{ "id": 3594182, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAIR E. VISGAR, Defendant-Appellant", "name_abbreviation": "People v. Visgar", "decision_date": "1983-12-20", "docket_number": "No. 82\u2014314", "first_page": "584", "last_page": "596", "citations": [ { "type": "official", "cite": "120 Ill. App. 3d 584" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "337 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869957 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0432-01" ] }, { "cite": "399 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3233262 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0051-01" ] }, { "cite": "73 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441195 ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0192-01" ] }, { "cite": "88 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083586 ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0225-01" ] }, { "cite": "446 N.E.2d 1229", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626907 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0143-01" ] }, { "cite": "366 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386723 ], "pin_cites": [ { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0224-01" ] }, { "cite": "52 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393100 ], "weight": 2, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0260-01" ] }, { "cite": "56 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404662 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0162-01" ] }, { "cite": "401 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1067", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3231092 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1067-01" ] }, { "cite": "5 Ill. 2d 474", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2702767 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/5/0474-01" ] }, { "cite": "80 S. Ct. 812", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1955, "opinion_index": 0 }, { "cite": "4 L. Ed. 2d 864", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6164395 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/us/362/0389-01" ] }, { "cite": "362 U.S. 403", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164811 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/us/362/0403-01" ] }, { "cite": "14 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2771043 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/14/0203-01" ] }, { "cite": "386 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 996", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307127 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0996-01" ] }, { "cite": "18 A.L.R.3d 1433", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1983, "opinion_index": 0 }, { "cite": "388 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 889", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575804 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0889-01" ] }, { "cite": "343 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5304786 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/1075-01" ] }, { "cite": "95 S. Ct. 1584", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1978, "opinion_index": 0 }, { "cite": "43 L. Ed. 2d 787", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "421 U.S. 919", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541793, 541953, 541976, 541893, 541029, 541693, 541010, 541425, 541681, 541656, 541531, 541725, 541983 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/421/0919-06", "/us/421/0919-10", "/us/421/0919-13", "/us/421/0919-02", "/us/421/0919-03", "/us/421/0919-04", "/us/421/0919-01", "/us/421/0919-05", "/us/421/0919-09", "/us/421/0919-08", "/us/421/0919-11", "/us/421/0919-07", "/us/421/0919-12" ] }, { "cite": "315 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379841 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0676-01" ] }, { "cite": "102 S. Ct. 404", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "70 L. Ed. 2d 217", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "454 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6415968, 6415235, 6415309, 6416141, 6415633, 6416275, 6415862, 6415415, 6415001, 6415515, 6415135 ], "opinion_index": 0, "case_paths": [ "/us/454/0900-09", "/us/454/0900-03", "/us/454/0900-04", "/us/454/0900-10", "/us/454/0900-07", "/us/454/0900-11", "/us/454/0900-08", "/us/454/0900-05", "/us/454/0900-01", "/us/454/0900-06", "/us/454/0900-02" ] }, { "cite": "415 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5532981 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0035-01" ] }, { "cite": "405 N.E.2d 1121", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1133" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3191822 ], "weight": 3, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0059-01" ] }, { "cite": "364 N.E.2d 484", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637349 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0449-01" ] }, { "cite": "383 N.E.2d 1336", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1977, "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 647", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3322514 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0647-01" ] }, { "cite": "395 N.E.2d 682", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277977 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0931-01" ] }, { "cite": "301 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 860", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343907 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0860-01" ] }, { "cite": "334 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2712451 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0679-01" ] }, { "cite": "422 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3113525 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0299-01" ] }, { "cite": "52 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395763 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0013-01" ] }, { "cite": "10 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724671 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/10/0288-01" ] }, { "cite": "49 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911902 ], "weight": 4, "year": 1957, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0078-01" ] } ], "analysis": { "cardinality": 1005, "char_count": 26854, "ocr_confidence": 0.754, "pagerank": { "raw": 1.463753659626374e-07, "percentile": 0.6578644160335216 }, "sha256": "15b7b3278b9fe82454958e88d02f031e817b07e2c81d56440ad39a34846307d8", "simhash": "1:3b7c3d5e666828d7", "word_count": 4441 }, "last_updated": "2023-07-14T17:15:36.278372+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAIR E. VISGAR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LINDBERG\ndelivered the opinion of the court:\nDefendant, 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 \u2014 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 \u2014 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\u2019 imprisonment. On appeal, he claims certain errors occurred with regard to discovery, evidence, and argument of counsel. We affirm.\nThe trial centered on the allegations of defendant\u2019s 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.\nI\nDefendant 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\u2019s hymen was intact, it was highly relevant to the credibility of her allegation that defendant had had intercourse with her.\nThe 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, held that \u201c[t]here is no question of the [trial] court\u2019s jurisdiction to order an examination of the complaining witness in a case involving a sex violation ***.\u201d 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, 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, and numerous times by the appellate court (see, e.g., People v. Davis (1981), 97 Ill. App. 3d 299, 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\u2019s 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.\nApart from jurisdiction to order a physical examination, both parties acknowledge that a trial court\u2019s discretion to order such an examination of the complainant in a sex offense case is grounded upon the defendant\u2019s presentation of a compelling reason to do so. (People v. Glover (1971), 49 Ill. 2d 78.) Defendant argues that his compelling reason is to determine whether the complainant\u2019s hymen was intact.\nHowever, 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\u2019s motion. At the time of defendant\u2019s motion, he was charged only with having \u201clewdly fondled or touched\u201d 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\u2019s 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\u2019s motion.\nII\nDefendant 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.\nUpon 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\u2019s 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.\nDefendant 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\u2019s 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\u2019s inspection.\nUpon 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 Wassermann (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.\nDisclosures 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:\n\u201c(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:\n* * *\n(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations ***.\u201d (87 Ill. 2d R. 412.)\nThe State\u2019s 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, 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, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill. App. 3d 449, 364 N.E.2d 484.\nWith regard to the State\u2019s failure to disclose the results of the complainant\u2019s 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, 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, 405 N.E.2d 1121.) Here, defendant\u2019s 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\u2019s 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, 415 N.E.2d 688, cert, denied (1981), 454 U.S. 900, 70 L. Ed. 2d 217, 102 S. Ct. 404.) Thus, we consider defendant\u2019s allegation of error to be waived by his pursual of an inappropriate, more extreme remedy at trial.\nEven aside from waiver, however, we find no merit in defendant\u2019s allegation of discovery violation by the State. There is no indication that the State was aware of a physical examination of the complainant or possessed its results prior to defense counsel\u2019s cross-examination of the complainant at trial. It has been held repeatedly under similar circumstances that no discovery violation has occurred, even if absence of the subject matter remains unexplained. See, e.g., People v. Rosenborgh (1974), 21 Ill. App. 3d 676, 315 N.E.2d 545, cert, denied (1975), 421 U.S. 919, 43 L. Ed. 2d 787, 95 S. Ct. 1584; People v. Molsby (1978), 66 Ill. App. 3d 647, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill. App. 3d 449, 364 N.E.2d 484; People v. Steptoe (1976), 35 Ill. App. 3d 1075, 343 N.E.2d 1.\nThe fact that the DCFS file contained some information about physical examination of the complainant does not alone establish improper suppression of discoverable material by the State. In People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121, possession by the Chicago Transit Authority (CTA) of a doctor\u2019s report on the victim in a battery case was not imputed to the State for purposes of Rule 412 disclosure requirements. The Sakalas court relied upon the language of paragraphs (f) and (g) of Rule 412 (87 Ill. 2d R. 412(f), (g)) to hold that \u201cwhile the State is expected to know of the existence of material in the possession of the police department, as it is an investigative body, there is no expectation that the State know of information possessed by a non-investigative governmental body such as the CTA.\u201d (85 Ill. App. 3d 59, 74, 405 N.E.2d 1121, 1133.) Similarly here, knowledge of the physical examination of the complainant by DCFS, a non-investigative governmental body, will not be imputed to the State. Without knowledge of the examination or possession of its results, the State cannot be found to have suppressed the material. Sakalas; People v. Molsby (1978), 66 Ill. App. 3d 647, 383 N.E.2d 1336.\nBut defendant also claims error by the trial court in not divulging information about the examination after its in camera inspection of the DCFS file. Sections 11 and 11.1 of the Abused and Neglected Child Recording Act, under which the State sought to block disclosure of the contents of the DCFS file, provided in pertinent part as follows:\n\u201cSec. 11. All records concerning reports of child abuse and neglect and all records generated as a result of such reports, shall be confidential and shall not be disclosed except as specifically authorized by this Act or other applicable law. ***\u201d\n\u201cSec. 11.1. A person shall have access to the records described in Section 11 only in furtherance of purposes directly connected with the administration of this Act. Such persons and purposes for access include:\n* * *\n(7) A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it;\n* * * >>\nHI. Rev. Stat. 1979, ch. 23, pars. 2061, 2061.1\nIn this case, then the purpose of the trial court\u2019s in camera inspection pursuant to Rule 415(f) and section 11.1 was to select out of the DCFS file that information which was (1) requested, (2) discoverable under law, and (3) necessary for the resolution of an issue before it, while keeping confidential all else.\nRule 412(a)(iv) requires the disclosure upon an accused\u2019s request of \u201cany reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations.\u201d (Emphasis added.) (87 Ill. 2d R. 412(a)(iv).) Defendant\u2019s discovery motion requested production of evidence using the same language as the rule. Thus, only the results of examinations were mandatorily discoverable and only results were requested from the State. After the trial court\u2019s inspection of the DCFS file, defense counsel spelled out with particularity what he had hoped to learn from the file: information about the complainant\u2019s mental health and whether the complainant had made prior allegations of sexual abuse.\nThe information regarding the mere fact of whether a physical examination was conducted was never requested and, unless accompanied by the results of that examination, was not subject to mandatory disclosure. The information in the DCFS file contains only the fact that a pelvic examination was made on or about July 29, 1980, and that a pregnancy test proved negative. The only information possibly to be found in the results of a physical examination which defendant argues would be \u201cnecessary for the resolution of an issue\u201d in this case would be whether the complainant\u2019s hymen was intact, a fact not revealed in the DCFS file. Therefore, the file contained no information which was requested by defendant, subject to mandatory disclosure, and necessary for the resolution of an issue before the court. The trial court\u2019s failure to disclose was not error.\nIll\nDefendant also contends that the trial court erred in denying his motion to have the complainant mentally examined by a psychiatrist. As with the physical examination issue, the State first argues that the trial court lacked jurisdiction to order such an examination. The Illinois Supreme Court has specifically held that a trial court may order a psychiatric examination of the complaining witness in a criminal case involving a sex violation. (People v. Rossi (1972), 52 Ill. 2d 13; People v. Glover (1971), 49 Ill. 2d 78.) Once that court has declared the law on point, this court may not overrule or modify that ruling. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.) We note that Illinois is just one of the many States which has permitted its courts the power to order such an examination (see Annot., 18 A.L.R.3d 1433 (1968 & Supp. 1983)), and that recently enacted Public Act 83 \u2014 289 would prohibit court-ordered mental examinations of sex victims only after January 1,1984.\nWhether to order a psychiatric examination of the complainant in a sex offense prosecution was within the discretion of the trial court, and the moving party must have presented a compelling reason for such examination. (People v. Glover (1971), 49 Ill. 2d 78; People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370.) As a compelling reason, defendant points to the fact that the complainant had been placed in a psychiatric ward for children for two months in 1979 and that she had previously alleged sexual misconduct toward her by her step-father. Defendant argues that these facts suggest that \u201csignificant impeachment evidence\u201d may have been produced by a mental examination and that the complainant may have lied about her father\u2019s conduct.\nWith regard to the complainant\u2019s stay in a psychiatric ward, defendant fails to establish how that fact relates to her competency to testify. The complainant testified that she went to the institution because she \u201cwas upset and angry *** [about] the fact that I didn\u2019t have a family.\u201d Previous hospitalization for mental problems by itself does not present a compelling need to order a psychiatric examination where the defendant fails to establish a connection between the witness\u2019 mental problem and her ability to give competent testimony. See People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370; People v. Dentley (1975), 31 Ill. App. 3d 679, 334 N.E.2d 774.\nNor would the complainant\u2019s prior allegation of sexual misconduct by her step-father have warranted her psychiatric examination. Defendant\u2019s suggestion that that previous allegation was a fabrication is unfounded. The complainant testified that her step-father had pleaded guilty to the offense and had been sentenced to 18 months\u2019 imprisonment. Defendant does not now challenge the truth of this testimony. We do not view it to be a compelling reason to submit the complainant here to a psychiatric examination merely because defendant suggests without substantiation that a previous sexual misconduct allegation by her might have been the result of \u201csome fantasies.\u201d The fact that fabrication on the part of the complainant could not be totally ruled out was counterbalanced adequately by defendant\u2019s opportunity, fully employed, to attempt to impeach her during cross-examination with regard to the previous allegation, as well as her psychiatric hospitalization. (See People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370.) Her veracity could adequately be weighed by the trier of fact without a psychiatric examination.\nDefendant cursorily adds that he was improperly denied access to the results of any previous psychiatric examinations conducted on the complainant and found in the DCFS file. In quashing defendant\u2019s subpoena duces tecum with regard to the DCFS file, the court indicated that \u201cthe matters that maybe [sic] in the file in regard to the mental health of [the complainant] and whether she has ever had treatment or been adjudicated incompetent or diagnosed with a psychosis *** are within the knowledge of this defendant ***.\u201d Defense counsel acknowledged to the trial court that he had information about the complainant\u2019s psychiatric treatment in Florida in 1979. Our inspection of the DCFS file reveals no other psychiatric examination of the complainant before trial. Because defendant was not denied any psychiatric information from the file not already within his knowledge, we find no error.\nIV\nDefendant next contends that it was error for the prosecutor in her rebuttal argument at the close of trial to point out that defendant could have but did not call a doctor to testify about the complainant\u2019s condition. Defendant argues on appeal that the prosecutor\u2019s remarks were improper because he had in fact moved to have the complainant examined by a doctor but was prevented by the State\u2019s objection which was sustained by the court.\nDuring his closing argument, defense counsel made the following remarks:\n\u201cThis girl was supposedly examined by a medical doctor on July 22nd, 1980. If that\u2019s true or not, we only have the girl\u2019s word. You better believe if there was a doctor involved in this and it could support any evidence to substantiate what that girl was saying, the state would have brought that doctor in here.\nWhat did he find that we don\u2019t know about? I don\u2019t have the reports. I haven\u2019t seen them. But I sure would have liked to have known if that girl was a virgin on July 22nd, six days after this was suppose [sic] to have taken place. I sure would have liked to know that. It sure would have helped us make up our mind a little bit.\u201d\nDuring the prosecutor\u2019s rebuttal argument, she responded and defense counsel objected as follows:\n\u201cMS. CHODOS: ***Mr. Russell wants to know why we didn\u2019t bring the doctor in. Of course, Mr. Russell can call witnesses just like the state. He didn\u2019t bring a doctor in.\nMR. RUSSELL: Judge, I didn\u2019t even know about the doctor. I object. She knows that.\nTHE COURT: Overruled.\u201d\nIt is well established that while it is error for a prosecutor to comment on the failure of the accused to produce witnesses who are equally accessible to the prosecution, it is not error for the prosecutor to reply to a question propounded by defense counsel why he did not bring in the same witness, so long as the remarks are properly limited to a reply. (People v. Izzo (1958), 14 Ill. 2d 203, appeal dismissed and cert, denied (1960), 362 U.S. 403, 4 L. Ed. 2d 864, 80 S. Ct. 812; People v. Wheeler (1955), 5 Ill. 2d 474; People v. McElroy (1980), 81 Ill. App. 3d 1067, 401 N.E.2d 1069.) Here, the prosecutor\u2019s remarks were limited and directly responded to defense counsel\u2019s remarks questioning the State\u2019s failure to produce the doctor who examined the complainant after she was taken into foster care.\nDefendant points out on appeal that he was denied the opportunity to call an examining doctor by the State\u2019s sustained objection to his motion to have the complainant examined by court order. Therefore, he argues, it was unfair for the prosecutor to say that he could have produced the testimony of the doctor. However, this is the first time the defendant raises this argument. The remarks of defense counsel to which the prosecution was responding referred only to the doctor who the complainant indicated had examined her, not to a doctor that the court might have appointed. When defense counsel objected during rebuttal argument, his basis was only that he \u201cdidn\u2019t even know about the doctor.\u201d And, during the hearing on defendant\u2019s motion for a new trial, he argued error in the prosecutor\u2019s argument only as follows:\n\u201cWell, Judge, I objected at that time. I still object. I didn\u2019t even know there was a doctor until the last day of trial. How could I possibly bring in the doctor? I think it is prosecutorial misconduct when she states I should have brought the doctor in. I had no way of knowing there was a doctor involved. I never received any reports \u2014 still haven\u2019t received any reports as to this girl being examined.\u201d\nThus, the only question presented to the trial court, and therefore the only question that may be argued to this court (People v. Curry (1973), 56 Ill. 2d 162), was the propriety of the prosecutor\u2019s remarks with reference to the doctor who had already examined the complainant.\nDefendant\u2019s trial argument, that the remarks were improper because defense counsel did not know of the doctor\u2019s examination and therefore could not have called that doctor, is not pursued on appeal. It is without merit in any event, because the doctor could properly have been called to testify equally as well by either party, but neither did so because of ignorance of the potential witness\u2019 existence. In People v. Pearson (1972), 52 Ill. 2d 260, both parties had been unsuccessful in their attempts to reach the potential witness. After defense counsel in argument noted the State\u2019s failure to produce the witness, the prosecutor responded, \u201c*** counsel knows why she wasn\u2019t brought into court.\u201d The supreme court, citing People v. Wheeler (1955), 5 Ill. 2d 474, held the prosecutor\u2019s retort permissible as one invited by defense counsel\u2019s remarks. (People v. Pearson (1972), 52 Ill. 2d 260, 274.) Similarly, it was permissible for the prosecutor to state, \u201cthe man is dead\u201d in response to defense counsel\u2019s question \u201cWhere is he?\u201d regarding an uncalled witness. (People v. Griggs (1977), 51 Ill. App. 3d 224, 227-28, 366 N.E.2d 581, 584.) Thus, it is as proper for the State to respond to a defense counsel\u2019s questioning of the absence of a potential witness where both parties face the same impediment to calling a witness as it is proper where neither party is impeded.\nEven if the prosecutor\u2019s remarks were considered improper, reversal would not be warranted. A trial court is given wide latitude in determining the propriety of the closing argument; a reviewing court will not disturb the trial court\u2019s determination absent a clear abuse of discretion based upon the record as a whole and the arguments in their entirety. (People v. Perez (1983), 113 Ill. App. 3d 143, 446 N.E.2d 1229.) The remarks at issue here are the only ones challenged, and we do not view them as causing undue prejudice to defendant.\nV\nDefendant contends that the testimony of the complainant\u2019s sister regarding the fact that the complainant had told her about the alleged offense was improperly admitted. He claims that that testimony did not fit the corroborative complaint exception to the hearsay rule, and, further, that even that exception would not permit the testimony of the complainant\u2019s sister that the complainant had indicated to her that \u201cit had been going on *** for some time.\u201d Since this issue was neither raised in defendant\u2019s post-trial motion nor argued at the hearing on that motion, we consider it waived. People v. Baynes (1981), 88 Ill. 2d 225.\nEven if not waived, we consider any error in admitting the complainant\u2019s sister\u2019s corroborative complaint testimony to be harmless. Before she testified, the complainant herself, without objection, testified that she had told her sister about the incident. Further, the complainant testified that her father had had sexual intercourse with her numerous times between January 1980 and the incident at issue. In People v. Robinson (1978), 73 Ill. 2d 192, hearsay testimony by the complainant\u2019s sister and a police officer of her statements to them regarding details of the rape and the assailant\u2019s identity, although evidence beyond the mere fact of complaint, was admitted. The supreme court, however, found no reversible error because all of the hearsay information was also established directly in the testimony of the complainant, the out-of-court declarant whom the defense counsel could and did cross-examine. Accord, People v. Leggans (1980), 80 Ill. App. 3d 51, 399 N.E.2d 349; People v. Wilcox (1975), 33 Ill. App. 3d 432, 337 N.E.2d 211.\nAccordingly, we affirm the judgment of the circuit court of Winnebago County.\nAffirmed.\nHOPF and NASH, JJ., concur.", "type": "majority", "author": "JUSTICE LINDBERG" } ], "attorneys": [ "G. Joseph Weller and John J. Barrett, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Daniel Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko,, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAIR E. VISGAR, Defendant-Appellant.\nSecond District\nNo. 82\u2014314\nOpinion filed December 20, 1983.\nG. Joseph Weller and John J. Barrett, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDaniel Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko,, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0584-01", "first_page_order": 606, "last_page_order": 618 }