People v. Visgar

• Decision Date: 20 December 1983
• Docket Number: No. 82-314,82-314
• Citation: 457 N.E.2d 1343,120 Ill.App.3d 584,75 Ill.Dec. 784
• Parties: , 75 Ill.Dec. 784 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clair E. VISGAR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1343

457 N.E.2d 1343

120 Ill.App.3d 584, 75 Ill.Dec. 784

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clair E. VISGAR, Defendant-Appellant.

No. 82-314.

Appellate Court of Illinois Second District.

Dec. 20, 1983.

G. Joseph Weller, Deputy State Appellate Defender, John J. Barrett, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Daniel Doyle, States Atty., Rockford, Phyllis J. Perko and William L. Browers, Elgin, State Attys. Appellate Service Com'n, for plaintiff-appellee.

LINDBERG, Justice.

Defendant, Clair E. Visgar, was charged by information with one count of indecent liberties with a child based on lewd fondling (Ill.Rev.Stat.1979, ch. 38, par. 11-4(a)(3)) and, in an amended information, with a second count of the same offense based on sexual intercourse (Ill.Rev.Stat.1979, ch. 38, par. 11-4(a)(1)). He was found guilty of both counts after a jury trial in the circuit court of Winnebago County, judgment was entered on both counts, and he was sentenced to four years imprisonment. On appeal, he claims certain errors occurred with regard to discovery, evidence, and argument of counsel. We affirm.

The trial centered on the allegations of defendant's minor daughter that her father lewdly fondled her and had sexual intercourse with her in their South Beloit home on the night of July 16, 1980. We shall recite the evidence adduced at trial and the procedural history of this case only as is necessary for the disposition of the issues raised.

I.

Defendant first contends that the trial court erred in denying his motion to have the complainant examined by a medical doctor. He argues that because such a physical examination would have revealed whether the complainant's hymen was intact, it was highly relevant to the credibility of her allegation that defendant had had intercourse with her.

The State maintains that the trial court may have been powerless to order a physical examination. The supreme court in People v. Glover (1971), 49 Ill.2d 78, 82, 273 N.E.2d 367, held that "[t]here is no question of the [trial] court's jurisdiction to order an examination of the complaining witness in a case involving a sex violation * * *." The State points out that the case relied upon by the Glover court for that proposition, People ex rel. Noren v. Dempsey (1957), 10 Ill.2d 288, 139 N.E.2d 780, involved a plaintiff in a civil case, not a complainant in a criminal case. However, the proposition was stated unequivocally in Glover and has been restated without question by the supreme court in People v. Rossi (1972), 52 Ill.2d 13, 284 N.E.2d 275, and numerous times by the appellate court (see e.g., People v. Davis (1981), 97 Ill.App.3d 299, 52 Ill.Dec. 780, 422 N.E.2d 989; People v. Dentley (1975), 31 Ill.App.3d 679, 334 N.E.2d 774). The State further points out that Rossi and Dentley involved psychiatric rather than physical examinations. However, involved in Dempsey was a physical examination, in Glover both a psychiatric and an ophthalmological examination, and in Davis both a psychiatric and a fingerprint examination of the complainant. Moreover, the State provides no reason to distinguish between psychiatric and physical examinations of the complainant with regard to a trial court's jurisdiction to order one. Thus, we conclude that a trial court has jurisdiction to order a physical examination of a complaining witness in a case involving a sex offense.

Apart from jurisdiction to order a physical examination, both parties acknowledge that a trial court's discretion to order such an examination of the complainant in a sex offense case is grounded upon the defendant's presentation of a compelling reason to do so. (People v. Glover (1971), 49 Ill.2d 78, 273 N.E.2d 367.) Defendant argues that his compelling reason is to determine whether the complainant's hymen was intact.

However, as the State points out, such a determination would have been irrelevant to the charge against defendant as it read at the time of defendant's motion. At the time of defendant's motion, he was charged only with having "lewdly fondled or touched" the complainant. Where there is no allegation that a complaining witness was injured or that any penetration had been made into her vagina, a doctor's examination of the witness would not be necessary for any purpose. (People v. Woods (1973), 13 Ill.App.3d 860, 301 N.E.2d 593.) Although the information was later amended to include a count alleging intercourse, the motion was not renewed. Because the trial court was not presented a compelling reason to order a physical examination of the complainant, it did not err in denying defendant's motion.

II.

Defendant claims that there was a violation of discovery rules with regard to a physical examination of the complainant which at trial she acknowledged had taken place. He contends that the State should have disclosed that examination before trial and that the trial court should have disclosed it after its in camera inspection of the file of the Department of Children and Family Services (DCFS) on the complainant.

Upon cross-examination of the complainant at trial, she indicated that she had been examined by a doctor concerning the subject accusations when she went into foster care. She stated that a Pap smear was involved. This was the only indication anywhere in the original record of a physical examination of the complainant. Although defendant's pretrial motion for discovery included a request for the results of any physical or mental examinations made in connection with this case, no such results were provided, as the State indicated that none existed.

Defendant also served a subpoena duces tecum upon DCFS, requesting all of its records of the complainant. After the State moved to quash the subpoena on the basis of confidentiality (see Ill.Rev.Stat.1981, ch. 23, par. 2061), the trial court examined the DCFS file in camera and declined to disclose its contents to defendant on the basis of confidentiality and that defendant already had information on the matters of interest to him. Although the trial court refused to make the DCFS file part of the record, we granted defendant's motion, pursuant to Supreme Court Rule 415(f) (87 Ill.2d R. 415(f)), for an order compelling the Winnebago County circuit court to produce the DCFS file for this court's inspection.

Upon thorough examination of the DCFS file, we find only two short references to any gynecological examination conducted upon the complainant which might possibly have been made in connection with this particular case. Both references are dated July 29, 1980, seven days after DCFS entered the case and 13 days after the incident. Both references were purportedly written by William Frank of DCFS. In the first reference, it is stated that the complainant was transported to the Winnebago County Health Department for a pelvic examination. A pregnancy test was negative and a Wasserman (venereal disease) test was conducted with results expected in two weeks. In the second reference, Frank notes only that he has conferred with the person who transported the complainant for a physical examination and that testing for VD was included, for which results would be in in about two weeks. No other information about that examination can be found and the results of the Wassermann test, if received, are not included in the DCFS file.

Disclosures to the accused in criminal cases are governed by Supreme Court Rule 412. (87 Ill.2d R. 412.) That rule provides in pertinent part as follows:

"(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:

* * *

* * *

"(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations * * *." 87 Ill.2d R. 412.

The State's duty of disclosure under this rule is a continuing one, requiring prompt notification of the defendant of the discovery of any additional material or information, up to and during trial. (87 Ill.2d R. 415(b); People v. Watson (1979), 76 Ill.App.3d 931, 32 Ill.Dec. 452, 395 N.E.2d 682.) However, the State cannot be accused of withholding evidence where neither the State nor its agents are in possession of the evidence. People v. Molsby (1978), 66 Ill.App.3d 647, 23 Ill.Dec. 309, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill.App.3d 449, 7 Ill.Dec. 323, 364 N.E.2d 484.

With regard to the State's failure to disclose the results of the complainant's physical examination, the appropriate sanction for failure to comply with discovery rules is not necessarily a new trial, but may be an order of compliance, a continuance exclusion of the evidence, or other order which the trial court deems just under the circumstances. (87 Ill.2d R. 415(g)(i); People v. Watson (1979), 76 Ill.App.3d 931, 32 Ill.Dec. 452, 395 N.E.2d 682.) The invocation of the appropriate remedy for failure to disclose evidence during discovery is left to the sound discretion of the trial court and will not be reversed unless prejudice or surprise is demonstrated. (People v. Sakalas (1980), 85 Ill.App.3d 59, 40 Ill.Dec. 29, 405 N.E.2d 1121.) Here, defendant's trial counsel did not seek a continuance in order to locate the results of the examination to which the complainant referred. Rather, he moved for disclosure at the close of the State's case. Generally, the failure to seek a continuance waives a claim of discovery error based upon surprise. (People v. Nelson (1980), 92 Ill.App.3d 35, 47 Ill.Dec. 683, 415 N.E.2d 688, cert. denied, 454 U.S. 900, 102 S.Ct. 404, 70 L.Ed.2d 217.) Thus, we consider defendant's allegation of error to be waived by his pursual of an inappropriate, more extreme remedy at trial.

Even aside from waiver, however, we find no merit in defendant's...