People v. Daniels, 2-86-1181

• Decision Date: 21 July 1988
• Docket Number: No. 2-86-1181,2-86-1181
• Citation: 527 N.E.2d 59,122 Ill.Dec. 687,172 Ill.App.3d 616
• Parties: , 122 Ill.Dec. 687 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon DANIELS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 59

527 N.E.2d 59

172 Ill.App.3d 616, 122 Ill.Dec. 687

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon DANIELS, Defendant-Appellant.

No. 2-86-1181.

Appellate Court of Illinois Second District.

July 21, 1988.

G. Joseph Weller, Deputy Defender, Kim M. DeWitt, Office of the State Appellate Defender, Elgin, Richard W. Berry, for Vernon Daniels.

Paul A. Logli, Winnebago County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, John X. Breslin, Deputy Director, State's Atty. Appellate Prosecutor, Rita Kennedy Mertel, State's Atty's. Appellate Service Com'n, Ottawa, for the People.

Justice DUNN delivered the opinion of the court:

Defendant, Vernon Daniels, was charged with one count of aggravated criminal sexual assault. (Ill.Rev.Stat.1987, ch. 38, par. 12-14(b)(1).) Defendant was found guilty by a jury and sentenced to 15 years' imprisonment in the Department of Corrections. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt; (2) he was prejudiced by the introduction of other crimes evidence; (3) he was denied his sixth amendment right to present a defense; (4) the trial court abused its discretion in permitting the State to use his prior conviction of indecent liberties for impeachment purposes; (5) the examining physician was improperly permitted to testify to matters beyond his expertise; and (6) certain comments made by the prosecutor in closing and rebuttal argument deprived him of a fair trial. We agree with defendant's second contention and therefore reverse and remand for a new trial.

The information alleged that on July 28, 1985, defendant engaged in anal intercourse with his 11-year-old stepson, R.G. The charge stemmed from a neighbor's telephone call to an abuse hotline stating that R.G. and his younger sister, B.D., were in possession of sexually explicit magazines and a notebook containing sketches of sexual activity. Subsequent investigation by police resulted in the removal of R.G. and B.D. from the defendant's home and charges against the defendant and his wife, Estella. Estella Daniels was convicted at a separate bench trial of aggravated criminal sexual assault stemming from an incident with R.G. We affirmed the conviction on appeal (People v. Daniels (1987), 164 Ill.App.3d 1055, 116 Ill.Dec. 47, 518 N.E.2d 669), and leave to appeal to the Illinois Supreme Court was denied.

At the defendant's trial, R.G. testified that during the pertinent time period he lived in Rockford with defendant, Estella, and B.D. On July 26, 1985, Estella and B.D. traveled to Peoria to attend a funeral; R.G. and defendant remained in Rockford. Between 11:30 a.m. and 12:30 p.m. on Sunday, July 28, R.G. and defendant watched wrestling on television in the living room. After the wrestling program was over, R.G. and defendant played a video game for a short time. Defendant then left the room, and when he returned, R.G. observed that defendant was "mad." Defendant told R.G. to go into defendant's bedroom, take off his clothes, and lay on the bed. Defendant followed R.G. into the bedroom, and R.G. did as he was told. Defendant removed his own clothes and ordered R.G. to insert defendant's penis into R.G.'s anus. R.G. "grabbed ahold" of defendant's penis and directed it toward his anus. The defendant's penis went inside his anus and remained there for a "long time" while defendant moved about. R.G. was in pain during the act. According to R.G., defendant had done this to him approximately five or six times since he was eight years old.

R.G. further testified that he, defendant, Estella, and B.D. engaged in numerous "family touching" sessions. During these encounters, the family would sit naked in a circle and engage in a variety of sexual acts. R.G. testified to the following acts: sexual intercourse with his mother and "playing" with her vagina; defendant, Estella, and B.D. touching his penis; placing his hands around defendant's erect penis and moving it back and forth; and defendant placing his penis in B.D.'s anus. Defense counsel's objection to inquiry on the defendant's anal intercourse with B.D. was overruled. On cross-examination, defense counsel inquired into the number of times defendant had intercourse with B.D. and the time period when these acts occurred. R.G. could not specify how many times he observed defendant have intercourse with B.D.; the incident he recounted on direct examination occurred when R.G. was eight years old.

Regarding the magazines and notebook, R.G. testified he found the magazines underneath defendant's bed, and that defendant had shown him one or two of the magazines. On cross-examination, defense counsel called R.G.'s attention to his testimony at Estella's trial that he found one or two of the magazines in the trash. R.G. then admitted that he did find some of the magazines in the trash.

R.G. identified a light used by defendant when he made movies of the family engaging in various sex acts. On cross-examination, defense counsel recalled that at Estella's trial, R.G. testified no extra lighting was used to make the movies. R.G. responded that he must have misunderstood the question. Although R.G. could not remember when the movies were filmed, he did state five or six movies were made. In the summer of 1984, defendant showed R.G. a movie of a man and a woman engaged in sexual activity. Estella and B.D. were also present. The movie was shown on a projector recovered from the defendant's home.

R.G. admitted he lied when he told the police the movies had Mexican names, that other people were involved in the movies, that the movies were made in other people's homes, and when he took the police around Rockford to show them where the movies were made. He also lied when he told Detective Burgess defendant transferred some of the movies to video discs, he had transferred some of the movies to discs himself, and he saw money exchanged for the movies. R.G. further acknowledged he lied when he told authorities his mother had killed someone and he had put the body in a bag. R.G. admitted he gave authorities several names for the person who was killed and led police around the county looking for the burial site. R.G. stated a body was not found because the story was a lie. R.G. added he did not include everything that he testified to in his statements to the police and to a counseling organization because he was covering up for his parents at their insistence. Regarding his propensity to lie, R.G. testified he did not like to tell lies anymore, all the things he testified to at this trial were true, and he had learned that lying is not a part of his life.

B.D. testified that during part of July 1985, she was out of town with her mother because of a death in the family. B.D. did not know the exact date in July, stating they left on a Friday and returned on Sunday night. B.D. described episodes of "family touching," which began when she was six years old. B.D. initially stated defendant never touched her, but, after extensive examination, she stated the defendant inserted his penis in her anus. B.D. recalled the filming of the movies, and she identified the light recovered from defendant's house which was used during the filming. She did not know when the movies were filmed or how old she was at the time, but estimated five or six movies were made. B.D. also recalled seeing a film of a man and woman engaged in sexual activity on the movie projector in 1984.

On cross-examination, B.D. stated she did not know what sexual intercourse was, and when she said that R.G. had sex with her, it meant that he touched her vagina with his hand. When her father had sex with her, she meant that he had anal intercourse with her. Neither R.G. nor defendant ever put anything into her vagina. B.D. added that she saw R.G. have sexual intercourse with their mother, meaning vaginal intercourse. B.D. also admitted that she had anal intercourse with a neighbor. B.D. testified she did not tell anyone about having sex because she was scared. She became "unscared" in October 1985 but did not tell anyone about having sex until August 1986; she was still a little scared at Estella's trial.

On redirect examination, B.D. stated she told Detective Burgess in 1985 about having anal intercourse with defendant. She admitted she did not really know what sexual intercourse meant, but said having sex meant putting a penis into a vagina. B.D. added her mother and father told her she would get into trouble if she talked about having sex. B.D. stated she was telling the truth because she was not afraid anymore.

For the defense, Charles DeHaan, a physician in emergency medicine at Swedish American Hospital, testified that he examined R.G. and B.D. on August 23, at the request of the Department of Children and Family Services. An examination of R.G.'s rectum and genital area showed no abnormalities and no physical evidence of trauma. R.G. denied any sexual contact. B.D.'s hymen was intact and her rectum showed no trauma, tears or abnormalities. B.D. also denied any sexual contact.

On cross-examination, DeHaan was asked, "Isn't it true that in many of these cases when you examine for sexual abuse these children who are actual victims do deny sexual contact with persons?" Over defense objection, DeHaan responded that children often deny contact even though they are victims. DeHaan added that his examination of B.D. was consistent with her having had no sexual penetration in the vaginal area; an examination of the rectal area would not necessarily show damage as a result of sexual penetration. DeHaan stated if R.G. had engaged in anal intercourse on July 28, a rectal examination would not necessarily show signs of trauma. On redirect examination, DeHaan opined that trauma to the rectal area would not necessarily be present 26 days after the insertion of an adult erect penis.

Netty Steffani, the Sunday School secretary for...