{ "id": 2945648, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE ELY, Defendant-Appellant", "name_abbreviation": "People v. Ely", "decision_date": "1993-08-04", "docket_number": "No. 5 \u2014 91\u20140431", "first_page": "772", "last_page": "776", "citations": [ { "type": "official", "cite": "248 Ill. App. 3d 772" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "562 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577729 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0820-01" ] }, { "cite": "541 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567137 ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0064-01" ] }, { "cite": "488 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "109 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125562 ], "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0369-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1985, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 573, "char_count": 10008, "ocr_confidence": 0.78, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08596756027088838 }, "sha256": "5411a599180e83c1e9c59671bc0587b7a1a53e31ce68d4045fa6efe40a2d5879", "simhash": "1:d6724e0262f8df31", "word_count": 1660 }, "last_updated": "2023-07-14T21:04:37.974036+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. DAVID LEE ELY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RARICK\ndelivered the opinion of the court:\nDefendant, David Lee Ely, appeals from his conviction after a jury trial of aggravated criminal sexual assault and from the sentence of 30 years\u2019 imprisonment imposed by the circuit court of Montgomery County. We affirm.\nAccording to the evidence presented at trial, defendant assaulted the victim, defendant\u2019s five-year-old daughter, on or about January 30, 1991. On February 4, 1991, the victim\u2019s grandmother and two aunts arrived at the victim\u2019s school to talk to her teacher. Apparently they believed the child had been sexually abused by her father and went to her school to inform them of their concerns. The victim\u2019s teacher sat down with the victim later that day and read with her two books, \u201cMy Body is Private\u201d and \u201cThe Private Zone.\u201d Some 30 minutes later, the victim asked her teacher to join her in the \u201cquiet corner\u201d of the room. The victim picked up some puppets and began acting out with the teacher an argument between the daddy and mommy puppets. As they put away the puppets, the victim told her teacher: \u201cDon\u2019t tell my dad, but one time he asked me to suck his thing.\u201d The victim then proceeded to tell her the circumstances of the incident. According to the victim, her mother was at work, and her sister was sleeping. She, the victim, was. sitting on the couch watching television. Her father turned off the television set, pulled down his jeans and underwear, and put his \u201cthing\u201d on her mouth. The victim also stated she told her mother, and her mother told her not to do it anymore. The teacher reported the matter to the Department of Children and Family Services (DCFS). One of their investigators, Jim Moore, came out to the victim\u2019s school to interview her. Moore, using anatomically correct drawings, had the victim identify body parts. He then asked her if she had ever put her mouth on her daddy\u2019s \u201cnuts,\u201d another term the victim had used in the interview. She answered yes and repeated the same story she had told her teacher. Defendant was then placed under arrest. Defendant proclaimed his innocence, claiming the victim had done all of this to get back at him for breaking his promise not to drink anymore.\nOn March 12, 1991, defense counsel filed a motion for a pretrial determination of the victim\u2019s competency as a witness. On April 26, 1991, the State filed a motion to allow the victim\u2019s testimony to be televised to the jury during trial. The motion to determine the victim\u2019s competency was heard first. The hearing, conducted in chambers with both parents present, revealed the victim was competent to testify. She correctly identified colors and body parts and gave accurate information as to her age, school, and church. She also was able to correctly count up to 14, say the alphabet, and write her name. The victim further told the judge she would \u201cgo to Satan\u201d if she lied.\nAt the motion to present the victim\u2019s testimony to the jury via closed-circuit television, DCFS investigator Moore testified that he has interviewed between 700 and 800 minor victims of child abuse and neglect during his employment as an investigator, and that based upon his experience with the victim, he believed it would be difficult for the victim to come into a large courtroom and talk about sexual abuse by her father before 12 strangers. He opined it would be in her best interest to testify outside the jury\u2019s presence in the judge\u2019s chambers. Defense counsel argued the use of closed-circuit television would impinge on the jury\u2019s ability to judge the child\u2019s credibility. The court, after noting it already had a chance to observe the victim testify in chambers, ruled that closed-circuit television could be employed in light of the child\u2019s age and Moore\u2019s opinion.\nAt trial, the victim testified by closed-circuit television from the judge\u2019s chambers. Present in chambers during her testimony were the victim\u2019s mother, the prosecutor, the judge, the sheriff, defense counsel, defendant, and the technician operating the equipment. The victim initially demonstrated her competency to testify, including identifying body parts on anatomically correct drawings. She then proceeded, upon questioning, to repeat the same story of defendant sexually abusing her while she was watching television. On cross-examination, the victim reported that her father had broken his promise not to drink anymore and that one of her aunts told her her father was \u201cnuts\u201d because he had broken his promise. After her testimony, the court informed the jury that, prior to the television being turned on, the victim, upon seeing her father enter the chambers, asked her father to sit by her. The jury ultimately found defendant guilty of aggravated criminal sexual assault.\nDefendant argues on appeal the court\u2019s determination that the use of closed-circuit television was in the best interest of the victim deprived him of a fair trial and his constitutional rights, especially when that conclusion was based solely on a presumption that a certain class of witnesses would be traumatized if required to testify in open court. The State points out defendant has waived any possible error by failing to object at trial or raise the issue in a post-trial motion. While we agree defendant failed to preserve the matter for appeal (see People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261, 262), we feel compelled to address the matter specifically to point out to defendant the lack of merit to his contentions.\nDefendant alleges the trial court engaged in a presumption that all children of a certain age should not be required to testify in open court. The record, however, does not support defendant\u2019s contention; in fact, the record clearly shows the court took great pains to avoid employing such a presumption. While it is true investigator Moore did comment on how children in general react to testifying in sexual abuse cases, he also specifically testified that he was familiar with the victim here, and that in his opinion, she would react negatively to testifying in open court before 12 strangers. He further opined it would be in her best interest to testify outside the presence of the jury. The trial court then specifically asked Moore:\n\u201cYour opinion that it would be in [the victim\u2019s] best interest to testify in chambers, is that opinion based solely on the position that you take, that it would be better for all five-year olds to be able to testify in chambers or, in addition to that opinion, is it also particularly true in [the victim\u2019s] case because you\u2019ve worked with her and interviewed her and because of her particular situation you think it\u2019s in her best interest?\u201d\nMoore replied his opinion was based on his observation of the victim and was particular to her. In making its decision to grant the State\u2019s motion to use closed-circuit television pursuant to section 106A \u2014 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 106A \u2014 3), the court stated:\n\u201cWe also have the testimony of the very experienced Department of Children and Family Services Investigator saying, while he does believe generally it\u2019s not in any child\u2019s best interest to testify in front of a jury at that age, he also testified specifically about this particular young lady, this alleged victim, *** and said in her particular case he thinks it\u2019s not in her best interest and testified as to his reasons why. I have had the benefit of hearing [the victim] testify. That does make this a little bit easier, incidentally, that I had that opportunity. I think the issue is an important one because in any case it\u2019s the Court\u2019s intention to give the defendant a fair trial \u2014 also, the State a fair trial, for that matter. I think the State, though, has carried whatever burden is upon the State to utilize this statute. I think it is in her best interest, based upon today\u2019s hearing and also the hearing the Court has already conducted, to grant the motion.\u201d\nClearly, the trial court applied no generalized presumption in determining that it was in the victim\u2019s best interest to testify via closed-circuit television. Moreover, the trial court protected defendant\u2019s right to a fair trial by describing to the jury portions of the victim\u2019s behavior which the jury could not observe on the television monitor. Additionally, the court also complied with all statutory requirements for using closed-circuit television. The court initially determined the use of closed-circuit television was in the victim\u2019s best interest. And, defendant was permitted to be present in chambers while the victim testified and was afforded the opportunity to fully cross-examine the victim. (Cf. People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670.) Finally, none of the State\u2019s evidence in support of its motion pertaining to the victim\u2019s best interest was contradicted. Under such circumstances, we cannot say the trial court abused its discretion in allowing the use of closed-circuit television. (See People v. Schmitt (1990), 204 Ill. App. 3d 820, 562 N.E.2d 377.) As the trial court properly granted the State\u2019s motion, we find defendant was deprived of neither a fair trial nor his constitutional rights.\nFor the aforementioned reasons, we affirm the judgment of the circuit court of Montgomery County.\nAffirmed.\nCHAPMAN, P.J., and WELCH, J., concur.\nSection 106A \u2014 3 has since been repealed and replaced by section 106B \u2014 1 (725 ILCS 5/106B \u2014 1 (West 1992)), effective January 1, 1992.", "type": "majority", "author": "JUSTICE RARICK" } ], "attorneys": [ "Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Kathryn Dobrinic, State\u2019s Attorney, of Hillsboro (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, 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 LEE ELY, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 91\u20140431\nOpinion filed August 4, 1993.\nDaniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nKathryn Dobrinic, State\u2019s Attorney, of Hillsboro (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0772-01", "first_page_order": 792, "last_page_order": 796 }