People v. Wahl ( 1996 )

                             No. 2--94--0635

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT                              

__________________________________________________________________

THE PEOPLE OF THE STATE       ) Appeal from the Circuit Court

OF ILLINOIS,                  ) of Kane County,

                             )

    Plaintiff-Appellee,      ) No. 93--CF--1410

                             )

v.                            )

                             )

CHAD WAHL,                    ) Honorable

                             ) James T. Doyle,

    Defendant-Appellant.     ) Judge, Presiding.

_________________________________________________________________

    JUSTICE HUTCHINSON delivered the opinion of the court:

    Defendant, Chad Wahl, appeals the denial of his motion for a

new trial and his motion to reduce or reconsider his sentence.

Following a jury trial, defendant was convicted of six counts of

aggravated criminal sexual abuse (720 ILCS 5/12--16(C)(1)(i) (West

1992) (now 720 ILCS Ann. 5/12--16(C)(1)(i) (Smith-Hurd Supp.

1996))), one count of aggravated criminal sexual assault (720 ILCS

5/12--14(b)(1) (West 1992) (now codified, as amended, at 720 ILCS

Ann. 5/12--14(b) (Smith-Hurd Supp. 1996))), and one count of

attempted aggravated criminal sexual assault (720 ILCS 5/8--4(a),

12--14(b)(1) (West 1992) (now codified, as amended, at 720 ILCS

Ann. 5/8--4(a), 12--14(b) (Smith-Hurd Supp. 1996))).  Defendant was

found not guilty of three counts each of aggravated criminal sexual

assault and aggravated criminal sexual abuse.  The trial court

sentenced defendant to 4 years' imprisonment for each count of

aggravated criminal sexual abuse, 10 years' imprisonment for the

count of aggravated criminal sexual assault, and 7 years'

imprisonment for the count of attempted aggravated criminal sexual

assault.  All sentences were to run consecutively.  In total,

defendant was sentenced to a 41-year term of imprisonment.  This

appeal timely followed the denial of defendant's post-trial

motions.

    On appeal, defendant contends (1) the trial court erred by

denying his motion to suppress statements made to Illinois State

Police Detective Sergeant Thomas O'Donnell on March 11, 1992; (2)

that concerning the psychological makeup of the complainants: (a)

the State improperly presented evidence on post-traumatic stress

disorder in such complainants, and (b) defendant's due process

rights were violated because he was denied discovery concerning the

psychological histories of the complainants; (3) the trial court

erred by limiting bias impeachment of O'Donnell; (4) defendant

should have received discovery concerning a civil suit filed by

several of the complainants; (5) the trial court abused its

discretion in imposing sentence; and (6) the trial court improperly

imposed a sexual assault fine on defendant (see 730 ILCS 5/9--

1.7(b)(1) (West 1994) (now 730 ILCS Ann. 5/9--1.7(b)(1) (Smith-Hurd

Supp. 1996))).  We affirm in part and we vacate in part.

    The present case arises from incidents at a home for dependent

children (the Home) beginning in summer 1991 and continuing to the

date of defendant's arrest.  Children living in the Home are

assigned to group residence halls on the basis of each child's age

and sex.  Each residence hall is supervised by two live-in

houseparents.  The houseparents have at least one day off per week;

on these days, the Home provides relief houseparents.  Typically,

there is one female and one male houseparent.  The houseparents

supervise their assigned residence halls and provide the children

with structure, guidance, discipline, and parental care.

Additionally, the houseparents accompany the children to and from

school and assist them with their homework.  The houseparents

function as surrogate parents and, therefore, are the children's

primary care givers.

    On October 20, 1990, the Home hired defendant as a

houseparent.  For the first three months of his employment,

defendant served as a houseparent in a hall for toddlers.  From

January to the middle of July 1991, defendant was a relief

houseparent for a number of halls housing elementary school

children.  From July to October 1991, he was a relief houseparent

in high school halls.  Defendant served in this capacity until

being assigned to New Jersey Hall in October 1991 as a permanent

houseparent.  Jane Bowen was the other permanent houseparent.  New

Jersey Hall is a residence hall for boys in their early teen years.

    As a reward for performing their chores, the boys were

permitted by Bowen and defendant to "campout" in the living room of

New Jersey Hall on Friday and Saturday nights.  Campouts consisted

of playing video games and watching videotapes of movies rented by

Bowen and defendant.  The boys were then permitted to sleep on the

living room floor in front of the television set.  According to

Bowen, the rules required one of the houseparents to sleep in the

living room with the boys on campout nights.

    O'Donnell began his investigation of defendant on March 5,

1992.  Accompanying O'Donnell were Assistant State's Attorney Lynn

Mirabella and Mary Heywood of the Department of Children and Family

Services.

    O'Donnell and defendant met at approximately 6 p.m. on March

5, 1992, in the office of the Home's superintendent.  According to

O'Donnell, people "were coming in and out" of the office throughout

his conversation with defendant.  O'Donnell informed defendant that

"some students had said that he had touched them improperly."  In

response to defendant's query concerning who had made the

allegations, O'Donnell replied he had to speak to the students

before discussing the allegations with defendant.  Defendant

responded that he would wait and speak to O'Donnell after the

officer completed his discussions with the students.

    O'Donnell, along with Mirabella and Heywood, spoke with R.F.

and E.S. between 6 p.m and 8 p.m.  R.F. and E.S. were interviewed

separately.  O'Donnell did not participate in the interview of

E.S.; Mirabella and Heywood interviewed E.S.

    At approximately 8 p.m. O'Donnell summoned defendant.  The

officer took defendant to a counselor's office.  There O'Donnell

began the interview by reading defendant the Miranda warnings (see

Miranda v. Arizona, 384 U.S. 436, 467-74, 16 L. Ed. 2d 694, 720-23,

86 S. Ct. 1602, 1624-28 (1966)) from a card.  O'Donnell asked

defendant if he understood his rights; defendant replied "yes."

The officer then asked defendant if he wished to talk; again,

defendant replied "yes."  O'Donnell told defendant that R.F. and

E.S. said defendant had touched each of their penises; further,

defendant had sucked on R.F.'s penis, according to the boy, after

he had taken a shower.

    While initially denying having any type of sexual contact with

anyone at the Home, after approximately 30 minutes defendant

admitted to having sexual contact with both R.F. and E.S.  During

a movie campout--in either June or July 1991, while defendant was

a relief houseparent at Dixie Hall--he and R.F. were sleeping under

the same blanket.  Defendant accidentally touched R.F.'s penis.

R.F.'s penis was erect and protruding through his pajamas at the

time.  Defendant moved his hand up and down R.F.'s penis for two or

three minutes until someone bumped into defendant.  Subsequently,

defendant intentionally touched and stroked R.F.'s penis while the

two slept under a blanket, apparently during a movie campout;

defendant stated R.F. rubbed the defendant's pants at the same

time.  Defendant told O'Donnell he stopped after realizing what he

was doing was wrong.  Defendant denied sucking R.F.'s penis.

    O'Donnell asked defendant if he had touched any other children

in a sexual manner.  According to defendant, he had touched K.W. on

more than one occasion.  Apparently, these incidents occurred

before R.F. moved into Dixie Hall.  Defendant said he and K.W. had

been lying underneath a blanket watching television and "were

cuddling very close."  Defendant reached down and touched K.W.'s

penis.  According to defendant, K.W.'s penis was erect and

protruding through his pajamas.  Defendant stroked K.W's penis for

two or three minutes.  Defendant stated he engaged in this sort of

conduct with K.W. on another occasion.  O'Donnell promised that he

would inform the State's Attorney of defendant's cooperation.  At

the conclusion of the interview, O'Donnell arrested defendant.

    On March 11, 1992, O'Donnell visited the Kane County jail to

interview defendant about further information the officer had

obtained from other boys.  O'Donnell and defendant seated

themselves in a "small" interview room.  Their conversation began

with small talk.  According to the officer, he then read defendant

the Miranda warnings.  O'Donnell stated he asked defendant if he

had an attorney.  The officer testified defendant said "somebody

had come by the jail, he didn't know who the person was, told him

that that person represented an attorney that was going to

represent [defendant]."  O'Donnell rose and started to leave the

interview room.  On cross-examination, O'Donnell admitted he got up

to leave because he believed defendant had an attorney and would

not discuss the case.  Before O'Donnell left the interview room,

but after he had stood up to depart, he told defendant that he

would not be able to tell the State's Attorney defendant had been

cooperative.  This was because since March 5, 1992, O'Donnell had

learned defendant "had not been completely truthful."  Defendant

replied he had been nervous and may have forgotten some things.

O'Donnell said he had spoken to several other children in the

interim of March 5, 1992, and March 11, 1992.  In reply, defendant

asked with whom the officer had spoken.  O'Donnell testified that

he told defendant he "had talked to [T.W.], [C.M.] and other

children."  According to O'Donnell, defendant replied, "[T.W.] was

not one of them."  Defendant also expressed a desire to get out of

jail and a need for counseling.  He also opined that "at least I

didn't hurt any of them."  O'Donnell replied he thought defendant

had hurt them psychologically.  Defendant then "hung his head" and

looked downward.

    Defendant's recollection of the March 11, 1992, meeting

differed somewhat from O'Donnell's.  Defendant testified O'Donnell

did not read defendant the Miranda warnings.  The officer walked

into the interview room and declared defendant had not been

truthful.  Defendant asserted, "Well, I want to talk to my

attorney."  While getting up to leave, O'Donnell asked defendant if

he could afford an attorney.  Defendant replied he did not know.

O'Donnell then asked if defendant had an attorney yet.  Defendant

said he thought he had been assigned an attorney and that somebody

had visited him in jail.

    Before trial, defendant filed a motion to suppress all

statements he made after being taken into custody on March 5, 1992.

The trial court ruled that all of the March 5, 1992, statements

were admissible.  Defendant does not contest this ruling.  As for

the March 11, 1992, statements, the court suppressed any statements

relating to the charges upon which defendant had already been

incarcerated.  The trial court stated:

    "My findings of fact are *** that *** defendant was

    represented by the attorneys from the Public Defender's

    Office.  That number two, [defendant] advised [O'Donnell]

    prior to making any statements that in fact [defendant] is

    represented by an attorney.  Number three, I believe that

    [O'Donnell] made the statements before leaving in an attempt

    to elicit additional incriminating comments from ***

    defendant."

After making these findings, the court permitted the parties to

submit memoranda of law on the propriety of O'Donnell's questioning

in light of the court's findings.  After reading the memoranda, the

court allowed any statements regarding charges initiated after

March 11, 1992.  Based on the report of proceedings for March 4,

1993, the trial court seemingly based its ruling exclusively on

sixth amendment grounds (see, e.g., Maine v. Moulton, 474 U.S. 159,

180, 88 L. Ed. 2d 481, 498, 106 S. Ct. 477, 489 (1985) (sixth

amendment right to counsel attaches to only those charges pending

at the time evidence is elicited from a defendant)),

notwithstanding the fifth amendment arguments set forth in the

parties' memoranda.

    J.C.(I) (two of the complainants in the present case have the

initials "J.C."; for the sake of clarity they will be referred to

as J.C.(I) and J.C.(II)) was born on August 2, 1982.  J.C.(I)

testified defendant had been his relief parent at New Jersey Hall

in summer 1991.  J.C.(I) stated that one night he entered

defendant's room in New Jersey Hall and defendant put his hand on

J.C.(I)'s penis and stroked up and down.  This continued for "five

to ten minutes."  According to J.C.(I), this type of conduct

occurred "[f]ive to four or so" times.

    Defendant continued his sexual contact with J.C.(I) after

defendant became a permanent houseparent in New Jersey Hall.

J.C.(I) testified defendant "put his finger up my butt" four or

five times.  On at least one occasion, defendant wiped a liquid on

J.C.(I)'s anus before inserting his finger.  These incidents

occurred in defendant's room in New Jersey Hall.  Defendant also

stroked J.C.(I)'s penis during a movie campout.  At approximately

11 p.m., J.C.(I) entered defendant's room.  At defendant's behest,

J.C.(I) pulled down his pants and lay on his stomach.  Defendant

again used a liquid of some type on J.C.(I)'s anus.  J.C.(I) felt

defendant's weight on his back.  J.C. thought defendant was

attempting to insert his penis in J.C.(I)'s anus.  J.C.(I) felt a

pain and pulled away.  He observed that defendant had taken off his

shorts and he had an erection.  J.C.(I) dressed and left

defendant's room.  On a different night, defendant told J.C.(I) to

pull down his pants and J.C.(I) refused.  Defendant repeated the

order and J.C.(I) complied.  Defendant then sucked on J.C.(I)'s

penis until he ejaculated.  J.C.(I) testified this occurred on one

other occasion.

    J.C.(I) stated he did not report these events prior to March

5, 1992, because he was afraid.  Once, J.C.(I) testified, defendant

had said that if J.C.(I) informed on defendant he would hurt

J.C.(I).  His fear only subsided after defendant was removed from

the Home.

    S.W. was born on September 1, 1979.  He had lived in New

Jersey Hall during 1991 and 1992.  S.W. testified defendant had

first touched S.W. sexually while defendant was serving as a relief

houseparent in New Jersey Hall.  This first incident occurred

during a campout.  According to S.W., he and the other children had

gathered around the television set to watch the film, "Who Framed

Roger Rabbit."  S.W., having just taken a shower, was lying on the

floor wearing underwear, shorts, and socks.  At about 8 p.m. or

8:30 p.m., defendant lay down beside S.W., placed his blanket over

S.W.'s blanket, and started touching S.W.'s penis through his

shorts.  S.W. jumped up, ran away, and hid from defendant.

Defendant located S.W.'s hiding place, picked him up, carried him

back to the living room, and laid him down.  Defendant again placed

the blankets over himself and S.W.  S.W. fell asleep at

approximately 12 a.m.  When he awoke, S.W. discovered defendant was

stroking S.W.'s penis.

    According to S.W., defendant continued to have sexual contact

with S.W. after defendant became a permanent houseparent at New

Jersey Hall.  S.W. described a Boy Scout camping trip on which

defendant, another houseparent, and the Home's dean, Joseph Dinges,

took the children.  S.W. thought Dinges was in his tent doing

paperwork.  S.W. and several other children were sleeping around a

campfire.  Defendant unzipped S.W.'s "camping bag," reached under

his shorts, and began to stroke his penis.  S.W. fell asleep.

Returning from the camping trip by bus, S.W. took a seat in the

back of the bus.  Defendant and another child joined S.W.  The

three took turns playing a hand-held video game.  On cross-

examination S.W. stated defendant touched S.W.'s penis while they

sat on the bus.  S.W. testified the other child had left the back

of the bus to talk with "some kids up front."

    S.W. also testified defendant touched him sexually while S.W.

was in his dorm room.  This incident occurred on a Saturday night

after defendant was a permanent houseparent.  Defendant sat on

S.W.'s bed.  According to S.W., defendant "said he was cold so he

got under my bedspread."  S.W. got out of bed, went to the rest

room, and left defendant talking to the other children in the dorm

room.  When S.W. returned from the rest room, defendant sat up on

S.W.'s bed.  S.W. climbed back into bed; defendant climbed back

into S.W.'s bed.  Defendant began touching S.W.'s penis through his

clothes.  Again, S.W. got out of bed and left the dorm room.

    S.W. related an incident occurring during a movie campout in

fall 1991.  After getting a drink, S.W. lay down behind the rest of

the children near the couch.  Defendant was lying behind S.W.; S.W.

fell asleep.  When S.W. awoke, defendant had reached inside S.W.'s

clothes and was touching his penis.  S.W. testified that he tried

to move away.  Defendant prevented this by holding S.W. down.

S.W.'s shorts and underwear were pulled down by defendant, who

moistened his finger, and inserted his finger in S.W.'s anus.  S.W.

testified this hurt.  He pushed defendant away.  According to S.W.,

defendant said "he was trying to loose me up [sic] and everything."

S.W. got up and moved to the couch to sleep.  S.W. stated this type

of conduct occurred twice.

    S.W. testified to another specific incident occurring

approximately a week or two before New Year's Eve during a

"movieless" campout.  S.W. and the other children had been playing

video games on the television in the living room.  S.W. feel asleep

under his blanket.  Upon awakening, S.W. discovered his shorts were

around his ankles and defendant was sucking on S.W.'s penis.

Defendant also engaged in this type of conduct with S.W. on the

Saturday night before defendant was arrested.

    S.W. testified he did not tell Bowen about defendant's conduct

until after he had been arrested because he was afraid.  Defendant

threatened S.W.  According to S.W., the initial threat occurred the

first time defendant touched S.W. in a sexual manner.  S.W.

testified, "[defendant] told me that if I told on him, that no one

would believe me.  That everyone would think I was lying.  And he

said that he knew where my family lives because he has my records

and that if I told anybody that he'd checked [sic] on my family."

On cross-examination, S.W. stated he was touched more than 40 times

in a manner he did not like.

    J.C.(II) was born on December 28, 1982.  J.C.(II) moved into

the Home in summer 1991.  After three days in Arizona Hall,

J.C.(II) was moved to Dixie Hall.  Over J.C.(II)'s eight months at

Dixie Hall, defendant served as a relief houseparent "about eight

times."  J.C.(II) testified he was touched by defendant during

defendant's fourth stint as a relief houseparent.  The children

were in the living room watching "[a]n airplane movie."  J.C.(II)

fell asleep on the living room couch.  When he awoke, defendant was

lying behind the boy on the couch.  Defendant had his hands in

J.C.(II)'s shorts and was touching his penis.  This continued for

two minutes.  According to J.C.(II), defendant asked if his actions

bothered J.C.(II).  He responded it did bother him, left the couch,

and went upstairs to his room.

    C.M. was born on July 5, 1979.  C.M. moved into Dixie Hall in

fall 1991 and was living there in November 1991.  Defendant was one

of several relief houseparents during C.M.'s stay in Dixie Hall.

C.M. testified that in either June or July 1991, defendant stroked

his penis.  C.M. and the rest of the children had gathered in the

living room to watch the film, "Rambo 3."  Defendant was lying on

the couch.  When the film began, C.M. moved from a chair to the

couch to be next to defendant.  C.M. testified he moved "[b]ecause

I liked [defendant] and I was close to him."  Defendant and C.M.

were underneath a blanket when defendant reached down C.M.'s shorts

and underwear and began stroking his penis.  This continued for

three to five minutes until C.M. ejaculated.  He then went upstairs

to change clothes.  According to C.M., defendant said he had never

done that sort of thing before and that he was not gay.  C.M.

testified to having observed defendant and another child, G.J.,

"wrestle around with a cover over them."  C.M. also stated he heard

the sound of "underwear snapping" coming from the vicinity of

defendant and G.J.

    R.F. was born on January 30, 1982.  R.F. lived in Dixie Hall

in summer 1991.  According to R.F., defendant often served as a

relief houseparent.  In June 1991, the regular Dixie Hall

houseparents took a 12-day vacation.  During this period, defendant

served as the sole houseparent.  At approximately 3 p.m. of the

second day of defendant's stint as relief houseparent, he and

several of the children were gathered in the living room watching

television.  R.F. testified he was lying on the floor.  Defendant

entered the living room and covered himself and R.F. with a

blanket.  R.F. testified that defendant began to rub R.F.'s

"foreskin up and down."  This type of conduct was repeated on a

separate occasion at sometime during the 12-day period.

    Additionally, R.F. stated defendant had put his mouth on

R.F.'s penis after he had showered.  This occurred in the basement.

R.F. had finished showering.  Defendant then dried R.F. off using

a towel.  According to R.F., defendant laid R.F. on a table.

Defendant then placed his mouth on R.F.'s penis.

    K.W. was born on January 13, 1980.  K.W. lived in Dixie Hall

in summer 1991.  During this summer, defendant served as a relief

houseparent during the vacation of the regular Dixie Hall

houseparents.  According to K.W., he, several of the other

children, and defendant were watching a film in the living room.

It was evening.  K.W. was lying down on his side in front of the

couch.  Defendant was lying in front of K.W.  K.W. was wearing his

pajamas.  K.W. testified defendant "felt my penis."  When asked how

defendant did this, K.W. responded, "Moving his hand up and down."

Defendant then whispered to K.W., "Don't tell anybody."  K.W.

stated defendant repeated this sort of conduct "two or three" times

following the initial incident.

    Although nine complainants testified for the State, we have

only summarized the testimony of those the jury determined had been

abused or assaulted by defendant.  Additional facts will be set

forth within the body of the opinion as needed.

    Defendant first argues that the trial court erred by denying

his motion to suppress the statements he made to O'Donnell on March

11, 1992.  Defendant bases this argument on both his sixth

amendment right to counsel and his fifth amendment privilege

against self-incrimination.  We examine each basis in turn.

    Defendant asserts that his March 11, 1992, statements were

elicited in violation of his sixth amendment right to counsel.  A

defendant represented by counsel may not be questioned concerning

charges upon which adversarial judicial criminal proceedings have

commenced.  See, e.g., People v. Crane, 145 Ill. 2d 520, 531

(1991), citing McNeil v. Wisconsin, 501 U.S. 171, 175-76, 115 L.

Ed. 2d 158, 166-67, 111 S. Ct. 2204, 2207 (1991).  Further, a

defendant does not waive the sixth amendment right to counsel when

a police officer reads the Miranda warnings to the defendant who

then acquiesces to the officer's questioning.  See Michigan v.

Jackson, 475 U.S. 625, 631-35, 89 L. Ed. 2d 631, 639-40, 106 S. Ct.

1404, 1408-11 (1986).  However, the sixth amendment right to

counsel--unlike the fifth amendment privilege against self-

incrimination protected by the prophylactic rule of Miranda and its

progeny--is offense specific.  Therefore, simply because a

defendant is represented by counsel on a charged offense does not

prevent the authorities from questioning the defendant about other

unrelated offenses.  See, e.g., People v. Maxwell, 148 Ill. 2d 116,

128-29 (1992).

    Under a traditional sixth amendment analysis, O'Donnell's

conduct during the March 11, 1992, interview did not violate

defendant's right to counsel.  On March 11, 1992, defendant had

already been charged with aggravated criminal sexual abuse against

both R.F. and K.W.  Therefore, defendant's comments that "[T.W.]

was not one of them" and "at least I didn't hurt any of them" were

admissible as to all charges other than those already pending

concerning R.F. and K.W.  The trial court ruled accordingly.

    However, defendant argues that the offenses against J.C.(I),

C.M., S.W., R.F., J.C.(II), and K.W. were so closely related that

defendant's sixth amendment right to counsel attached to the

uncharged offenses.  The Illinois Supreme Court has interpreted the

United States Supreme Court's decision in Moulton as implicitly

standing for the proposition that the "sixth amendment rights of

one formally charged with an offense extend to offenses closely

related to that offense and for which a defendant is subsequently

formally accused."  (Emphasis added.)  People v. Clankie, 124 Ill.

2d 456, 463 (1988); see also United States v. Cooper, 949 F.2d 737,

743 (5th Cir. 1991) (stating the standard as being whether the

charged and uncharged offenses are "inextricably intertwined").

Neither the degree nor the nature of the closeness of the charged

and uncharged offenses have been set forth by either the Illinois

or the United States Supreme Court.  Clankie, 124 Ill. 2d at 463-64

(failing to state an evaluative standard because "even if[--]for

exclusion of the evidence regarding the subsequently charged

offense[--]the two offenses must be extremely closely related, the

required relationship exists in this case" (emphasis in original)).

    It is vital to understand precisely the interest protected by

the closely related offenses exception to the offense-specific

sixth amendment right to counsel.  The exception has been adopted

in one form or another by a number of both state and federal

courts.  See United States v. Kidd, 12 F.3d 30, 33 (4th Cir. 1993);

Hendricks v. Vasquez, 974 F.2d 1099, 1104-05 (9th Cir. 1992);

United States v. Carpenter, 963 F.2d 736, 740-41 (5th Cir. 1992);

United States v. Hines, 963 F.2d 255, 257-58 (9th Cir. 1992);

Cooper, 949 F.2d at 743-44; United States v. Micheltree, 940 F.2d

1329, 1342-43 (10th Cir. 1991); United States v. Richardson, 837 F.

Supp. 570, 574-75 (S.D.N.Y 1993); United States v. Louis, 679 F.

Supp. 705, 709-10 (W.D. Mich. 1988); State v. Tucker, 137 N.J. 259,

278, 645 A.2d 111, 121 (1994); In re Pack, 420 Pa. Super. 347, 355-

56, 616 A.2d 1006, 1010-11 (1992); see also Whittlesey v. State,

340 Md. 30, 50-57, 665 A.2d 223, 232-36 (1995)(providing an

excellent overview of this issue, while declining to decide whether

the sixth amendment right to counsel may ever attach to an

uncharged offense); 1 W. LaFave & J. Israel, Criminal Procedure

§6.4(e), at 96, 97, n.90.2 (Supp. 1991)(discussing Clankie in terms

of Moulton).  However, few of these cases discuss the goal of the

closely related offenses exception.  We do not view the goal as

being shielding a defendant from all questioning concerning a type,

class, or category of offense for which a charge is pending.  See

Kidd, 12 F.3d at 33 (notwithstanding defendant's arrest on July 2,

1992, for selling cocaine base to government informants, exception

did not apply to defendant's sale of cocaine base to a different

undercover informant on August 26, 1992, while defendant was out on

bond awaiting trial on the July 2, 1992, charge); Hines, 963 F.2d

at 257 (stating that when the time, place, and persons involved are

all different, a charged firearm possession offense is not closely

related to a subsequently charged firearm possession offense).

Rather, the true purpose of Clankie's exception is to prevent the

State from interrogating a defendant about a distinct course of

criminal conduct--one capable of supporting a new charge--outside

of the presence of the defendant's attorney, when the fruits of a

successful interrogation will be admissible as substantive proof of

the charges upon which adversarial judicial criminal proceedings

have commenced.  Put another way, Clankie prohibits interrogation

of a defendant on an uncharged criminal offense if the

interrogation functions as a continuation of the investigation of

the factual transaction forming the basis of the previously charged

offense.

    There is no bright line test for whether the closely related

offenses exception applies.  Our survey of the cases discussing the

exception indicate that three predominant factors should be

examined.  First, a court should determine whether the charged and

uncharged offenses were committed against the same individual or

entity.  Second, a court should consider the amount of time between

the acts forming the basis for the charged and uncharged offenses.

The briefer the time period between the acts giving rise to the

charged and uncharged offenses, the greater the likelihood the

facts were part of the same factual transaction.  This, in turn,

militates in favor of finding that the sixth amendment right to

counsel has attached to the uncharged offense.  Third, a court

should be watchful for any evidence that the investigative

authorities of a second sovereign interrogated the defendant--in an

attempt to elicit evidence concerning the facts forming the basis

of an offense charged by the first sovereign--so the second

sovereign might bring a similar charge based on the same factual

transaction.  A discussion of these factors should form the basis

of a court's analysis of the closely related offenses exception.

    The most important of the factors is the identity of the

victims or targets of the offenses.  If the uncharged offense was

committed against the same individual or entity, a strong

possibility exists that the closely related offenses exception may

apply.  See Brewer v. Williams, 430 U.S. 387, 389-98, 51 L. Ed. 2d

424, 431-36, 97 S. Ct. 1232, 1235-38 (1977)(holding that use of

defendant's admission that he killed his abductee was violative of

sixth amendment right to counsel where admission was made after

defendant was indicted for abducting the victim and before

defendant's attorney met with defendant); Clankie, 124 Ill. 2d at

457, 466 (applying exception where defendant was convicted of three

instances of burglarizing the same person's home).

    In re Pack provides a particularly good illustration of the

importance of the identity of the victims or targets of the

offenses.  In In re Pack the defendant was arrested on March 22,

1991, for theft, receiving stolen property, and criminal

conspiracy.  The defendant allegedly stole clothing that morning

from a store located at 135 South 52nd Street.  After being read

the Miranda warnings, the defendant asserted his right to remain

silent.  Counsel was appointed.  On April, 1, 1991, the State

obtained a warrant for the defendant's arrest, adding the charge of

burglary to those pending on the March 22, 1991, incident.  Once

again the defendant was read the Miranda warnings.  However, this

time he made a statement incriminating himself in the March 22,

1991, break-in; additionally, the statement contained an admission

by the defendant that he had participated in an earlier break-in at

a separate location on South 52nd Street.

    The court held that the April 1, 1991, interrogation had

violated defendant's sixth amendment right to counsel.  In re Pack,

420 Pa. Super. at 355, 616 A.2d at 1010.  The court stated "the

Sixth Amendment right to counsel, which is offense specific,

[applies] to all the offenses arising from the same incident for

which a defendant is charged."  In re Pack, 420 Pa. Super. at 356,

616 A.2d at 1010-11.  "To hold otherwise, would allow the [State]

to circumvent the Sixth Amendment right to counsel merely by

charging a defendant with additional related crimes."  In re Pack,

420 Pa. Super. at 356, 616 A.2d at 1011.  We believe it is this

circumvention that the closely related offenses exception is

designed to prevent.  Simply because a defendant repeatedly commits

the same type of offense in the same fashion does not alter the

offense-specific nature of the sixth amendment right.  The

exception does not exist to shelter a defendant from otherwise

proper police questioning concerning a defendant's favored criminal

activity or modus operandi.  In this context, we note the In re

Pack court did not require the suppression of the defendant's

comments concerning the earlier break-in on South 52nd Street.  In

re Pack, 420 Pa. Super. at 356, 616 A.2d at 1011.

    We hold that the charges filed after O'Donnell's March 11,

1991, meeting with defendant were not closely related to the pre-

March 11, 1991, charges.  Each of the post-March 11, 1991, charges

concerned different victims from the pre-March 11, 1991, charges.

Additionally, defendant's offenses were committed over a time span

ranging from early June 1991 to March 1992.  The testimony

establishes beyond a reasonable doubt that the instances of

defendant's abuse and assault were neither continuous nor

simultaneous.  They were interspersed among the ordinary activities

of life at the Home: school, sports, chores, films, and camping

trips.  Finally, we note that the present case does not implicate

the problem of separate sovereigns attempting to bring similar

charges against a defendant based on the same operative facts.

    Nonpublishable material omitted under Supreme Court Rule 23.

    For the foregoing reasons, the judgment of the circuit court

of Kane County is affirmed in part and vacated in part.

    Affirmed in part and vacated in part.

    McLAREN, P.J., and RATHJE, J., concur.