Appeal from the Circuit Court of Cook County; the Hon. Stephen
A. Schiller, Judge, presiding.
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, David Blair, was found guilty of aggravated battery and sentenced to 42 months in prison. On appeal defendant argues that his conviction should be reversed and he should be given a new trial because (1) the trial court should not have found the victim competent to testify, (2) his motion to suppress the victim's pretrial photographic identification should have been granted because the identification was the product of a suggestive procedure, and (3) the victim's in-court identification should not have been allowed because it was the product of the suggestive identification procedure and was unsupported by an independent basis. We affirm.
At trial, the victim, Juan Saenz, testified that on May 17, 1980, around 4:45 a.m., as it was getting light, his friend, Lucas Jurado, arrived in his camper-type truck to take the witness to work. Jurado pulled into the alley behind Saenz' home, and he let Saenz into the back of the truck. Shortly thereafter, Saenz saw one of the windows on the truck break. Although he saw a stick, he did not see who broke the window. Saenz stated that he then saw defendant as defendant walked by a side window towards the back of the truck. At this point, Saenz identified defendant in open court.
Saenz further testified that defendant came to the back of the truck and broke one of the windows to the door of the truck. Fearing that his own car would be damaged, Saenz exited the truck. There, he saw defendant holding a raised stick. Jurado was holding a garbage can lid over his head for protection. After looking at defendant, Saenz ran down a gangway to Wallace Street, where two of three men standing in a doorway grabbed him and held him captive. Saenz then observed defendant coming down 28th Street. Defendant turned onto Wallace, and he looked at Saenz. The witness then observed defendant run in his direction, keeping to the far side of cars parked on the street. Defendant then came up close behind the witness, who, despite being restrained, was able to turn a little and see defendant. The last thing Saenz remembered was being struck on the head with a stick wielded by defendant.
Lucas Jurado's testimony corroborated most of the testimony given by Saenz. Jurado testified that after admitting Saenz to the back of the truck on May 17, 1980, he was returning to the driver's seat when defendant pulled into the alley. Jurado watched defendant walk towards him. Defendant said something in English, to which Jurado responded that he did not speak English. Defendant then struck at him with a stick. Jurado grabbed a lid to a garbage can to ward off the blows. Defendant then broke two of the windows in his truck. Saenz got out of the truck as soon as the back window was broken and ran through the gangway. Defendant ran out to the street.
Jurado further testified that after ascertaining that his other passengers had not been injured, he ran through the gangway. Upon exiting, he saw Saenz lying on the ground. Defendant and three other men were standing around him. Defendant had a stick in his hand. Jurado watched as defendant and the other three men ran to their cars and departed.
Jurado also gave testimony concerning an incident which occurred on May 31, 1980, which resulted in defendant's arrest. In cooperation with a police department effort to find the people responsible for Saenz' beating, Jurado agreed to help recreate the circumstances under which the beating occurred. This undercover operation was conceived and executed by Officer Castenada, who was assigned to the human relations unit of the Chicago police department. This department is responsible for follow-up investigations of incidents that may have racial, religious or nationalistic overtones. Saenz and Jurado are Mexican by birth, and their attackers were Caucasians.
On May 31, 1980, Jurado, with Castenada and another police officer posing as passengers, drove his truck to the alley behind Saenz' home just as he had done on May 17. When nothing occurred, Jurado drove to the corner of 31st Street and Wallace. There, Jurado and the officers alighted. While they were standing on the sidewalk, a car pulled up. The car went in reverse a little and then came up on the sidewalk towards Jurado and the officers, who jumped behind a post. The officers yelled and drew their weapons and ordered the occupants out of the car. Defendant was one of the occupants, and when Jurado saw him, he identified defendant as the man who had attacked him in the alley and who had been standing with a stick near Saenz.
• 1-3 Defendant first argues that the trial court abused its discretion in finding Saenz competent to testify at trial. Defendant points out that in May 1981, the court found on two occasions that Saenz was incompetent to testify because he could not articulate the difference between a lie and the truth or the meaning of an oath. According to defendant, Saenz remained unable to appreciate the moral duty to tell the truth at the time of trial, and Saenz' testimony demonstrated that he had been coached in this regard. Moreover, defendant argues, the hearing regarding Saenz' competency at the time of trial was inadequate because Saenz' ability to recollect was not established. We reject these arguments.
The record shows that when Saenz left the hospital after spending two months there following the beating, his mental faculties were severely impaired. He was not even able to recognize his wife. Castenada testified that to his knowledge, Saenz had never been shown photographs of possible suspects prior to April 1981, because his "condition was one that he was not remembering."
In April 1981, however, Saenz' wife contacted Castenada and told him that while she and her husband were driving in the vicinity of their home, her husband recognized one of the offenders. Four days later, Castenada, his partner, and an assistant State's Attorney went to Saenz' home to show him photographs. Castenada acted as interpreter for Saenz. When Saenz viewed the four photographs set before him, he identified defendant as the person who struck him on the head with a stick.
Defendant filed a motion to suppress the photographic identification. Saenz was called to testify in regard to the motion on May 26, 1981. When defense counsel began questioning Saenz it became apparent that Saenz was having difficulty understanding questions and responding to them. Although Saenz testified that he remembered what occurred on May 17, 1980, and gave accurate information regarding the time he spent in the hospital, Saenz exhibited confusion when defense counsel started to question him regarding the oath that had been administered to him. Thereafter, the court, defense counsel and one of the prosecutors questioned Saenz regarding the oath and his understanding of the difference between the truth and a lie. Among the questions asked and the responses given were the following:
"THE COURT: Do you know the reason I asked you to raise your right hand?
MR. SAENZ: As soon as you asked me, to raise my hand, I didn't know why.
THE COURT: Do you know what an oath is?
MR. SAENZ: Look, I don't understand what ...