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People v. Newsum

SEPTEMBER 16, 1968.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. JOSEPH A. POWER, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. In a jury trial, defendant was convicted of the offense of indecent liberties with a child. He was sentenced to the penitentiary for a term of from two to eight years. On appeal, defendant contends he was not proved guilty beyond a reasonable doubt.

The complaining witness was a twelve and one-half-year-old boy, who lived at 1800 North Richmond Street, Chicago. At the trial he testified that on December 16, 1965, at approximately 8:00 p.m., his mother gave him a dollar and sent him to a store one block from home to purchase a carton of Royal Crown. On the way he met defendant, whom he did not know, and who asked him to take a walk and told him there was money involved, a couple of dollars. After some conversation, he accompanied defendant to defendant's apartment, about a block and a half from the boy's home. While there, the defendant performed several acts of deviate sexual conduct on the boy. Defendant then gave the boy a dollar and drove him to the store in a "1956 or 1957 green Plymouth."

When the boy arrived at home, he gave the dollar bill to his mother but did not tell her what had occurred in defendant's apartment until the following night. The police were called and, after they interrogated the boy, he went with the police to the defendant's building, which contained 47 apartments. The boy pointed out defendant's apartment, and the police secured a key from the caretaker and with the boy they entered defendant's apartment. Defendant was not there at the time.

On cross-examination, the complaining witness testified that he had lived at 1800 North Richmond for approximately six years and was familiar with the neighborhood and the different streets in the area. Before the night in question, he had seen defendant's apartment building several times when he had gone to a swimming pool. There were large apartment buildings to the north and south of defendant's building.

Roy Handler, a Chicago police officer, testified that on December 17, 1965, at about 8:30 p.m., he and his partner interviewed the complaining witness and his parents about the incident. The boy furnished the officers with a description of the defendant and then took them to an apartment building at 1742 North Humboldt Boulevard. As they walked into the lobby of the building, the boy pointed to a door and stated that it was the apartment. There was no name on the door or on the doorbell. The caretaker of the building was requested to open the apartment, and they all entered, the police, the boy and the caretaker. They all remained in the apartment for a few minutes. Because of defendant's objection, Officer Handler was not permitted to describe what he saw in the apartment.

Another witness for the State, John A. Cooney, a Chicago police detective, testified that he and his partner arrested the defendant in his apartment at 11:35 p.m. on December 17, 1965. Defendant was taken to the Homicide and Sex Bureau at 2138 North California Avenue. Later, the boy and his parents came to the station, and the boy pointed at defendant.

Officer Cooney further testified that prior to defendant's arrest, they knocked on his apartment door, and defendant answered the door. The officer identified himself and told defendant the nature of the charge. The arrest was made inside the apartment. The court permitted the officer to describe the apartment.

Defendant testified in his own defense and in substance denied the boy's testimony. He was employed and lived at 1742 North Humboldt Avenue. On December 16, 1965, he had worked until 4:30 p.m. He had dinner with his sister and her boyfriend at Walgreen's, where they stayed until approximately 6:30 p.m. He then purchased a bottle of beer and some potato chips and returned to his apartment, where he spent the evening alone. At that time he owned a 1956 green Ford. He had never seen the complaining witness before he saw him at the police station on the evening of December 17, 1965. Defendant testified that when the boy arrived at the police station, "the detective asked him, `Is this the man?' And the kid just shook his head. He said nothing, he just shook his head." On cross-examination, defendant stated that on his arrest he had said, "I'm not guilty because it's the boy's word against mine. I was pretty perturbed."

Hallie Rollins, the caretaker of the building at 1742 North Humboldt, testified for the defense. The building had 47 apartments. She stated that police officers came to her on the night in question and ordered her to open the door of defendant's apartment because a crime had been committed there. They had a young boy with them, and she did not recognize the complaining witness as the boy who came with the officers. After threats of arrest, she opened the door for police. Later that night two plainclothesmen came and, under protest, she gave them the key to defendant's apartment, and they opened it themselves.

Defendant's first contention is that the police illegally entered his home, and any testimony which described his apartment was evidence which should have been suppressed. Defendant's pretrial motion to suppress was held by the court for disposition during the trial. In support, defendant cites People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277 (1954), where the court said (p 322):

"However, we cannot be unmindful of the principles established by long precedent which have sought to preserve the sanctity of the home and the right of privacy of the individual merely because the evidence has changed from inanimate to animate form. It has been held that an illegal search cannot later be justified by the discovery of contraband property. . . . We see no reason for a different rule in this case when the ends of justice sought to be maintained are the same.

"This State had steadfastly adhered to the theory of inadmissibility of evidence obtained by illegal search. . . ."

In People v. Albea, supra, it is also said (p 321):

"`The principle seems clear that evidence obtained independently of the illegal search may be used against the defendants,' . . . . `It is only necessary for us to determine whether it has been shown the testimony ...

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