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August 17, 2001

No. 3--00--0841

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The defendant, Anthony Roy W., was convicted of predatorycriminal sexual assault of a child (720 ILCS 5/12--14.1 (West1998)), and criminal sexual assault (720 ILCS 5/12--13) (West1998)). He was sentenced to 20 years' imprisonment. The defendantfiled a post-trial motion alleging ineffective assistance ofcounsel based on: (1) trial counsel's failure to present evidencethat the victim had pending delinquency charges and was in thecustody of the juvenile authorities at the time of trial; and (2)trial counsel's failure to present a witness who would testify thathe had sexual intercourse with the victim one to two months beforeshe made the allegation against her father. After carefulconsideration of the record and counsels' arguments, we reverse thedefendant's convictions and remand for a new trial.

At trial, the following facts were presented. The victim isthe defendant's daughter. The victim's mother voluntarilytransferred custody of her to the defendant in 1993. She livedwith him or his mother from 1993 until these allegations were madein 1999. The victim was 12 years old at the time of the complaint. On the day before she filed the complaint, the victim had analtercation with another child in the neighborhood. The victimwent into the house and returned to the altercation carrying alarge-bladed kitchen knife. She threatened the other child withthe knife, but then returned home. When the defendant returnedhome and was told about the incident, he pushed the victim into achair and grounded her. The next day when the defendant arrivedhome he found a note from the victim saying that she had gone toher grandmother's house. Before the defendant could determinewhere the victim was, the police arrived at his home and arrestedhim based on the victim's complaint. The victim was placed in thecustody of her mother.

While in her mother's custody, the victim was arrested forretail theft and placed on house arrest at her mother's home. After she violated the terms of the house arrest, she was placed inthe juvenile detention facility, and she was also charged withdomestic battery against her mother. At the time of trial, thevictim was facing both charges and was being held in the juveniledetention facility.

The victim testified that her father frequently beat her withan electrical cord. She said that he would make her take all herclothes off, and then he would beat her with the cord. Duringthese beatings he would sometimes remove his clothing and sexuallypenetrate her vagina or her anus with his penis. At trial shetestified that this happened 14 times. She also testified that inthe past she had a close relationship with two of her aunts, herfather's girlfriends, and her grandmother. During the course of hertestimony the victim occasionally smiled and appeared to laugh. Atone point during cross-examination, defense counsel asked thevictim, "Is this funny to you?" because of her demeanor.

Dr. Kay Saving testified that she is a pediatrician and apediatric hematologist oncologist. She is the director of thePediatric Resource Center, a program which provides medicalevaluations for children who are possible victims of neglect orphysical or sexual abuse. The doctor testified that she performeda full examination of the victim. The victim's hymen had acleavage in the six o'clock position, which the doctor opined wasconsistent with sexual trauma to the vagina. The doctor statedthat the victim also had some irritated tissue around her vaginaand opined that this irritation was consistent with sexual abuse. On cross-examination, however, the doctor admitted that this typeof irritation could be caused by sources other than sexual abuse,including poor hygiene. The doctor also stated that an examinationof the rectum and anus revealed no unusual findings. Additionally,through the doctor, the State admitted several pictures of scarringon the victim's arm, buttocks and upper legs. The doctor opinedthat these scars were consistent with a child having receivedcorporal punishment with an implement such as a folded electricalcord.

The police investigator assigned to the case testified thatthe victim told him that the defendant had sexual relations withher on nine occasions, and at another point in the interview shesaid the defendant had had sexual relations with her too many timesto count. He also testified that they did not remove any physicalevidence from the home, such as bed sheets or underwear, becausethey did not believe these items would have any evidentiary value.

The defense presented the victim's grandmother, two of heraunts, and her father's girlfriends as witnesses. All of thesewomen testified that they had a good relationship with the victim. They all testified that the victim confided in them on personalsubjects such as boys and her menstrual cycle. They all alsotestified that they spent time with the victim out of the presenceof her father and that the victim had never told them about thisalleged sexual abuse.

The victim's grandmother also testified that at times thevictim had a hygiene problem, and her grandmother would have toensure that she changed her underwear.

One of the defendant's girlfriends testified that she was withthe defendant at the time the victim alleged the most recentincident of sexual abuse had occurred.

The defendant testified that he did use corporal punishmentand that on occasion he would discipline his daughter with a belt. He denied that he made her take off all her clothes before hepunished her. He also denied ever performing any sexual acts withhis daughter.

The jury convicted the defendant. After his conviction, thedefendant filed a pro se motion entitled, "Discovery Order." Inthis motion, he alleged that trial counsel was ineffective forfailing to interview and call as a witness a juvenile, T.R. Thedefendant alleged that T.R., who was 14 years old, would testifythat he and the victim had sexual intercourse in the summer of 1999before the victim made the allegations against her father. Newcounsel was appointed for the post-trial proceedings. The newcounsel filed a motion for a new trial, reasserting the defendant'scomplaint and also alleging that trial counsel was ineffective forfailing to present evidence that the victim had pending charges andwas in State custody at the time of trial.

At the hearing on that motion, T.R. testified that he was twoyears older than the victim. He lived next door to the victim'sgrandmother. One day in the summer of 1999 he and the victim hadconsensual sexual intercourse at his house when no one was home. He stated that this occurred before the defendant was arrested forsexually assaulting the victim.

Trial counsel also testified. He stated that he did notinterview T.R. before the trial, but did speak to him afterwards. He stated that he did not attempt to admit the evidence of thevictim's sexual relations with T.R. because he felt it would beinadmissible under the rape shield doctrine. He further testifiedthat he did not attempt to present to the jury the fact that thevictim had pending charges and was in State custody because he didnot feel it was admissible evidence. The trial court let theverdicts stand and, after a sentencing hearing, sentenced thedefendant to 20 years' imprisonment.

The defendant asserts that trial counsel was ineffective for:(1) failing to interview T.R. and present his testimony at trial,and (2) failing to present evidence that the victim had pendingcharges and was in juvenile custody at the time of the trial. Whenreviewing an allegation of ineffective assistance of counsel,courts apply the two-prong analysis adopted by the Supreme Court inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984). Under the Strickland analysis, the defendant mustshow that counsel's performance fell below an objective standard ofreasonableness, and that counsel's errors prejudiced the defendant. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Peoplev. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Decisionsinvolving trial tactics are normally immune from claims ofineffective assistance of counsel. People v. Trent, 315 Ill. App.3d 437, 734 N.E.2d 1 (2000). However, if counsel makes tacticaldecisions based on a misapprehension of the law, those decisionsmay cause counsel to be deemed ineffective. See People v. Wright,111 Ill. 2d 18, 488 N.E.2d 973 (1986). In order for a defendant tobe prejudiced by counsel's ineffective assistance, counsel'sunprofessional errors must undermine confidence in the outcome ofthe trial. People v. Enis, 194 Ill. 2d 361, 743 N.E.2d 1 (2000).

I.

To analyze the defendant's ineffectiveness claim, we mustfirst look to the substantive law involved. The rape shielddoctrine bars the admission of any evidence of prior sexual conductby the victim, except for the victim's previous relations with thedefendant, or "when constitutionally required to be admitted." 725ILCS 5/115--7(a)(2) (West 2000). In some instances, due processrequires the admission of evidence of the victim's sexual historywhere that evidence is relevant to a critical aspect of thedefense. People v. Hill, 289 Ill. App. 3d 859, 683 N.E.2d 188(1997). Evidence of the victim's prior sexual history may beadmissible when that history explains some physical evidence, suchas semen, pregnancy, or physical indications of intercourse. People v. Sandoval, 135 Ill. 2d 159, 552 N.E.2d 726 (1990).

Here, T.R. testified at the post-trial motion hearing that hehad sexual intercourse with the victim in the summer of 1999,before she made these allegations against her father. The victimwas examined in mid-August 1999, at which time the cleft in herhymen was discovered. The State's expert could not determine whenthe victim might have had sexual intercourse. This evidence ofsexual conduct provided a plausible alternative source of theState's physical evidence and would therefore be admissible underthe constitutional exception provision of the rape shield doctrine. Trial counsel stated that he did not interview this witness untilafter trial because he felt that the evidence would be inadmissibleunder the rape shield doctrine. Counsel's failure to present thisevidence meets the first prong of the Strickland standard.

Next, we turn to the second Strickland prong, prejudice to thedefendant. The evidence in this case was closely balanced. TheState's evidence consisted primarily of the victim's version ofevents and the physical evidence of sexual activity. The defendanttestified and denied the allegations. The primary physicalevidence corroborating the victim's accusations was the cleft inher hymen. The victim was 12 years old at the time of the allegedoffense. The natural presumption with children is that they aresexually innocent. Therefore, a reasonable inference from thephysical evidence presented was that the victim's father hadsexually assaulted her. However, there was another plausibleexplanation for that evidence that counsel did not present. If thejury had known this information, they might well have reached adifferent verdict. This error, standing alone, is sufficient toundermine our confidence in the outcome of the defendant's trial. As a result, we find that the defendant has met his burden underboth prongs of Strickland, and shown that counsel was ineffective.

II.

The defendant also asserts that trial counsel was ineffectivefor failing to present evidence that the victim was in Statecustody and facing charges. Again, we apply the two-prongStrickland test. First, to analyze whether counsel's performancewas not objectively reasonable, we must look to the substantivelaw. A witness may be impeached by presenting evidence that thewitness has pending charges or is in State custody at the time oftrial, as it tends to show the testimony may be influenced by bias,interest, or motive to lie. People v. Triplett, 108 Ill. 2d 463,485 N.E.2d 9 (1985); People v. Bull, 185 Ill. 2d 179, 705 N.E.2d824 (1998). A defendant need not show that the witness has beenpromised leniency; the evidence must only give rise to theinference that the witness has something to gain by testifying. People v. Davis, 185 Ill. 2d 317, 706 N.E.2d 473 (1998). Additionally, the witness need not be in custody on charges related tothose on which the defendant is being tried. Triplett, 108 Ill. 2d463, 485 N.E.2d 9.

Here, the victim was the only eyewitness against the defendant. She had pending charges for retail theft and domesticbattery against her mother and was in State custody at the time ofthe defendant's trial. This evidence was admissible to show biasor a possible reason for the victim to fabricate her testimony. Trial counsel's assumption that the evidence was not admissible wasmistaken. His failure to introduce this evidence was not objectively reasonable, and the defendant has met the standard of thefirst prong of the Strickland test.

Next, we must determine if counsel's performance prejudicedthe defendant. Here, the credibility of the victim was critical tothe State's case. Evidence that she might have been biased or hada motive to lie could have changed the jury's decision. Thefailure of trial counsel to admit this evidence substantiallyundermines our confidence in the verdict, and we conclude that thedefendant was prejudiced by counsel's ineffectiveness. Thedefendant has met the two-prong Strickland test and shown counselwas ineffective.

For the foregoing reasons, the judgment of the circuit courtof Peoria County is reversed and this cause is remanded for a newtrial consistent with this opinion.

Reversed and remanded.

McDADE and SLATER, JJ., concur.