No. 3--00--0841

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2001 

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 10th Judicial Circuit,

							)	Peoria County, Illinois

	Plaintiff-Appellee,			)	

							)

	v.						)	No. 99--CF--787

							)	

ANTHONY ROY W.,				)	Honorable

                                )	Joe Vespa

	Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________

	JUSTICE LYTTON delivered the oopiniopionion of the court:ORDER

_________________________________________________________________

	The defendant, Anthony Roy W., was convicted of predatory

criminal sexual assault of a child (720 ILCS 5/12--14.1 (West

1998)), and criminal sexual assault (720 ILCS 5/12--13) (West

1998)).  He was sentenced to 20 years’ imprisonment.  The defendant

filed a post-trial motion alleging ineffective assistance of

counsel based on: (1) trial counsel’s failure to present evidence

that the victim had pending delinquency charges and was in the

custody of the juvenile authorities at the time of trial; and (2)

trial counsel’s failure to present a witness who would testify that

he had sexual intercourse with the victim one to two months before

she made the allegation against her father.  After careful consideration of the record and counsels’ arguments, we reverse the

defendant’s convictions and remand for a new trial.

	At trial, the following facts were presented.  The victim is

the defendant’s daughter.  The victim’s mother voluntarily

transferred custody of her to the defendant in 1993.  She lived

with him or his mother from 1993 until these allegations were made

in 1999.  The victim was 12 years old at the time of the complaint. 

On the day before she filed the complaint, the victim had an

altercation with another child in the neighborhood.  The victim

went into the house and returned to the altercation carrying a

large-bladed kitchen knife.  She threatened the other child with

the knife, but then returned home.  When the defendant returned

home and was told about the incident, he pushed the victim into a

chair and grounded her.  The next day when the defendant arrived

home he found a note from the victim saying that she had gone to

her grandmother’s house.  Before the defendant could determine

where the victim was, the police arrived at his home and arrested

him based on the victim’s complaint.  The victim was placed in the

custody of her mother.

	While in her mother’s custody, the victim was arrested for

retail theft and placed on house arrest at her mother’s home. 

After she violated the terms of the house arrest, she was placed in

the juvenile detention facility, and she was also charged with

domestic battery against her mother.  At the time of trial, the victim was facing both charges and was being held in the juvenile

detention facility.  

	The victim testified that her father frequently beat her with

an electrical cord.  She said that he would make her take all her

clothes off, and then he would beat her with the cord.  During

these beatings he would sometimes remove his clothing and sexually

penetrate her vagina or her anus with his penis.  At trial she

testified that this happened 14 times.  She also testified that in

the past she had a close relationship with two of her aunts, her

father’s girlfriends, and her grandmother. During the course of her

testimony the victim occasionally smiled and appeared to laugh.  At

one point during cross-examination, defense counsel asked the

victim, "Is this funny to you?" because of her demeanor.

	Dr. Kay Saving testified that she is a pediatrician and a

pediatric hematologist oncologist.  She is the director of the

Pediatric Resource Center, a program which provides medical

evaluations for children who are possible victims of neglect or

physical or sexual abuse.  The doctor testified that she performed

a full examination of the victim.  The victim’s hymen had a

cleavage in the six o’clock position, which the doctor opined was

consistent with sexual trauma to the vagina.  The doctor stated

that the victim also had some irritated tissue around her vagina

and opined that this irritation was consistent with sexual abuse. 

On cross-examination, however, the doctor admitted that this type of irritation could be caused by sources other than sexual abuse,

including poor hygiene.  The doctor also stated that an examination

of the rectum and anus revealed no unusual findings.  Additionally,

through the doctor, the State admitted several pictures of scarring

on the victim’s arm, buttocks and upper legs.  The doctor opined

that these scars were consistent with a child having received

corporal punishment with an implement such as a folded electrical

cord.

	The police investigator assigned to the case testified that

the victim told him that the defendant had sexual relations with

her on nine occasions, and at another point in the interview she

said the defendant had had sexual relations with her too many times

to count.  He also testified that they did not remove any physical

evidence from the home, such as bed sheets or underwear, because

they did not believe these items would have any evidentiary value.

	The defense presented the victim’s grandmother, two of her

aunts, and her father’s girlfriends as witnesses.  All of these

women testified that they had a good relationship with the victim. 

They all testified that the victim confided in them on personal

subjects such as boys and her menstrual cycle.  They all also

testified that they spent time with the victim out of the presence

of her father and that the victim had never told them about this

alleged sexual abuse.

	The victim’s grandmother also testified that at times the

victim had a hygiene problem, and her grandmother would have to

ensure that she changed her underwear.

	One of the defendant’s girlfriends testified that she was with

the defendant at the time the victim alleged the most recent

incident of sexual abuse had occurred.

	The defendant testified that he did use corporal punishment

and that on occasion he would discipline his daughter with a belt. 

He denied that he made her take off all her clothes before he

punished her.  He also denied ever performing any sexual acts with

his daughter.

	The jury convicted the defendant.  After his conviction, the

defendant filed a pro se motion entitled, "Discovery Order."  In this motion, he alleged that trial counsel was ineffective for

failing to interview and call as a witness a juvenile, T.R.  The

defendant alleged that T.R., who was 14 years old, would testify

that he and the victim had sexual intercourse in the summer of 1999

before the victim made the allegations against her father.  New

counsel was appointed for the post-trial proceedings.  The new

counsel filed a motion for a new trial, reasserting the defendant’s

complaint and also alleging that trial counsel was ineffective for

failing to present evidence that the victim had pending charges and

was in State custody at the time of trial.  

	At the hearing on that motion, T.R. testified that he was two

years older than the victim.  He lived next door to the victim’s

grandmother.  One day in the summer of 1999 he and the victim had

consensual sexual intercourse at his house when no one was home. 

He stated that this occurred before the defendant was arrested for

sexually assaulting the victim.  

	Trial counsel also testified.  He stated that he did not

interview T.R. before the trial, but did speak to him afterwards. 

He stated that he did not attempt to admit the evidence of the

victim’s sexual relations with T.R. because he felt it would be

inadmissible under the rape shield doctrine.  He further testified

that he did not attempt to present to the jury the fact that the

victim had pending charges and was in State custody because he did

not feel it was admissible evidence.  The trial court let the

verdicts stand and, after a sentencing hearing, sentenced the

defendant to 20 years’ imprisonment. 

	The defendant asserts that trial counsel was ineffective  for:

(1) failing to interview T.R. and present his testimony at trial,

and (2) failing to present evidence that the victim had pending

charges and was in juvenile custody at the time of the trial.  When

reviewing an allegation of ineffective assistance of counsel,

courts apply the two-prong analysis adopted by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).  Under the Strickland analysis, the defendant must show that counsel’s performance fell below an objective standard of

reasonableness, and that counsel’s errors prejudiced the defendant. 

Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).  Decisions involving trial tactics are normally immune from claims of

ineffective assistance of counsel.  People v. Trent, 315 Ill. App. 3d 437, 734 N.E.2d 1 (2000).  However, if counsel makes tactical

decisions based on a misapprehension of the law, those decisions

may cause counsel to be deemed ineffective.  See People v. Wright, 111 Ill. 2d 18, 488 N.E.2d 973 (1986).  In order for a defendant to

be prejudiced by counsel’s ineffective assistance, counsel’s

unprofessional errors must undermine confidence in the outcome of

the trial.  People v. Enis, 194 Ill. 2d 361, 743 N.E.2d 1 (2000).

I.

	To analyze the defendant’s ineffectiveness claim, we must

first look to the substantive law involved.  The rape shield

doctrine bars the admission of any evidence of prior sexual conduct

by the victim, except for the victim’s previous relations with the

defendant, or "when constitutionally required to be admitted."  725

ILCS 5/115--7(a)(2) (West 2000).  In some instances, due process

requires the admission of evidence of the victim’s sexual history

where that evidence is relevant to a critical aspect of the

defense.  People v. Hill, 289 Ill. App. 3d 859, 683 N.E.2d 188 (1997).  Evidence of the victim’s prior sexual history may be

admissible when that history explains some physical evidence, such

as semen, pregnancy, or physical indications of intercourse. 

People v. Sandoval, 135 Ill. 2d 159, 552 N.E.2d 726 (1990).

	Here, T.R. testified at the post-trial motion hearing that he

had sexual intercourse with the victim in the summer of 1999,

before she made these allegations against her father.  The victim

was examined in mid-August 1999, at which time the cleft in her

hymen was discovered.  The State’s expert could not determine when

the victim might have had sexual intercourse.  This evidence of

sexual conduct provided a plausible alternative source of the

State’s physical evidence and would therefore be admissible under

the constitutional exception provision of the rape shield doctrine. 

Trial counsel stated that he did not interview this witness until

after trial because he felt that the evidence would be inadmissible

under the rape shield doctrine.  Counsel’s failure to present this

evidence meets the first prong of the Strickland standard.

	Next, we turn to the second Strickland prong, prejudice to the defendant.  The evidence in this case was closely balanced.  The

State’s evidence consisted primarily of the victim’s version of

events and the physical evidence of sexual activity.  The defendant

testified and denied the allegations.  The primary physical

evidence corroborating the victim’s accusations was the cleft in

her hymen.  The victim was 12 years old at the time of the alleged offense.  The natural presumption with children is that they are

sexually innocent.  Therefore, a reasonable inference from the

physical evidence presented was that the victim’s father had

sexually assaulted her.  However, there was another plausible

explanation for that evidence that counsel did not present.  If the

jury had known this information, they might well have reached a

different verdict.  This error, standing alone, is sufficient to

undermine our confidence in the outcome of the defendant’s trial. 

As a result, we find that the defendant has met his burden under

both prongs of Strickland, and shown that counsel was ineffective.

II.

	The defendant also asserts that trial counsel was ineffective

for failing to present evidence that the victim was in State

custody and facing charges.  Again, we apply the two-prong

Strickland test.  First, to analyze whether counsel’s performance was not objectively reasonable, we must look to the substantive

law.  A witness may be impeached by presenting evidence that the

witness has pending charges or is in State custody at the time of

trial, as it tends to show the testimony may be influenced by bias,

interest, or motive to lie.  People v. Triplett, 108 Ill. 2d 463, 485 N.E.2d 9 (1985); People v. Bull, 185 Ill. 2d 179, 705 N.E.2d 824 (1998).  A defendant need not show that the witness has been

promised leniency; the evidence must only give rise to the

inference that the witness has something to gain by testifying.  People v. Davis, 185 Ill. 2d 317, 706 N.E.2d 473 (1998).  Addition ally, the witness need not be in custody on charges related to

those on which the defendant is being tried.  Triplett, 108 Ill. 2d 463, 485 N.E.2d 9.  

	Here, the victim was the only eyewitness against the defen

dant.  She had pending charges for retail theft and domestic

battery against her mother and was in State custody at the time of

the defendant’s trial.  This evidence was admissible to show bias

or a possible reason for the victim to fabricate her testimony. 

Trial counsel’s assumption that the evidence was not admissible was

mistaken.  His failure to introduce this evidence was not objec

tively reasonable, and the defendant has met the standard of the

first prong of the Strickland test.

	Next, we must determine if counsel’s performance prejudiced

the defendant.  Here, the credibility of the victim was critical to

the State’s case.  Evidence that she might have been biased or had

a motive to lie could have changed the jury’s decision.  The

failure of trial counsel to admit this evidence substantially

undermines our confidence in the verdict, and we conclude that the

defendant was prejudiced by counsel’s ineffectiveness.  TheTherefore,

we find that, as to this issue, the

defendant has met the two-prong Strickland test and shown counsel was ineffective.

	For the foregoing reasons, the judgment of the circuit court

of Peoria County is reversed and this cause is remanded for a new

trial consistent with this opinion.

	Reversed and remanded.

	McDADE and SLATER, JJ., concur.