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People v. Levine

OPINION FILED AUGUST 10, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GUY S. LEVINE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Montgomery County; the Hon. DANIEL H. DAILEY, Judge, presiding.

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

The defendant was arrested in Macoupin County, Illinois, on May 29, 1978, for an offense that occurred in Montgomery County, Illinois, on May 28, 1978.

On May 31, 1978, he was charged in an information with unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3(a)). Subsequently, on March 29, 1979, two additional counts were added to the information charging deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3(a)) and indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(2)). The defendant pleaded not guilty, demanded a trial by jury, was tried by a jury, convicted on all three counts, and sentenced to the Department of Corrections, Adult Division, for a period of 15 years on the charge of deviate sexual assault, 8 years on the charge of indecent liberties with a child, and 2 years on the charge of unlawful restraint, all sentences to run concurrently. He was also fined $1,829.00

On appeal the defendant raises the following issues:

1. The trial court erred in denying defendant's motion to suppress the in-court identification of defendant by the victim.

2. Defendant was not proven guilty beyond a reasonable doubt.

3. The State's Attorney's closing argument was so prejudicial as to deny defendant a fair trial.

4. The conduct of the State's Attorney was so prejudicial as to amount to a violation of defendant's constitutional right of due process.

5. The trial court erred in failing to grant relief to defendant because of pretrial and trial publicity.

6. The trial court erred in denying the defendant's motion to change place of trial.

7. Trial court erred in denying defendant prompt preliminary hearing on the charges of deviate sexual assault and indecent liberties with a minor.

8. No probable cause existed for the defendant's arrest.

9. Defendant's motor vehicle was illegally searched.

10. Trial court erred in denying defendant and his counsel a copy of an anonymous letter from the file of the State's Attorney.

11. Trial court erred in conducting the voir dire examination of the jurors.

12. The sheriff of Montgomery County violated the defendant's constitutional rights because of contact with the jury.

13. Trial court erred in communicating with the jury outside the presence of the defendant and his counsel.

14. Trial court erred in permitting testimony of witness Brad Ozee.

15. Trial court erred in admission of certain exhibits of the People.

16. Trial court erred in denying the defendant's second motion for psychiatric examination of complaining witness.

17. Trial court erred in giving certain instructions of the People.

18. Trial court erred in entering a judgment of conviction on each count of the information.

THE FACTS

The victim in this case is a 15-year-old minor male residing in Litchfield, Illinois. Because of the nature of the case we have determined that no useful purpose will be served by publishing the name of the victim. Hereinafter, he will be referred to as "the minor."

On May 28, 1978, at approximately 2 o'clock in the afternoon, the minor was walking from his home in Litchfield, Illinois, to a grocery store to redeem certain trading stamps. Enroute to the store a Chevrolet El Camino vehicle pulled up alongside him, and he was forced into the vehicle by the driver. The driver drove around the city of Litchfield and out into the rural area towards Mount Olive, Illinois, telling the minor that he was looking for a junk yard. During the ride the minor made an effort to jump out of the car, but the driver pulled him back and told him not to try that again, that he had a gun in the glove compartment and would kill him. During the ride the driver had the minor write his phone number on a grocery receipt and gave the minor a black Flair pen, that wrote with green ink. The pen was in the ash tray of the vehicle. After they returned to Litchfield, the driver let the minor out of the vehicle and drove away. The minor went to his home, called his sister who was working at the Dairy Queen, and told her what had occurred. His sister called the Litchfield city police, and Officer Brad Ozee went to the minor's home where he interviewed the minor. In the meantime, the minor had observed the El Camino driving past the house a couple of times.

At Officer Ozee's initial interview the minor told the officer that the El Camino was silver and white or white with a white covering on it. Officer Ozee returned later that evening to interview the minor again in the presence of his parents, who were out of town at the time of the occurrence. Officer Ozee felt it was best to interview the minor in the presence of his parents. Because of the proximity of Litchfield to the interstate highway, the officer did not immediately put out an alert thinking the El Camino was probably far away.

The next day the minor's sister observed an El Camino fitting the description given to her by her brother drive past the place of her employment. She notified her mother, who in turn notified the police. Later on the same date the minor's step-father observed a silver or white El Camino in Litchfield driving towards Gillespie, Illinois. He followed the El Camino towards Gillespie, passed it, and went to the Gillespie Police Department where he informed the dispatcher that the El Camino was in Gillespie and that the driver was wanted for an abduction in Litchfield the previous day. After receiving verification by the Litchfield Police Department a radio dispatch was put out requesting the El Camino, and the driver be picked up and brought back to the Gillespie Police Department. As a result of this radio dispatch a Macoupin County deputy sheriff saw the El Camino, stopped it, and informed the driver he was wanted, requested him to drive to the Gillespie Police Department and followed him there. After the radio dispatcher notified the Litchfield Police Department that they had the defendant in custody, Officer Ozee picked up the minor and transported him to the Gillespie Police Department. At the Gillespie Police Department the minor was shown a photographic lineup consisting of five photographs, one of the defendant in color and four black and white photographs of other individuals. The minor identified the defendant. He was placed under arrest and transported to the Macoupin County jail. The El Camino was taken to a local garage in Gillespie where it was searched, and a black Flair pen that wrote with green ink was found in the ash tray.

Subsequently, charges of unlawful restraint were filed against the defendant.

Several months after the original occurrence, at the request of the State's Attorney the minor was given a further examination, and as a result of this interrogation the additional charges were filed.

From the date the original information was filed in this case, the court was deluged with pretrial motions by both sides. The wheels of judicial procedure began to spin almost immediately and are still spinning.

We will discuss the motions which required evidentiary hearings.

Evidence at the hearing on defendant's motion to quash arrest.

(A) Kenneth Robertson testified that he was deputy sheriff in Macoupin County, and that he had stopped the defendant in Gillespie, Illinois, on Route 4 at approximately 9:15 p.m. on May 29, 1978, as a result of a dispatch that came from the Gillespie Police Department to pick up and hold the vehicle and driver. He also testified that he had received a description of the driver as being six feet tall, approximately 200 pounds, brown and gray greasy hair, wearing oval sunglasses with yellow lenses and a light blue shirt. He testified that in his opinion the defendant matched this description. He testified that the defendant was cooperative and that when he asked him to drive the El Camino to the Gillespie Police Station the defendant honored the request, and the arresting officer followed him to the Gillespie police station. At the police station, the Litchfield Police Department was notified that the defendant was at the Gillespie police station.

The witness testified that at the time he stopped the defendant he was not violating any laws, and that, to the witness' knowledge, there were no arrest warrants outstanding for the defendant. The witness did not search the vehicle at the initial stop. The witness testified that Deputy Bertognolli of the Macoupin County Sheriff's Department read the defendant his Miranda rights, that the El Camino was parked outside the police department, and that eventually the defendant was placed in custody and transported to the Macoupin county jail in a county car. He further testified that a local garage picked up the El Camino to transport it for impounding and that at the garage he participated in the search of the automobile after the defendant had given consent to search. He further testified that when he made the search he was looking for a Flair pen and that he could see a Flair pen in the car in the ash tray.

He testified concerning the photographic lineup. He assisted in getting the photographs from the Gillespie Police Department files of persons other than the defendant. He did, however, observe the defendant being photographed at the Gillespie Police Department.

The trial court found "the officer had reasonable grounds and therefore the motion will be denied."

Evidence on defendant's motion to suppress (hearing date November 28, 1978).

(a) Sister of the minor:

This witness testified that on the date of the occurrence she was working at her place of employment in Litchfield, her brother called her, he was crying and said something about being picked up by a man and driven around, that later the police officers brought the minor to her place of employment and that he stayed with her until their parents came home. She further testified the minor described the car to her, that a couple of days later she saw a silver El Camino driving east on Union Avenue and shortly thereafter drive back towards Gillespie. At this time she called her "mom" and told her about the El Camino.

(b) Jerry Cahill:

This witness testified he worked for the Litchfield city police, that on May 28, 1978, he saw the minor with Officer Ozee, that he did not hear any description given by the minor of the vehicle in question. He later got a call from Officer Ozee telling him that a silver El Camino had been spotted on Union Avenue.

(c) John Flynn:

This witness testified that he was a police lieutenant for the city of Litchfield, that he was on duty on May 29, 1978, that around 9 o'clock he was made aware that the defendant had been stopped by Sergeant Robertson, and that he advised Officer Ozee that the defendant was being held at Gillespie. He further testified concerning the procedure in keeping records in the Litchfield City Police Department.

(d) Larry Jackson:

This witness testified that he was a police officer with the Gillespie Police Department and had been employed in that capacity since March 3, 1978. On the night the defendant was arrested he was on duty patrolling the streets of Gillespie, he heard the radio dispatch describing the El Camino and that it was a possible "1032," which means a gun might be involved. He testified that the defendant was supposed to have whitish hair, in his forties, big nose, not real long hair but thick hair, that he had communication with Sergeant Robertson of the Macoupin County Sheriff's Department who informed him concerning the Sergeant's participation in the arrest in Gillespie. He could not remember if the vehicle was left at the Gillespie Police Department for a while or impounded immediately. He also testified that he was not familiar with what occurred at the police department because he received another call and left.

(e) Step-father of the minor:

This witness testified that he was the step-father of the minor, that on the date of the occurrence the minor had a conversation with the minor's mother and the witness concerning the occurrence, that the minor gave him a description of the El Camino, that on the date of the arrest he saw the El Camino at The Gardens Cafe in Litchfield westbound on Route 16 towards Gillespie, that he followed the automobile to Gillespie passing it prior to reaching the city limits, that he went to the police station, gave the dispatcher a description of the El Camino, asked that it be stopped and the man questioned concerning an occurrence the day before in Litchfield, that he was there when the defendant was brought to the police station, that he observed the El Camino at the Gillespie Police Department, that he observed the photographic lineup being put together, that he was in the police station but not near the minor when he made the identification and that to the best of his knowledge no one made any suggestion to the minor concerning the photographic evidence.

(f) Donald Bertognolli:

This witness testified that he was a deputy sheriff of Macoupin County for 3 1/2 years, that on the date of the arrest he saw the defendant at the Gillespie Police Department between 10:30 and 11:30 p.m., that to his best recollection the defendant gave verbal permission for search of the El Camino, that no written consent was obtained, that he could not definitely state that the defendant gave permission for the search of the El Camino, and that he was not present at the photographic lineup and did not participate therein.

(g) Dave Brand:

This witness testified that he was a partner in the operation of the Quality Motors in Gillespie, Illinois, that on the date of the arrest he received a call to tow the vehicle to his business establishment, that he came to the Gillespie Police Department at about 10 p.m., that Sergeant Robertson secured the keys from the defendant, that the automobile was towed to Quality Motors on Route 4 in Gillespie and that Sergeant Robertson made the search.

He further testified that at no time did he see a pen in the automobile and that he did not actively participate in the search of the motor vehicle.

(h) Larry Norville:

This witness testified that he was a partner in the Quality Motors in Gillespie, that on the date in question Mr. Brand and he went to the Gillespie Police Department sometime between 10 and 11 p.m., and they towed the vehicle to Quality Motors, that he watched Sergeant Robertson and Patrolman Larry Jackson conduct the search, that he also took a picture of the pen in the ash tray of the El Camino and that he had seen the pen in the ash tray while the El Camino was parked in front of the Gillespie Police Department.

(i) Kenneth Robertson:

This is the same Kenneth Robertson that testified at the September 21, 1978, hearing. At his hearing he testified that he conducted the search of the vehicle in question at Quality Motors, that the owners of Quality Motors and Officer Rick Stennet were present at the search, that the defendant had given him permission to search the El Camino, and that the only thing taken from the El Camino was the Flair pen. He further testified that he did not see the Flair pen in the ash tray at the initial stop of the defendant, that he did see the Flair pen in the ash tray at the Gillespie Police Department before Officer Ozee arrived, that only after the conversation with Officer Ozee was he aware of the significance of the Flair pen, that nothing was taken from the automobile other than the Flair pen although he saw photographs lying on the seat, and in his opinion he was conducting an inventory search.

Evidence on defendant's motion to suppress (hearing date December 22, 1978).

(a) Brad Ozee:

This witness testified further concerning the date of the occurrence, his conversations with the minor and the minor's step-father, mother and step-sister. He testified that on the date of the arrest he transported the minor from his residence in Litchfield to Gillespie, that on the way to Gillespie he had a conversation with the minor concerning the description of the automobile, and that the minor, during this conversation, informed him about the Flair pen in the ash tray. At the suggestion of Lieutenant Flynn of the Litchfield Police Department, he asked that a photographic lineup be conducted at the Gillespie police station. He further testified that when they approached the Gillespie Police Department the minor became very excited and said, "There it is, there is the El Camino. I will never forget it." He testified that he assisted in arranging the photographs for the photographic lineup and that the defendant's picture was taken at the Gillespie Police Department. He further testified that he placed the defendant under arrest after the minor had identified the El Camino and that they saw the Flair pen in the ash tray exactly where it was described to him on the way to the police department. The defendant did not give him permission to search the El Camino, and he did not hear the defendant give anyone else permission to search the El Camino.

(d) The minor victim:

Upon direct examination the victim stated that he identified the defendant's photograph at the Gillespie police station, that he would be able to recognize the man whether he had seen the pictures at the Gillespie police station or not, that he would be able to recognize the El Camino, that at no time did the man try to hide his face from him, that he had no difficulty observing him during the time he was in the presence of the defendant on the date of the occurrence, and that he was in the El Camino between 30 and 45 minutes.

Upon cross-examination, the minor testified that he observed the black interior of the automobile, that the defendant had handed him the Flair pen with which to write down his telephone number and address, that he uses Flair pens and recognizes a Flair pen when he sees one, that the man had thick eyebrows, that he had a ring on one of his fingers and had long sideburns but that he couldn't remember if his ears were covered by hair or not. He further testified that after he told Officer Ozee about the Flair pen he was taken to the El Camino and a police officer shined a flashlight in towards the ash tray on the inside of the El Camino and he observed the Flair pen. He also testified that when he had finished writing with the Flair pen he put it on the dash, and that the pen was black and wrote with green ink. The victim further testified that he told his parents and Officer Ozee about the Flair pen on the night of the occurrence.

(c) James Smith:

This witness testified that he was the jailer for the Macoupin County Sheriff's Department, that on the night in question he was riding to work with Deputy Robertson, that he was in the squad car when the initial stop was made, that the defendant drove his vehicle to the Gillespie Police Station, that at the police station he watched the defendant while the city policeman and Sergeant Robertson went over to Sweetpea's Tavern to investigate a fight, and that the Macoupin County Sheriff's log showed 15 males incarcerated in the Macoupin County jail on the night of the arrest.

Evidence on defendant's motion to suppress (hearing date February 23, 1979).

(a) Jennifer Eads:

This witness testified that on the date of the occurrence she lived and worked at the Dairy Queen in Litchfield, that she saw the minor that day after the police brought him to her house and that she had observed the white El Camino or Ranchero drive past the Dairy Queen two times.

(b) Sandy Kessinger:

This witness testified that she is 16 years old, lives in Litchfield, worked at the Dairy Queen on the date in question, saw the victim on that date at the Dairy Queen and that she saw an El Camino go by on Union, she testified that they had called the minor and asked him if it had a cover on the back, and that someone called the police and gave them this information.

(d) David Dehme:

This witness testified that he was a firefighter for the Litchfield Fire Department for three years, that he was employed in that capacity on the date of the occurrence, that he received a phone call from the minor, that he made a notation of the Litchfield radio log report and that he made a ...


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