People v. White

• Decision Date: 15 June 1990
• Docket Number: No. 4-88-0954,4-88-0954
• Citation: 555 N.E.2d 1241,144 Ill.Dec. 722,198 Ill.App.3d 641
• Parties: , 144 Ill.Dec. 722 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randall D. WHITE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1241

555 N.E.2d 1241

198 Ill.App.3d 641, 144 Ill.Dec. 722

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randall D. WHITE, Defendant-Appellant.

No. 4-88-0954.

Appellate Court of Illinois Fourth District.

June 15, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Gary R. Peterson, Asst. Defender, for defendant-appellant.

Craig H. DeArmond, State's Atty., Danville, Kenneth R. Boyle, Director, State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, J.A.C. Knuppel, Staff Atty., for plaintiff-appellee.

Justice STEIGMANN delivered the opinion of the court:

After a jury trial, defendant, Randall White, was convicted of aggravated criminal sexual assault, residential burglary, and unlawful restraint (Ill.Rev.Stat.1987, ch. 38, pars. 12-14, 19-3, 10-3). On appeal, defendant contends that the admission of testimony containing certain out-of-court statements by the alleged victim was error. Defendant also argues that if his convictions are affirmed, the case should be remanded for resentencing because the trial court permitted the State to present inadmissible evidence regarding defendant's alleged criminal behavior as a factor in aggravation.

We affirm.

The four-year-old alleged victim, S.G., did not testify at trial. Instead, five witnesses were permitted by the court to testify as to statements made to them by S.G. Those witnesses were Tony DeVore, S.G.'s baby-sitter; Tammy Grigsby, S.G.'s mother; police officer Terry Lewis; nurse Cheryl Reents; and Dr. Michael Meinzen. The testimony of each of these witnesses will be discussed in detail, as will the circumstances under which S.G. spoke to each witness.

The events relevant to the offenses charged occurred on April 16, 1988, at 4 a.m. in the home of S.G., while Tony DeVore was baby-sitting for S.G. and S.G.'s three-year-old brother, Eric. DeVore, who was fourteen, was awakened by S.G.'s scream, went to the victim's bedroom, and saw the defendant exit that room and then the residence.

At trial, DeVore testified that she asked S.G. what happened, and S.G. told her. Defense counsel's objection to DeVore's testifying as to what S.G. told her was overruled on the ground that S.G.'s statements were spontaneous declarations and therefore admissible as an exception to the rule against hearsay. DeVore's testimony continued as follows:

"Q. [By prosecutor:] Okay. What did [S.G.] say at that point?

A. When I went in there she said he put his hand over her mouth. He'd been choking her. And she told me that he was touching her in the wrong places and he also said that if she screamed then he would whip her and then call me up there to whip her.

Q. Okay. Now, as best you recall what did [S.G.] say he or did she identify the person or what?

A. She said--well, first she said his name, Randy.

Q. Okay.

A. And then she went on with he.

Q. Okay. Start off with Randy?

A. Yeah.

Q. Okay. Now, you said--you testified that she said he touched her in wrong places. How did she phrase that as best you recall?

A. She said--she said, 'He was touching me.' And when I asked where she point [sic] to her private places.

Q. Okay. And [I] ask you could you describe where she pointed?

A. To the lower part of her body.

Q. Okay. And--[.]

[The defendant's continuing hearsay objection was overruled.]

Q. Do you know the name for the portion of the anatomy for what you talked about?

A. Yes, I do.

Q. What was she pointing to?

A. The vaginal area."

DeVore testified that after she tried to comfort S.G., "she finally calmed down and she quit crying a little bit."

According to DeVore, Tammy Grigsby, the victim's mother, arrived home approximately 30 minutes after the incident. DeVore spoke very briefly to Grigsby, who then sat with S.G. and asked her exactly what happened. Defense counsel's objection to Grigsby's testifying about what S.G. told her was overruled for the same reason that the objection as to DeVore's testimony was overruled. Grigsby testified that S.G.'s response to her question was as follows:

"A. She said she woke up and that Randy was in the room. And that he had put his hand on her mouth and told her that if she screamed that he would, you know, whip her, and Tony [DeVore] would whip her too. And then she said that he put his mouth on her front part.

* * * * * *

Q. [By prosecutor:] And did you clarify what she meant by that?

A. What do you mean? I--yeah, I asked her exactly, you know, what he did. And she told me that he had pulled her pants down a little bit and put his mouth down there and--."

Grigsby described her daughter as appearing scared and a "little hyper." Grigsby testified that she noticed "bruises or red marks" on S.G.'s neck that were not present when Grigsby left the residence earlier that evening.

Immediately after this short conversation with her daughter, Grigsby called the police. She testified that Officer Terry Lewis of the Georgetown Police Department arrived "just a few minutes" after she called. Lewis testified that he arrived at S.G.'s home around 4:47 a.m. He asked to speak to S.G. privately, and Grigsby had no objection. Grigsby testified that at the suggestion of Officer Lewis, she checked S.G.'s "front part" (the term Grigsby said S.G. uses for this part of her body), and Grigsby noticed that it was a "little red."

Lewis questioned S.G. by herself in the kitchen. He first spoke with S.G. about cartoons in order to "[get] her at ease." At first she seemed upset and nervous, although she was very cooperative. The officer's testimony as to what the victim told him was essentially identical to the testimony given by DeVore and Grigsby, with the addition of the following:

"A. She went on and she started talking about her pants being wet.

Q. [By prosecutor:] Okay.

A. And when I referred to them as pants she advised me they were not pants they are underwear. And that they were wet. I asked if she had peed in her pants and she got disgusted with me and said, 'I don't pee in my pants, my underwear' she said.

Q. Uh-huh.

A. And she said Randy done it. So I asked her then I said how did Randy make them wet. And she told me that he had pulled her pants to one side and used his tongue on her private parts, what she called her private parts."

Defendant objected to all of Lewis' testimony about what S.G. had told him, but the court overruled that objection, indicating that this testimony was also being admitted as a spontaneous declaration.

Lewis also testified that he noticed a "small cluster of scratches" on the right side of S.G.'s mouth. They appeared to be "very fresh cuts." He said S.G. also had two long, parallel, fresh scratches on the left side of her neck. She told Lewis that "Randy" had done that to her when he had his hand on her. Lewis took a color Polaroid photograph of S.G. around 6 a.m. Lewis testified that the photograph showed the scratches he testified about. The photograph was admitted into evidence.

Cheryl Reents testified that she was working as an emergency room nurse when she interviewed S.G. shortly after 8 a.m. that same morning, April 16, 1988. Reents testified that she asked questions of S.G. in order to obtain a history to assist herself and the attending emergency room physician in making a diagnosis and providing treatment. When the State asked Reents what S.G. told her after Reents asked S.G. what happened, defense counsel again objected. In response, the State argued that S.G.'s statements to Reents were admissible both as spontaneous declarations as well as statements made for medical purposes under section 115-13 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1987, ch. 38, par. 115-13). The court overruled the objection, and Reents testified that S.G. told her, inter alia, the following:

"A. Okay. Then I asked if he touched her anywhere else [besides her mouth and neck]. And she said yes. And I asked her where. And she said, 'On my front part.' And then for clarification I asked her to point where. And the patient pointed to the mons area.

Q. [By prosecutor:] Okay. And that's what?

A. That's the genital, the labia majora and the surrounding tissue in the genital area.

Q. On the female?

A. Yes, on the female. Okay. And I--then I, for more clarification, I asked her what he touched her with. And she stated his mouth. And then I asked her if he touched her with anything else. She said no. Then I asked her if he touched her with his front part and she stated no. I asked her if he touched her back--her back part. And she said no. And then I asked her if he made her touch him. She said no. Then I asked her if he made her put her mouth anywhere. She said no. And then I asked if anything was put inside of her. She said no. And I asked if it had ever happened before and she said yes when it was cold out.

Q. Okay.

A. And then she continued to say that he put his mouth on her, but he didn't hurt her that time."

Initially, S.G. would not look at Reents, but instead looked down at her ID bracelet as she twisted the bracelet around her wrist. Later, S.G. was cooperative and answered Reents' questions. Reents testified that in questioning S.G., Reents phrased her questions "very open ended to just let [S.G.] just say whatever." Reents also noticed some bruising on the left side of S.G.'s neck.

Dr. Michael Meinzen testified that he was the physician on duty at the hospital emergency room to which S.G. was brought. Meinzen said he spoke with S.G. shortly after 8 a.m. in order to obtain a history from the patient for the purposes of making a diagnosis and treating her medically if that was needed. Meinzen attached great importance to obtaining a history from a patient, noting that, "in medicine we're taught that 90 percent of our diagnosis is based on the history. You listen to what the person tells you and then decide where to go from there, what areas to focus on."

Meinzen was asked to...