People v. Courtnery
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0640
Case Date: 07/16/1997
No. 3--96--0640
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 93--CF--539
)
WILLIAM COURTNEY, SR., ) Honorable
) Daniel W. Gould,
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________
MODIFIED UPON DENIAL OF PETITION FOR REHEARING
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
Following a bench trial, the defendant, William Courtney, Sr.,
was convicted of four counts of aggravated criminal sexual assault
(720 ILCS 5/12--13(a)(3) (West 1994)) and one count of aggravated
criminal sexual abuse (720 ILCS 5/12--16(b) (West 1994)). The
defendant was sentenced to two concurrent 16-year terms of
imprisonment in the Illinois Department of Corrections.
On appeal, the defendant claims: (1) his trial counsel was
ineffective; (2) he was not proven guilty beyond a reasonable
doubt; (3) the trial court erred in not appointing a special
prosecutor after the defendant's initial attorney was appointed
State's Attorney; (4) the trial court committed reversible error in
admitting hearsay statements pursuant to section 115--10 of the
Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10
(West 1994)); and (5) he was denied a fair trial because the trial
court pre-judged the case.
After carefully reviewing the record and applicable law, we
reverse the defendant's conviction and remand the case for a new
trial because we find a per se conflict of interest existed which
required the appointment of a special prosecutor.
We find no merit to the defendant's claim that the trial court
erred in admitting section 115--10 statements. Moreover, there is
no support in the record for the defendant's contention that the
trial court was prejudiced against him and his claim that he was
not proven guilty beyond a reasonable doubt. As a result, we find
these issues are without merit. Additionally, due to our decision
to reverse the defendant's conviction and remand the cause for a
new trial, it is not necessary for this court to address the
defendant's claim that he was denied the effective assistance of
counsel.
FACTS
The victim, B.C., is the defendant's granddaughter. She was
three years old at the time of the alleged abuse. Shelly, B.C.'s
mother, was divorced from William, Jr., the defendant's son, a year
and a half after B.C. was born. William, Jr. lived with his
parents and had visitation with B.C. every other weekend.
Usually, the defendant or his wife would pick up B.C. for
visitation.
At the section 115--10 hearing and at trial, Shelly testified
that on March 22, 1993, she discovered B.C. fondling herself and
asked her if anyone had touched her there. B.C. said her grandpa
touched her there and then immediately stated that it was her
father who did the touching. When Shelly told B.C. that it was
very important to tell the truth, B.C.said that the defendant had
told her to say her father did it.
Nine days after seeing B.C. fondle herself, Shelly took B.C.
to a pediatrician, Dr. You Sim Kim. Thereafter, Shelly took B.C.
to the emergency room at St. Mary's Hospital. After emergency room
personnel called the police, Shelly went to the Momence police
department.
Shelly saw B.C. fondling herself again on March 28, 1993. At
the time of this incident, B.C. said that her grandpa had put his
fingers between her legs and played a game. Later that evening,
with Shelly's mother present, B.C. said the defendant played this
game with her on several occasions.
Shelly's mother, Linda Duke, also testified at the section
115--10 hearing and at trial. Duke stated that B.C. would not
kiss the defendant goodbye after a visit and complained to her
about pain in her lower stomach and anus. She said that B.C.
could not go to the bathroom, and in response to a question if
anyone had hurt her, B.C. said that the defendant had put
something in her and it got bigger and bigger and hurt. While
making this statement, B.C. pointed to her vaginal area and anus.
Christy Horn testified that she was present with Shelly and
B.C. when B.C. spontaneously told Horn that the defendant had
touched her and hurt her bad and she was going to spank him for it.
Again, B.C. pointed to her vaginal area when making this
statement.
Sergeant Jo Mulcahy, a 17-year veteran of the Kankakee County
Sheriff's Department, testified that she had a private meeting with
B.C. at Shelly's residence. Sergeant Mulcahy used anatomically
correct dolls during the interview. B.C. told Mulcahy that the
defendant had put his finger in her vagina several times. B.C.
demonstrated how this occurred by using dolls which represented the
defendant and herself. At first, B.C. said that her father did
this to her as well. Later, she clarified her statement by saying
that only the defendant had abused her.
At trial, Dr. Kim testified that she had never prescribed or
recommended a stool softener for B.C. Dr. Patricia Tiernan, an
obstetrician-gynecologist, testified that during her examination of
B.C. she discovered a "skin tag" on B.C.'s anus. Dr. Tiernan
testified that a skin tag is caused by the stretching of the skin
around the anus. On cross-examination, Dr. Tiernan admitted that
a skin tag could be caused by an oversized stool.
B.C. testified that during one visitation the defendant led
her to the bedroom and took her clothes off. He turned her over on
her stomach and stuck his "private" into her "butt." She tried to
get away, but he held her down. B.C. testified that the defendant
had done this to her "a lot." B.C. said that, on another
occasion, she was sleeping and woke up when the defendant touched
her with his "private" and stuck his finger in her vagina.
The testimony at trial indicated that B.C. had a history of
urinary and bowel movement difficulties. The defendant and his
wife testified that they would insert rectal suppositories into
B.C. to help B.C. go to the bathroom. B.C. denied that her
grandparents had ever given her any medication for her elimination
problems. The defendant testified that he had inserted the
suppositories on occasion, but only when his wife was present. The
defendant denied ever sexually abusing B.C.
The defendant's initial trial attorney, Michael Kick, first
appeared as the defendant's counsel on September 21, 1993. Kick
represented the defendant by making numerous court appearances,
answering discovery and filing various documents in the case. Kick
withdrew as the defendant's counsel on November 10, 1994, because
the defendant could not pay him. However, Kick was subsequently
appointed public defender to again represent the defendant. A few
days after Kick was assigned to be the defendant's public defender,
the defendant's representation was reassigned to Public Defender
Alan Kuester. Kuester served as the defendant's counsel for the
remainder of the trial proceedings. Kick was appointed State's
Attorney of Kankakee County in September 1995.
On September 22, 1995, the trial court, prior to the beginning
of a status hearing, inquired about a possible conflict of interest
now that Kick was serving as State's Attorney. An off-the-record
discussion took place between the judge, Kuester and the assistant
State's Attorney assigned to prosecute the defendant's case. On
the record, Kuester indicated that he had mentioned the potential
conflict of interest to the defendant. The trial judge stated:
"All right. Motion of the State to continue in order that a special
prosecutor can be appointed to handle the case in view of the
potential conflict due to the fact that the State's Attorney was
Mr. Courtney's attorney is allowed." The assistant State's
Attorney then told the trial judge that a special prosecutor would
appear to represent the State in two to three weeks.
On October 6, 1995, the prosecutor again acknowledged the
necessity of having a special prosecutor appointed. The assistant
State's Attorney told the trial court, "[t]his is one where the
special prosecutor will be appointed."
On November 3, 1995, the trial court asked the prosecutor if
someone from the Illinois Attorney General's office would be
handling the defendant's prosecution. The assistant State's
Attorney responded, "[i]t's ours." Finally, on December 14, 1995,
the parties were discussing the delay in setting a trial date. The
assistant State's Attorney stated: "And then for a while because
we thought the [Attorney General] may be coming in. He is not
coming in. He is only supervising the case. We are ready for
trial." The record is clear that defendant's counsel did not
object to the absence of a special prosecutor.
Following the defendant's conviction, Kuester filed a motion
for a new trial, raising for the first time the claim that a
special prosecutor should have been appointed. The trial court
denied the defendant's motion and then sentenced the defendant to
two concurrent 16-year terms of imprisonment. This timely appeal
followed.
CONFLICT OF INTEREST
We will first review the defendant's claim that a conflict of
interest existed which mandates remanding the case for a new trial.
The defendant argues that because Michael Kick initially
represented the defendant and became State's Attorney during the
prosecution of the defendant's case, the trial court should have
appointed a special prosecutor to intervene and represent the
office of the Kankakee County State's Attorney.
As an initial response, the State claims that the defendant
has waived this issue because he did not object at trial to the
court's failure to appoint a special prosecutor. The waiver rule
is one of administrative convenience rather than jurisdiction.
People v. Farmer, 165 Ill. 2d 194, 200, 650 N.E.2d 1006, 1009
(1995). The law is well settled that the waiver rule is a
limitation on the parties, not on the reviewing court. People v.
Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1170 (1992).
The record on appeal is clear that the conflict of interest
issue was raised several times by the attorneys and the trial
court. In addition, the defendant raised the issue in his post-
trial motion for a new trial. Initially, all parties and the trial
judge agreed that a special prosecutor was needed and would be
appointed. Then, on November 3, 1995, the assistant State's
Attorney informed the court that a special prosecutor would not be
coming into the case. In the interests of obtaining a just result,
as well as maintaining a sound body of precedent (Farmer, 165 Ill.
2d at 200, 650 N.E.2d at 1009), we decline to find waiver in this
case. Therefore, we will now address the merits of the defendant's
argument.
It has long been the law in Illinois that "an attorney cannot
represent conflicting interests or undertake to discharge
inconsistent duties." People v. Gerold, 265 Ill. 448, 477, 107
N.E. 165, 177 (1914). This "rigid" rule is designed to protect
against an actual conflict of interest and the appearance of such
a conflict: "It is unnecessary that the prosecuting attorney be
guilty of an attempt to betray confidence; it is enough if it
places him in a position which leaves him open to such charge ***.
The administration of the law should be free from all temptation
and suspicion, so far as human agencies are capable of
accomplishing that object." (Emphasis added.) Gerold, 265 Ill. at
479, 107 N.E. at 177. In noting the ethical obligation and
professional responsibility of an attorney to guard the confidences
of his client, this court has said "it is the possible divulgence
or use of information given counsel in confidence that is the evil
to be guarded against." (Emphasis added.) People v. Price, 196
Ill. App. 3d 321, 324, 553 N.E.2d 760, 762 (1990).
Here, in the case at hand, the parties have not cited, and our
research has failed to discover, a single reported decision in our
State which is exactly on point. The issue on appeal is whether a
per se conflict of interest exists when a defendant's former trial
counsel subsequently becomes head of the office which prosecutes
the defendant. The defendant argues that when this situation
arises, the trial court must appoint a special prosecutor to handle
the prosecution of the defendant. We agree with the defendant's
argument and find that a special prosecutor should have been
appointed in this case.
The State contends that our decision in this case should be
controlled by the analysis set forth in Price. We do not agree.
In Price, the appellate court affirmed a conviction where an
assistant public defender appeared briefly one time on behalf of a
defendant and was later elected State's Attorney. The court noted
that the State's Attorney did not have a significant role in the
defendant's case, barely spoke to the defendant, if at all,
regarding the case, appeared briefly on an uncontested motion and
had no other involvement in the case after being elected State's
Attorney. Price, 196 Ill. App. 3d at 324-25, 553 N.E.2d at 762.
In contrast, here, Kick was intimately involved in the
defendant's representation prior to becoming State's Attorney. The
record shows that Kick made numerous court appearances on behalf of
the defendant and was clearly privy to the defendant's confidences.
Many of our sister States have addressed the same issue in
cases having similar factual patterns. In State v. Cooper, 63 Ohio
Misc. 1, 409 N.E.2d 1070 (1980), the defendant was represented by
two public defenders. Subsequently, one of the defendant's
attorneys became an assistant prosecutor for the county. The
defendant claimed a conflict of interest. The reviewing court
noted that the conflicted attorney "did not at any time communicate
to his new colleagues on the prosecutor's staff any information he
may have become privy to while serving the defendant." Cooper, 63
Ohio Misc. at 6, 409 N.E.2d at 1073. Nonetheless, the court
concluded that, because of the "overriding requirement that the
public must be able to maintain the right to believe in the total
integrity of the Bar as a whole," the county prosecutor and his
staff must be precluded from conducting the case and a special
prosecutor must be appointed. Cooper, 63 Ohio Misc. at 6-7, 409
N.E.2d at 1073.
In Arizona v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972),
the public defender received confidential communications from the
defendant and had access to all records and information pertaining
to the defendant's case. Defense counsel subsequently became the
County Attorney's chief deputy, exercising supervisory authority
over the assistant county attorney who prosecuted the defendant.
Latigue, 108 Ariz. at 523, 502 P.2d at 1342. The Supreme Court of
Arizona noted that "[j]ustice and the law must rest upon the
complete confidence of the thinking public and to do so they must
avoid even the appearance of impropriety." Latigue, 108 Ariz. at
523, 502 P.2d at 1342. The court concluded that in order for the
prosecution of the defendant to go forward, a special prosecutor
must be appointed from outside the office of the County Attorney.
Similarly, in New York v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d
909 (1980), the Executive Director of the Legal Aid Society was
actively involved in the preparation of the defendant's case.
Subsequently, the attorney resigned from the Legal Aid Society and
was appointed Chief Assistant District Attorney for Sullivan
County. The new prosecutor took several measures designed to
insure he had no involvement in the prosecution of the cases that
he had acquired knowledge of as a legal aid director. Nonetheless,
the Court of Appeals of New York concluded that:
"[t]he fact that the attorney who had
initially represented defendant and
participated actively in the preparation of
his defense was chief assistant in the office
of the prosecutor in the months preceding and
during defendant's trial inescapably gave both
defendant and the public the unmistakable
appearance of impropriety and created the
continuing opportunity for abuse of
confidences entrusted to the attorney ***. It
is no answer that defendant offers no
evidentiary proof of actual prejudice. In the
circumstances such proof would most likely be
out of defendant's reach." Shinkle, 51 N.Y.2d
at 420-21, 415 N.E.2d at 910.
The New York court vacated the defendant's conviction and remanded
the case to the trial court because of the "inherent impropriety"
of the conflict situation.
In Illinois, the statutory duties of a State's Attorney are
prescribed by the General Assembly. See 55 ILCS 5/3--9001 et seq.
(West 1994). It is well-settled law that the State's Attorney
controls the internal operations of his or her office. 55 ILCS
5/3--9006 (West 1994). The State's Attorney is responsible for the
professional conduct and acts of his or her assistants. People v.
Dread, 27 Ill. App. 3d 106, 112, 327 N.E.2d 175, 179 (1975).
Here, in the instant case, the record reveals that the
conflict of interest was brought to the attention of the trial
court, and the assistant State's Attorney led the judge to believe
that the situation would be resolved by the appearance of a special
prosecutor. However, the record is clear that a special prosecutor
never appeared and none was appointed by the trial court. In a
case like the one before us, where the conflict of interest
involves the head of the State's Attorney's office, we adopt the
analysis set forth in Cooper, Latigue and Shinkle.
As an aside, the State draws our attention to a letter from
the Illinois Attorney General's office dated November 8, 1995.
The letter states that the Kankakee County State's Attorney's
office will "maintain control and responsibility" for the
defendant's case, but the Attorney General's office will "replace
the current State's Attorney in your chain of command." The
State argues that the letter from the Attorney General's office
proves that no conflict of interest existed. We find this argument
to be unpersuasive and without merit.
After reviewing the record, we find that the letter tells
this court absolutely nothing about what involvement, if any,
State's Attorney Kick had in the preparation of the State's case
against the defendant. It is for this precise reason that we find
a per se conflict of interest in this case. Further, we agree with
the court's opinion in Shinkle that it is not the defendant's
burden to prove Kick's involvement, or the lack thereof, in this
case. The State has clearly failed to show why a special
prosecutor should not have been appointed once Michael Kick became
the State's Attorney of Kankakee County.
As a result of Kick's former role as the defendant's attorney,
we hold that a per se conflict of interest existed which affects
all the prosecutors in the Kankakee County State's Attorney's
office. Consequently, the conflict of interest requires the
appointment of a special prosecutor upon remand. For the reasons
stated, we reverse the defendant's conviction and remand the cause
to the circuit court for a new trial.
In the interest of judicial economy, we now address the
defendant's other claims which may recur upon remand.
HEARSAY STATEMENTS
The defendant claims the trial court erred in admitting
hearsay statements pursuant to section 115--10 of the Code (725
ILCS 5/115--10 (West 1994)). We find no merit to this claim.
Section 115--10 of the Code provides an exception to the
hearsay rule in cases involving prosecutions for various sex crimes
perpetrated against a child under the age of 13. The child's
statements to others, concerning the subject of the prosecution,
are admissible if the trial court finds, after conducting a hearing
outside the presence of the jury, that: (1) the time, content and
circumstances of the statements provide sufficient safeguards of
reliability; and (2) the child testifies at the proceedings or is
unavailable and there is corroborative evidence of the act which is
the subject of the statement. 725 ILCS 5/115--10 (b) (West 1994);
People v. Byron, 269 Ill. App. 3d 449, 454, 645 N.E.2d 1000, 1004-
005 (1995).
Some factors which may be considered to determine reliability
of the statements are: (1) the child's spontaneous and consistent
repetition of the incident; (2) the child's mental state; (3) the
use of terminology expected of a similar age child; and (4) the
lack of motive to fabricate. Byron, 269 Ill. App. 3d at 454, 645
N.E.2d at 1005. The trial court has a considerable amount of
discretion in determining the admissibility of hearsay statements.
Byron, 269 Ill. App. 3d at 454, 645 N.E.2d at 1005. Therefore, a
reviewing court will not disturb the trial court's determination
absent an abuse of discretion. Byron, 269 Ill. App. 3d at 454, 645
N.E.2d at 1005. The key determination is whether the circumstances
surrounding the making of the statements render the declarant
particularly worthy of belief. People v. Hubbard, 264 Ill. App. 3d
188, 193, 636 N.E.2d 1095, 1099 (1994).
Most of B.C.'s statements were made within days of the last
incident of abuse. None of the witnesses who testified during the
section 115--10 hearing used leading questions to elicit her
statements and some of B.C.'s statements were spontaneous. B.C.
consistently stated, in language one would expect from a child her
age, how the defendant sexually abused her on numerous occasions.
Moreover, there is no evidence in the record to suggest that B.C.
had any motivation to fabricate.
After reviewing the record, we conclude that the time, content
and circumstances of B.C.'s statements provide sufficient
safeguards of reliability. Accordingly, we find that the trial
court's decision to admit the statements pursuant to section 115--
10 was not an abuse of discretion.
IMPARTIALITY OF THE TRIAL COURT
Next, the defendant argues that he was denied a fair trial
because the trial court pre-judged his case. The defendant bases
his argument on an isolated comment the trial court said in an
exchange with defense counsel:
"Q [defense counsel]: Isn't it a fact the
mother was upset because of all the people
wanting to talk with her daughter?
[Assistant State's Attorney]: Objection, calls
for him to go inside the mind of the mother.
[Trial court]: What difference does it make if
she was upset?
[Defense counsel]: Well, judge he said that
she was highly upset. I think we have a right
to question on that point.
[Trial court]: Her being upset or her not
being upset is not probative of much of
anything in the case. I would expect she was
upset, her daughter was molested, which would
be normal. She could be upset by the number
of people who wanted to talk to her daughter
*** but your objection is quite right asking
him to define what upset her, alleged
molestation or all these people wanted to talk
to the daughter."
When the trial judge's comments are viewed in context, we find
no showing of bias against the defendant. It is clear the trial
judge was referring to how the mother might have been feeling at
the time of the revelations concerning her daughter's abuse. In
addition, we note that towards the end of the statement, the trial
judge said "alleged molestation." From our review, we find nothing
improper in the judge's remarks.
SUFFICIENCY OF THE EVIDENCE
Finally, we find there was ample evidence presented to prove
the defendant guilty beyond a reasonable doubt. When presented
with a challenge to the sufficiency of the evidence, it is the
function of a reviewing court to determine if the evidence
presented at trial, viewed in the light most favorable to the
prosecution, is sufficient for any rational trier of fact to find
the defendant guilty beyond a reasonable doubt. People v. Collins,
106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). In a sexual
assault case, the victim's testimony alone, if positive and
credible, is sufficient to sustain a conviction. People v. Brown,
122 Ill. App. 3d 452, 454, 461 N.E.2d 71, 74 (1984).
It is the function of the trier of fact to determine the
credibility of the witnesses and the weight to be given their
testimony. People v. Locascio, 106 Ill. 2d 529, 537, 478 N.E.2d
1358, 1361 (1985). When the evidence is merely conflicting, a
reviewing court will not substitute its judgment for that of the
trier of fact. Locascio, 106 Ill. 2d at 537, 478 N.E.2d at 1361.
The State was required to prove: (1) the defendant was 17
years of age or older at the time of the crime; (2) the defendant
committed an act of sexual penetration with B.C.; and (3) B.C.
was under 13 years of age when the acts were committed. There is
no dispute concerning the ages of the defendant and B.C. B.C.
testified clearly and at length regarding the abuse. Moreover, the
trial court found her to be a credible witness. The court found
the evidence of the defendant's guilt to be "overwhelming." There
was also testimony from numerous other witnesses concerning the
allegations of abuse. The judge heard the witnesses and weighed
the evidence presented at trial. When viewed in a light most
favorable to the State, we find there was sufficient evidence for
the trial court to determine that the defendant was proven guilty
beyond a reasonable doubt. In reaching this conclusion, we do not
suggest any implication of the defendant's guilt or innocence which
would be binding in a new trial. From our review of the evidence,
the defendant may be retried without violating his constitutional
right against double jeopardy. People v. Taylor, 76 Ill. 2d 289,
309-10, 391 N.E.2d 366, 375 (1979).
For the reasons stated, the judgment is reversed, and the
cause is remanded so the defendant can receive a new trial with a
special prosecutor to be appointed by the circuit court of Kankakee
County.
Reversed and remanded.
SLATER and HOMER, JJ., concur.
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