APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant, John Partee, was convicted of two counts of indecent liberties with a child and two counts of deviate sexual assault. Following argument on the post-trial motions, the court ordered an arrest of judgment on the two counts of deviate sexual assault because they arose out of the same conduct as alleged in the two counts of indecent liberties. Defendant was sentenced to the penitentiary for a term of not less than 4 nor more than 8 years on each of the two counts of indecent liberties with the sentences to run concurrently. On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt; that the court prejudicially prohibited defendant from presenting an adequate defense; that the court improperly allowed into evidence prior convictions of defendant, that the State violated its obligation of promptly bringing the defendant to trial pursuant to chapter 38, section 103-5 of the Code of Criminal Procedure; and that the court erred in convicting defendant of two counts of indecent liberties with a child.
Due to the nature of the charge and the issues raised by appellant, a recitation of the evidence is appropriate.
The complaining witness, Bruce Burke, testified for the State. On October 18, 1971, Bruce, who was fifteen years old, lived at 6450 South Blackstone, and attended Hyde Park High School at 6220 Stony Island. That morning, at approximately 8 A.M., he left for school. He walked east to Harper Street, stopped at a candy store, and then headed north on Harper where he saw Delores and Dorothy Smith and Pamela Mallory going across a vacant lot between 63rd Place and 63rd Street. A brief conversation ensued, ending with Bruce throwing some candy at the girls.
At about 8:10 A.M., while still walking north, Bruce testified that he was grabbed from behind by a man whom he later identified as defendant, John Partee. The incident occurred on Harper in the vicinity of 63rd Place shortly after his meeting with the three girls. He further testified that defendant had one hand around his neck and the other on his collar. Bruce asked to be let go, whereupon defendant asserted he was a police officer. The witness was then taken by force along the street to an apartment at 63rd Place and Blackstone, pushed inside with the door locked behind him, and remained there approximately one to one-and-one-half hours.
While in the apartment Bruce was asked to scratch defendant's head with a comb. When the defendant sat down, Bruce attempted to escape, but was thwarted and thrown on the couch. At defendant's request, Bruce rubbed body lotion on the defendant's back, but declined the offer to rub the same substance on the witness' chest. Partee then attempted to force Bruce to submit to an act of oral copulation, but the witness clinched teeth to frustrate defendant's continued efforts. The witness yelled, and defendant responded by grabbing him, telling him to keep quiet, and assuring him that he would not be hurt. Partee then threw Bruce to the floor and forcibly removed his trousers. Holding the witness, defendant forced Bruce to submit to an act of anal copulation for approximately ten minutes, and upon withdrawal, ejaculated on the witness' buttocks.
Bruce testified that defendant then asked him to pull up his pants and clean himself in the bathroom. The witness complied, and when he came out, Partee was sitting down and said he was sorry and that he didn't want Bruce to reveal what transpired. Bruce replied that he would remain silent if Partee would release him. Partee then walked to the bedroom door, and Bruce picked up a wall plaque in the shape of a ballerina and threw it at defendant. The wall plaque broke when it fell to the floor. Immediately thereafter, Bruce escaped by unlocking the door and fleeing on 63rd Place and Harper to the Scott school, where he was seen and questioned by Iree Robinson.
Mary Ann Mohan was next called to testify for the State. She testified that she had been a microanalyst for the Criminalistics Division for the Chicago Police Department for two years. On October 19, 1971, she received by police mail a pair of undershorts identified as belonging to Bruce Burke. On the same day, she examined the undershorts by eye and through a miscroscope. "The interior portion of the rear panel exhibited a dried whitish stain." Three extracts were taken from this area and upon examination, "all three exhibited human spermatozoa." The witness had no way of identifying from whose body the spermatozoa came.
Iree Robinson then testified for the State. On October 18, 1971, she was employed at the Walter Scott School at 6435 South Blackstone. While looking out the school lunchroom window, she saw Bruce traveling south on Blackstone between 9:00 and 9:15 A.M. She stated that she approached and talked to Bruce, commenting "He was very, very upset. He was crying. He was shaking and his clothes was kind of disarray on him." After being asked several times "[W]hat was the matter," Bruce made reference to being attacked and pointed toward 63rd and Blackstone saying "that man." The witness saw no one in the direction to which the victim pointed. Mrs. Robinston then took Bruce home to his sister who summoned the police.
Both arresting officers, Davis and Taylor, testified for the State. They were sent by radio to 6450 Blackstone on October 18, 1971, where they met Bruce Burke and his sister. They proceeded to 63rd Place and Blackstone where Bruce told them he had been forcibly taken. While unsuccessfully attempting to get a response at the front door of the Partee apartment, the victim indicated to the police that he had just seen the defendant leave the rear of the building. The officers pursued defendant who was subsequently seen by Officer Davis while "he was hiding in a basement of an abandoned building at, near the corner of 64th and Blackstone," and arrested. Officer Davis testified that the arrestee was identified by Bruce Burke as his assailant and was the defendant, John Partee.
The officers removed defendant and Bruce to the police station where the victim related to the police, for the first time, the sexual aspects of the case. At this point, the victim's undershorts were sent to the crime lab, and Bruce was taken to Woodlawn Clinic for an examination.
Investigator Bullington interrogated defendant at the police station and testified for the State. The record reveals that Partee's relation of events to this witness correspond to defendant's testimony at trial. The witness testified that he also talked to the victim and did so several times as "he seemed kind of bashful and I should say embarrassed."
Bruce's mother, Mary Burke, also testified for the State. Prior to attending Hyde Park High, Bruce was enrolled in the Enrico Fermi School, but had transferred to Vincennes School for eighth grade because his mother had been having problems with him "ditching," and "playing hooky from school." Mrs. Burke also testified that her son had mentioned to her that two girls, whose names he gave her, witnessed his being grabbed on the street.
After the State rested its case, Mary Gray, who lives at 1509 E. 63rd Place, and Catherine Bell, residing at 1507 E. 63rd Place, both testified for the defense. Both witnesses, who are neighbors of John Partee, were on Mrs. Gray's front steps on October 18, 1971, at about 8:30 A.M., and later on both saw a boy in a police car at the time of John Partee's arrest. The women were together from 8:25 until 9:15, going into Mrs. Gray's apartment once during this period.
Both witnesses had seen the boy in the police car previous to the time of Partee's arrest. Mrs. Bell saw him on the street three times between 8:30 and 8:45 to 8:50. She also saw him running on 63rd Place at about 8:50 to 9:10 A.M. at which time he was chased by Mrs. Gray's dog. Mrs. Gray also saw the boy from the police car several times that morning. He was in a vacant lot bordered by Harper, Blackstone, 63rd Street, and 63rd Place between 7:30 and 8:00 A.M., for approximately thirty to forty minutes. She saw him again at 9:15 or 9:30, and about fifteen to thirty minutes later when he was running and her dog pursued him. Both women testified that the boy's clothes appeared in order when they saw him running and there was a police car behind him on the street at the time. Mrs. Bell remembered Bruce Burke testifying at a preliminary hearing on November 9, 1971, and said he didn't look like the boy she had seen several times on October 18.
Both witnesses saw John Partee on the street on the morning of October 18, prior to his arrest. Mrs. Bell saw him standing on 63rd Place in front of his apartment at about 8:30. Mrs. Gray saw him walking toward his apartment between 8:20 and 8:40 A.M. and again at about 10:00 walking on 63rd Place and across a vacant lot beside her house.
Mrs. Bell and Mrs. Gray approached the police car where John Partee was taken after his arrest. Upon Mrs. Gray's request, the police gave her the keys to Partee's apartment, and the two women subsequently locked it. Mrs. Bell testified that there was nothing unusual about the interior.
Chris Partee, defendant's sister-in-law with whom he lives, testified on his behalf. On October 18, 1971 at about 9:30 in the morning she was contacted at work about the arrest of John Partee. She returned to her apartment shortly thereafter and found it in the same condition as when she left for work at about 7:30 in the morning. She found no broken objects in the apartment, and saw no clothing lying around or any stains.
Mrs. Partee was shown an object and identified it as a wall plaque depicting four ballerinas. It was in her apartment on October 18, 1971, on the wall facing the door on 63rd Place. She at no time had in her apartment any statue in the shape of a ballerina. She did have a small statue of Abraham Lincoln. The identified object was in the same condition as it was on October 18, 1971, and it wasn't broken or cracked.
James Richmond, as Assistant Principal at Hyde Park High, also testified for defendant. Mr. Richmond brought with him, pursuant to subpoena, the school records of Bruce Burke. Contained therein was an "exclusion slip" indicating the exclusion of Bruce on October 14, 1971, and stating he will not be readmitted to school until his parent comes in for a conference on October 19.
Delores Smith testified for the defense. On a morning in October, 1971, she, her sister Dorothy, and Pamela Mallory saw Bruce coming out of a building between 63rd Street and 63rd Place. He was in back of Delores when he came out of the building and hit her with a piece of candy. Some exchange ...