{ "id": 8499289, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES GUNARTT, Defendant-Appellant", "name_abbreviation": "People v. Gunartt", "decision_date": "1991-08-19", "docket_number": "No. 1-88-3565", "first_page": "752", "last_page": "763", "citations": [ { "type": "official", "cite": "218 Ill. App. 3d 752" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "511 N.E.2d 875", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3579233 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0432-01" ] }, { "cite": "488 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "111 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167257 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/111/0018-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "pin_cites": [ { "page": "525-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "694" }, { "page": "2064" }, { "page": "689" }, { "page": "699" }, { "page": "2065" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "402 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "79 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070111 ], "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0103-01" ] }, { "cite": "473 N.E.2d 1227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1240" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 463", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146993 ], "year": 1980, "pin_cites": [ { "page": "491-92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0463-01" ] }, { "cite": "470 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562134 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/1007-01" ] }, { "cite": "447 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 659", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625850 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0659-01" ] }, { "cite": "453 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482359 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0965-01" ] }, { "cite": "389 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "76 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984278 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0019-01" ] }, { "cite": "475 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436830 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0517-01" ] }, { "cite": "385 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "424 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499802 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0682-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1130" }, { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 3, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "532 N.E.2d 1035", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1042" }, { "page": "1041" } ], "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3622005 ], "weight": 2, "pin_cites": [ { "page": "913" }, { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0903-01" ] }, { "cite": "518 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "682" }, { "page": "682" }, { "page": "682" } ], "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581199 ], "weight": 4, "pin_cites": [ { "page": "1073" }, { "page": "1073" }, { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/1055-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "549 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260410 ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0286-01" ] }, { "cite": "538 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] } ], "analysis": { "cardinality": 1162, "char_count": 29081, "ocr_confidence": 0.765, "pagerank": { "raw": 1.2912035875813264e-07, "percentile": 0.619808915500479 }, "sha256": "e97ad170c1c95bf76ebadf66ad546da8a2c8e758fb6098a62b1b5f07f59505b9", "simhash": "1:361d3db73eed8ece", "word_count": 4802 }, "last_updated": "2023-07-14T18:01:44.666066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CAMPBELL and O\u2019CONNOR, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES GUNARTT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court;\nDefendant Charles Gunartt was charged with aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse.\nAfter a bench trial, defendant was found guilty, all counts were merged and the trial court entered judgment against defendant on the aggravated criminal sexual assault charge. Defendant was sentenced to eight years\u2019 imprisonment. Defendant appeals his conviction, alleging that (1) the trial court erred in denying his motion for a new trial, (2) he was denied effective assistance of counsel, and (3) prejudicial error was committed by the prosecution which denied him a fair trial.\nOn July 9, 1987, Dorothy Russell, a/k/a Dorothy Cook, and her two children, L.C. and C.C., went to defendant\u2019s home located at 1926 North Lawndale in Chicago. L.C., defendant\u2019s and Russell\u2019s 10-year-old daughter, was wearing, among other clothing, a dress and stockings. Defendant is the father of L.C. but is not C.C.\u2019s father. L.C. testified that she had not seen her father in \u201ca long time.\u201d This testimony was corroborated by defendant, who claimed he had not seen Russell or L.C. for four years, although he did speak with Russell on the telephone occasionally.\nRussell and the children entered the apartment and both children began to watch television in the front room. The apartment consists of 3V2 rooms, a front room, a kitchen, a bedroom off the kitchen and a bathroom. There is disputed testimony as to whether Russell and her children went across the street to a liquor store and made a purchase. Nonetheless, there is overwhelming testimony that Russell had alcohol on her breath and that she was acting in a drunken and disorderly manner on that date.\nL.C. testified that defendant was standing in the rear of the apartment when he asked her if she wanted a pop. L.C. responded yes, and defendant told her that she would have to come to the kitchen and get the pop herself. C.C. then asked whether he could also have a pop. Defendant told C.C. that he could not. When L.C. got to the kitchen, defendant told her to go to the bedroom and L.C. obeyed. L.C. testified that defendant locked the door. L.C. stated that defendant tore her stockings and told her to pull down her underwear. L.C. did as she was told. Defendant then pulled down his pants and underwear. L.C. testified that defendant \u201cput his private part inside\u201d her vagina for about one minute. L.C. cried and told defendant to get off her. L.C. next noticed her brother standing at the bedroom door.\nL.C. went out of the bedroom to her mother, who was in the front room. Russell asked defendant, \u201cWhat did you do to my baby?\u201d Russell told L.C. to call the police, but defendant would not let her use the telephone. Defendant went to the kitchen, obtained a knife and stabbed Russell in the foot. Then defendant\u2019s girl friend came into the apartment and struck Russell. Russell and the children left the apartment. Russell and her children went to the Jehovah\u2019s Witnesses across the street and called the police. Russell, however, saw a police car and went out into the street and waved it down. Russell and her children were taken to Mount Sinai Hospital. L.C. stayed there for several days.\nC.C.\u2019s testimony substantially corroborates L.C.\u2019s story. C.C. testified that he went to the kitchen to get some water and heard his sister crying. C.C. went to the bedroom door, which he testified was ajar, and opened it. C.C. saw L.C. standing by the door with her stockings around her ankles and noticed that they were torn.\nPolice officer Ohse testified that at approximately 8 p.m. on July 9, 1987, Russell flagged down him and his partner. Ohse testified that Russell had been \u201cstruck a few times and was bleeding in some places.\u201d Russell claimed to have had a fight with defendant. Ohse smelled alcohol on Russell\u2019s breath. Ohse took Russell and her children to Mount Sinai Hospital, where Russell and L.C. received treatment. Russell was argumentative with hospital personnel.\nDr. Anthony H. Dekker testified that he is a specialist in child and adolescent behavior and maltreatment in the Pediatric Ecology Unit at Mount Sinai Hospital. Dr. Dekker testified as a treating physician and as an expert. Dr. Dekker testified:\n\u201cI asked the child if she knew why she was in the hospital and she admitted that she did know why. And I asked during the history \u2014 I was going through her past medical history and got up to the genital examination, I asked if anyone had ever touched her there and she admitted quote, he put his thing in me there, and she was pointing to her vaginal area. She stated that the person was her father and that it led me to believe that there had been penal [sic] vaginal penetration by history.\u201d\nDr. Dekker performed a complete head-to-toe examination of L.C. The examination revealed that she had multiple scars on her body consistent with scratches and loop cord beatings which indicated she was hit hard enough to make the skin break. The scars were at least a month old. The scars were consistent with the findings that the child was physically abused.\nDr. Dekker\u2019s genital examination revealed that L.C. had marked bruising around the hymenal opening. The covering of the hymen started to ooze blood as soon as Dr. Dekker touched it. He observed hymenal tears in three places around the hymenal opening and a bloody discharge. The hymenal opening was also \u201cconsiderably large.\u201d Dr. Dekker testified that the findings of the examination were \u201cconsistent with traumatic penetration of either a penis or large finger causing tears in the hymenal opening.\u201d He further testified that the hymen was also \u201cswollen and rounded which was consistent with some recent trauma that would have tom the hymen and broken a lot of that fine paper-thin edge that the hymen normally have [sic] prior to intercourse.\u201d Dr. Dekker testified that such injuries would take 5 to 10 minutes to hours to develop, and swelling could last for days. His opinion was that L.C.\u2019s genital injuries occurred within the last four days. Dr. Dekker\u2019s ultimate diagnosis was acute sexual assault. Dr. Dekker also testified that Russell was uncooperative and that he smelled alcohol on her breath.\nDefense counsel called Bobbie Ann West as a witness. West is defendant\u2019s girl friend and has known him for about four years. West testified that shortly after 4 p.m., she saw Russell and her children enter defendant\u2019s apartment. West noticed a hole in L.C.\u2019s stockings before L.C. entered the apartment. Ten minutes after their arrival, West and defendant testified that Russell and the children went across the street to a store selling liquor and small items and returned to defendant\u2019s apartment carrying a bag. West testified that she entered the apartment five minutes later and heard defendant asking Russell to leave. West saw Russell take a tenth of Crown Royal out of the bag and start drinking it. West did not hear any accusations that defendant had molested anyone. West and defendant both testified that defendant called the police twice. West admitted slapping Russell, and defendant\u2019s testimony corroborated this. After that incident, Russell and her children left. One hour elapsed from the time Russell and her children initially arrived until they left.\nDefendant testified that he was not expecting Russell and her children. After returning from the store, Russell sat at the bar in defendant\u2019s apartment and drank. Defendant did not offer either child a pop and never left the front room while Russell and her children were present. Russell and her children were in the apartment for about 15 minutes before defendant asked her to leave. Shortly after Russell and the children left the apartment, defendant went to the store across the street to buy cigarettes. When he came out of the store, defendant noticed Russell speaking with police. When defendant approached the police, he was arrested. Defendant denied having intercourse with L.C., and denied ever striking or stabbing Russell.\nAfter closing arguments, the trial court found defendant guilty of aggravated criminal sexual assault. Defendant was sentenced to eight years\u2019 imprisonment.\nOn September 26, 1988, defense trial counsel filed a two-page motion for a new trial alleging discovery of new evidence that L.C. had lied about the sexual abuse at Russell\u2019s insistence. On October 14, 1988, Irv Miller substituted as defendant\u2019s counsel. On November 3, 1988, Miller was given leave to file an extensive amended motion for a new trial.\nThe amended motion renewed the allegation that new evidence favorable to defendant had come to light. Additionally, the amended motion alleges that defendant was denied his right to a fair trial due to ineffectiveness of his trial counsel based on the fact that trial counsel failed to subpoena relevant documents including Department of Children and Family Services (DCFS) records, juvenile court records, Illinois Bell telephone records, Chicago police department 911 tapes or records of defendant\u2019s prior arrests.\nDefendant\u2019s new counsel obtained some of the above documents and records. The police radio dispatch records indicate that at 6:37 p.m. on July 9, 1987, an individual giving the name \u201cGunartt\u201d called 911 from a telephone with the number 542-5890 to report a disturbance and ask for police assistance. Illinois Bell records show that the above telephone number is defendant\u2019s.\nDCFS records indicate that C.C. gave a statement to them regarding the July 9 incident. C.C.\u2019s DCFS statement omits key testimony which he gave at trial. Another DCFS report states that L.C. screamed and Russell found her putting on her clothes. This report could impeach L.C.\u2019s testimony. Yet, another DCFS report indicates that Russell told an interviewer that she was in the apartment drinking beer and watching television but heard nothing. A police report allegedly containing notes of an interview with Russell states that Russell claims that defendant lured L.C. into his bedroom with the promise of money, that Russell heard a scream, went to investigate and found L.C. with her clothes in disarray and her stockings pulled down.\nDefendant\u2019s criminal record shows that he had three prior arrests and that Russell was the complaining witness on all of them. The three arrests were never prosecuted.\nThe amended motion also contains affidavits of witnesses. Linda Fitch, who lived on the second floor of defendant\u2019s building, executed an affidavit which states that she saw Russell and the children arrive on July 9, 1987. Fitch claims to have seen Russell go to the store across the street and return. Further, Fitch swore that she heard arguing going on in defendant\u2019s apartment and saw West arrive. Fitch also heard defendant threaten to call the police.\nAlice Grant, West\u2019s sister, claims she went to defendant\u2019s apartment on July 9, 1987, and observed West requesting that Russell and her children leave. Grant witnessed West slap Russell and, thereafter, saw Russell and her children leave.\nGeorge Page lived upstairs of the defendant. Page saw a woman and two children arrive at defendant\u2019s apartment on July 9, 1987. Page also saw the woman and children go across the street to the liquor store and return to defendant\u2019s apartment. Page heard defendant ask the woman to leave, the woman refuse to do so and defendant threaten to call the police. Page saw West enter the apartment. When the woman (Russell) left, Page heard her say that she was \u201cgoing to give him so much trouble that he would wish he never had seen her.\u201d\nAt the post-trial hearing, Willie Williams testified that he was defendant\u2019s cousin. When he arrived at defendant\u2019s apartment on July 9, 1987, West was present and Russell was cursing at the defendant. Russell refused to leave, and shortly thereafter, Williams left.\nWalter Bibbs, Russell\u2019s father, testified that L.C. told him that defendant did not touch her and that she had lied about the rape. Abby Bibbs, Russell\u2019s daughter, also testified that she had a conversation with L.C. in June 1988, regarding the alleged assault. During that conversation, L.C. told her that defendant had not done anything to her and that she had lied because Russell had told her to do so. Abby testified that in December 1988, she spoke with Russell after she had come from court. Russell was \u201ckind of high\u201d and crying. Abby testified that Russell told her: \u201cOh, I wish I had not lied on [defendant] because I did not know it was going to go this far.\u201d Abby testified that Russell was afraid to stop the lie because she thought that she would go to jail.\nBetty Franklin, Russell\u2019s aunt, testified that on November 10, 1988, an investigator came to her home. C.C. told the investigator that defendant had not raped his sister. C.C. claimed it was a lie they had to tell because they were scared. L.C. also spoke with the investigator. L.C. said that defendant had not raped her. L.C. stated that Russell told her to go into the bathroom and tear her panties and claim that defendant had attacked her.\nAt the post-trial hearing L.C. denied speaking with Abby, Franklin or Walter Bibbs about the case. L.C. denied that she said defendant never raped her or that Russell had told her what to say to the police or in court.\nRussell took the stand and denied having a conversation with Abby the day defendant was convicted. Russell denied telling Abby that she had lied about defendant. Russell testified that she did not get along with Abby. Russell further claimed that she did not tell L.C. to go into defendant\u2019s bathroom and tear her panties and then claim defendant had attacked her. Russell stated that Walter Bibbs told her that he had been promised $1,000 to get L.C. and Russell to \u201cdrop the charges.\u201d Walter Bibbs offered Russell half of the money if she would comply. Additionally, Russell said that Walter Bibbs threatened to have her children taken away from her if she testified.\nC.C. testified that while he was at Franklin\u2019s home in November 1988, he was told that a detective wanted to see him. C.C. admitted to saying that defendant had not raped L.C., but that he said this because he was afraid that he would be taken from his mother. C.C. testified that Russell never told him to lie about defendant.\nAfter argument by counsel, the trial court held:\n\u201cBased upon that corroboration [Dr. Dekker\u2019s medical testimony], coupled with the testimony of [L.C.], who testified at trial, subjected herself to cross examination and also did so today, and the testimony of [C.C.], her brother, as to what occurred in the apartment that day, I believe her testimony. And I believe it more so when it is viewed in the light of the testimony of the doctor, who indicated that there was trauma, recent trauma to her vagina.\u201d\nDefendant argues that the trial court erred in denying his motion for a new trial because he was not proved guilty beyond a reasonable doubt and the additional testimony offered at the post-trial hearing conclusively established that fact. The standard this court must apply is whether after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 53; People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Once a defendant has been found guilty of the crime charged, the fact finder\u2019s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the State. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669.) A reviewing court should not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of guilt. Young, 128 Ill. 2d at 51, 538 N.E.2d at 472.\nWhere a defendant has been convicted of aggravated criminal sexual abuse, and he denies the charges, the conviction will be upheld where there is some corroboration of the testimony of the complaining witness by some other evidence, fact or circumstance in the case or the testimony of the complaining witness is otherwise clear and convincing. (Daniels, 164 Ill. App. 3d at 1073, 518 N.E.2d at 682; People v. Findlay (1988), 177 Ill. App. 3d 903, 913, 532 N.E.2d 1035, 1042.) Defendant argues that there were discrepancies in L.C.\u2019s and C.C.\u2019s testimony which presented sufficient doubt. The law, however, is clear that testimony of the complaining witness need not be uncontradicted or unim-peached or crystal clear and perfect in order to be deemed \u201cclear and convincing.\u201d (Daniels, 164 Ill. App. 3d at 1073, 518 N.E.2d at 682.) If the discrepancies do not detract from the reasonableness of the complainant\u2019s story as a whole, it may be found clear and convincing. (Findlay, 177 Ill. App. 3d at 911, 532 N.E.2d at 1041.) None of the discrepancies between L.C.\u2019s and C.C.\u2019s testimonies are major and, therefore, do not detract from the reasonableness of L.C.\u2019s testimony. L.C.\u2019s testimony is clear and convincing in and of itself. Additionally, the trial court found that L.C. was a credible witness whose testimony was not only corroborated by C.C.\u2019s testimony, but more importantly by the medical findings of Dr. Dekker. The trial court properly denied defendant\u2019s motion for a new trial because L.C.\u2019s testimony was clear and convincing and was further corroborated. See Daniels, 164 Ill. App. 3d at 1072, 518 N.E.2d at 682.\nDefendant asserts that he was denied a fair trial where the prosecution failed to properly comply with discovery, where a hearsay statement was improperly admitted at trial and where the prosecutor improperly commented upon the evidence presented at the post-trial hearing.\nDefendant argues that the State failed to provide defense trial counsel with copies of DCFS reports. This issue has been waived for review purposes because defendant failed to raise the issue at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The law in Illinois is clear that \u201c[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.\u201d (Emphasis omitted.) Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.\nDefendant argues that he was prejudiced because the State failed to notify defense trial counsel that it planned to introduce L.C.\u2019s statements to Dr. Dekker and the emergency room physician as evidence at trial. Defendant contends that those statements should have rightly been excluded by the hearsay rule. Again, defendant\u2019s failure to object to the disputed statements at trial waives the issue for appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.) Although we find that defendant waived his right to have this issued reviewed, we feel compelled to discuss it substantively.\nThere must be an affirmative showing on record that the court actually used improper evidence to rebut the presumption that the trial court considered only competent evidence. (People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834.) There is a presumption that the trial court relied only on proper evidence in reaching a determination on the merits at a bench trial. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) The record indicates that the trial court relied upon L.C.\u2019s testimony of the circumstances of the alleged attack, C.C.\u2019s corroborating testimony and upon Dr. Dekker\u2019s medical finding that L.C. had experienced recent trauma to her vaginal area. Not only has defendant waived his right of review to the introduction of the complained-of statements, but defendant has also failed to cite any evidence which would overcome the presumption that the trial court relied on proper evidence in reaching its decision.\nDefendant contends that he was prejudiced by the State\u2019s remarks at closing argument during the post-trial hearing. The State has the right to comment on the evidence and reasonable inferences which can be drawn therefrom even if detrimental to the defendant. (People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.) The State has wide latitude during closing argument, and the trial court\u2019s determination regarding the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Barnes (1983), 117 Ill. App. 3d 965, 453 N.E.2d 1371.) If based upon the evidence or reasonable inferences drawn therefrom, the State may properly comment on the credibility of the witnesses. People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564; People v. Alexander (1984), 127 Ill. App. 3d 1007, 470 N.E.2d 1071.\nDefendant objected to the following comments made by the State:\n\u201cI think, what happened since the time of trial, the defendant\u2019s family had influenced a number of witnesses to come forward. And I think, your Honor had the opportunity to see the credibility of Walter Bibbs, and heard the testimony of Mrs. Russell, today. That Mr. Bibbs was trying \u2014 was offered money and was trying to pay to get other people to change their testimony. I think, a lot happened since the trial. There is a lot of arm twisting and threats and money offered.\u201d\nThis comment was made during closing arguments after the trial court heard all the additional evidence presented at the hearing on defendant\u2019s motion for a new trial. During that hearing, Russell testified that Walter Bibbs offered money to her if she \u201cdropped the charges\u201d against defendant and threatened to have her children taken away from her if she testified. We find that the State was merely commenting and drawing reasonable inferences upon the evidence that the trial court heard regarding Walter Bibbs and that, therefore, the State\u2019s comments did not prejudice defendant.\nDefendant maintains that a number of errors committed by defense trial counsel prohibited him from receiving effective assistance of counsel. The Illinois Supreme Court held that effective assistance of counsel refers to competent, not perfect, representation and that, in the absence of a showing that the outcome of the new trial likely would be different, the Constitution does not require a new trial for every defendant whose counsel errs at trial. (People v. Stewart (1984), 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240; People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203, 212.) Ineffectiveness of counsel is shown where (1) the attorney\u2019s representation fell below an objective standard of reasonableness and the shortcomings of counsel were so severe as to deprive defendant of a fair trial, and (2) there is a reasonable probability that, but for the attorney\u2019s unprofessional errors, the results of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2064.) This two-prong test was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Defendant bears the burden of proving that counsel\u2019s performance was deficient. (Albanese, 104 Ill. 2d at 525-27, 473 N.E.2d at 1256.) When reviewing trial counsel\u2019s performance, we indulge a strong presumption that counsel\u2019s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 699, 104 S. Ct. at 2065.\nDefendant\u2019s trial counsel filed his appearance on July 13, 1987. From that date until trial counsel filed a two-page motion for new trial, he filed no written motions on behalf of defendant. The record is silent as to any pretrial discovery, oral or written, undertaken by trial counsel on behalf of defendant. The morning defendant\u2019s bench trial began, the State voluntarily tendered medical summaries to defense trial counsel, who acknowledged that he previously did not have copies. Despite being tendered this new relevant discovery for the first time, defense trial counsel proceeded immediately to trial without requesting a continuance or even a brief recess to examine and evaluate the tendered documents.\nFurther, had defense trial counsel obtained the medical summaries prior to trial or requested the time to review those records when the State turned them over to him, counsel would have realized that L.C. had been physically abused at least one month before she came into contact with defendant. That information would have led a reasonable attorney to question whether there were any reports of child abuse with the police department or with DCFS. Had defense trial counsel obtained the DCFS reports, he would have discovered that L.C.\u2019s, C.C.\u2019s and Russell\u2019s statements regarding the alleged attack differ from the testimony they gave at trial and at the post-trial hearing and that Russell had been investigated for child abuse. Moreover, a reasonable attorney with this knowledge would have subpoenaed Russell to testify at trial. The result of counsel\u2019s ineffectiveness was that the trial court did not hear any testimony regarding Russell\u2019s long-time difficulties with DCFS for abusing her children.\nDefense trial counsel also failed to question L.C. and C.C. in a timely fashion regarding their competency to testify. Even though defense trial counsel made no attempt to question the children during the initial voir dire to establish their competency to testify, defense counsel attempted to question L.C. about her brother\u2019s age relative to her age on the basis that it went \u201cto the capability of this witness.\u201d The trial court sustained an objection to this question because the children\u2019s competency to testify had previously been established.\nFailure to adequately investigate and develop an available defense has been found to be ineffective assistance of counsel. (People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.) Failure to present available witnesses to corroborate a defense has also been found to constitute ineffective assistance of counsel. People v. Solomon (1987), 158 Ill. App. 3d 432. 511 N.E.2d 875.\nDefense counsel failed to obtain available evidence to corroborate defendant\u2019s story. Even though defendant claimed to have telephoned the police on the date of the alleged incident, there is no indication that defense trial counsel did even the slightest investigatory work regarding this claim. Defense trial counsel failed to obtain and introduce into evidence police emergency 911 tapes and records that indicate that an individual using the name \u201cGunartt\u201d telephoned to report a disturbance on the night in question. Now, unfortunately, the 911 tape recording has been destroyed and all that remains is a card which the operator filled out during the call. In fact, defense trial counsel stipulated at trial that the defendant never told the arresting police officer that he had tried to contact the police. Defense trial counsel failed to interview people who were outside the defendant\u2019s home on the night in question who allegedly heard defendant asking Russell to leave. Defense counsel also failed to subpoena defendant\u2019s criminal record which indicates that Russell was the complainant in each of the three prior arrests and that the State refused to prosecute each one of those arrests. Defense trial counsel also never introduced evidence that defendant had been employed for 19 years by the same company.\nDefendant has shown that defense trial counsel\u2019s representation fell below an objective standard of reasonableness in a manner which deprived defendant of a fair trial. Defense trial counsel\u2019s shortcomings include failure to (1) investigate the case, (2) issue subpoenas for key records such as the DCFS records, the police 911 tapes, telephone records and defendant\u2019s criminal record, (3) request pretrial discovery, (4) request a continuance or at least a short recess to review medical documents the State turned over the morning of trial, (5) make any effort to exclude harmful evidence at trial, (6) timely challenge the competency of L.C. and C.C., and (7) to subpoena Russell to testify at trial. We find that there is a reasonable probability that but for defense trial counsel\u2019s unprofessional errors, the results of the trial would have been different.\nFor the reasons set forth above, we find that defendant was denied effective assistance of counsel, and therefore, reverse and remand this matter for a new trial.\nReversed and remanded.\nCAMPBELL and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Ryan, Miller & Trafelet, P.C., of Chicago (Irving Miller and Mary Ellen Dienes, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Gunta Z. Hadac, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES GUNARTT, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1-88-3565\nOpinion filed August 19, 1991.\nRyan, Miller & Trafelet, P.C., of Chicago (Irving Miller and Mary Ellen Dienes, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Gunta Z. Hadac, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0752-01", "first_page_order": 774, "last_page_order": 785 }