APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
525 N.E.2d 877, 169 Ill. App. 3d 470, 121 Ill. Dec. 570 1988.IL.563
Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant, Larry Spears, was charged by information with deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 11-3(a)), aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)), indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(2)), and unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3(a)). After a jury trial defendant was convicted on all counts. The trial court sentenced defendant to concurrent terms of imprisonment of 30 years for deviate sexual assault and five years for aggravated battery.
Defendant appeals and raises the following contentions: (1) reasonable doubt exists regarding whether defendant was the assailant, where improper and inconclusive identification evidence was relied on to convict him; (2) the prosecution denied defendant a fair trial where it introduced the hearsay testimony of a police officer regarding the contents of a conversation with an unidentified citizen; (3) defendant was denied due process where the complainant's lineup identification was the product of an impermissibly suggestive photographic identification; (4) defendant was denied his right to be present at every critical stage of the proceedings where the trial court examined jurors in groups of 12 instead of four and retired to chambers, with only attorneys present, to allow for the exercise of peremptory challenges off the record; and (5) the trial court erred in basing defendant's 30-year sentence on considerations of revenge and "evening the score."
For the reasons stated below, we affirm the judgment of the circuit court.
The evidence at trial indicated the following. The 15-year-old complainant testified that around 7:15 a.m. on November 3, 1983, she left her grandmother's house in Chicago to go to school. She walked on the sidewalk along 100th Place near Vincennes Avenue. As she walked, she noticed a man walking ahead of her. He walked up the hill of a railroad crossing, crossed the tracks, and disappeared down the other side of the hill. Complainant then approached and crossed the same hill and tracks and continued walking until she passed a church. She noticed the same man standing in an alley just past the church. She continued to walk and approached the part of the sidewalk that abuts the mouth of the alley, when she saw that the man was watching her. When she came within 10 to 15 feet of him he was still watching her, and he mumbled something to her. She looked at him, became nervous, and then looked away. Complainant did not answer him but continued to walk.
She walked past two intersections and then past another church. There was an alley just past this second church. As complainant passed the alley, she heard hard-heeled footsteps running behind her. She turned around and saw that it was the same man she had seen before. The man grabbed her around the neck, put a gun to her head, and told her that he knew "a nice garage" where he would take her. Complainant testified that as or before the man grabbed her she saw the left side of his face at a distance of one foot. The man led her down the nearby alley. Complainant testified that she looked again at his face and saw the entire left side of his face. Complainant was walking next to or slightly ahead of the man.
Complainant told the man that if he left her alone her parents would give him money. The man continued to hold one arm around complainant's neck. With his other hand he held the gun to her head. The man walked complainant about three-quarters of a block down the alley until they approached a garage. The overhead garage door was broken and was lying on the ground. There was no car in the garage. Complainant noticed garbage and glass inside. In one of the far corners of the garage there was a door panel propped up near the wall. The man pushed complainant into the garage. She turned around, putting her back towards the wall, and looked at the man. He was standing directly in front of her, about a foot away.
Complainant testified that the garage was dark and she was not able to see well at first. After 10 to 15 seconds, her eyes adjusted to the relative darkness of the garage. The man held the gun near his side pointing toward complainant's stomach. He told complainant to take off her pants but she refused. Complainant stooped down and began to cry, and the man grabbed her by the arm and pulled her up.
After a short time, he told her to turn around to face the wall of the garage, which complainant did. She turned back around, however, and told him, "No way." The man then ordered her to get down on her knees and perform oral copulation on him. When she refused, he hit her on the head with the butt of his gun. He then forced complainant to perform oral copulation on him as he held the gun between her eyes. After two to three minutes, complainant heard a man's voice coming from outside the garage. The assailant jumped back, began to zip up his pants, and went to talk to the man who approached. Complainant was not able to see the man who arrived at the garage, as she was behind the propped door. After the two men had a brief conversation, the second man left. The assailant then left the garage and ran into a yard. Complainant testified that she was in the garage with the assailant for approximately five to eight minutes. Complainant went to a gas station for help and the police were called.
Neil Dakak, manager of a gas station and convenience store located at 99th and Vincennes Avenue, testified that complainant came into the store around 7:30 or 8 a.m. on November 3, 1983. She was crying and told Dakak that someone had held a gun on her and tried to rape her. Dakak then called the police, who arrived in 5 to 10 minutes. Dakak also testified that he knew defendant, since defendant used to work for him at the gas station on days when Dakak needed another person to help pump gas. On the date of the subject incident, defendant did not work at the gas station, and Dakak did not see defendant at all on that day. Dakak further testified that defendant's mother and brother came into the gas station on the date of the subject incident. Dakak asked defendant's mother whether she had seen defendant. The mother responded that she had not.
James Gorman, a Chicago police officer, testified that around 10 p.m. on November 3, 1983, he and his partner received an assignment over the telephone to meet Sergeant Ross, who was supervising a canvass of the area around 99th and Vincennes in relation to a reported rape. After Gorman and his partner began to canvass the area, they learned that Ross had stopped a citizen who was walking on 111th Street. Ross gave the citizen the description of the offender which the police had received from complainant. The citizen told the officers that he thought defendant was the person for whom they were looking. The citizen gave the officers defendant's name and address. The citizen refused to give his own name to the police.
Elbert Hines testified that he lived at 9951 South Vincennes Avenue. On November 3, 1983, at around 7 a.m., he was walking his dog down the alley behind his home as he does every morning. He saw a man and a girl in the alley between Vincennes Avenue and Throop Street around 7:15 to 7:20 a.m. Hines walked his dog into a vacant lot along the alley and then saw the man and girl and a dog walk down the alley past the vacant lot. He saw the backs of the man and girl as they walked by. He noticed that the man was black and the girl was white, and that the girl was wearing a jacket with the name Morgan Park High School on the back. The man was holding the girl by the arm. Hines was not able to see their faces.
On the way back to his house with his dog, Hines noticed that the dog which had been with the man and girl was standing in the alley alone, looking into an abandoned garage. Hines brought his own dog home and then returned to the vacant garage, which was a short distance away. He approached the garage and saw a man inside backing away from the corner of the garage. The man's pants were open and his penis was exposed. As the man turned, Hines noticed that the man was holding a gun in his hand. The man said to Hines, "What's happening?" Hines stood there for several seconds without responding, and then turned and ran home to call the police. Hines stated that he was looking into the garage for 10 to 15 seconds. Hines stated that the man had a dark complexion and a "Jheri curl" hairstyle, was wearing a dark jacket and blue trousers, and was approximately 25 to 28 years old. Hines testified at trial that defendant was not the man he saw in the garage.
Hazel Spears, defendant's mother, testified that between 7 and 8 a.m. on November 3, 1983, defendant was at home. She stated that at 7:15 a.m., defendant was in bed sleeping. Aaron Spears, defendant's brother, testified that he arrived at his mother's house around 8:15 to 8:30 a.m. on ...