People v. Hooker

• Decision Date: 22 December 1993
• Docket Number: No. 2-92-0343,2-92-0343
• Citation: 192 Ill.Dec. 926,625 N.E.2d 1081,253 Ill.App.3d 1075
• Parties: , 192 Ill.Dec. 926 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert W. HOOKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1081

625 N.E.2d 1081

253 Ill.App.3d 1075, 192 Ill.Dec. 926

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert W. HOOKER, Defendant-Appellant.

No. 2-92-0343.

Appellate Court of Illinois,

Second District.

Dec. 22, 1993.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill, Kim M. DeWitt, Office of State Appellate Defender, Elgin, for Robert W. Hooker.

Douglas P. Floski, Ogle County State's Atty., Oregon, William L. Browers, Deputy Director, Elgin, Lawrence M. Bauer, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

The defendant, Robert W. Hooker, was convicted on January 8, 1992, following a jury trial in the circuit court of Ogle County of one count of aggravated criminal sexual abuse (Ill.Rev.Stat.1991, ch. 38, par. 12-16(c)(1)(i) (now 720 ILCS 5/12-16(c)(1)(i) (West 1992))) and two counts of aggravated criminal sexual assault (Ill.Rev.Stat.1991, ch. 38, par. 12-14(b)(1) (now 720 ILCS 5/12-14(b)(1) (West 1992))). He was sentenced to consecutive terms of six years in prison on each of the two assault charges and to one concurrent three-year prison term for the abuse count. On appeal the defendant contends that (1) his conviction of aggravated criminal sexual abuse must be reversed because it was based on the same conduct which resulted in the conviction of aggravated criminal sexual assault; (2) he is entitled to a new trial because of prejudicial misconduct by the prosecutor and his own attorney's ineffective assistance; and (3) this court must examine certain records reviewed in camera by the trial court to ascertain whether the trial court properly exercised its discretion in disclosing only a portion of those materials to the defense. We vacate the concurrent sentence of aggravated criminal sexual abuse and affirm the convictions of aggravated criminal sexual assault.

The defendant was charged by information on February 5, 1991, with aggravated criminal sexual abuse, a Class 2 felony, for allegedly fondling the vaginal area of T.K., who was eight years old at the time. The incident was alleged to have occurred on or about December 22, 1989, when T.K. and her sister, A.K., who was nine years old at the time, spent the weekend with the defendant and his three children at the defendant's home in Davis Junction. On June 21, 1991, the defendant was charged with two additional counts arising out of the same incident as alleged in the first count. The new charges accused the defendant of two counts of aggravated criminal sexual assault, both Class X felonies, alleging that the defendant knowingly committed an act of sexual penetration with T.K. and A.K.

The defendant was a friend of the girls' mother. The girls frequently played with the defendant's daughter and often spent the night at the defendant's home with his children. The mother testified at trial that she lived with the defendant for some months in the latter part of 1990 after being evicted from her apartment but that she and the defendant were never romantically involved. She said that in August 1990 counselors for Family Advocates told her that the defendant may have molested her girls but that the defendant denied it. She did not discuss the matter with her girls because the counselors instructed her not to.

The girls' mother further testified that at first she did not believe the charges because her girls never complained to her and the defendant's own children seemed well cared for. The mother testified that she came to believe the accusations in December 1990 when T.K. told her she was worried that the defendant would "hurt" the mother as he had T.K. The mother said she then moved out of the defendant's home.

T.K. testified that on one of her overnight visits to the defendant's home the defendant tried to stick his penis into her behind but he could not. She said the defendant then put "Vicks or something" on his finger and stuck it in her behind. On cross-examination, T.K. admitted that she had earlier told the State's Attorney the defendant stuck his finger into her vagina, not her behind, but the earlier statement was a mistake. T.K. was uncertain exactly when the incident occurred and said she did not tell her mother what happened because she was afraid she would get into trouble. She admitted she does not always tell the truth but said she was telling the truth at trial.

A.K. also testified that she was not certain when the incident occurred but that it took place when she and her sister stayed overnight at the defendant's home. A.K. said she went into the defendant's bedroom to get some of her belongings out of the closet one night when the defendant called her over to sit on his bed. A.K. said the defendant then reached inside her new pair of pants that her mother had given her and touched her on her vagina. She said that it hurt, and the defendant stopped when the defendant's daughter came into the room.

A.K. said the abuse occurred more than one time and that it occurred whenever she went over to the defendant's home until her sister finally told their mother. A.K. said she did not tell her mother of the abuse.

Detective Irving Joe Drought of the Ogle County sheriff's department testified that he and Melissa Garmen, a caseworker with the Department of Children and Family Services (DCFS), conducted the initial interview with the defendant concerning the girls' accusations on February 1, 1991, at the defendant's home.

Drought said he talked with the defendant for about 40 minutes to an hour during which time the defendant denied the allegations. After that initial period, Drought said, he felt he had "reached a wall in the questioning" and asked Garmen if she had any questions. Drought said that Garmen took "a more sympathetic approach," and, after five minutes, the defendant "admitted to having fondled the girls."

Drought said the defendant told Garmen and him that the fondling had occurred on more than one occasion but the only specific occasion he could remember took place at his home when the girls were staying for the weekend. Drought said the defendant claimed he was taking a bath when the girls came into the bathroom and the defendant told them to leave. Drought said the defendant claimed the girls did not leave but took their clothes off to take a bath after he was finished. Drought said the defendant told him that, after the girls took their baths, he was sitting in the living room and the girls came out of the bathroom, sat on the couch next to him and stated that they wanted to have sex with him. Drought said the defendant then admitted that he "stuck his fingers inside of them." Drought said the defendant did not want to say where he touched the girls so Garmen handed him a diagram of a human body. The defendant made a circle around the vaginal area to indicate where he had placed his fingers inside the girls. Drought said he then arrested the defendant.

Drought said he next interviewed the defendant on February 4, 1991, in the jail where the defendant was being held, for the purpose of narrowing the date of the incident in question. Drought said the defendant again told him and Captain Robert Whipple, who accompanied him for that interview, that the defendant stuck his fingers in the girls' vaginal areas and that the incident occurred the week before Christmas in 1989. Drought said the defendant was certain of the time period because he was moving into his residence at that time, the children were home from school, and A.K. and T.K. were staying with him or helping him move.

Drought said that he took a tape recorder to the February 4 interview but that the batteries in the recorder were dead and the conversation was never taped.

Captain Whipple, a deputy sheriff in Ogle County, testified that he offered to help the defendant contact a counseling organization for the purpose of obtaining a psychological assessment relating to the molestation and that the defendant said "he would think about, that he knew that he needed counseling." Whipple said the defendant told him and Drought that he had never molested his own children, "only those two kids," apparently a reference to A.K. and T.K. Whipple said that, later in the day on February 4, 1991, he again saw the defendant outside the jail after the defendant was released on bond. At that time, Whipple said, he again offered to contact a psychological counseling organization for the defendant, who responded that "he [the defendant] did want to get help, that he didn't want to do it again."

The defendant testified that he never admitted to committing the offenses charged prior to trial; he again denied all of the charges at trial. The defendant said that the repeated questioning by Drought and Garmen on February 1 confused him and that the only incident he related to them was one occasion in December 1989 when the girls walked into the bathroom while he was taking a bath. The defendant said he demanded that the girls leave the bathroom, which they did, and nothing inappropriate occurred. He said he promptly told their mother of the incident and scolded her for it, but the mother "didn't give a hoot." The mother denied that the defendant ever told her about such an incident.

The defendant testified that he circled the vaginal area of the diagram given to him by Garmen to indicate that he understood that he was being accused of touching them in that area, but he denied that he actually had touched the girls there.

The defendant said that Whipple and Drought told him while he was in jail on February 4 that he was facing six or seven charges and that, if he pleaded guilty to one charge, he could get his bond reduced and get out of jail. The defendant said he wanted to get out of jail so he could get back his own children, who were placed in foster care when he was arrested. The defendant said he "told them [the officers] I'd plead guilty to the charge that I said what...