People v. Lopez

• Decision Date: 21 March 2002
• Docket Number: No. 2-00-0747.,2-00-0747.
• Citation: 766 N.E.2d 329,262 Ill.Dec. 709,328 Ill. App.3d 563
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ismael LOPEZ, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

766 N.E.2d 329

328 Ill. App.3d 563

262 Ill.Dec. 709

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ismael LOPEZ, Defendant-Appellee.

No. 2-00-0747.

Appellate Court of Illinois, Second District.

March 21, 2002.

Joseph E. Birkett, DuPage County State's Attorney, Margaret M. Healy, Assistant State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Cynthia N. Schneider, State's Attorneys Appellate Prosecutor, Elgin, for the People.

G. Joseph Weller, Deputy Defender, and Dev A. Parikh (Court-appointed), Office of the State Appellate Defender, Elgin, for Ismael Lopez.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Ismael Lopez, was charged under section 12-16(c)(1)(i) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-16(c)(1)(i) (West 1998)) with aggravated criminal sexual abuse. Specifically, the indictment alleged that defendant "knowingly fondled the vaginal area of [B.B.] for the purpose of the sexual arousal of the defendant." On defendant's motion, the trial court ordered the State to produce B.B. for a physical examination by a physician retained by the defense. The victim's family refused to produce her for the examination. Defendant then moved for an order barring the State from introducing any evidence or testimony from B.B.'s examining physicians concerning their physical examinations of her. Denying the State's request for a hearing, the trial court granted the motion. We vacate the order granting defendant's motion for an independent physical examination of B.B. and remand the cause.

BACKGROUND

Suspecting that B.B. was being sexually abused, her grandmother made an appointment with B.B.'s physician, Dr. E. Anderson. B.B. was 20 months old at that time. In a report dated December 1, 1998, Dr. Anderson noted "an adhesion of the labia with a synechial scar of the tissue touching together, covering the opening of the [vagina] and obscuring the hymen." The labia was "moderately red." Dr. Anderson further stated, "A careful exam of the labial origin post to this shows a small false passage, suggestive of partial tearing." Dr. Anderson was not able to inspect B.B.'s hymen adequately. When he attempted to separate B.B.'s labia or view her vagina, B.B. reported discomfort and then "with[drew] from the situation." Dr. Anderson's conclusion was "suspected sexual abuse based on the apparent scar tissue surrounding the vagina." He explained:

"I cannot 100% [rule out] that this is a developmental anomaly, but due to the tear post, I feel this probably is traumatic. Certainly, visualization of the hymen would provide additional useful info[rmation] for a definitive [diagnosis], although the synechia is suggestive of previous scarring and raw edges coming together, suggestive of trauma. * * * Due to the swelling of the tissues, I should note that it was difficult to decide whether the tissue adhesion was with the labia minora or with the actual [vaginal] wall, although it would appear to be most likely labial."

Dr. Meghan Flannery examined B.B. soon after Dr. Anderson's examination. She examined B.B. in the "frog leg" and "knee/chest" positions and prepared 17 colposcopy photographs of B.B.'s vaginal region. In her notes of December 3, 1998, Dr. Flannery reported:

"Thin hymenal rim with partial obliteration of the rim posteriorly. Edges of the hymen are thickened. Notched areas at approximately the two o'clock and ten o'clock positions. Widened elongated hymen. Exam suspicious for trauma most likely consistent with digital penetration."

In February 1999, the State gave the defense the reports of Drs. Flannery and Anderson but not the photographs Dr. Flannery had taken during her examination. Although Dr. Flannery's report indicated that she had taken photographs during the examination, the defense did not request the photographs until September 1999. The defense received the photographs from the State in October 1999.

In January 2000, when B.B. was about three years old, the defense moved the court to order the State to produce B.B. for an independent gynecological examination by the defense's expert, Dr. Ramona Slupik. In its motion, the defense asserted that Dr. Slupik was "unable to concur in the findings of Dr. Flannery" and that Dr. Slupik believed "that after conducting her own examination of [B.B.], she would be able to come to a conclusion whether there is medical evidence consistent with digital penetration, as found by Dr. Flannery." The defense submitted an affidavit of Dr. Slupik, in which she stated in relevant part:

"I have reviewed medical records as well as colposcopic (magnified) photographs taken by Dr. Flannery at the time she examined the alleged victim on December 17, 1998. In addition to other findings, Dr. Flannery found a partial obliteration of the rim posteriorly. Based upon my review of the medical records I am unable to arrive at a conclusion with regard to this finding for the following reasons:

1) Partial obliteration of the hymen is not conclusively seen on the photographs submitted to me. Some clarification of the area of the hymen at 6 or 7 o'clock could be obtained by various other exam techniques, including a change of position.

A repeat examination of the alleged victim would resolve whether there is partial obliteration posteriorly. The examination would be conducted with the patient in supine (lying on her back) position, with the knees apart (so-called `frog-leg' position) as well as in the prone position (`knee chest'). One ounce of sterile water would be used to rinse the hymen of any mucus or other debris and to facilitate its depiction. The exam would take approximately 5 minutes. Other than Q-tips, no other instruments would be used during the exam.

Further, `findings' which were allegedly present during Dr. Flannery's exam 14 months ago should still be present now, if they are specific for sexual abuse. A female hymen does not re-grow, re-generate, or re-attach if truly traumatized by blunt force penetrating trauma. Findings that are specific for sexual abuse will be permanent."

At the hearing on the motion to produce B.B. for examination by Dr. Slupik, the State indicated that it had spoken with "our physician who did the examination" (presumably Dr. Flannery) and that "[s]he has proceeded by proffer." The State stated it did not believe defense counsel would have an objection to this manner of proceeding. When, at a later point in the hearing, the trial court asked the State whether it intended to file an affidavit to counter Dr. Slupik's, the prosecutor replied, "I don't believe we need [sic] at this point because I believe it is by stipulation, I am giving this by way of proffer."

The State then set forth Dr. Flannery's points of contention with Dr. Slupik's claims. Specifically, the physician denied that the examination Dr. Slupik proposed would take five minutes and that the evidence of trauma seen by Dr. Flannery would still be present when Dr. Slupik examined B.B. The State also contended that the defense's motion and Dr. Slupik's affidavit both "overstated" Dr. Flannery's description of the trauma. The State explained that Dr. Flannery did not, as the defense motion represented, conclude that there was medical evidence "consistent with digital penetration," but only that B.B.'s genitalia was "suspicious for trauma most likely consistent with digital penetration." There is a "significant difference" between these two findings, the State suggested. The defense responded that the primary reason for the motion was that Dr. Slupik did not believe that the photographs "conclusively]" showed partial obliteration of the hymen. The defense added that the State's "expert is agreeing that you cannot see in the photographs everything that she specifically saw in the examination." In response to the State's reference to the defense's delay in requesting the additional physical examination, the defense attorney advised the court that her heavy caseload was partially responsible for the delay.

The trial court granted the defense's motion for an examination of B.B. by Dr. Slupik. However, neither at the hearing nor in its written order did the court set forth any reason for its ruling. The only adumbration of a rationale was contained in the court's observation during argument that Dr. Flannery would not be permitted to testify at trial regarding her conclusions because "[she] can't even testify as to a speculation."

The State filed a motion to reconsider. Without hearing argument from the parties, the court denied the motion for "reasons stated of record." When B.B.'s family refused to produce her for the examination, the defense filed a motion to dismiss the indictment for the State's failure to produce B.B. The defense argued in its motion that Dr. Slupik's examination "could clearly exonerate" defendant and that defendant's "due process right to a fundamentally fair trial will be destroyed without the opportunity to obtain the potentially exonerating evidence that could come along only from an independent examination of the complaining witness."

At a hearing to schedule a deadline for the State's response, the State requested an evidentiary hearing for the parties to present the testimony of their experts. The State asserted that the court needed "to hear everything involved in this examination" in order to determine the appropriate sanction. Asserting that it considered the issue of the appropriate sanction "a simple legal issue," the court scheduled a future hearing for legal argument only.

At the parties' oral argument on the issue on May 3, 2000, the trial court noted that People v. Wheeler, 151 Ill.2d 298, 176 Ill.Dec. 880, 602 N.E.2d 826 (1992), "give[s] us some significant guidance in terms of evaluating what's appropriate consistent with the defendant's right as well as with the victim's rights and the victim's family's rights." The court then continued the matter to May 9, promising to impose the...