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People v. Hinton

OPINION FILED FEBRUARY 21, 1984.

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

v.

ALFRED HINTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. John J. Crowley, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 20, 1984.

In this case, defendant Alfred Hinton appeals from his conviction, after a bench trial, of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3), and raises the following issues: (1) whether he was denied a fair trial because the State did not disclose, in accordance with Supreme Court Rule 412 (87 Ill.2d R. 412), an inculpatory statement he had made to police; (2) whether the trial court erroneously admitted evidence of another crime; (3) whether the trial court impermissibly limited defendant's cross-examination of the victim; (4) whether the trial court erred in allowing a police officer to testify as to the details of the victim's complaint; and (5) whether guilt was established beyond a reasonable doubt.

Two indictments were issued against defendant for the offenses stemming from the complaints of an eight-year-old male concerning events which took place on August 2, 1980, and September 28, 1980. At trial, the State elected to proceed on the indictment which charged defendant with committing indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1), and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3) on September 28, 1980.

Before trial, the State informed the court that it intended to use evidence of the incidents which occurred on August 2, 1980. Over defense counsel's objection, the trial court permitted the testimony. The victim, who made an in-court identification, testified that at 1 p.m. on that date, as he was walking on 63rd Street in Chicago, defendant approached him from behind, grabbed him and put a gun to his throat. The victim's five-year-old companion fled at this point. Defendant took the victim to an abandoned store across the street and forced him to orally copulate him for about a minute. The victim noticed that defendant had a big scar on the right side of his stomach. Defendant gave the victim 27 cents, which the victim threw on the ground.

At approximately 4:30 p.m. on the following September 28, the victim was walking in the vicinity of 63rd Street and Cottage Grove when defendant approached him from behind, choked him and repeated the same words said on the other occasion, telling the victim he would have to orally copulate him. After taking about 60 cents from the victim's pocket, defendant forced the victim to orally copulate him in an alley. The victim noticed the same scar. Upon reporting the incident to the police, the victim identified defendant from police photos and at a police lineup.

On cross-examination of the victim, defense counsel referred to the testimony the victim had given at a preliminary hearing and noted discrepancies between it and the trial testimony. During the preliminary hearing, the victim testified that the August 2 incident occurred on 61st Street, not 63rd Street; that the September 28 occurrence took place in a building and not in an alley; that nothing happened other than the oral copulation and no mention was made that defendant took 60 cents from him; also, the victim changed the name of the store he was coming out of.

The trial court found that the victim's testimony regarding his identification of defendant and his description of the acts was unequivocal. The court noted the inconsistencies in the testimony but nevertheless held that the offenses of deviate sexual assault and indecent liberties with a child were proved beyond a reasonable doubt. Defendant was found not guilty of robbery, and the unlawful restraint charge was deemed merged with the other offenses. At the sentencing hearing, the court vacated the indecent-liberties charge as merging with the deviate-sexual-assault charge and defendant was sentenced to eight years' imprisonment.

I

• 1 Defendant urges that he was denied his right to a fair trial when the prosecutors failed to disclose, after his discovery request, that he had made an inculpatory statement to police; the State, he argues, thereby violated Supreme Court Rule 412(a)(ii) (87 Ill.2d R. 412(a)(ii)), which requires certain disclosures to an accused. The purpose of this rule is to afford an accused protection against surprise, unfairness and inadequate preparation. People v. Ingram (1980), 91 Ill. App.3d 1074, 1082, 415 N.E.2d 569.

At trial, the arresting officer testified that he had asked defendant whether he had a scar. Defendant replied yes, and then partially pulled down his pants to reveal the top of a scar which the officer believed was from an appendectomy. Defense counsel objected, claiming that it was tantamount to a statement and that the defense had not been informed of any statements which defendant had made. The trial court stated that it couldn't recall any statements of the person and that "You can't strike actions."

In some instances, a statement may be an oral assertion coupled with nonverbal conduct intended as an assertion. (See Fed. R. Evid. 801(a).) Such a statement or nonverbal act may amount to an admission of a physical characteristic. In this case, the officer not only testified that defendant answered "yes," but he also exposed his scar to the officer. The single word "yes," brief as it is, under certain circumstances, may constitute a statement covered within the mandate of Rule 412(a)(ii).

Although we recognize that the defendant is entitled to receive all statements made by him, regardless of whether they can be appropriately characterized as an admission or a confession (People v. Romo (1980), 85 Ill. App.3d 886, 896, 407 N.E.2d 661, appeal denied (1980), 81 Ill.2d 597), we note that defendant persistently classified the instant statement as "inculpatory" in an attempt to support his theory that he was prejudiced by it. We do not concur in this characterization. By acknowledging that he had a particular physical scar, defendant did not as a consequence admit guilt. We fail to see how the revelation of this physical scar is any more "inculpatory" than if the police officer had been able to view the scar without defendant's aid, as in the case of height, eye color, etc. We also note, as defendant admits, that the State could have required defendant to submit to a medical exam or display his abdomen on the stand without violation of his fifth amendment rights. (See Schmerber v. California (1966), 384 U.S. 757, 765, 16 L.Ed.2d 908, 916-17, 86 S.Ct. 1826, 1832-33; Holt v. United States (1910), 218 U.S. 245, 252-53, 54 L.Ed. 1021, 1030, 31 S.Ct. 2, 6.) Likewise, persons involved in the criminal process may be compelled to submit to breath, urine, saliva or other such tests. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 502.7 (3d ed. 1979).

Defendant argues that as no advance warning was given, his trial strategy may have been altered. We do not agree that it was the timing of the disclosure which was damaging, but rather it was the nature of the evidence. See People v. Cowherd (1980), 80 Ill. ...


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