APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendant, William Chandler, appeals from a judgment of the Circuit Court of Cook County entered after a finding of guilty by a jury on counts of rape and indecent liberties with a child. He was sentenced to a term of forty to seventy-five years in the Illinois State Penitentiary.
The issues on appeal are whether the verdict of guilty was against the manifest weight of the evidence, whether the court erred in refusing to allow the defendant a hearing on his motion to strike the use of his prior convictions, whether the defendant was denied his right to a jury trial when one juror was excused because of illness and the verdict was entered by eleven jurors, whether the closing argument of the prosecutor was improper, whether it was error to admit into evidence the defendant's statement to the victim's mother that "I've beat this rap before," whether the trial judge was prejudiced against the defendant and his attorney, and whether the sentence was improper and excessive.
On April 6, 1968, Nora Campbell, an eight-year-old child, and two playmates were playing in front of 422 West Evergreen in the City of Chicago. The defendant approached the children, told the two other girls to race their bicycles down the street, and then forcibly took the victim to an apartment across the street where he performed three separate acts of sexual intercourse with the child. The apartment belonged to Percy Chandler, the defendant's brother. That same night the victim was shown 200 photographs, and she identified a picture of the defendant. About a week later a police officer showed her a single, more recent photograph of the defendant, which showed him wearing the processed hairdo the victim had described to the police. She also identified that photograph.
About two months later the victim's mother saw the defendant on the street and then confronted him with a hand gun. Nora was brought to the scene, and she again identified him as her attacker. At trial Nora and her two friends identified the defendant as the man who approached them on the street on April 6, 1968.
The defendant asserted an alibi defense and several witnesses testified he was with them at the time of the assault.
• 1 The defendant's first argument is that the verdict was contrary to the manifest weight of the evidence because the identification by juvenile witnesses was inconclusive and the use of photographs to make the identification was prejudicial. He asserts that the testimony of the eight year old victim indicated she had only fleeting glimpses of her attacker at times when she was crying and emotionally distraught. There can be no question that she had ample opportunity to view and identify the defendant before, during and after the attack. She saw him when he approached her and her friends and asked them to race their bicycles. She had the opportunity to observe him during the three separate assaults, each of which lasted approximately two minutes, and finally, she observed him after the assaults took place: "He told me to go in the living room to get my clothes, and I put them on; and, when he was coming to the living room, I saw him." There was never any question that she was anything but an intelligent, competent witness.
Neither was the use of photographs in the identification procedure prejudicial. The victim was shown 200 photographs at the hospital on the same evening of the attack, and the circumstances were not suggestive as is illustrated by the following colloquy:
"Q. The men in that book, did they have processes?
Q. Do you remember how many of them had processes? Were there many?
Q. And did any of these processes look like the process on the man that you saw that took you?
A. It was just one, and he looked the man, [sic] but he didn't have no process."
• 2 Later in the week to confirm the initial identification she was shown a single, more recent picture of the defendant, in which he had a process. The use of photographs are not condemned unless the procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377; People v. Sutton (1969), 110 Ill. App.2d 232; People v. DeSavieu ...