Appeal from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was indicted for the offenses of deviate sexual assault (Ill Rev Stats 1967, c 38, § 11-3) and indecent liberties with a child (Ill Rev Stats 1967, c 38, § 11-4). A jury found defendant guilty of indecent liberties with a child and not guilty of deviate sexual assault. Judgment was entered and defendant was sentenced to a term of fifteen to twenty years. Defendant raises three points on appeal: (1) his pretrial motion to suppress identification testimony should have been sustained; (2) he was not proven guilty of the crime of indecent liberties beyond a reasonable doubt; and (3) prejudicial arguments of the prosecutor denied him a fair trial.
Testimony of James Van Vechten, called by the State:
He lives at 5501 South Cornell. He is a graduate student and research assistant in theoretical solid state physics at the James Frank Institute, University of Chicago. On November 14, 1966, at approximately 4:15 p.m., he went to take some trash out to the garbage cans located on the fire escape of his building. When he opened the door, he saw a man standing behind four window screens. In court, he pointed to defendant as this man.
On the date of the occurrence defendant had on a green, loose shirt, like a "Pendleton," with a white shirt under it. Because of the screens he could not see below the middle ribs of defendant. He did not see the trousers. There was light coming through the glass window from the fire escape door and there was a light bulb overhead which was on.
When he first saw the defendant, defendant had his back to the wall and was fumbling with something with his hands which were below the screens. When he approached, defendant exited out the fire escape door. He looked down behind the screens and saw complainant lying on a coat and some other clothing. She was completely naked. He asked her if she was all right and she opened her eyes and said, "Someone has been doing something to me."
He called his wife and she took care of the girl and called the police. He ran out onto the fire escape but could not see the man. He saw a boy named Des Jardians and asked him which way the man had gone. The boy told him the man had gone north down the alley on 55th Street.
When he returned to the hallway he picked up the coat complainant had been lying on. Inside the flap pocket of the coat were some keys. He gave the coat and the keys to the two police officers who responded to his wife's call. He then identified a coat shown to him by the prosecutor as being similar to the one that he had found. He also identified two keys as the ones he found in the right flap pocket of the coat.
The afternoon of December 8, 1966, two police officers came to his home and asked him to view some photographs. He picked out the photograph of defendant. During the evening hours of the same day he viewed a lineup. When the men in the lineup turned around, he recognized the defendant but he was not certain. "I didn't want to say I was certain until I was. The man was standing quite erect, Mr. Keane. And the man I had observed was in a slouched position with his back against the wall and his hands down below the window screens. So, I couldn't see what he was doing." He viewed the lineup for a total of four minutes. He became absolutely positive in his identification of defendant as the assailant approximately two and one-half minutes after the lineup began.
In the hallway at the time of the offense he saw a three-quarter view of defendant's face. He saw the right side of his face, not the left side. He did not notice a scar on defendant's face, since it is located on the left side of his face.
On cross-examination, he testified that he was about eighteen feet away when he first saw defendant in the hall and as he approached him he was about eight feet from him. When he went to the police station for the lineup, he was told that they had a suspect.
Testimony of James DesJardians, called by the State:
He lives at 5512 Hyde Park Boulevard. He is eleven years old and is in the sixth grade at the Bret Harte School. He knows the difference between the truth and a lie. He had talked with an Assistant State's Attorney before the trial. He was told to tell the truth.
On November 14, 1966, at approximately 4:15 p.m., he was in the alley behind 5501 South Cornell waiting for his mother to come home from the store. He saw a man run down the fire escape stairs out to the north of the alley. The man was wearing a green shirt, like a turtleneck, and dark pants. He thought he could point out this man in court. He indicated who this man was by placing his hand on defendant's shoulder.
After he saw the man run down the alley another man (James Van Vechten) came up to him and asked if he had just seen a man run down the fire escape. He stated, "Yes, I just saw a man." He did ...