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People v. Pierce

FEBRUARY 11, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR DUNNE, Judge, presiding.


The appellant, Thomas Pierce, Jr. (hereinafter defendant), was indicted for the offenses of indecent liberties with a child (Ill. Rev. Stat. 1969, ch. 38, par. 11-4(a)(3)) and contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1969, ch. 38, par. 11-5(a)(3). After a jury trial in the court below, defendant was found guilty of having committed both offenses and was sentenced to a term of 4 to 15 years in the penitentiary.

An appeal bond was set in the amount of $100,000. Subsequently, defendant's bond was revoked on a petition of the Cook County State's attorney's office, and defendant appealed to this court the order revoking his bond. As part of that appeal, defendant further requested an order directing a clarification by the trial court of the sentence imposed. On August 2, 1973, this court ordered the trial court to clarify the judgment rendered by indicating upon which count the sentence had been imposed, and the order revoking defendant's bond was reversed and remanded with directions to conduct a hearing concerning defendant's eligibility for bail.

The trial court, on August 15, 1973, conducted a hearing and resentenced defendant to a term of 4 to 15 years in the penitentiary for the offense of indecent liberties with a child. In addition, the trial court held that the count which had charged contributing to the sexual delinquency of a child merged into the count which had charged indecent liberties, and, accordingly, no sentence was imposed on the contributing count. After a bail hearing had been conducted, appeal bond was denied.

The issues presented for review on appeal are:

1) whether suggestive identification procedures were employed by the police where the victim identified defendant's photograph from a book of photographs of individuals whose description approximated defendant's;

2) whether, prior to arrest, evidence of defendant's flight from a police officer was a circumstance to be considered by the jury;

3) whether comments made by the prosecutors in closing arguments constituted prejudicial error;

4) whether the jury was properly instructed on the offenses charged in the indictment;

5) whether defendant was proven guilty beyond a reasonable doubt of the crimes of indecent liberties with a child and contributing to the sexual delinquency of a child, as charged in the indictment; and

6) whether the trial court erred in failing to require a psychiatric examination of defendant, pursuant to statutory requirement (Ill. Rev. Stat. 1971, ch. 23, par. 2402), where defendant raises the issue for the first time in his reply brief on appeal to this court.

Prior to the commencement of defendant's trial, counsel for the defense filed a written motion, accompanied by affidavit, seeking to prevent the State from introducing evidence concerning the circumstances of defendant's arrest on March 19, 1971. Additionally, the defense filed a written motion to suppress the pretrial identification of defendant by the complainant. The testimony regarding each of these motions was as follows.

The trial court heard arguments on the admissibility of the testimony of a Chicago police officer, John Fleming, with respect to defendant's arrest on March 19, 1971. The officer testified that, on the day of defendant's arrest, he had been working in a marked beat car in the vicinity of Waveland and Lavergne Avenues in Chicago. At approximately 3 P.M., he received an assignment to proceed to the intersection of the two avenues. Upon his arrival there, he left his squad car and engaged in a conversation with one Mary Cashman, during which the officer observed a motor vehicle near his location, which was stopped and which was occupied by a single individual. The vehicle began to move away a few seconds after the officer's initial observation, and the officer began a pursuit of the vehicle. Officer Fleming gave chase for approximately 15 minutes, from time to time losing sight of the vehicle. After having observed the license number of the vehicle, the officer went to an address at 5255 West Henderson in Chicago, and, upon his arrival, spoke with defendant's wife and mother. After a search, the officer found defendant hiding, in a crouched position, in a hollowed-out kitchen cabinet in an apartment in the building. The officer identified defendant as the man whom he had chased and had found hiding in the kitchen cabinet. The trial court ruled that the defendant's flight was a circumstance which could be considered by the jury.

With respect to the motion to suppress the complainant's *fn1 pretrial identification of defendant, the defense called Chicago Police Department Investigator William Havansek. At the time of the commission of the alleged offense, March 6, 1971, the investigator was assigned to the Area Five homicide and sex unit. On March 18, 1971, the investigator had interviewed the complainant and her parents concerning the alleged attack. On the same day, he had interviewed a friend of the complainant and her parents regarding the attack. During the interviews, Investigator Havansek had in his possession a report describing the attacker as a male, 5 feet 8 inches and 5 feet 10 inches in height, of an age between 20 and 25 years, who had worn a white shirt, a long black coat, and dark horn-rimmed glasses, and who had been described as having pimples on his face.

Investigator Havansek separately showed each girl, the friend and complainant, a mug book with photographs of known sex offenders on Chicago's northwest side. Each girl individually identified defendant, from his photograph in the book, as complainant's attacker.

At the time of the interviews, there were approximately eight books in the police station filled with such photographs. From the eight books, Investigator Havansek selected one book for the complainant to look through, and she paged through it while the investigator sat next to her. After she had paged through approximately 30 to 35 pages of the 50-page book without having identified her attacker, Investigator Havansek turned the pages of the book back to pages 24 and 25. When the book is opened to any page, it lies flat, and the photos on the opposite page can be seen. There were four photos on each page, and, on pages 24 and 25 of this particular book, there were eight separate photos of eight separate male individuals, either Caucasians or Mexicans, depicted in mid-torso and full-length photographic shots.

After Investigator Havansek turned to pages 24 and 25, the complainant immediately picked out the defendant — whose photo was on page 24 — as her attacker. She identified defendant despite the fact that the photo depicted defendant without glasses. The investigator denied that he had pointed out the photo of defendant for complainant. He stated that the reason that he had turned the pages back to 24 and 25 was the fact that the friend had previously picked out the photo of defendant. When the friend had viewed the book, he testified, she had not gone past page 24, identifying defendant's photo immediately upon coming across it.

The trial court, after having heard the investigator's testimony, denied defendant's motion to suppress, indicating that he did not feel the actions of the investigator had been unduly suggestive.

The testimony at defendant's trial in December, 1971, can be summarized as follows. The friend, 9 years of age at the time of trial, testified that in the late afternoon, on March 6, 1971, she and the complainant had been playing in the snow in front of the complainant's house, when defendant, who was identified by the witness in court, approached the two and asked that they help him look for his lost cat; that the girls accepted the invitation and walked a distance down the block with the defendant, who then said that he had just seen the cat; that defendant told the girls to follow him as he drove his auto down the street; that defendant entered his auto and the girls ran behind the car until it turned into a nearby alley; that defendant and the girls then walked down the alley a short distance, whereupon defendant said that they should split up; that he told the friend to walk down the alley while he would take the complainant with him; that, thereafter the friend looked for the complainant for about 20 minutes, but was unable to find her; that, after the interval, when the two met, the complainant had "pointed and told me where Thomas Pierce touched her"; and that she had never seen defendant prior to the incident, nor did she know his name prior to the incident.

The complainant, 8 years of age at the time of the trial, testified that on March 6, 1971, she and her friend were playing in the snow on her father's car in front of her home; that while they were playing, defendant, whom she identified in court, approached them and asked whether they would like to help him look for his cat; that both she and her friend said they wanted to look for the cat and followed the defendant through several yards in search of the cat; that defendant then said that he thought he had seen the cat; that defendant then got into his car and drove up the block, followed by the two girls; that after entering an alley, defendant suggested that they split up; that defendant then took complainant into a gangway and down some stairs; that defendant then told her to look through a hole where he said he had seen the cat; that, thereafter, defendant ...

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