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People v. Hine





APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. MALONEY, Judge, presiding.


Defendant, Dale Hine, was charged by information with one count of deviate sexual assault in violation of section 11-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-3) and two counts of indecent liberties with a child in violation of sections 11-4(a)(2) and 11-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 11-4(a)(2) and 11-4(a)(3)). Defendant's pretrial motion to suppress identification evidence was denied. Following a trial by jury defendant was found guilty as charged. The trial court entered judgment only upon the verdict finding defendant guilty of deviate sexual assault and sentenced defendant to a term of five to 10 years. Defendant appeals presenting the following issues for review: (1) whether defendant was proved guilty of deviate sexual assault beyond a reasonable doubt; (2) whether defendant was denied a fair trial by allegedly improper comments made by the prosecutor during closing arguments; and (3) whether the trial court erred in limiting the area of inquiry during defendant's motion to suppress identification testimony.

For reasons hereinafter set forth, we affirm.

On September 15, 1977, at approximately 7:45 a.m., a 15-year-old girl, the victim herein, was walking to her girl friend's house on her way to school. It was raining heavily, and as the victim reached a street corner a light blue automobile with a dark top approached the corner. The driver leaned over, opened the passenger door and offered the victim a ride which she accepted. As she entered the automobile she observed a tear in the upholstery of the black bench seat, a gray sweater lying on the seat, and a pair of "teardrop style" glasses lying on the dashboard in front of the driver. *fn1 She further observed that the driver appeared to be about 18 or 19 years of age, approximately six feet tall, of heavy build and wore a blue checked flannel shirt, jeans, black cowboy boots with pointed toes, and a silver watch. The driver had brown, wavy hair which he wore approximately two to three inches below his ears and sideburns which he wore approximately one inch below his ears.

A conversation ensued during which the driver asked the victim where she was going, and she responded. During the conversation she and the driver were directly facing each other. Thereafter approximately one to two minutes transpired as the driver operated the automobile during which time the victim observed the driver's face five times. The driver then grabbed the victim's hair thereby attempting to pull her head down toward his lap. After struggling for approximately three minutes, during which time the victim had a further opportunity to view the driver's face, the driver overcame the victim, placed the gray sweater over her head and continued to "hold [her head] down."

The driver ordered the victim to partially disrobe, and when she refused he warned her that he had a knife and two friends waiting for her if she failed to comply. After the victim disrobed, the driver forced her to perform an act of oral copulation upon him. The driver then lifted the victim's head by pulling her hair and ordered her to dress. He inquired whether she would report the incident to the police, and she responded in the negative. During this conversation which lasted approximately one minute, the victim and the driver were once again directly facing each other. As the victim exited the automobile, she again observed the driver's face. She then ran home.

The victim's foster mother observed the victim arrive home at approximately 8:15 a.m. The victim, crying, choking and very upset, went into the bathroom and began retching. The victim later noticed a scratch on her face which she attributed to the struggle with the driver. Pursuant to the foster mother's telephone call, a police officer arrived at the victim's home. The victim gave the officer a detailed description of the driver.

At approximately 9 a.m. the victim, accompanied by her foster mother, went to the police station. She gave a description of the driver to Officer Tesmond and was requested by Officer Tesmond to view photographs. At that time Tesmond observed a scratch on the victim's face. Both the victim and her foster mother testified that the victim had viewed one or two "trays" of photographs and several high school year books. Officer Tesmond testified that he had shown her at least 10 "trays" of photographs and one school yearbook. The victim did not, at that time, make any identification. The victim, her foster mother and a police officer toured the area in which the victim was attacked in an attempt to locate the automobile driven by her attacker. Although the victim stopped and looked inside several blue cars with dark tops, none of them had a tear in the upholstery nor were any of them identified by the victim. The victim's foster mother drove her to the hospital where she was examined by Dr. Charles Rimpila who observed a "fresh linear abrasion on the right side of her face."

On January 12, 1978 the victim went to the police station, at their request, to view more photographs. Officer Tesmond showed the victim one "tray" of photographs which contained defendant's picture. *fn2 The victim "picked out" defendant's photograph and said, "That's him." Officer Tesmond inquired whether she was certain, and she repeated, "That's him."

Pursuant to the victim's identification, Officer Tesmond arrested defendant. At the time of his arrest defendant had in his possession a watch and a knife. In response to Officer Tesmond's inquiry as to defendant's whereabouts on September 15, 1977, defendant replied that he was working at Colonial Auto Supply, Inc.

Later that day the victim, in the company of her foster mother, returned to the police station to view a lineup. The police showed her a photograph of a prior lineup in which defendant participated, and she promptly identified defendant. Upon viewing the lineup, she immediately identified defendant and informed the police officer that defendant was wearing the glasses which she had observed on the dashboard of the automobile on the day of the incident.

The employment records of Colonial Auto Supply, Inc., reveal that defendant began employment on September 19, 1977. Mr. Wherity, Colonial's president, testified that defendant at first did not wear glasses while driving the company truck but began wearing glasses when Wherity discovered that defendant's license required him to wear corrective lens. The glasses worn by defendant at that time were the same as those worn by defendant in court. Mr. Wherity further testified that defendant had collar length hair, wore cowboy boots and drove a 1964 Pontiac which was either metallic blue or gray.

Defendant testified that he had never seen the victim prior to trial. He described himself as being six feet two inches tall, of husky build and as having "pretty long hair." He was 20 years of age in September 1977. He had never driven a car which was silver or metallic blue, nor did any of his friends own a blue car with a black top. In September 1977 he owned a pair of orange-colored cowboy boots which he occasionally wore to work. He purchased a pair of black dress boots one week after he had begun working at Colonial Supply, Inc.

Approximately two or three weeks prior to September 3, 1977, defendant had lost his glasses. He had in his possession no glasses between that time and September 24, 1977, when he picked up his new glasses. Defendant further testified that on September 15, 1977, he was awakened by a telephone call from a Bruce Boynton who informed him of a position available at Colonial Auto Supply, Inc.

Defendant's optometrist testified on defendant's behalf that on September 3, 1977, defendant was examined and ordered a pair of aviator type glasses which he picked up on September 24, 1977.

Officer Kuzara testified on behalf of defendant that on September 24, 1977, defendant was driving a beige automobile. Linda Novotny, Bruce Boynton and James Rick, identified as friends of defendant, all testified that they had never known defendant to own a blue car with a black roof, nor did they recall ever seeing such a car at defendant's home. Mr. Boynton further testified that he had had a telephone conversation with defendant at approximately 10 a.m. on September 15, 1977.

Mr. Wheeler, a co-worker of defendant, testified that when he met defendant on September 26, 1977, defendant was driving a white automobile. Mr. Wheeler also recalled that he had ...

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