television in Charlene's first-floor bedroom, Charlene's mother called Charlene to the basement where she had gone to wash clothes. A few minutes later K.D. looked out of the door and saw a leg going up the stairs. Thinking it was Charlene, she followed the person up the stairs. When she looked into respondent's bedroom, he grabbed her right arm and threw her on his bed. He stood in front of her as she lay on her back and pulled her jeans and underwear down to her shoes. After pulling down her underwear, he pulled down his underwear and performed an act of sexual intercourse. During the performance of the act Charlene entered the room and pulled her out from under respondent, threatening respondent that she was going to tell their mother. As she pulled up her clothing, respondent told her and Charlene not to tell anybody. She was very frightened and began to cry. Several weeks later, on June 20, she related the incident to her mother, whereupon her mother took her to a hospital where she underwent a pelvic examination. She did not tell her mother what had happened earlier because she was afraid and confused.
[137 Ill.Dec. 695] respondent's family on several occasions and she described the number and location of rooms in the house.
On cross-examination, K.D. denied that she had told a police officer the incident occurred on either March 9 or May 27, 1985; and she did not recall telling hospital personnel on June 20 that the incident had occurred a few weeks earlier. The only date she ever mentioned was April 17. She also stated that she did not ever visit the home of respondent and his family after April 17. She did not resist respondent or scream when he threw her on the bed and she did not try to get up while he was removing his pants. She stated that she did not know the words penis and vagina, terms used when she testified, at the time of the incident and acknowledged using other words when she described the genital contact to the police; however, she denied that anyone told her the correct words. On redirect examination, K.D. explained that she did not scream or resist respondent because she was afraid and because he was too heavy.
K.D.'s mother testified that on June 20, 1985, she had a conversation with Charlene after which she questioned K.D. as to what if anything had happened between her and respondent. Over a defense objection, K.D.'s mother testified that K.D. then related to her that respondent had had sex with her at his house.
On cross-examination, the mother stated that when she spoke to the police later that night she at first told them that the offense occurred "around April 15." However, based on information given by K.D. and the use of a calendar as they were "going over it," she...
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