Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. EDWARD E. PLUSDRAK,
Judge, presiding. Remanded with directions.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
After a bench trial the defendant (Ennis Thomas, Jr.) was convicted of Indecent Liberties with a Child *fn1 and was sentenced to the penitentiary for not less than ten nor more than twenty years.
1. Defendant was not proven guilty beyond a reasonable doubt.
2. Defendant did not receive a fair trial, in that (a) illegally seized evidence was introduced at trial; (b) statements made by the defendant after his arrest but before being afforded an opportunity to confer with counsel were erroneously admitted into evidence; (c) a photograph was introduced into evidence for which a proper foundation was not laid; and (d) his cross-examination of a prosecution witness was restricted.
On February 20, 1965, at approximately 4:00 p.m. Mrs. Dorothy Thomas (no relation to the defendant) notified the police that her two-year-old daughter, Shirleen, was missing from in front of a building located at 2833 West Madison in Chicago. A search was conducted until approximately 9:30 p.m., when she was discovered in a corridor on the third floor of the Alto Hotel, located at 2847 West Madison, by a resident of the hotel. Upon examination by her mother, Shirleen was discovered to have been bleeding from the vaginal area. The girl was subsequently examined at Cook County Hospital by Dr. Robert Bass, who confirmed the bleeding from the vagina and testified that there was a stretching of the vagina, small lacerations and tears in the lining of the vagina and a tear in the perineum (which he described as the skin outside the vagina leading to the rectum). He also testified that the injury was caused by the entry of a blunt object into the vagina.
Titus Daniels testified that he was inside his record shop at 2837 West Madison (located between the building from which Shirleen Thomas disappeared and the Alto Hotel); that at approximately 4:00 p.m. he saw the defendant and Shirleen (both of whom he had seen on prior occasions, but not together) walking down the street; and that defendant was holding the girl's hand. Daniels further testified that he notified Shirleen's mother and also identified the defendant for the police.
Watson Johnson testified that he lived in a third-floor room of the Alto Hotel; that he returned to the hotel from work at approximately 9:30 p.m. and, in response to his inquiry as to why the police were in the neighborhood, was informed that they were searching for a little girl. Johnson further testified that he went to his room on the third floor of the hotel (the same floor on which the defendant lived) and discovered the girl in the corridor; that he informed the hotel management, the girl was brought down to the desk and the police were notified.
According to the testimony of the police, defendant was arrested at approximately 10:00 p.m. in front of a billiard parlor located at 2840 West Madison; he was wearing a coat on which there was a substance later identified by the police crime laboratory as blood; defendant was searched and a key was discovered (and seized) to room 316 of the Alto Hotel, where defendant resided. The officers then took defendant to the hotel and entered his room. Photographs were taken of the room by the police. They also seized towels, a blanket, sheets and a bedspread from the room and put them in a plastic bag. The police forced him to remove some articles of clothing from his person which they also took. A police chemist, Joseph Price, testified that his tests revealed that there was blood on the blanket and bedspread. He did not state whether or not there was blood on the sheets. However, one of the police officers who searched the defendant's room at the hotel stated that on the sheets was a substance appearing to be blood.
The prosecution adduced further testimony of the police that, at the police station after defendant's arrest and while Titus Daniels was giving the police a statement as to what he had seen, defendant interrupted and stated: "I must be a sex maniac." There was additional testimony that at the hotel during the search of defendant's room, in response to the question of a police officer as to why he molested the girl, defendant stated: "I don't know why I did it, my head hurts, please help me."
At the trial defendant (who was over seventeen years of age) denied that he raped or sexually molested Shirleen Thomas, and he also denied even seeing the girl on the date in question. Defendant offered the alibi that he was in a billiard parlor from about 1:30 until 3:00 p.m. on that date, went to a cousin's house until 4:00 p.m. and then returned to the Alto Hotel to sleep for two hours; and that upon awakening he went to the home of another cousin where he remained until 9:00 p.m. No other testimony was adduced in support of that alibi.
1. Defendant first contends that he was not proven guilty beyond a reasonable doubt. The prosecution adduced evidence that the defendant was seen leading Shirleen Thomas down the street shortly after she was reported as missing; the girl was found on the third floor of the Alto Hotel, the same floor on which defendant resided; the girl was subsequently discovered to have been bleeding profusely from the vaginal area; blood was discovered on defendant's coat and also on a blanket and bedspread taken from his room; and defendant stated to a policeman in response to a question as to why he molested the girl: "I don't know why I did it, my head hurts, please help me." While defendant offered an alibi, which was not substantiated by other testimony, his story obviously was not believed by the trial judge. It is undisputed that in a bench trial the credibility of the witnesses, and the inferences to be drawn therefrom, are for the trial judge to determine. In the instant case we believe that the evidence adduced by the prosecution and believed by the trial judge is sufficient to establish the defendant's guilt.
2. Defendant next contends that he did not receive a fair trial and argues principally that the sheets, blanket and bedspread taken from his room at the Alto Hotel were illegally seized and therefore, over his objections, the State's witnesses should not have referred to the aforesaid articles nor should they have been admitted into evidence. The prosecution contends that (a) defendant's motion to suppress was not timely; (b) ...