{ "id": 8498815, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LAWLER, Defendant-Appellant", "name_abbreviation": "People v. Lawler", "decision_date": "1989-03-23", "docket_number": "No. 4\u201488\u20140268", "first_page": "464", "last_page": "472", "citations": [ { "type": "official", "cite": "181 Ill. App. 3d 464" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "457 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "518-19" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 14", "category": "reporters:state", "reporter": "Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "388 U.S. 920", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187520, 6187331, 6186984, 6188617, 6188237, 6188021, 6188440, 6187163, 6187773 ], "opinion_index": 0, "case_paths": [ "/us/388/0920-04", "/us/388/0920-03", "/us/388/0920-01", "/us/388/0920-09", "/us/388/0920-07", "/us/388/0920-06", "/us/388/0920-08", "/us/388/0920-02", "/us/388/0920-05" ] }, { "cite": "225 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "11-12" } ], "opinion_index": 0 }, { "cite": "36 Ill. 2d 620", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377129 ], "year": 1967, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0620-01" ] } ], "analysis": { "cardinality": 876, "char_count": 18253, "ocr_confidence": 0.751, "pagerank": { "raw": 5.925142974760291e-08, "percentile": 0.37005246251808505 }, "sha256": "a930dda9414fefc461ad114033c5f290971e776052d561c09bbf7b5a8a2b6d95", "simhash": "1:c8bd2eec2e748d57", "word_count": 3124 }, "last_updated": "2023-07-14T20:30:31.344826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McCULLOUGH, P.J., and SPITZ, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LAWLER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nDefendant was charged with one count of aggravated criminal sexual assault. (III. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14(b)(1).) The defendant was 25 years old at the time of the incident and the victim was 12 years old. After a jury trial, the defendant was convicted and sentenced to 15 years\u2019 imprisonment. Defendant appeals, alleging the trial judge abused his discretion in finding the complaining witness competent to testify. Defendant also appeals the trial court\u2019s order assessing costs of a transcript on appeal against his bond proceeds.\nThe complaining witness, D.Y., was a mildly mentally retarded girl, 13 years old at the time of trial. On January 24, 1988, immediately before trial, a hearing was held to determine her competency to testify. She knew her name, age, address, grade in school, and the names and ages of the other children in her household. She told the prosecution she had promised to tell the truth when sworn in and said she would. She understood it was bad to tell a lie in the courtroom. She replied, \u201cNo, I don\u2019t,\u201d to the question, \u201c[D]o you know the difference between when somebody tells the truth and somebody tells a lie?\u201d She said she did not know if it would be a lie if defense counsel said the judge had a hat on. The witness also said she had trouble remembering things and could not recall the previous Halloween, Christmas, and what she did on her birthday, which was 21k weeks ago.\nThe judge found the witness was responsive to questions and communicated well, knew the meaning of the oath within the requirements, but characterized her recollection as \u201cnot good.\u201d His impression was the witness definitely had not been coached. The judge found her competent to testify and said her competency to recall the occurrence could be brought out in cross-examination.\nAt trial, D.V. testified she lived with her parents, three brothers, one sister, Jolene, a friend of her mother\u2019s, and Jolene\u2019s three children. She said the defendant had touched her \u201cprivate part\u201d with his \u201cprivate part\u201d before Christmas. The incident had occurred in the bedroom of her house when the defendant was living there. K.R., Jolene\u2019s eight-year-old daughter, and the victim\u2019s 11-year-old sister were also in the bedroom at that time. The victim did not at first tell anyone about the incident but Jolene's daughter did. D.V. then told \u201cthe cops\u201d and a doctor. On cross-examination, D.V. stated she had trouble remembering the incident but then stated she could remember.\nVirginia Vogel, the victim\u2019s stepmother, testified D.V. was mildly mentally disabled. D.V. slept in a bedroom with her 11-year-old sister, who was also mentally retarded, and with K.R., Jolene\u2019s daughter. The defendant, David Lawler, Virginia Vogel\u2019s 25-year-old cousin, lived in the household during October. On October 23, 1987, the defendant received a check and said he was \u201cgoing out partying.\u201d Mrs. Vogel left the house at 6 p.m. and when she returned at 8 p.m. the defendant was gone. On November 4, 1987, K.R. told her something unusual had happened. After talking to D.V., Virginia Vogel reported the assault to the police.\nPolice officer Michael Rearden testified he had spoken with D.V. on November 4 and the girl said she had been sexually assaulted.\nK.R., Jolene\u2019s daughter, testified she was eight years old and in the second grade. During the night, about a week before Halloween, she and D.V. were asleep on a bunk bed in their bedroom. Lawler came into the bedroom and woke K.R. up. She asked where D.V. was. The defendant said D.V. was in another bed in the bedroom. The defendant then went over to the other bed, took off his shorts and got into bed with D.V. He was naked. K.R. later told D.V.\u2019s mother what had happened.\nA physician, Dr. Terry Balagna, testified he examined D.V. on November 4, 1987, and found she had a perforated hymen. He could not tell when it had been perforated or the cause. The perforation could have been caused by an adult male penis.\nThe defendant, David Lawler, stated he did not have sex with D.V. on the night in question. He went to three bars on the evening of October 23, had one drink at each bar, and then went to two restaurants with a friend named Kevin. He got home at daylight. He stated he did not get drunk and denied making any incriminating statements to the police. Police officer Diane Beggs testified she questioned the defendant on the evening of November 5, 1987. At first the defendant denied the allegations of sexual assault. Then, about midway through the interview, the defendant said he had sexual intercourse with the \u25a0victim. The two other girls were also present in the bedroom. He said he had been very drunk that night. In rebuttal, the officer stated Lawler never mentioned going to the restaurants with a person named Kevin. Defendant told Officer Beggs he had met an out-of-town girl at a bar and had sex with her. He stated he had this girl on his mind when he returned to the girls\u2019 bedroom and had sexual intercourse with D.V. Toward the end of the interview, the defendant began crying and said he wanted to tell D.V.\u2019s mother he had not meant to hurt her stepdaughter when he had intercourse with her and he was sorry.\nThe jury returned a verdict of guilty and the defendant was sentenced to 15 years\u2019 imprisonment. At the sentencing hearing, the defendant said he wanted to appeal. The judge ordered the cost of the transcript be paid from the balance of Lawler\u2019s bond proceeds.\nA determination of competency by a trial judge is not to be set aside unless it amounts to an abuse of discretion or is based on a manifest misapprehension of some legal principle. People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 11-12, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.\nChronological age is not the determining factor in competency hearings. The proper inquiry is whether the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth. People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.\nOf the four criteria for determining competency of a witness, the trial judge cited one factor of being of some concern \u2014 the witness\u2019 ability to recollect. Although D.V. did recall the names and ages of the other children in her household and the date of her birthday, these are not events. She could not remember what she did on Halloween, Christmas, or her birthday. She did remember her birthday was several weeks previous. However, the witness exhibited no difficulty remembering the occurrence of October 24, 1987.\nIn In re A.M.C. (1986), 148 Ill. App. 3d 775, 780, 500 N.E.2d 104, 107, a five-year-old victim of aggravated criminal sexual assault was, upon questioning, unable to demonstrate a temporal awareness of time, days, dates, and holidays. The appellate court said this failing did not appear to hurt her description of the incident.\nEven though the witness\u2019 ability to remember events appeared questionable to the trial judge after the competency hearing, the modern tendency is to permit a questionable witness to testify and allow this testimony to be impeached. (People v. Seel (1979), 68 Ill. App. 3d 996, 1006, 386 N.E.2d 370, 378.) The defense was not able to impeach D.V.\u2019s testimony. In fact, it was corroborated in part by the testimony of J.R. The only contradiction of D.V.\u2019s testimony was the defendant\u2019s uncorroborated statement that he was out till daylight on the night in question. Also, the witness did not seem to be confused or unable to answer the questions in testifying during trial about the occurrence.\nIn the competency hearing, the witness gave contradictory answers to questions concerning her ability to appreciate truth and falsehood. The prosecutor asked her if she knew the difference \u201cbetween when somebody tells the truth and when somebody tells a lie.\u201d She replied, \u201cNo, I don\u2019t.\u201d The witness may have believed the prosecutor was asking if she could tell whether or not a person is lying. The witness said she did not know if it was good or bad to tell a lie but later stated she had promised to tell the truth when sworn in and she would tell the truth. When asked if it was important to tell the truth in a courtroom, she replied \u201cyes.\u201d The record reflects she may have been confused when called on to answer questions with a \u201cyes\u201d or \u201cno.\u201d She may also have had trouble answering hypothetical questions \u2014 \u201cIf I said the judge had a hat on would that be true?\u201d\nThe defendant argued D.Y. testified she knew the difference between a lie and the truth only when the prosecution asked leading questions. In People v. Spencer (1983), 119 Ill. App. 3d 971, 979, 457 N.E.2d 473, 485, an adult complaining witness was mute, did not know standard sign language, and was mildly to moderately mentally retarded. Her testimony, using gestured responses and anatomically correct dolls, was upheld. In that case, the court held the allowance of leading questions was within the discretion of the trial judge. The court found that given the witness\u2019 physical disability, there was no abuse of discretion in allowing leading questions. See also People v. Bell (1985), 132 Ill. App. 3d 354, 362-63, 476 N.E.2d 1239, 1245, cert. denied (1985), 474 U.S. 852, 88 L. Ed. 2d 127, 106 S. Ct. 153 (mentally retarded adult).\nIn Spencer (119 Ill. App. 3d at 977, 457 N.E.2d at 478), the court noted it was difficult to tell whether the mute and mentally retarded witness was answering the questions or expressing her agreement with the idea contained therein. The court ruled this problem went to her credibility, not her competency to testify. In People v. Daniels (1987), 164 Ill. App. 3d 1055, 1075, 518 N.E.2d 669, 683, the 10-year-old witness said she did not know what an oath was and did not know what the judge or her mother would do to her if she lied. She was found competent to testify because she said she knew to tell the truth meant to tell what happened. Also, there was no evidence the witness lied on the stand.\nIn a recent fourth district case, People v. Born (1987), 156 Ill. App. 3d 584, 588-89, 509 N.E.2d 125, 127, a four-year-old girl was allowed to testify. She had responded she did not know what it meant to answer questions truthfully but then stated she knew what it meant to tell the truth and what it meant to tell a lie. The court found an imperfect response does not invalidate a finding of competency in light of the totality of the responses. Instead of characterizing the witness\u2019 answers as contradictory, the court said this confusion \u201cevinces instead the minor\u2019s ability to relate to basic concepts of truth and falsehood simply phrased, as opposed to a slightly more complex query.\u201d\nIn the instant case, the witness may well have given ambivalent answers as to knowledge of truth and falsehood. However, the record reflects she did respond she would tell the truth, the truth being to tell what happened, when asked in an understandable manner. The witness may have had trouble answering hypotheticals. She may also have had trouble understanding the content of some questions concerning truth and falsehood. The judge said the witness had definitely not been coached. There is ample testimony to support the trial judge\u2019s finding of D.V.\u2019s competency.\nSince the controlling factor is the degree of intelligence, not the child\u2019s chronological age, it is irrelevant D.V. did not possess the intelligence of an average 13-year-old. Moreover, the trend of recent cases is to allow very young children to testify. (People v. McNichols (1986), 139 Ill. App. 3d 947, 952-53, 487 N.E.2d 1252, 1256-57 (witness was four at the time of the offense and five at the time of trial).) The proper inquiry was what intelligence she did possess and whether she met the aforementioned criteria for determining competency of a witness.\nConsidering the totality of the complaining witness\u2019 testimony and the recent trend to allow testimony, we hold the trial court did not abuse its discretion in allowing the testimony to stand.\nEven if the complaining witness had not testified, the overwhelming weight of the remaining evidence would still support the verdict. There is the testimony of K.R., the eight-year-old who is not mentally retarded and who witnessed the defendant get into bed naked with the victim. There is also the testimony of the physician, who stated the victim\u2019s hymen had been perforated at some time, such perforation not inconsistent with sexual intercourse. There is also the testimony of Officer Beggs, who stated the defendant had confessed to sexual intercourse with the victim.\nWe now turn to defendant\u2019s argument that the money remaining from his bond should not have been applied to the cost of a transcript on appeal. Supreme Court Rule 607(b) provides a free transcript shall be made available to an indigent defendant who is entitled to an appeal. (107 Ill. 2d R. 607(b).) It does not address the issue of whether the bond proceeds may be applied to the cost of a transcript for an indigent. This issue has been recently addressed by the fourth district in People v. Bond (1989), 178 Ill. App. 3d 1020, where the court said the defendant was entitled to proceed under Rule 607(b) and the trial court improperly assessed the cost of the transcript against the defendant. Bond did not address the parties\u2019 arguments in the instant case, so a discussion of this issue is still in order.\nThe allowance and recovery of costs, being unknown at common law, is entirely statutory and must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197.) The cases cited by the defendant refer to the common law rule that the costs of criminal prosecution are not assessed against the defendant. However, the instant case concerns the cost of appeal \u2014 not the cost of the trial court proceedings. Therefore, the strict construction rule would not necessarily apply in this case. The general rule is that all provisions shall be liberally construed in order to effect the intent of the legislature. (Ill. Rev. Stat. 1987, ch. 1, par. 1002.) This rule of construction also applies to supreme court rules. 107 Ill. 2d R. 2(a).\nThe supreme court specifically provided for free transcripts to indigents in Supreme Court Rule 607(b). In Rule 607(a) (107 Ill. 2d R. 607(a)), the supreme court allowed for a statutory exception for compensation and reimbursement for expenses of an appointed attorney. (See Ill. Rev. Stat. 1987, ch. 38, par. 121 \u2014 13.) (This was held constitutional and not a violation of due process in People v. Kelleher (1983), 116 Ill. App. 3d 186, 189-91, 452 N.E.2d 143, 145-47.) Rule 607 makes no exception for applying bail money to the cost of the transcript. The supreme court did make an exception for attorney fees. Even if the rule need not be strictly construed, it is in keeping with the supreme court\u2019s intent to adhere to the rule unless there is an expressed exception allowed.\nThe common law rule that the defendant in criminal cases should not bear costs in trial court proceedings evinces a general policy favoring statutory exceptions only. However, we are not holding that any fees or costs imposed on a criminal defendant on appeal must be statutorily imposed.\nIn People v. Nicholls (1978), 71 Ill. 2d 166, 176, 374 N.E.2d 194, 198, the court acknowledged some inconsistency in allowing bond proceeds to be applied to attorney fees and not to the cost of an indigent\u2019s transcript. Finding no legislative intent to the contrary, the court held a reasonable construction of the two rules compelled the assessment of costs for attorney fees. Conversely, a reasonable construction of the two rules would indicate the supreme court did not intend for bond proceeds to be applied toward a transcript on appeal.\nCiting People v. Nicholls (1978), 71 Ill. 2d 166, 177, 374 N.E.2d 194, 198, the State argues under section 110 \u2014 7(h) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110 \u2014 7(h)), the deposit of 10% of the bail constitutes a fund from which a judgment for f\u00edne and costs against the defendant may be satisfied, regardless of whether or not the defendant personally put up the money. The problem with this argument is that the fee for the transcript is not a f\u00edne or cost imposed as a result of a judgment against the defendant.\nThe defendant also argues any statute mandating that a criminal pay the cost of a transcript would conflict with Rule 607(b) and would, therefore, be unconstitutional as a violation of the separation of powers doctrine. However, as the defendant notes, the State has made no argument there is such a statute. Furthermore, the defendant raises this argument for the first time in his reply brief and, therefore, it is waived. Pinsker v. Kansas State Bank (1986), 142 Ill. App. 3d 216, 222, 491 N.E.2d 826, 829; 107 Ill. 2d R. 341(e)(7).\nBecause the trial court lacked authority to seize the bond proceeds to pay for the transcript, the defendant did not waive this issue by failing to object at trial court. (Compare People v. Hodges (1983), 120 Ill. App. 3d 14, 16, 457 N.E.2d 517, 518-19 (defendant does not waive right to challenge assessment of costs by failing to object).) The trial court improperly assessed the defendant for the cost of the transcript.\nWe affirm the judgment of conviction and sentence entered in the circuit court of Macon County. We reverse the order to pay the costs of the transcript from the defendant\u2019s bond proceeds and remand to the court with instructions to refund to the defendant the sum of $48.\nAffirmed in part; reversed in part and remanded.\nMcCULLOUGH, P.J., and SPITZ, J., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Larry R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and William P. Ryan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LAWLER, Defendant-Appellant.\nFourth District\nNo. 4\u201488\u20140268\nOpinion filed March 23, 1989.\nDaniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLarry R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and William P. Ryan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0464-01", "first_page_order": 486, "last_page_order": 494 }