People v. Nevitt

• Court: Illinois Supreme Court
• Writing for the Court: MILLER
• Citation: People v. Nevitt, 553 N.E.2d 368, 135 Ill.2d 423, 142 Ill.Dec. 854 (Ill. 1990)
• Decision Date: 29 March 1990
• Docket Number: No. 67756,67756
• Parties: , 142 Ill.Dec. 854 The PEOPLE of the State of Illinois, Appellant, v. Tommy NEVITT, Appellee.

Page 368

553 N.E.2d 368

135 Ill.2d 423, 142 Ill.Dec. 854

The PEOPLE of the State of Illinois, Appellant, v. Tommy NEVITT, Appellee.

No. 67756.

Supreme Court of Illinois.

March 29, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley and Cecil A. Partee, State's Attys., Chicago (Terence M. Madsen, Asst. Attys. Gen., Chicago, and Inge Fryklund and Kent Sinson, Asst. State's Attys., of counsel), for people.

Michael J. Pelletier, Deputy Defender, and Gordon H. Berry, Asst. Defender, Office of the State Appellate Defender, Chicago, for appellee.

Justice MILLER delivered the opinion of the court:

Defendant, Tommy Nevitt, was convicted in the circuit court of Cook County for the aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1)) of three-year-old J.B. and sentenced to 18 years' imprisonment. On appeal, the appellate court reversed defendant's conviction and remanded the cause for a new trial. The appellate court found that a statement by the alleged victim to his mother was erroneously admitted into evidence, that the trial judge improperly elicited inadmissible testimony from a witness, and that statements made by the prosecutor during closing argument were unduly prejudicial and denied defendant a fair trial. (174 Ill.App.3d 326, 123 Ill.Dec. 762, 528 N.E.2d 307.) We granted the State's petition for leave to appeal (107 Ill.2d R. 308).

The issues for our review are: (1) whether an interval of as much as five hours between an alleged incident of sexual abuse and a three-year-old child's out-of-court declaration to his mother concerning the alleged incident precludes the statement's admission under the excited utterance exception to the hearsay rule despite other indicia of reliability; (2) whether the trial judge committed reversible error by asking certain questions from the bench to a police officer concerning the identity of a suspect during the prosecution's direct examination of the witness; (3) whether certain statements made by the prosecutor to the jury during his closing argument constituted reversible error; (4) whether the trial judge displayed bias in favor of the prosecution and engaged in abusive conduct toward a defense witness, and if so, whether the conduct constituted reversible error; and (5) whether the defendant was denied effective assistance of counsel at trial.

During the morning of August 27, 1984, the alleged victim's mother, Pamela, gave her three-year-old son, J.B., his customary morning bath. While bathing J.B., she checked him from head to toe, including his genital area, for diseases, scratches, and sores, but found nothing out of the ordinary. She then drove him to the Accounters Community Center (Accounters), a child day-care and educational center located two blocks from her Chicago home. According to her testimony at trial, on arriving at Accounters, she escorted her son to his classroom and placed his hand in the hand of defendant.

Pamela returned to Accounters to pick up her son at approximately 3 p.m. that same day. When she arrived, J.B. was sitting in the lobby with two other children and he appeared to be withdrawn. Pamela's son did not come up to greet her, nor did he say anything to her on the trip home. After they arrived at their second-floor apartment, J.B. did not eat his afternoon snack with his usual enthusiasm. Pamela asked him what was wrong. J.B. blurted out, "Teacher Tony bit my dingdong." He then demonstrated with an object what had occurred earlier that day.

Upset, Pamela summoned her mother, Doris, from the downstairs apartment in which she resided. After they arrived in the kitchen, Pamela explained to Doris what had happened. The women then inspected J.B.'s penis, noticing "a pinkish coloration around the head" about the size of a dime. When Doris touched the boy's penis, he hollered "ouch" and "it's sore."

Pamela called Accounters and spoke with Betty Powell, an employee with whom she had previous contacts. Pamela then walked to Accounters and continued her discussion with Ms. Powell regarding what had happened to her son. During their conversation, Mary Mays, Accounters' director, arrived at the center. After a brief discussion with Pamela, Mays requested that Pamela, Pamela's mother and J.B. meet with her at her office. Mays testified at trial that during the meeting J.B. did not appear withdrawn. According to Mays, the boy exhibited no discomfort when Pamela unzipped J.B.'s pants and touched his penis; he instead sat quietly, playing with a toy Mays had given him. In rebuttal, Pamela and Doris testified that the child's penis was never examined during their visit in Mays' office.

After Pamela, Doris and J.B. returned home from Accounters, Pamela called the child abuse hotline. Youth Officers William Radigan and James Pancer of the Chicago police department were assigned to J.B.'s case. The officers went to the boy's home and spoke with his mother. During their visit, J.B. was withdrawn and would not talk to the officers. Officers Radigan and Pancer then took Pamela and J.B. to the hospital. Although J.B. was examined at the hospital, the results of the examination were not introduced at trial.

On August 28, 1984, the day after the alleged incident, Officers Radigan and Pancer visited Accounters, unsuccessfully attempting to locate defendant. They then traveled to an address incorrectly given to them by employees of Accounters as defendant's home and left their card, with instructions for defendant to call them. Later that day, the officers received a telephone call from defendant and arranged for him to meet them at the police station at 10:30 p.m. When defendant failed to arrive at the scheduled time, the officers contacted defendant by phone and arranged to pick him up at his correct home address and take him to their office.

The officers arrived back at the station with defendant, took him to an interview room, and read him Miranda warnings. The officers then asked defendant questions about the reported abuse. Officer Radigan testified that although defendant first denied the allegations, he then stated that he wished to tell the truth and confessed to committing the offense. At trial, the prosecution introduced a statement written by defendant and witnessed by Officers Radigan and Pancer. The statement reads as follows:

"Dated: 8/2/84 [sic ] Accounters Community Center, 1155 W. 81st. In washroom on first floor, on Monday, August 27th. I took [J.B.] to the washroom and pulled out his penis and began to suck it. ( [J.B.], age 3)

I did this on [sic ] my own free will."

Officer Radigan then contacted the State's Attorney's office.

Assistant State's Attorney Georgia Buglass soon arrived at the station. After receiving Miranda warnings, defendant gave Buglass a detailed oral statement, further describing the events to which he had earlier confessed during his conversation with Officers Radigan and Pancer. Buglass testified at trial that she transcribed the substance of defendant's statement, read it back to him, and had him sign it. His signature was witnessed by Buglass and Pancer. In his statement, defendant recounted that J.B. was already at Accounters when he arrived there at approximately 8:30 a.m. Another program aide, along with two children in addition to the victim, was also present. At approximately 10 a.m., defendant accompanied J.B. to the boys washroom and lifted the child up to the sink so that J.B. could wash his hands. He then placed the victim on the floor, pulled down the child's pants, kneeled down, and placed the boy's penis in his mouth. Defendant recited that the incident took place over a period of one minute. He added that he performed this act because he desired to try something new and figured it would be safe with J.B. The statement concluded with a remark by defendant that the police had treated him well and that they had not threatened him or promised him anything.

As Buglass was leaving the interview room, defendant made another oral statement, in which he explained that he had never had sex with a male before and reiterated that he felt it would be safe to try it with J.B. Buglass recorded this second statement underneath the first. It too was signed by defendant and witnessed by Buglass and Pancer.

On the afternoon of August 29, 1984, Pancer asked J.B. and his mother to come to the police station to identify defendant as the perpetrator. When they arrived, J.B. and Pamela were placed in an interview room with a two-way glass on one wall. As Officer Pancer was leading defendant down the hall, defendant looked into the room in which Pamela and J.B. were seated. Before J.B. had an opportunity to view defendant, defendant pointed to J.B. and said that J.B. was the child he was referring to in his earlier statements.

During pretrial proceedings, the trial judge entertained defendant's motion to suppress the statements given to Officers Radigan and Pancer and Assistant State's Attorney Buglass. Defendant argued that he was never given Miranda warnings. He also argued that he never knowingly and intelligently waived those rights. The trial judge heard the testimony of Radigan, Pancer, Buglass and defendant and heard arguments from both sides. The trial judge then denied defendant's motion, ruling that there was no basis in law or in fact to suppress the statements.

On the day scheduled for trial, defendant's counsel, Wayne Berman, announced that attorney Salvatore R. Marzullo would replace him as defendant's attorney. When Marzullo arrived, the trial judge had him file his appearance and Marzullo proceeded to represent defendant. Attorney Berman sat at the defense table throughout the trial and examined two witnesses.

At trial, Pamela testified to the events which occurred on August 27 and 28, 1984, and to J.B.'s statement to her concerning the alleged incident. Doris, Pamela's mother, testified to her examination of J.B. on the afternoon of ...