APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
524 N.E.2d 1073, 171 Ill. App. 3d 38, 121 Ill. Dec. 25 1988.IL.801
Appeal from the Circuit Court of Cook County; the Hon. Nicholas Zagone, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. MURRAY and PINCHAM, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial, defendant Dennis G. Holveck was convicted of deviate sexual assault and unlawful restraint, receiving concurrent prison terms of 25 years and 3 years for those respective crimes.
On appeal defendant contends: (1) incriminating statements he allegedly made following his arrest should have been suppressed because the arrest was illegal; (2) his guilt was not proven beyond reasonable doubt; (3) the trial court denied defendant his right to a public trial; (4) it was error to permit testimony concerning the details of complaints made by the complaining witnesses; (5) it was error to permit the substantive use of testimony concerning an out-of-court identification of a newspaper photograph of the defendant; (6) a witness should not have been permitted to offer her opinion as to the meaning of a child's identification of the defendant's photograph as "stranger danger"; (7) the court erred in denying defendant's request that charges of indecent liberties arising out of a prior incident be joined with the charges at issue here; (8) the State failed to disclose to the defendant a crucial police report; (9) defendant's 25-year sentence was excessive.
We reverse and remand for a new trial.
The pertinent evidence at trial was as follows. Three complaining witnesses, all six years old at trial and five years old at the time of the incident, testified that they were walking to school from the home of their baby-sitter when they encountered a man in a car who offered them a ride to school. J.L. testified that the car was silver or gray, with two doors. The man had black hair, a moustache, and was wearing blue jeans. She sat in the backseat with J.W. while J.B. sat in the front seat, which had a hole in it. There was garbage in the car: paper, cups, and clothes. J.L. and J.B. touched the man's "wiener." J.B. touched him with her hand and J.L. touched him with her mouth. She had to suck him. The man said he would throw them in the street if they did not do this. He then let them out and J.L. spit out "stuff" on the grass and on J.W.'s pants. They then returned to the home of the baby-sitter, Kathy, whom they told about having been in a "stranger danger's" car. That night J.L. talked to her mother about what happened.
J.W. testified that during the incident when she began crying the man said he would throw her out on the street if she did not stop. The man also said if they wanted to get out they would have to "wriggle" his wiener and suck it. J.B. "wriggled" it and J.L. sucked it. The man let them out and they told Kathy what happened. J.W. also told her mother what happened. She did not recall seeing J.L. spit on her pants or on the grass.
J.B. testified that the car was a gray two-door with a black interior. There were many clothes in the car, and it had a torn front seat. The man asked her to stroke his "wiener." J.L. touched the man with her mouth and J.B. touched his "wiener" with her hand. Before this, when they began crying, the man said he would throw them out on the street if they did not stop. After they touched him they were let out and J.B. reported what had happened to Kathy and the police.
J.B. described her assailant in court as having curly hair and a moustache. She recalled that subsequent to this incident she saw a newspaper on her kitchen table and recognized a picture of a man whom she recognized as "stranger danger." In court J.B. was shown the photograph, which apparently portrayed three men. (The photograph has not been included in the record on appeal.) She identified the defendant's likeness in the photograph as the man that was in the car.
The mothers of J.L. and J.W. as well as the children's baby-sitter, Kathy, testified in detail concerning the accounts of the incidents related to them by the children. J.L.'s mother testified that J.L. said when she put her mouth on the man's "wiener," "white stuff" came out, which she spit out. According to J.W.'s mother, J.W. said the inside of the car was black and very messy, with clothes, towels, and many red cigarette boxes.
Kathy testified that she had told the children not to talk to strangers and had referred to people who were not nice as being "stranger danger." On November 16, 1983, the children left her home for school at about 12:30 p.m. When they returned at about 1:20 p.m. she asked them why they were back. They were evasive at first but then admitted to having been in a car with a man. They told her that J.L. "had to suck his wiener" and J.B. had to make an up and down motion with her hand on it. Kathy called the police and the school. She explained to the children that this was the "stranger danger" they had been warned about. At trial Kathy testified concerning descriptions given her by the children. The car was a grayish-silver two-door with a black interior which was very messy. J.W. told her there were red and white cigarette packages on the floor. J.L. said the man was older than Kathy's husband, who was then 36 years old. A tape recording of Kathy's call to the police established that the initial description she reported was of a silver or gray or white car. She relayed a description of the assailant as having straight dark hair and a moustache.
The incident in question took place in Barrington. Investigator Jack Humer of the Barrington police department testified that he interviewed the girls at their school at about 1:30 p.m. on the day of the incident and then again spoke to J.B. and J.W. at their homes the following day. All three described the man as having brown curly hair and a brown moustache. J.B. said the car was gray, with a black interior, vinyl bucket seats, and a hole in the right front driver's seat. J.W. told him there were many red and white cigarette packs in it. In court Humer also identified certain photographs as accurately depicting the exterior and interior of defendant's car. Humer, who had questioned defendant on November 18, 1983, said that on that day defendant had curly hair. According to Humer defendant's hair in court was wavy at the most.
Streamwood patrolman Robert Buschbacher testified that on November 18, 1983, he stopped the defendant and asked him if he would come to the police station. Streamwood police investigator Dennis Maggio testified that he questioned defendant at about 9 a.m. that day, after first advising him of his Miranda rights. Defendant admitted that while driving around Barrington he picked up two or three little girls and drove around with them while he fondled his penis. One of the girls climbed in the front seat and began petting him. Defendant stated that it was possible that oral sex took place. When the girls began screaming and crying defendant dropped them off close to where he had picked them up. Defendant's statement was not recorded or transcribed.
Following this statement, Maggio notified the Barrington police. Two officers from that department, including Investigator Humer, came to question him. According to Humer defendant stated that he had picked up three girls. At defendant's request one of the girls touched his penis and another ...