APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Donald Arbuckle, was found guilty of the offense of indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11-4), and was sentenced to 10 to 20 years imprisonment. Defendant appeals.
The complainant testified that he was born on October 30, 1961, and at the time of trial was 15 years old. He had first met the defendant approximately two or three weeks prior to the opening of school on August 31, 1976. He next saw defendant on a Friday, about 5 p.m.; according to the complainant the date was no earlier than August 13, 1976. On that date the complainant and Curtis McVay met defendant at the barber shop where defendant was employed. Around 6 p.m. defendant and the two boys left the barber shop in one of defendant's cars. Defendant drove to a liquor store where he purchased two six-packs of beer and a pint of peppermint schnapps. Defendant then drove to an area of the Rock River, near the 15th Avenue Bridge; they stayed on the east bank of the river, about two blocks north of the bridge, where they all drank beer and schnapps. Defendant and McVay went over to another part of the river bank, and the complainant observed defendant sucking on McVay's penis. Though initially refusing, at defendant's command, the complainant pulled down his own pants and defendant sucked on complainant's penis for approximately 20 seconds. Afterwards, defendant drove the boys to a skating rink where they skated while defendant went to a bar. Defendant then drove them to the Hollywood Dining Center and from there they went to defendant's home. The complainant then testified that prior to going to the Hollywood Dining Center, they had stopped at a liquor store to buy more beer and schnapps. At defendant's house, McVay went to sleep on a couch while complainant slept on a chair. The next thing he remembered was waking up the next morning when defendant's parents came downstairs. Over defense objection, complainant testified that defendant's mother had said to defendant, "Why do you keep on bringing these young boys home?" The complainant did not remember whether defendant had made any response. Defendant then drove the boys first to a restaurant for breakfast and then to the barber shop where defendant worked. While defendant went in, McVay and the complainant waited in the car. The complainant fell asleep for one or two hours; when he awoke he went home.
The complainant further testified over defense objections that there had been two other occasions of oral sex between the defendant and him. Though initially he stated that he had had oral sex with defendant, "last week in front of my house," he then stated that each of the sexual contacts occurred approximately one week apart. After the second time, defendant gave him $5; after the third time, $8. On all three occasions the complainant drank beer and schnapps. Over defense objection, the complainant testified that defendant had bought him beer and schnapps a total of four or five times.
On cross-examination, the complainant admitted that in a statement he gave to police on March 11, 1977, he had told them the defendant was driving a white station wagon when he first met him, while at trial he had testified that the car was a two-door Oldsmobile; however, he explained that defendant had had three cars since he had known him and he got them mixed up. The complainant did not remember telling the police on March 11 that McVay and he planned to go skating on a Friday night about three weeks before school started; that he remembered it because he had purchased a Go-Kart about two weeks before school started and the incident in question occurred one week before he purchased the Go-Kart. Nor was the complainant sure it was a Friday night. He stated that it was two or three weeks prior to the opening of school that he met defendant and it was a week to two weeks after the initial meeting that the incident took place. He did not recall telling police on March 11 that he felt he had seen defendant for at least a month or so prior to the incident.
The complainant was then cross-examined as to the initial statement of the incident which he had given police on December 9, 1976. He admitted telling police at that time that defendant had performed oral sex on him two times, but explained that he had forgotten about the third occasion at the time he made the statement. He further admitted that in the December 9 statement, he made no mention of going to the Hollywood Dining center or of going to defendant's home that night, or the remarks made by defendant's mother, or about going to the barber shop the next day and sleeping in the car.
Further, on cross-examination, the complainant did not recall what kind of car defendant was driving at the time of the incident but thought it was either a white station wagon or a green LTD, but not an Oldsmobile. He testified that he told one of his brothers about the incident either before or after December 9; however, at the preliminary hearing he had testified that he did not tell any of his brothers about the incident. Finally, the complainant testified that while he had been in the pizza shop next to the barber shop, he had not been there with defendant.
On redirect examination, over defense objection, complainant testified that he had told Robert Buse about the incident; further, over defense objection, a portion of complainant's preliminary hearing testimony was read in which the complainant had stated that he told Buse what defendant had done. Then, over defense objection, the State introduced the complainant's March 11 statement. The complainant testified that in that statement he did tell police of the remark made by defendant's mother; however, he did not know whether he had told them about going to the Hollywood Dining Center or about going to the liquor store the second time. The complainant testified that in his December 9 statement he had told the police that they had stopped to get something to eat, but he did not say where they ate.
The State then introduced the testimony of several witnesses who had observed the complainant in defendant's company. John Frisella, who owned the pizza restaurant next to the barber shop where defendant was employed, testified that he had seen the complainant in the restaurant with another boy. The witness had observed the complainant visiting defendant several times and also saw the complainant and the other boy waiting outside the restaurant by defendant's car. Gloria Ohnstead, a waitress at the Emporium Restaurant in Rockford, testified that the complainant and another boy had been in the restaurant with defendant on approximately six or seven different occasions in August of 1976. Three barbers who worked with defendant testified that a number of young boys, including the complainant, had visited defendant at the barber shop several times a week.
The defense presented the testimony of Peter Vitale, a youth officer with the Rockford Police Department, who had taken the December 9 statement from the complainant. In that statement the complainant did not tell the officer about going to the Hollywood Dining Center, about going to defendant's home, or about the remark made by defendant's mother; nor did he mention going to the barber shop the next morning and sleeping in defendant's car. Further, the complainant had told him that he had oral sex with defendant on two occasions. On cross-examination, Vitale stated the complainant had trouble remembering events and he had tried to prompt him. Vitale never asked the complainant whether he had gone to defendant's home or whether defendant's mother had made any remarks to defendant.
Bill Latham, owner of B & J Auto Sales in Rockford, testified that defendant had purchased a 1966 green Ford LTD from him on August 30, 1976, and that the car was returned on October 20, 1976, because defendant could not pay for it. Afterwards, the witness saw defendant in a white Ford station wagon.
The defense then presented the testimony of three boys that they had been on an overnight fishing trip with defendant in August of 1976. Two of the boys identified the date of the trip as August 13, 1976.
The first issue raised on appeal is whether the trial court erred in denying defendant's motion for a continuance. Prior to trial, the prosecutor informed the trial court and defense counsel that Curtis McVay, a material witness in the case, had escaped from custody. Defense counsel requested a continuance, arguing that McVay's escape hampered the defense in that if the State did not call McVay as a witness, the defense might have called McVay to testify or at least commented on the State's failure to call him, or if the State had called McVay to testify, defense counsel would have had a chance to cross-examine him. Defense counsel, however, had not subpoenaed McVay as a witness and the trial court denied the motion for continuance. Defense counsel then stated that he had assumed the State's subpoena had been properly served and that McVay would have been available to the defense as well. He argued that the prosecutor led him to believe that the State was going to have McVay testify. However, the prosecutor maintained that he had never told defense counsel that McVay would testify, and that in fact he had told defense counsel that he did not know whether or not he wanted to call McVay as a witness.
1 Section 14-4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-4(e)) provides that all motions for continuance are addressed to the sound discretion of the trial court. Before it can be said that such a motion has been improperly denied, it must appear that the refusal to grant additional time has in some manner embarrassed the accused in his defense and thereby prejudiced his rights. (People v. Wilson (1963), 29 Ill.2d 82, 193 N.E.2d 449.) Whether the denial of a continuance violates the substantive rights of a defendant must be determined on a case-by-case basis. People v. Lott (1977), 66 Ill.2d 290, 362 N.E.2d 312.
Apparently defense counsel desired to have McVay available as a witness, because a comparison between pretrial statements of McVay and the complainant and the transcript of the complainant's preliminary hearing testimony revealed substantial discrepancies. However, defendant did not issue a subpoena for McVay, choosing to rely on the fact that the state had issued a subpoena for him. The State, however, was unsure that it would call McVay as a witness and the prosecutor maintained that he had informed defense counsel of that fact. Further, during argument on the motion for continuance, defense counsel indicated that he might have only commented on the State's failure to call McVay as a witness.
2, 3 Since both sides appeared unsure as to whether they would call McVay to testify, his importance to the case is a matter of speculation at best, and it can not be said that the denial of the continuance hampered the defendant's case or prejudiced the defendant's rights. Further, where there is no reasonable expectation that a witness will be available in the near future the motion for continuance should be denied. (People v. Goodrich (1966), 73 Ill. App.2d 196, 218 N.E.2d 794 (abstract); People v. Hudson (1968), 97 Ill. App.2d 362, 240 N.E.2d 156.) Here, defense counsel made no showing that there was ...