APPEAL from the Circuit Court of Winnebago County; the HON.
FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 4, 1971.
Defendant, Tom Glover, was convicted by a jury in the circuit court of Winnebago County of the offense of deviate sexual assault and sentenced to not less than 6 nor more than 12 years in the penitentiary. Alleging that constitutional issues are involved, defendant appeals directly to this court. Ill. Rev. Stat. ch. 110A, par. 603.
The complaining witness testified that on September 2, 1969, she was employed as a dancer at a tavern in Rockford. She left the tavern shortly after 1:00 A.M. on September 3 and proceeded to walk north on 7th Street. Her destination was an all-night restaurant where she frequently went after leaving work, and which was located several blocks north of the tavern. She saw a man, whom she later identified as the defendant, standing on the first corner north of the tavern. After she passed him, he followed her. As she approached an alley situated approximately one-half block north of the corner, the man grabbed her and pulled her into the alley. In this half block there were several lights on the buildings in addition to the street lights. The night was clear and the moon bright. The witness had twice glanced over her shoulder at the man following her before he pulled her into the alley.
In the alley defendant attempted to pull complainant's panties off but was unsuccessful. He then pushed her against a building, grabbed her purse, and searched through it. Not finding any money, he forced her to perform an act of oral copulation upon him. During this time he held an open pocket knife in his right hand and threatened to kill her if she made any sound. The entire incident took 10 to 15 minutes. When he left, he threatened her life if she went to the police.
The witness then ran on to the restaurant where she told several male friends what had happened. They drove around the block to see if they could find the assailant. Failing this, they returned to the restaurant. At eight o'clock that same morning the complainant first notified the Rockford police and at that time told them only of the attempted robbery. She described her assailant as a thirty-five-year-old Negro male, 5'8" in height and 250 pounds in weight. She also described the manner in which he was dressed striped shirt, black pants, dark work shoes and tan straw hat with white band.
The next day the complainant appeared at a line-up and identified defendant. He was in the line-up with three other Negro males, ranging in ages from 18 to 34 years, in weight from 142 pounds to 147 pounds, and in height from 5'9" to 6 feet. None of the four wore clothing similar to that allegedly worn by the assailant at the time of the occurrence, and two had either thin moustaches or chin whiskers. A photograph of the line-up was introduced into evidence. The defendant's age was 59, he was 5'9" tall and weighed 190 pounds.
Defendant's hat, identified as the one worn by the assailant, and a pocket knife in his possession at the time of his arrest, were also admitted into evidence.
The defense called several witnesses who testified that the complainant's reputation for truth and veracity was bad. Some of these witnesses were women who worked with complainant. They also testified she had told them a man tried to rob her but said nothing about the deviate sexual assault. A doctor who examined defendant testified that because of an old injury he had a limited loss of function to his right hand which would make it difficult for him to hold a knife.
Defendant contends that as the result of the trial court's rulings on several motions he was denied due process and equal protection of the law. We shall first consider defendant's motions in which he moved for an order to require the alleged victim of the assault to submit to a psychiatric examination and an examination by an ophthalmologist. In the motion seeking the psychiatric examination he states that in her first report to the police, made a number of hours after the occurrence, she furnished them with a description of her assailant that did not "favorably compare with defendant," that she reported only an attempted robbery and made no mention of a sexual assault, and that she has a history of "emotional instability and immaturity." In the second motion he alleges that she was the only eyewitness, it was dark at the time of the assault and the examination was necessary to determine her ability to see and identify the defendant.
In support of his contentions defendant cites People v. Porcaro, 6 N.Y.2d 248. In that case a 10-year-old witness testified that the defendant had sexual intercourse with her over a period of 4 years. The court held that the result of a medical examination made shortly after the child's first complaint was material to the issues because, assuming, as alleged by the defendant, the examination showed an unbroken hymen, her physical condition was material to the issues.
There is impressive support for defendant's argument that the complaining witness should have been ordered to undergo a psychiatric examination. See Wigmore on Evidence, vol. IIIA, sec. 924a, and authorities there cited and discussed.
There is no question of the court's jurisdiction to order an examination of the complaining witness in a case involving a sex violation (People ex rel. Noren v. Dempsey, 10 Ill.2d 288) and it may, in the exercise of its discretion, do so when the defendant presents a compelling reason therefor. Upon examination of this record we are unable to say that the trial court, in denying the motion, abused its discretion.
With respect to the ophthalmological examination, although the court had jurisdiction to order it, the record reflects no compelling reason therefor and the denial of ...