People v. Lopez, 93758.
| Citation | 207 Ill.2d 449,800 N.E.2d 1211,279 Ill.Dec. 628 |
| Decision Date | 17 October 2003 |
| Docket Number | No. 93758.,93758. |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Ismael LOPEZ, Appellant. |
| Court | Illinois Supreme Court |
G. Joseph Weller, Deputy Defender, and Dev Arya Parikh, Assistant Defender, of the Office of the State Appellate Defender, Elgin, for appellant.
Lisa Madigan, Attorney General, Springfield, and Joseph E. Birkett, State's Attorney, Wheaton (Gary Feinerman, Solicitor General, and Lisa A. Hoffman, Domenica A. Osterberger, Linda D. Woloshin and Mary Beth Burns, Assistant Attorneys General, Chicago, of counsel), for the People.
In this case we decide whether a trial court can order the physical examination of an alleged sex offense victim. Defendant was charged with aggravated criminal sexual abuse 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)). He sought a gynecological examination of the alleged victim, B.B., who was three years old at the time. The circuit court of Du Page County granted defendant's request, and B.B.'s family refused to comply. As a sanction, the court granted defendant's motion in limine to prohibit the State from introducing any medical expert evidence of its own. On appeal, the appellate court reversed, finding that the record did not establish a compelling need for the examination, and remanded the cause for a hearing on the issue. 328 Ill.App.3d 563, 262 Ill.Dec. 709, 766 N.E.2d 329. We granted defendant leave to appeal (177 Ill.2d R. 315) and now affirm in part, vacate in part, and remand. We hold that a trial court cannot order the physical examination of a complaining witness in a sex offense case. We further hold that, when a trial court rules on the admission of evidence in a sex offense case where a defendant has requested the physical examination of a complaining witness and the witness refuses to submit to the examination, the court must balance the due process rights of the defendant against the privacy rights of the alleged victim, by deciding what medical evidence, if any, the State is allowed to introduce.
At the behest of B.B.'s family, Dr. E. Anderson examined B.B., who was 20 months old at the time, and concluded that she was a victim of sexual abuse. This conclusion was based in part on Dr. Anderson's finding that her labial origin "show[ed] a small false passage, suggestive of partial tearing" and also on the presence of scar tissue surrounding the vagina. Dr. Anderson reported that he was unable to inspect B.B.'s hymen adequately because B.B. complained of discomfort and "with[drew] from the situation." Dr. Anderson explained that, while he could not "100%" rule out a developmental anomaly, he felt that B.B.'s condition was the result of a traumatic injury. He further commented that:
Dr. M. Flannery also examined B.B. She prepared 17 colposcopic photographs of B.B.'s vaginal region. Based on her examination, Dr. Flannery concluded that B.B.'s condition was "suspicious for trauma most likely consistent with digital penetration." Dr. Flannery's findings, in part, noted:
Following B.B.'s medical examinations, defendant was indicted for aggravated criminal sexual abuse under section 12-16(c)(1)(i) of the Criminal Code (720 ILCS 5/12-16(c)(1)(i) (West 1998)). Approximately three months after the medical examinations, the State presented defendant with the reports of Dr. Anderson and Dr. Flannery. On defendant's request, the State later provided defendant with copies of the photographs taken by Dr. Flannery.
Approximately 13 months after the examinations, when B.B. was about three years old, defendant filed a motion to produce B.B. for an independent gynecological examination. Attached to defendant's motion to produce was the affidavit of his medical expert, Dr. R. Slupnik. Dr. Slupnik stated that she had reviewed the medical records and the photographs of B.B. According to Dr. Slupnik, she was "unable to arrive at a conclusion" about Dr. Flannery's finding of a "partial obliteration of the [hymenal] rim posteriorly." Dr. Slupnik opined:
A hearing was held on the motion to produce B.B. for an independent gynecological examination. At the hearing, the State contended that an examination as proposed by Dr. Slupnik would last longer than five minutes and also denied that the evidence of trauma seen by Dr. Flannery would still be present. The State complained that defendant waited too long to file his motion to produce B.B. The State further clarified that Dr. Flannery did not suggest that there was medical evidence conclusive of "digital penetration," but simply that the condition of B.B.'s genitalia was "suspicious for trauma most likely consistent with digital penetration."
Defendant argued that the chief reason Dr. Slupnik wished to examine B.B. independently was that she did not believe the photographs conclusively showed a partial obliteration of the hymen. In response to the State's reference to defendant's delay in requesting the independent physical examination, defendant suggested that the trial court's congested docket was, in part, responsible for the delay.
Following the hearing, the trial court granted defendant's motion for an examination of B.B. by Dr. Slupnik. The trial court record is silent as to the rationale behind this decision. The lone comment on the issue is the court's observation during argument that Dr. Flannery would not be permitted to testify at trial regarding her conclusions because Dr. Flannery could not "even testify as to a speculation." The trial court later denied the State's motion to reconsider without hearing argument from the parties.
B.B.'s family refused to produce her for the examination. As a result, defendant moved to dismiss the indictment. Defendant contended that Dr. Slupnik's examination "could clearly exonerate" him and that his "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 [B.B.]."
In response, the State sought an evidentiary hearing to determine the appropriate sanction to be levied for the failure to produce B.B. so that the parties could present the testimony of their experts. The trial court stated that it considered the issue of the appropriate sanction "a simple legal issue" and scheduled a hearing for legal argument only. At that hearing, the trial court informed the State that a sanction of dismissal or exclusion of evidence would follow if the State did not produce B.B. for an independent medical examination.
B.B.'s family still refused to produce B.B. for the examination. The State again requested that the court conduct an evidentiary hearing before deciding the appropriate sanction. The court denied the request and dismissed the indictment. In its written order, the court indicated that its decision was based upon "the U.S. Constitution, Illinois Constitution, effective assistance of counsel, due process and reasons more fully set out in the record."
The parties then agreed that it would be more logical from a procedural standpoint to reinstate the indictment and allow the court to address defendant's motion as a motion in limine to exclude evidence. Thus, the court reinstated the indictment. Defendant then filed a motion in limine to bar the State from presenting the testimony of Dr. Anderson and Dr. Flannery concerning their examinations of B.B., as well as any other evidence derived from those examinations.
At the hearing on defendant's motion in limine, the State made its third request for an evidentiary hearing. In response, defendant argued that the court had already "balanced the discovery due process interests of * * * defendant against the privacy interests of the victim" when it granted defendant's request for the examination. Defendant also contended that B.B. had already been examined twice and that the proposed examination was "nonphysically invasive." Defendant further urged that fairness would be served neither by the cross-examination of Dr....
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