APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
J. BOWMAN, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
The principal issue presented by this appeal is apparently one of first impression in Illinois: whether the credibility of a criminal defendant can be impeached with evidence of involvement in a criminal proceeding which did not technically result in a conviction.
Defendant, John J. Kavanaugh, was charged with deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3) and indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(2)). Following a jury trial in the Circuit Court of Du Page County, he was found guilty of both charges. Judgment was entered on the deviate sexual assault charge, and the defendant was sentenced to four to six years in the custody of the Department of Corrections. The defendant's post-trial motion was denied, and this appeal followed.
Late in the evening of May 13, 1977, the complaining witness, age 14, left a friend's house on a bicycle to go home. As he was riding he was passed by a person driving a purple Gremlin who slowed as he passed. Shortly thereafter the complaining witness was confronted by a man who pulled him off his bike and into the grass. When the complaining witness asked him what he was going to do, the man told him to keep quiet or he would be killed. The man pushed the witness away from the street, pulled down the witness' pants, put the witness' penis in his mouth, and told the witness that he wanted the witness to do the same for him. The man stood up, pulled down his pants and told the witness to do it to him. The witness put his mouth on the man's penis and the man ejaculated in 10 to 15 seconds. During this period the complaining witness saw his attacker's face for a period of approximately 43 to 48 seconds.
After unsuccessfully seeking help, the complaining witness fled the scene. Police were subsequently called and the witness described his assailant as tall (6' to 6'2"), thin, unshaven, with jeans and a black shirt. Shortly thereafter the complaining witness produced a wallet he found on the ground after the attack. An officer then showed the complaining witness a photograph from the wallet and the witness said it looked similar to, but not exactly like, the assailant. Apparently the picture was of the defendant's father.
Upon his arrival at the police station, the complaining witness was shown six "mug shot" photographs, including a two-year-old photograph of the defendant. He picked out the defendant's photograph as his assailant. The police then requested that he take a second look and he again picked out the defendant. At defendant's motion to suppress hearing it was established that the six mug shots showed figures against scales showing height and that only the defendant and one other individual matched the height description given by the complaining witness. While the trial court found the photographs to be "somewhat suggestive," the defendant's motion to suppress was denied.
At trial, the defendant requested that he be seated in the spectator's section of the courtroom during the complaining witness' testimony. The trial court consented to this request on the condition that the defendant's brother who apparently looked very similar to the defendant leave the courtroom for this period of time. The defendant chose to have his brother remain in the courtroom and thus the defendant had to sit at counsel table. The complaining witness subsequently identified the defendant as his attacker. This was the first and only in-person identification of the defendant.
John Sohol, a friend of the defendant, testified for the defense. He stated that on the evening in question, he and the defendant were at a drivein movie, a party, and then at a restaurant. Sohol further testified that before he and the defendant left for the movie, the defendant's mother gave the defendant $3 to put in his wallet, but the defendant did not have his wallet with him. The defendant's mother also testified that she gave her son $3 and that he did not have his wallet with him.
The defendant took the stand in his own behalf. He testified to the same general effect as the two prior defense witnesses. He further testified that after the movie and the party, he returned home to get his car a silver Gremlin with a blue stripe. He then met Sohol at a restaurant and stayed until 11:55, arriving home at 12:30. In rebuttal, the State offered, for the purpose of impeachment, a certified copy of a record dated February 5, 1976, from Cobb County, Georgia, indicating that the defendant had pleaded guilty to one count of possession of burglary tools and four counts of burglary. This document also bore the underlined notation "First Offender." The defendant argued to the trial court, and now argues on appeal, that this document was improperly admitted as it was not an adjudication of guilt, but merely an admission to probation under the Georgia first offender act (Georgia Code of Criminal Procedure §§ 27-2727, 27-2728 (1978)). At the hearing on his post-trial motion, the defendant produced a discharge order, dated June 26, 1978, under the Georgia first offender act which stated in part that "the defendant shall not be considered to have a criminal conviction." The defendant's trial had ended on May 15, 1978.
On appeal, the defendant raises the impeachment issue and three other issues: whether the results of a photographic lineup should have been suppressed as suggestive, whether the in-court identification of the defendant should have been suppressed, and whether the defendant was proved guilty beyond a reasonable doubt.
It is well settled that while a witness may be impeached by attacking his character by proof of certain criminal convictions, proof of arrests, indictments, charges or actual commission of a crime are not admissible. (People v. Mason (1963), 28 Ill.2d 396, 192 N.E.2d 835; see also E. Cleary and M. Graham, Handbook of Illinois Evidence § 608.5 (3d ed. 1979).) In People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, our supreme court adopted guidelines for the introduction of evidence of convictions. Specifically the court held that the provisions of the 1971 draft of Federal Rule of Evidence 609 should be followed in future cases. Section (c) of this draft rule provides as follows:
"(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and (2) the procedure under which the same was granted or ...