*1 school board actions should include the in successful bidder the action. This would enable the trial court to hear all in matters one proceeding. bidder, The possibility that the successful whose contract was enjoined, (Cf. Burt v. Board bring a later action may against board does exist. Education however, cannot App. 393.) say, 132 Ill. 3d We to the legis fatal to an action. That is best left failure do so would be lature, not the courts. situations
Discretion in intervention is other allowing provided Here, however, the trial court in the later of section 2—408. subsections Therefore, It did not do so. petition. to allow Kline’s required vacated, as Kline’s hearing pres- on the merits must be decision from of all matters. for a determination necessary proper ence was here, the order of the trial court pertaining of our decision Because and the writ of mandamus is order, the injunctions, to the restraining court as to denial of interven- The order of the trial vacated. hereby court of The cause is remanded to the circuit reversed. hereby tion is with Kline’s School and for a full on the matter County Putnam Co., Inc., to intervene. Bus allowed Charter part reversed in and remanded. part,
Vacated SCOTT,JJ., concur. BARRY and ILLINOIS, Plaintiff-Appellee, v. THE STATE OF
THE PEOPLE OF al., Defendants-Appellants. BELL LEVESTER et 83—1642, cons. Division) 1 735 (5th Nos. First District 83— 22, 1985. filed March Opinion *2 PINCHAM, J., dissenting. Defender, Assist- Chicago (James Reddy, H. Doherty,
James Public of J. Defender, counsel), appellants. ant for Public Lefevour, (Mark L. As- Chicago Attorney, Daley, State’s Richard M. counsel), People. for the Attorney, of sistant State’s the opinion MEJDA delivered PRESIDING JUSTICE court: Gibson, known also trial, defendant, Sherman
Following bench years terms of 10 Morris, to concurrent was sentenced as Sherman L. robbery, for assault, four years for for deviate sexual rape, years assault; Leves- defendant sexual attempted and four for deviate years rape, for years terms of seven ter Bell sentenced concurrent was and assault, robbery, for years three for deviate sexual years seven filed Defendants sexual assault. deviate attempted three years consolidated. which have been separate appeals a joint Defendants brief (1) they contend were denied their con- victim, witness, stitutional to confront the complaining by admitting hearing her preliminary trial; into evidence (2) the trial court erred in allowing arresting to testify officer as to the defendants’ out-of-court identification victim. af-We firm. 1, 1982, was held at which the July
victim only was the witness to testify. On direct examination she stated that she was 24 old years on June at 3:15 she walking men, a.m. on Halsted Street whom whеn two she open defendants, grabbed identified in court as her arms from behind. Street, took her to They park a school 52d Street and Lowe where vaginal each defendant committed acts and anal intercourse one of the defendants unsuccessfully demanded oral sex. Defendant Gibson took from coat bag her took a blue her into pocket, $4 from ribs, which he deposited some barbecued and took Avon kit. her cross-examination, On she stated it was dark at the time of attack, but that she could her see assailants’ faces because “they lights had though. faces, see, around the I see park you could their good.” She testified that she did not know street school what was on park because she does not read well read a very and cannot further, sign; street she I un- “[o]nly can read little words that *3 like, cat dog, things derstand and like that.” She was asked whether she had attended school and she had any special whether attended prosecutor’s classes. The to both objections questions were sustained. She that she long testified did not know how it took reach the to park, but that she tell could time. She did not first they scream when her, grabbed but did start screaming kicking and did it to they “when me ***.” She did not or gun see a knife the nei- during attack and hit her, ther defendant but defendant Gibson did hеr hair. She pull at looked them for a time when long they grabbed first and her when were to they walking park. the Gibson was the pulled one who off her pants and underwear. She tried to hit and scratch them not but could they because were her holding arms.
She stated that the State’s told to Attorney had her use the word describing “anus” in the attack and she admitted that she did not re- what the word she ally know meant. She stated that had used the and that the use “vagina” word State’s had not told her to Attorney it.
Defendants’ cross-examined her attorney concerning the witness identification defendants to police following colloquy officer. The ensued: tell the that police men and
“Q. point Did to two other you you? this to were the men who had did [sic] them, (indicating). A. Just [*] * * other men two
Q. police You never officers any told the ones had done this to you? two, just I other them said, A. Just them not them two. there, defendants). (indicating two to two Q. police, you point were with the did you When the men, tell the these were men, police other these and ones? No them I to.” pointed
A. two just hearing, probable At the the the court found preliminary conclusion of filed and cause each defendant. An information was thereafter as to different proceedings judge. the were held before a subsequent to the trial, prelimi- to the use prosecution initially Prior moved the hearing of the victim as substantive evidence on nary testimony that she had causes since ground April died natural on limine to exclude the Defendants moved preliminary hearing. the motions, the hearing, from evidence. At on the defendants transcript Education, Department from the Board of presented documents the victim was “mentally which indicated Mentally Handicapped, restricted,” measured at various times intelligence quotient with an have been in- may as between and and that her later scores spe- flated to had taken test. After many due times she to on her cifically finding competent testify victim was based recall, her to her consistent mental questions, detailed answers chronological cross-examined ages, adequately and also had been counsel, mo- defendants’ the trial then the State’s granted court used and de- hearing testimony be at trial preliminary tion that it be excluded. nied motion that defendants’ trials, proceeded cause thereafter waived jury Defendants of the victim’s transcript presented a bench trial. The State as into evi- admitted hearing which was preliminary reserved agreement, defendants By dence defendants’ objections. over testi- move strike subsequently of other wit- Testimony of the victim. mony сompetency based *4 presented. nesses was Van partner, He and his William
Officer Frank Sarabia testified. 30, about 3:20 on June Vranken, in their car a.m. duty patrol were on herein, She 1982, woman, screaming. heard the victim when a they and a at 52d just raped park told the officers that she had been Lowe streets by two men and had been robbed of four or five dollars and a bag blue with Avon products in it. She one described of the men as man, a tall black dark complexion, wearing a maroon jacket, gray slacks, and a hairnet. She added that was than this assailant taller Vranken, Van 5 feet or who was 9 inches tall. The victim described man, the second as offender a about Van Vranken’s but height black build, with a heavy wearing jacket a black which she described as Levis, “neat looking,” and shirt. The officers a “flash put out mes- sage” over the radio to police vicinity other cars in the and then be- gan to tour the area with the victim. police The two black stopped Street, males at Garfield Boulevard and Peoria but the victim immedi- stated that were not ately the offenders. The continued police their search and two more black stopped males at Garfield and Green streets. One the men had a bag blue his hand. the When car was men, said, about 20 to 30 feet from the the victim “Those are the two men that One of the rаped flee, me.” two men attempted to but stopped when he was warned that he would be shot. The officer then Bell identified defendant as the man in the jacket maroon and defend- ant Gibson as the man who had been carrying bag. bag blue The at the time of only the arrest some offi- contained barbecued ribs. The and, cer took bag victim, without it if showing asked there bag was her anything about she could said that it identify. She bag. was a The officer bag Woolworth’s checked the taken from Gib- son and verified that was a Woolworth’s At the time of bag. their arrests, wearing jacket Gibson was a “neat” black Bell and was wear- ing jacket. a maroon Bell had bills on his person. five $1 cross-examination,
On police witness admitted that his report indicated that had defendants not resisted and that arrest flash message males, stated the offenders only were two black one. wearing a suit coat and one wearing longish jacket. black report contained no information concerning ages, offenders’ heights, or complexions, builds nor mentioned either a hairnet or a bag. blue Parker, mother,
Dorthea daughter victim’s testified that her 10, cross-examination, April died on 1983. On she testified that retarded,” victim was from “slightly epilepsy. suffered She Demerol, to take supposed “phenobarb,” Myzelоn, although 30, the time on June she taking incident was not these She suffered from medications. also sickle cell She at- anemia. had skills, tended schools where she studied vocational she had special worked an Avon representative. as sales The witness testified victim’s condition her improved had over the insofar as years ability
359 re- considered longer she was no to concerned and that learn was daughter that her examination, the witness stated redirect tarded. On find her to way and was to the bus herself able by took frequently and epilep- retarded for the workshop (a and from Hallas Industries tic). officer, he that was as- a testified Conroyd, Chicago police
Albert Bell and 1982, and Gib- transported signed to a June squadrol only prisoners the They son in to the 9th District. were the squadrol removed, checked Conroyd in the vehicle. After were prisoners on the squadrol packets products and discovered several of Avon to The had squadrol floor. He Officer Sarabia. packets turned over in the placement of defendants packets prior contained vehicle. that, Tilburg, if called to James Van stipulated testify,
The parties testify would Chicago police department, with microanalyst from the vaginal he taken vic- analyzed samples had and rеctal smear the presence tim that the former had tested for sample positively and prosecution The negatively. of semen and that latter had tested findings acquittal, then rested. Both defendants moved directed which motions were denied. read into recording message
Defendants introduced a of the tape 30,1982. the radio Officers Sarabia and Van Vranken on June Bell testified own behalf an presented Levester in his and alibi de- on June he midnight fense. He that about was with a stated friend, Hasted, wife, The and Sherman Gibson. four Marvin Hasted’s went food and let buy liquor establishments to and Gibson out two 2:10 then car about a.m. Bell went home. About five minutes later, upstairs Bell’s room Bell had appeared Gibson where been cards, cousins. The four talking played to his two and Bell Gibson got left to a ride from a friend to a restau- get They food. of Gibson’s 3:10 or rant Leon’s Barbecue and arrived there at about 3:15 called later, picked a.m. friend left they up Gibson’s and about minutes left. 57th They their food and at a bench in a stopped park to eat. food had began bag Racine and Because the that their been bag to wrapped put in was looked for another excessively greasy, they They put around the food. on a bench and brown bag found a blue bag their food containing bag. began walking in the blue toward They 55th and Halsted to catch into a tree they when saw a car drive bus crash, in the As to look at saw they walked over two park. they in a had two men in handcuffs outside police squad officers car who to Bell and car and a woman inside the car. officers called were arrest. The witness Gibson and informed them that under they described the men in “dark-skinned, handcuffs as my complex- about ion, my height, and everything,” and stated that wearing dark clothing. The officers took the handcuffs off the two men and handcuffed defendants. The witness denied having ever any Avon products and denied raping sodomizing the victim. Sherman Gib- son testified on his own behalf and corroborated Bell’s statements.
It was if stipulated that called to testify, Dr. Christina Orfei would that she is testify a medical doctor who was treating the victim in June and of 1982 July disorder; for a seizure the victim was to take 100 milligrams of Dilantin twice a and 250 day milligrams of De- pakene to prevent seizures; the failure to take the medicines would make her seizures, more vulnerable to *6 but would not induce them; and that in her opinion the victim did not suffer a seizure at the time of the assault because the hospital records indicated that she was alert after the shortly attack.
The parties also if stipulated that called to Herman, Dr. testify, a psychologist employed by of University Illinois Hospital, would testify that the victim’s scores on the Wechsler Adult Intelligence Scale were as I.Q. 72, follows: verbal of performance I.Q. 83, of and I.Q. full scale 76; of that because the of part verbal the test contains a cultural bias, blacks, and socio-economic Hispanics, poor and people generally do poorly test; that section of the performance I.Q. is the best indicator of the victim’s actual and that intelligence an 83 place would her in the range; dull-normal and that repeated testing would tend to inflate the scores.
Annette Lee testified on of the behalf defense. She stated that she was related to both 30, 1982, defendants. On June at about mid- she night, was at her home playing cards with defendants. The two defendants left about 3 a.m.
Valerie Bell testified on behalf of the defense. She is also related to 30, 1982, both defendants. On June both defendants arrived at her house, but she could not remember what time. cards for They played about half an hour and left at defendants about 3:30 a.m.
Both defendants rested and to moved strike the hear- preliminary ing testimony, which motions hearing closing argu- were denied. After ments, court found both defendants guilty deviate sexual rape, (anal intercourse), restraint, assault robbеry, unlawful and attempted (oral deviate sexual assault sex). Judgment was entered on the find- ings and imposed. sentences Defendants appeal.
Opinion
Defendants’ first contention on is that appeal trial court vio- pre- into evidence admitting to confrontation lated their and that witness complaining testimony hearing liminary nature. scope restricted unduly was cross-examination not vio- rights the defendants’ confrontation State responds and was oath testified under had the deceased victim lated because judi- hearing before preliminary at the face-to-face with defendants cross-ex- a probing counsel conducted defense cial at which tribunal the previous the events of to recall ability amination of victim’s evening. ad trial is pending of a witness who dies testimony
“[PJrevious for cross-examination if an adequate opportunity at that trial missible v. Ten given.” (People originally was present when 1116, 401, 410, 1120.) “Adequate nant 2d 358 N.E.2d (1976), 65 Ill. effectively opportunity means an to cross-examine opportunity cross-examine cross-examine, opportunity an merely providing se per adequate opportunity.” at the is [an] 1121, 1124.) 413, 417, N.E.2d v. Horton 65 Ill. 2d (People added to the Code herein, 115—12 has been Since the trial section pro 1963, January Procedure of effective Criminal vides: rule hearsay
“A is not rendered inadmissible statement hearing, (b) trial or if the declarant testifies at the (a) concerning the state is to cross-examination subject declarant person of identification ment, and the statement is one (c) 1983, ch. par. him.” Rev. Stat. perceiving (Ill. made after 115-12.) witness at the case,
In the counsel cross-examined the instant defense *7 to into inquire extensively and was allowed crime, opportunity at the scene of victim’s lighting conditions to resist and attackers, cry and the victim’s efforts to observe her persons other as any had identified out. The denied that she victim that testified under cross-examination her attackers. She further staring at the school she had been walking park to when see their said that she could them because she was afraid. She also addition, In she was with lights faces of the around the park. because the prose- court sustained them in the for over an hour. The trial park cloth- the attackers’ objections concerning cutor’s to a defense inquiry ing. cross-examine question ample whether to opportunity per does not lend itself to a preliminary hearing
was afforded at v. (People on a basis. se case-by-case must be decided analysis In the instant 413, 416, 1121.) N.E.2d Horton Ill. 358 (1976), 65 2d 362
case, it does not appear that the
for
opportunity
cross-examination
was unduly restriсted. Defense counsel was allowed to cross-examine
concerning
witness
her ability to
opportunity
her at
observe
tackers, whether she had identified any other
her
persons as
assail
ants, as well as her own
testimony concerning
specific elements of
the crimes charged. Foreclosure
inquiry
attire,
into the attackers’
light
of the victim’s positive
defendants,
identification of both
does
not,
view,
in our
mean that defendants were denied ample opportu
nity
cross-examination. (Cf. People v.
Ill.
(1978),
App.
Chism
65
3d
33, 37-38,
377.)
382 N.E.2d
The inability to
this line
pursue
inquiry,
and the
possibility
some inconsistencies in the
descrip
witness’
tion of the
adduced,
clothing
weight
offenders’
would be
affect
to
be given that
rather
(See People
than its
v.
admissibility.
Chism (1978), 65
33, 37-38,
377;
Ill.
3d
App.
382 N.E.2d
v.
People
Mendoza (1978),
609, 616-17,
62 Ill. App.
1318;
3d
378 N.E.2d
People
v.
(1975), 34
485, 488-89,
Ill.
3d
App.
Defendants also assert that the trial court’s refusal to allow them to further explore the victim’s education and disabilities consti tutes error. Defendants have not argued that this subject inquiry was relevant to any issue other than the competency, witness’ they have not the trial challenged court’s determination of that issue. As held, this court has a witness recently mentally who is retarded is to legally competent long so as the witness has the testify capacity observe, recollect, and communicate. (People Spencer v.
Ill. 3d App. 473.) Spencer 457 N.E.2d In the witness was a mild-to-moderate retarded adult who could not talk or use standard sign language but who could understand and could questions respond best to leading On that she was held questions. competent basis testify. case, In the instant only speak witness could not but also responded and, noted, effectively as the trial court with consistent re call to into the leading questions. Defendants’ to delve wit inability ness’ competency at the did not result preliminary hearing any *8 fact that were af them, light to of the
prejudice
especially
the issue of
litigate
compe
forded a full and
complete opportunity
cоncerning
admissibility
at the
on the motions
tency
hearing
hearing
of the
The matter was
transcript
preliminary
testimony.
Parker,
mother,
further
at trial
the victim’s
explored
when Dorthea
testified
daughter’s
to her
condition. We conclude that under these
circumstances,
hearing
the foreclosure of
at the
inquiry
preliminary
did not constitute a denial of a meaningful
to cross-exam
opportunity
ine the
It
witness.
follows therefrom that the
the prelim
admission of
inary hearing testimony
People
(1976),
was not error. See
v. Tennant
401, 410,
65 Ill. 2d
Defendants next contend that the trial court erred in allowing
the arresting officer to
to an out-of-court identification made
testify
by the
where
victim
that witness did not
to the identification.
testify
The prosecution responds initially that
this issue was waived
failure to object either at trial or in the post-trial
(See
motion.
gener
23, 31,
v. Caballero
Ill.
ally People
(1984), 102
2d
For reasons, all of the foregoing we affirm the judgment circuit court.
Affirmed.
SULLIVAN, J., concurs. PINCHAM,
JUSTICE dissenting: I defendants, dissent. The Bell, Sherman Gibson and Levester capriciously insensibly denied an adequate opportunity cross-examine the addition, victim at the preliminary hearing. In admission of the victim’s as substantive evidence against the defendants at their violation flagrant trial was a *9 of the defendants’ right constitutional to be confronted with and to cross-examine the witness them. against
In Greene v. McElroy (1959), 474, 496, 1377, 360 U.S. 3 L. Ed. 2d 1390-91, 79 S. Supreme Ct. the Court the im- emphasized measurable worth of confrontation and cross-examination as follows:
“Certain have in principles relatively remained immutable our jurisprudence. One of these is that where action governmental individual, seriously injures an and the reasonableness of the action depends on fact the used to the findings, prove evidence government’s case must to the so that be disclosed individual he has an that it opportunity show is untrue. While this is in important evidence, the case of it is documentary even more where the evidence consists of the important testimony of indi- might who, fact, viduals whose be or memory faulty might malice, vindictiveness, or motivated in- perjurers persons by be these pro- Wehave tolerance, or prejudice, jealousy. formalized tections in the and cross-exami- requirements of confrontation nation.” (Emphasis added.) 1, 8, that, Article “In section of the Illinois Constitution provides ***
criminal the the to meet prosecutions, right accused shall have the witnesses face to face ***.” The sixth amendment to the Consti- prosecutions, tution of the United States “In all criminal the provides, *** right accused shall the to be confronted with the witnesses enjoy ***.” In Pointer v. Texas 400, him 380 U.S. 13 L. Ed. against 1065, 2d S. Ct. victim testified at the defendant’s robbery 85 The hearing. defendant did not have a and the vic- lawyer tim was not cross-examined. had moved to another State The victim when the defendant came to trial. the defendant’s that objection Over confrontation, violated his constitutional right pre- of the victim’s liminary testimony was admitted as against evidence He defendant. was convicted. The Court held: Supreme today right hold Sixth Amendment’s of an ac- “We against him is likewise a funda- the witnesses cused confront States the Four- by on the obligatory made right mental and is teenth Amendment.
* *
[*]
lawsuits,
no one
in the trial of
would
[Cjertainly
experienced
the value of cross-examination in
falsehood and
deny
exposing
in the trial of a criminal case. ***. bringing out
truth
our Bill
right appears
that this
in the Sixth Amendment
fact
of
Framers
those liberties
Rights
belief of
reflects
essen-
right
awas
safeguards
fundamental
confrontation
Moreover, the de-
prosecution.
tial to a
trial in a criminal
fair
courts
of this Court and other
cisions
omitted]
[footnote
emphasized
necessity
constantly
have
throughout
years
for defendants in criminal
for cross-examination as a protection
States, 47, 55, 56,
v.
Kirby United
cases. This court in
U.S.
of the fundamen-
of confrontation as
right
referred
‘[o]ne
so
right long
of life and
and ‘a
deemed
guarantees
liberty,’
tal
it is
liberty
essential for the due
of life
protection
judicial
provisions
action
guarded against
legislative
in the
States and
constitutions
Constitution
United
composing
of most if not all of the States
Union.’ [T]he
safeguards
is ‘one of the
essential to
cross-examination
a fair trial.’ And in
of confrontation and cross-exami-
speaking
McElroy,
nation this Court said in Greene v.
In 380 U.S. Ed. 85 1074, the accom- prosecutor S. Ct. called the defendant’s convicted trial as a State witness at the defendant’s and cross-examined plice him as a hostile witness. the refusal to Despite accomplice’s persistent answer, the read the confession which prosecutor accomplice’s impli- cated the defendant. The Court held the defendant’s in- Supreme his purported to cross-examine the about confession ability accomplice cross-examination, the se- right right denied the defendant is to the Con- cured the confrontation clause of the sixth amendment by the sixth stitution of the United States. The court further held is right amendment of confrontation and cross-examination made clause of the fourteenth by process on the States due binding 415, to the Constitution of the United States. 380 U.S. amendment 934, 937-38, 1074,1076-77. 418-20, 13 L. 2d 85 S. Ct. Ed. 347, 308, 39 L. Ed. 2d 94 S.
In Davis v. Alaska 415 U.S. offenders. 1105, anonymity juvenile Ct. a State law protected statute, trial to allow defense counsel judge Based on this refused concerning burglary witness question key prosecution juvenile he the time of the events to which testi- and his status at probation The Su- burglary larceny. was convicted of fied. The defendant question “limited to the whether Court certiorari preme granted Clause to ade- his under the Confrontation right was denied petitioner 308, added.) (415 U.S. (Emphasis quately juvenile. cross-examine” 1105, 1110.) reversing In L. Ed. 2d 94 S. Ct. convictions, the court held: guarantees
“The Sixth Amendment
Constitution
in
‘to
confronted
prosecution
of an accused
a criminal
be
right
is secured for
right
him.’ This
against
with the witnesses
un-
criminal proceedings
as well as federal
defendants
state
Texas,
(1965).
der
* * * is means which believ- principal by Cross-examination are tested. of a and the truth of his ability witness *** credibility is ef- attack on the witness’ particular A more revealing directed toward fected means of cross-examination as biases, motives of witness or ulterior prejudices, possible in the case at personalitiеs to issues or directly relate they may subject exploration is of a witness partiality hand. the witness and af- discrediting relevant as trial, ‘always and is recognized ***. We have of his fecting weight testimony.’ is a testifying of a motivation exposure that the witness’ constitutionally protected function of the important proper of cross-examination. *11 * * * expose permitted counsel should have been [Djefense the triers of fact and as sole jurors, the facts from which jury relating to the inferences draw appropriately could credibility, the thus denied Petitioner was of the witness. reliability ‘ constitutional “would be cross-examination which of effective of want showing no of and amount magnitude error of the first ’ ” 308, added.) 415 U.S. (Emphasis would cure it.” prejudice of 1105, 353-54, Ct. 347, 355, 94 S. 315-16, 318, L. 2d 39 Ed. 1110-11.
367 opportu The Illinois Court relied on the of the Supreme adequacy People nity to cross-examine the defendant’s conviction affirming Tennant, v. Tennant 401, Ill. 358 1116. In the (1976), 2d N.E.2d defendant was in a for examination charged preliminary complaint murder, with a co-occupant to which he confessed. Willa Watson was of others. At defendant, the house with the the rooming deceased the which cir preliminary hearing, Watson testified to various facts cumstantially implicated the defendant in the homicide. died Watson trial, before trial. preliminary At the defendant’s Watson’s as testimony against defendant, admitted the were his confession incriminating other In the defendant’s convic affirming evidence. tion, supreme the court held: preliminary hear-
“Watson had testified for the State [at and had been ing] by cross-examined counsel for defendant without limitation.
* * * of trial testimony a witness who dies is ad- pending [Previous adequate an missible at that trial opportunity cross-exam- if for present ination was when testimony given. was originally
* * * an there was ade accordingly where, here, We hold that as quate opportunity cross-examination the preliminary for hearing testimony witness who dies trial, prior the ear lier of that witness is properly admitted trial.” (Emphasis added.) 65 Ill. 2d 410-11.
At the preliminary bar, hearing of the case at counsel defendant was prohibited the victim without cross-examining from limitation by frivolous objections of the and im- prosecuting attorney proper rulings by Moreover, as hearing judge. hereaf- preliminary out, ter pointed because of the of the and the facts case logistical pos- ture of the preliminary hearing witnesses, trial witnesses clearly defendants were denied an adequate opportunity to cross-ex- amine the victim on crucial issues case at hear- preliminary ing.
It was stated in People v. Horton 413, 65 Ill. 2d N.E.2d that whether a defendant had an adequate opportunity to cross-examine a hearing witness for preliminary purposes using testimony at trial because of of the witness unavailability must be decided on the facts and determined “the circumstances in Horton, In owner, each case.” defendants robbed tavern who was extensively testified and hear preliminary cross-examined at ing, died but who before trial. The tavern hear- owner’s *12 the defendants at trial. The su- ing testimony against was admitted court held: preme to cross-examine’ question ‘ample opportunity whether
“[T]he in fact at the does not lend presented preliminary hearing was and must be decided the per upon itself to a se determination circumstances in case. each much ex- searching
‘A is less preliminary hearing ordinarily trial, than a simply into the merits of a case because ploration of determining more limited one whether its function is the for trial.’ ***. The the accused cause exists to hold probable 7, of the Illinois Constitution 1, in article section provision cause’ to hearing probable ‘a establish prompt preliminary is limited. clearly purpose shows that its so hearing cross-examination at a is sub Ordinarily, preliminary the beyond to the rule that it not extend ject general may interrogation of the direct examination and such further scope interest, bias, or motive of the prejudice as is directed to show factors are the extent that these relevant witness to *** the hear [CJlearly preliminary of cause. question probable In the absence discovery proceeding. is not intended to be a ing of the limited nature of and in view discovery procedures hearing, at a preliminary evidence which be introduced may to cross-examine had adequate opportunity whether question *** may depend not in its hearing the preliminary existed at hearing. Adequate opportu what at that entirety transpired on to cross- opportunity effectively means an to cross-examine nity examine, an to cross-exam opportunity merely providing adequate is not se hearing per preliminary ine at 413, 416-17. added.) 65 Ill. 2d opportunity.” (Emphasis in Horton that the preliminary court further held supreme The revealed that there was noth- victim testimony robbery of of the other trial testimony by which was not covered ing therein would not have benefited witness, additional cross-examination that adequate were afforded an defendants, the defendants and that preliminary victim at the robbery cross-examine opportunity hearing. of trial witnesses about bar, there was
In the case at at the trial—not been cross-examined could have only the victim of the vic- cross-examination hearing. Additional at the the defend- benefited allowed, obviously would have tim, had been opportunity adequate denied an Instead, were ants. defendants hearing. the preliminary the victim at cross-examine morn- during early It was the State’s contention trial 30, men in a ing two raped hours June victim 24 years victim was park city Chicago. south side old. she retarded” Her mother testified that was “slightly testi- she suffered from and sickle-cell anemia. Her mother epilepsy the vic- Demerol, fied further phenobarbital Mysoline medication, taking tim’s but her prescribed that the victim was *13 medication at the time of the in the Further incidents instant case. will made ill- regarding mentality, comment be hereafter the victim’s ness and medications.
The victim not on the really “did know” where or what street park in which the incident She “not re- occurred was located. could ally” She read. understood “only dog, things little words like cat and that,” like and she could read a street At some time after sign. fled, her assailants Chicago victim encountered police officers Frank Vranken, Sarabia and William Van who a driving marked squad car southbound on at Union Street approximately 53rd Street though about 3:20 a.m. Even did not know was un- victim able to tell the location of park occurred, in which the incident Of- Sarabia, ficer nevertheless, testified that victim told him and his partner when she encountered them that the incident occurred in a park “at 52nd and Lowe.”
Officer Sarabia testified further victim one of described her man, assailants to him as “a tall complexion black dark with a jacket, gray maroon slacks and a hair net” and “medium build.” stated, also Sarabia “We gathered he over six from the de- feet scription relation my partner’s height.” (Emphasis added.) Sara- bia that the victim testified her other described assailant as “a black male, complected, dark five-nine, or approximately five-eight heavy build, wearing a black victim said was neat look- jacket,” which the ing, and “Levis—blue jeans.” (Emphasis added.)
Sarabia said that he out “immediately message a flash over put radio the other cars in the He vicinity.” stated that to the best recollection, his the descriptions of the assailants that gave he his message flash were the stated previously description. On cross-ex- however, amination, Sarabia conversely testified that the flash mes- sage merely males, described the two offenders as black one wearing a black suit coat and wearing longish one a jacket, and that there was no mention in the flash in his message police or report age, height, build or complexion offender, hairnet, of each or of a blue or bag Avon products. Officer Sarabia testified cross-examina- tion:
370 Defend-
“Q. Officer, I am to show what is marked going you That is the case report ant’s Exhibit No. for identification. incident, is that right? in this you prepared A. Yes.
[*] * * earlier made a call into the radio with Q. you You told us had from of the two men and what description [taken] woman, right? is that That’s right. A. last paragraph attention to the
Q. going your I am to direct report your police 1 on Paragraph page or last sentence of *** a de- officer obtained [read], ‘reporting four lines last message a flash via offenders and sent scription of two that? say zone 13.’ Does Yes.
A. blacks, one male wear- Q. message It also two says does it longish jacket wearing suit coat one ing a black that? say Yes.
A. infor- information —is that the entire Q. any Does it contain the dispatch? mation it contains about A. In the report?
Q. Yes. Yes.
A. age? about information any contain Q. It doesn’t A. No. height? about contain information
Q. any It doesn’t A. No. complexion? about information
Q. any It doesn’t contain Right. A. their builds? about It contain information
Q. doesn’t A. No. being of the men over one about
Q. say anything It doesn’t six feet tall? right.
A. That’s a hair wearing man about Q. say anything It doesn’t net? No, it doеsn’t.
A. man a blue carrying about Q. say anything It doesn’t bag?
A. No. prod- Avon having the men about
Q. anything It say doesn’t in their possession? nets No, it doesn’t.”
A. recording was message tape flash that the 911 stipulated It was radio Offi- by read into message of the 911 depiction “an accurate of 30 incident rape pertaining and Sarabia cers Van Vranken as court in open recording played was message flash 1982.” The June tran- was recording Although evidence. of the defense a part the record part not made and was court reporter by scribed the flash mes- heard trial judge that the reveals the record on appeal, on commented attorneys and that time a second recording sage follows: as judge to the trial tape in issues one Judge, [attorney “MR. KLOAK Bell]: *** Officer Sara- of the attackers. identification case is the this *** morning at 3:20 approximately you told bia screaming and was girl he met a who of June the 30th ***. men. two black raped by had been hollering just that she had done men that of the two description him a gave [S]he said ***. He also told us things these to her. victim] [the bag taken her blue to her had the men that had done this products. and Avon before, I would ask Honor, tapes the 911
Your heard you state- contemporaneous It’s a again. to that tape to listen you he actually of what Sarabia ment, by it’s a Officer relaying someone that things by these was told was told. Officer Sarabia things about had been told these attacked and just had been have would caught. certainly He that hadn’t been people some . tape the dispatch all these items into all these details and put to once I ask the court he admitted he made. So would of Officer Sarabia.” tape again dispatch listen court, transcribed but not again open played tape com- Defender Kloak thereafter the court Assistant Public reporter. mented: asked Honor, that someone the tape, your heard from
“You have a de- said, don’t He ‘We description. Sarabia for a Officer was approxi- her This to calm down.’ We’re scription. trying after Of- 23 minutes approximately at 3:43. ***. It was mately Union, ‘I’m on 52nd and he sees says ficer Sarabia victim] [the get description.’ able to still not
* * * has a neat down, one man ‘Number got In his it’s report contains, ‘The second also report and then his jacket.’ black testi- from his which is different jacket,’ a brownish man had or his the 911 mony message] statement on tape. And [flash you can remember when he wrote the Levester report, Bell arrested. had Levester jacket Bell’s and he [was] [Sarabia seen] might wrote that in have down his if police report it was a brown In the 911 jacket. it message] was ‘neat black suit [flash or black and the man jacket, wearing second a jacket black pants.’ with ***. brown Levester Bell a jacket had maroon with gray It’s much pants. different than a jacket black with brown pants.
* * * I you think when listen the 911 message] tape and [flash no you description bag, see that there’s of a or blue Avon prod- and when that taken, you they stopped ucts see these two men didn’t away, appear block these to have people any blue bag, goes show that Sarabia wasn’t told anything Officer bag about the and the Avon products blue before arrested Sherman Gibson and Levester.
The 911 tells 3:43 tape you morning that in the [the victim] still hadn’t still composed herself, give wasn’t able to a descrip- tion, hysterical still was ***. But Officer Sarabia would have you morning believe 3:20 she had composed herself to give and was able a description.
* * * Judge, the absence of description, heard you’ve from the 911 nature in which the Avon tape, suspicious products were ***.” (Emphasis added.) found Cibella, the Gibson, Rosario the defendant Sherman attorney for then to the court on 911 flash message tape: commented totally
“Officer Sarabia wasn’t candid on the stand. He told he out a you put complete description that the hеight, build, weight, these two offenders complexion over the 911 message] You heard the There tape. tape. was a [flash of a neat description black suit and a brown jacket, description was the over the 911 ***. It tape. went doesn’t the specifics contain Officer got all Sarabia the stand that he put [police and told in his you report].
[*] [**] one tape. heard There was an inaccu- description, [Y]ou rate not even to what the description close defendants that Gibson, case, Mr. Bell Mr. they picked up, this what they wearing.” In Assistant State’s Arthur Neville’s comments Attorney
373 was Neville message tape, flash 911 Sarabia’s court about Officer give not did that Officer Sarabia concede to admit and compelled he message flash in his 911 the offenders of descriptions detailed The to concede. choice but Neville had no gave. trial he testified at commented: Neville Attorney for itself. Assistant State’s tape spoke case, your this In purpose. 911 serves as one tape “The impeachment in for brought directly was Honor, tape in to brought It is It is evidence. not substantive purposes. any type out putting Sarabia was this court that Officer show so he could to court coming of later description purposes of out a puts Sarabia with it. Officеr be shreads ripped [sic] is to apprehend for one and message purpose, flash a de- give crime. It does not offenders that committed this two message The flash of each offender ***. description tailed so that officers given police over air Officer Sarabia is by of offenders involved and general can have description message given by then them ***. The flash Officer apprehend all, description not meant to the total end be all be Sarabia act Rather, given police is so the can the offenders. of call- ***. You hear Officer Sarabia act responsibly quickly ask him for a They he has a possible rape suspect. in that ing says ***. He no, her down. He I to calm description. says, have ” *** put description.’ ‘I’m out of a going part offenders, a 911 description After in radio putting flash trial, whether detailed as were at the or they as Sarabia testified revealed, as the 911 Officers Sara- meager message whether as flash toured the area with the victim their police bia and Van Vranken car, to Sarabia’s trial two according testimony. They spotted suspects, them after had told them that and searched the victim stopped wearing apparel descriptions were not the The physical offenders. record, nor thеre any of these are not revealed in the is two persons and searched stopped in the record as to Sarabia explanation why if of the assail- description them had such a detailed Sarabia obtained ants from the and if such detailed was radioed as a description victim however, message, flash he testified. It is he quite apparent, why as even as his mea- though, and searched two individuals stopped revealed, he had not obtained a de- message flash gerly descriptive description tailed of the assailants. Sarabia, the first Van Vranken and releasing suspects,
After two and ar- They upon their tour of the area. came victim resumed The defendants, stated were her assailants. rested the who the victim Both station and police processed. defendants were taken into the defendants denied commissionof the offenses. Court Supreme stated in Pointer v. Texas 380 U.S.
400, 404, 13 Ed. 2d S. 1065, L. 85 Ct. one expe- “[N]o rienced in the trial of law suits deny would the value of cross-exami- nation in exposing bringing falsehood and out the in the truth trial of a criminal It case.” is equally prosecutors, true experienced de- fense attorneys, trial judges would that the most deny diffi- cult criminally accused defend, defendant to successfully however in- be, nocent he is the may defеndant who is (1) arrested the vicinity offense, commission of the (2) shortly after the commission of offense, being (3) upon ostensibly identified the victim offender, the area to arresting touring apprehend (4) officers be- any police reports prepared report official are the victim’s *17 fore offense, the the description or of of the offender or of in- any police vestigation, (5) reports where all of the of the police commission offense, the description wearing apparel offender, of the and the apprehension of the offender are prepared alleged the offender after has been No case greater arrested. offers a challenge integrity or the of the accuracy fact-finding process. Such a case reeks with op- portunities to fabricate and to officially document such fabrication. More of importantly, precludes such exposure documented fabrica- skillful, tion by the most artful and experienced cross-examiner. bar, In the case the were defendants aided in their defense only by tape. the of the 911 flash preservation message astute Because of victim, however, the the death of the denied their defendants were constitutional to right cross-exаmine victim at their trial about the gave of descriptions she her assailants to Officer Sarabia. It is from the 911 flash patently apparent foregoing message tape colloquy that the of the assailants and of the description cross-examination vic- tim thereon were vital to the defendants’ defense. It should be noted that Van Vranken was not called as a witness by prosecution. The Sarabia, victim, to cross-examine but not the on opportunity this cru- cial issue denial right did not redress of the defendants’ confronta- tion and of the victim. As the Supreme cross-examination Court 415, 419-20, stated in v. Alabama Douglas (1965), U.S. 13 L. Ed. 934, 938, 1074, 1077, 2d Ct. to 85 S. cross-exam- opportunity “[T]he ine adequate the law to redress this de- [was not] officers enforcement nial of by the essential secured the Confrontation Clause” to codefendant, on fifth grounds, cross-examine the who amendment refused to testify. processed and Van in the
When Sarabia Vranken defendants station, prepared police all the victim’s ini- they reports their police the defend- the area and of them, of their tour of to complaint tial accurately could probably and Van Vranken ants’ arrest. Sarabia informa- by pre-arrest influenced extent they to what determine in the preparation information to post-arrest tion as opposed Sarabia and by efforts require superhuman It would police reports. n be- acquired that they information accurately separate Van Vranken acquired information arrest from the defendants’ fore arrest, regarding particularly the defendants’ upon and after descriptions wearing apparel. physical defendants’ 1, 1982, the arrest, on July morning following The defendants’ for preliminary court on complaints before the appeared defendants of commission various them with the charged examination which in the court of their Both defendants advised fenses the victim. upon them. to represent defender was public appointed and a digency for a preliminary ordered the case “pass[ed] court Thereupon, *** recalled, was the pub in a minutes.” the case hearing few When People denied. In lic a motion for which was discovery, defender made supreme v. Horton 65 Ill. 2d 358 N.E.2d intended to be discov hearing court held that a was not preliminary discovery Rule 411 provides since Court ery proceeding, Supreme or informa are after indictment applicable only rules criminal cases course of a prelimi tion and shall not be to or in the operative prior moments only pre The defendants’ nary hearing. attorney, appointed thus the defendants at compelled represent was viously, ma discovery with no information or preparatory preliminary terial. at the only prosecution witness called victim his direct ex Attorney, The assistant State’s hearing.1
amination,
probable
into
to establish
necessity
evidence
bare
put
ordinarily
is
preliminary
cause. He was well aware
“[a]
trial,
of a case than a
searching exploration
much less
into
merits
determining
one of
its function is the more limited
simply because
for trial.”
v.
People
cause exists to hold the accused
probable
whether
65 Ill. 2d
pendix. By effectively limiting the victim’s direct examination, the prose- cutor successfully confined cross-examination of the victim defendants’ to the attorney scope of the victim’s re- deliberately stricted direct examination. The victim was not asked a single ques- tion and did not testify on direct examinаtion about her encounter with Sarabia and Vranken, Van her tour with them to seek her assail- ants, her identification of the defendants to Sarabia and Van Vranken assailants, as her or Sarabia and Van Vranken’s arrest of the defend- ants.
In the absence of the defendants’ powers, clairvoyant attorney the preliminary hearing would no that Sarabia way knowing have would subsequently at trial testify physical descrip- as detailed tion wearing apparel of the assailants that the victim allegedly gave police officers when she reported the incident to them. The victim’s description to the officers of the offenders became an ex- crucial tremely issue at the defendants’ trial. The defendants were de- nied an adequate victim, however, to cross-examine the opportunity crucial fact, these identification In issues. after the victim testified at the hearing that she stared at her assailants and that she was in the park hours,” with them “about two collo- following quy ensued:
“Q. What were the men wearing?
MR. LOEB State’s Attorney]: Objection. [assistant THE COURT: Sustained.” appropriate.
This was most On inquiry what basis the assistant to defies a Attorney objected question legal State’s explanation. is objection equally On the court sustained the unclear. what basis The of this issue is The ma- majority’s inept. disdainful resolution аttire, in jority holds that into the attackers’ inquiry “[foreclosure light defendants, of the victim’s positive identification of both does view, not in our mean that defendants were denied ample opportunity First, for cross-examination.” if inquiry victim about her at- allowed, tackers’ attire had been her responses might very well have that her revealed identification was not so “positive.” Second, in cases where issue, identification is the crucial if of in- “[foreclosure *** *** into the attackers’ attire quiry does mean that defendants ample cross-examination,” denied it is opportunity impos- perceive else, sible to what if mean. anything, does The further holds majority pursue this line inability “[t]he and the that some inquiry, possibility inconsistencies in the witness’ adduced, description clothing of the offenders’ would affect the be weight given rather admissibility.” be than its *19 of wearing to cross-examine a victim her at- apparel about
tacker in an effort to identifica- challenge accuracy victim’s identified, tion of a defendant who has been so is a constitutional It is not an issue on the or the of evi- right. weight admissibility dence, states. majority as (1978), reliance on v. Chism 65 Ill. 3d majority’s People App.
33, 377, Chism, In Pettis was robbed Larry 382 N.E.2d is misplaced. three later identi people, guns two of whom had and whom Pettis fied as the police Chism and Fiske. Pettis hailed a car. When police spotted the offenders in robbery Pettis’ friend’s Buick the offenders fled in the car and a chase ensued. The Buick crashed into an police vehicle, other killing Fiske, Pettis occupants. identified Chism Buick, who were in the pinned wrecked as his assailants. At the pre Pettis testified liminary hearing, fully and was not restricted on cross- trial, however, examination. Because Pettis died before his prelimi nary hearing was admitted at the testimony trial.
The majority’s People reliance on v. Mendoza 62 Ill. (1978), App. 609, 1318, 3d 378 N.E.2d v. People (1975), 34 Ill. 3d App. Sanford 485, 255, 340 N.E.2d v. People 82, Ervine 64 Ill. 2d App. 346, 212 N.E.2d is also misplaced. Neither case involved the admis sion of preliminary hearing at a testimony defendant’s trial. Neither case presented confrontation, Rather, cross-examination issue. each case presented simply an identification issue.
In bar, the case at it can be reasonably pre- inferred that at the liminary hearing, defendants’ attorney detected from the victim’s demeanor and her she suffered from form of in- some deficiency. tellectual She testified that she signs, could not street read that she did not know the location of the park where the incident oc- curred, that she understood little words like and cat. Af- only dog ter this testimony, defendants’ further unjustifiably was inquiry the following curtailed in manner:
“Q. [Victim], did you go school?
MR. LOEB State’s Attorney]: Objection. [assistant THE COURT: Sustained.
MR. MARTIN [Victim], Public [assistant Defender]: you any special you classes when were in school?
MR. LOEB: Objection.
THE COURT: Sustained.” It is quite that this line of apparent inquiry was relevant to wit- ness’ competency. This was inquiry unconstitutionally curtailed.
Evidence was later presented the trial that victim was mentally retarded and had damage, mentally brain “educable I.Q. handicapped,” history had a borderline and that she had In 1982 she was epileptic seizures and sickle-cell anemia. November July six months’ and in her fourth In June and pregnant pregnancy. *20 1982 for her seizure disor- prescribed she was extensive medication ders. incident,
The victim’s mother testified that on the the day victim did not take her medication that was to be taken prescribed three times a The mother testified further that her at- day. daughter reading tended education classes of and basic arithmetic. She special 28, said that she last her her medication on June 1982. gave daughter brought The mother testified that on one occasion when she further court, the victim to “she was testify the victim was unable to because feeling good not and she had took coordinating wasn’t well. [S]he [sic] her The drowsy medication. She was which occurs sometimes.” record 10, 1983, that the victim died on and that the cause of April reveals disorder.” death was “chronic seizure of the victim’s facts, question a bona foregoing From the fide at- the defendants’ Although as a raised.
competency may witness be in- the mentioned previously did not have the of all of torney benefit nevertheless, his efforts to hearing, justi- formation at the preliminary whether the victim attended school or fiably inquire special about classes in school were restricted. improperly
The Hor- victim’s demise was and indeed unfortunate. unexpected no tragedies rible crimes were her. But these are perpetrated upon in order justification relaxing rights safeguards constitutional I alleged justice. express opinion to the offenders to no bring guilt the the defendants’ a rea- beyond whether evidence established however, innocent, had the con- they or guilty sonable doubt. Whether That of this witness. right challenge competency stitutional to the was denied confrontation and cross-examination right constitutional of at hearing again trial preliminary these defendants at their as substantive hearing testimony admission of the victim’s preliminary evidence. this constitutional issue is un- grave
The resolution of majority’s states that the defendants did The satisfactory. majority mistakenly determination that the victim was challenge trial court’s challenge compe- the defendants did victim’s competent. But admission of against they argued, unsuccessfully, when albeit tency could They at their trial. hearing testimony the victim’s preliminary hearing, at the be- competency preliminary not have her challenged allowed judge know about it. Had the trial cause did not then education, regarding victim’s inquiry the defendants’ well done, might very answers trial have the victim’s judge should incompe- indication of her further and further triggered inquiry have tency. to inability to delve majority
For the conclude “[defendants’ not result hearing into at the did competency the witness’ First, had the defend- begs question. to them” any prejudice the pre- into the witness’ at competency ants been allowed “to delve to the wit- hearing,” they may have been able establish liminary Second, it not a what incompetent. question ness was is cross-examination, rather, is their establish on defendants could Third, as the Su- to it on cross-examination. attempt establish 308, 318, Davis v. Alaska 415 U.S. preme Court stated 1111, “Petitioner was thus denied L. Ed. 2d 94 S. Ct. constitutional right of effective cross-examination which ‘would be want showing and no amount of magnitude error of the first ” prejudice would cure it.’ added.) (Emphasis reasons the defendants majority fallaciously further litigate “were afforded a full and the issuе of complete opportunity competency concerning on the motions admissibil- *21 ity First, of the of the it is transcript preliminary hearing testimony.” to impossibility a afford “a full and to physical complete opportunity Second, of a deceased litigate competency” person. the issue of preliminary hearing motion of the victim’s testi- was for admission Third, it of the victim. mony; hearing was not a on the competency mother, on the vic- cross-examination of the victim’s nurse or doctor tim’s competency adequate was not an substitute for cross-examina- 415, Douglas v. Alabama tion of the victim. See 419- (1965), 380 U.S. 20, 934, 937-38, 1074, 13 L. Ed. 2d 85 S. Ct. 1077.
In conclusion, to affirm although may desirably expedient be convictions, the instant justification is no for re- expediency desirable treasured laxing safeguards. constitutional The defendants’ convic- tions should therefore be reversed. bar, it
To in the case at was essential that guilty findings obtain that the State doubt these defendants prove beyond reasonable right were the victim’s assailants. The had the absolute defendants of the identification of them as her as- challenge accuracy victim’s offenses, sailants. of the Both defendants denied commission both defendants mistaken in identifica- asserted victim was her tions. Because the sustained preliminary hearing judge improperly frivolous to the defense prosecutorial objections attorneys’ inquiry, unconstitutionally defendants were restricted in their identifi- authenticity cross-examination the victim’s cation.
It is indeed had the victim testified at trial noteworthy had the defense attorney asked her the questions lighting about the conditions at the scenes her attacks and the of her descriptions assailants’ wearing apparel (which he asked her at the preliminary hearing), and had an assistant State’s Attorney imposed such ludi- crous objections to such at questions (which a trial he did at preliminary hearing), and had a trial judge sustained such objections at a trial (as did Judge Urso, J. Joseph the preliminary hearing judge), is there any court of review that would not hold that defendants had been denied their right constitutional to cross-exami- trial, nation and to a (Davis v. Alaska necessitating reversal? fair 308, 415 U.S. 39 L. Ed. 2d 94 S. If 1105.) Ct. a trial court’s erroneous rulings trial, at a excluded improperly evi- dence on the material issue of the correctness an offender’s iden- tification, reversal, would result should less be any required when the same is accomplished trial through preliminary hearing should the transcript? Why victim’s untimely death so al- appreciably n ter a defendant’s right, constitutional particularly when it was the prosecutor’s trivial objection which initiated the improper cross-ex- amination By logic restriction? what does the improper denial of the constitutional of cross-examination become instantly purified by filtering magically erroneous judicial rulings invalid cross-exami- nation through restrictions a preliminary hearing into transcript sub- stantive trial evidence? The of a admissibility preliminary hearing transcript as trial restrictive, substantive evidence should be more less, considering when the fact is finder compelled rely on a finder preliminary hearing that fact transcript, is denied in- advantage valuable of observing the witness. Again, defendants’ convictions should be reversed.
Appendix Excerpts hearing: victim’s at the preliminary *22 DIRECT EXAMINATION “Q. home, After said want to did take you you go they you anywhere?
A. took me to the They school park.
Q. Is that located— MR. Objection. MARTIN Public [assistant Defender]: answer. may You THE COURT: Is that located Attorney]: State’s
MR. LOEB [assistant 52nd and Lowe?
A. Yes. Objection. MARTIN:
MR.
A. Yes. It stand.” may
THE COURT: CROSS-EXAMINATION “Q. morning? happened yesterday [T]his A. Yes.
Q. time was it? What it A. I’m not sure what time was. exactly Q. Well, morning morning? in the or late in the early was the morning. Early A. out?
Q. light itWas
A. It was dark. before? night from the
Q. It will still dark [sic] the park around See, light it was dark and had A. faces, see, good. I could see their though. you in the Q. up morning? that before the sun came Was house, dark, lights you A. It was and the around just know.
* * * Q. walking on Halsted? way you Which Objection. MR. LOEB:
THE COURT: Sustained.
A. I don’t know which way.
THE COURT: Sustained. question
No pending.
* * * the nearest street light? far Q. away How Objection. MR. LOEB:
THE COURT: Sustained.
A. I don’t—
THE Sustained. COURT:
* * * Q. else? say anything Did they said, All I I home. go
A. want Q. after that? happened What park.
A. took me to the sсhool They Q. park Do know where that school was? you *23 A. Not really.
Q. it youDo know what street was on?
A. I don’t read that good. at
Q. you Can read all?
A. Not really.
MR. LOEB: Objection.
THE COURT: You answer. may dog,
A. little words I understand like cat and Only like that. things read a you sign,
MR. MARTIN: Can street [victim]?
A. No.
Q. to school? you go [D]id
MR. Objection. LOEB:
THE Sustained. COURT: classes when you any special you MR. MARTIN: [W]ere in school? were LOEB: Objection.
MR.
THE COURT: Sustained. park the school from away
MR. MARTIN: How far was where first saw these two men? you I know.
A. don’t really
* * * Q. it take the school long you park? How did walk to know, I I A. don’t didn’t know what time was.
Q. Well, did it more than five minutes to walk over you take there?
A. I don’t know.
* * * look Q. walking park, you were to the school did you When at either one of them?
A. Yes.
Q. look Who did at? you Both of them.
A. look at them? Q. long you How did MR. Objection. LOEB:
THE You answer. may COURT: long
A. For a time. long?
MR. MARTIN: For how are you saying, you A. I understand what hardly can’t know. them, at didn’t
Q. Well, you? you just glimpsed them. staring A. I like at
Q. You stared them? Because, see, nervous, Yes. I was know. you
A.
Q. You were afraid?
A. Yes.
Q. ground? Did look at the you down Objection. MR. LOEB:
THE COURT: Sustained. long
MR. MARTIN: Do know you you how park? school
A. No.
Q. Was it more than an hour? hour, hours, I A. I two would say would about an —about say.
Q. wearing? the men What were MR. Objection. LOEB:
THE COURT: Sustained.
* * * Q. What else were you wearing? Objection.
MR. LOEB:
A. A blouse.
THE COURT: Sustained.
A. A blouse.
THE COURT: No question pending.
* * * MR. MARTIN: There inside light building, is right? MR. Objection. LOEB:
THE She already COURT: Sustained. has answered that there was.
A. Yes. light
MR. MARTIN: And could see the you through win- dow, is you know? how Objection.
MR. LOEB:
THE COURT: Sustained.
* * * MR. MARTIN: You us that one the men his pe- told put nis in your back?
A. Yes.
Q. Attorney you Did the State’s tell to use that word? I A. wouldn’t like to question. answer it, THE You COURT: have to answer miss.
A. Yes. means, MR. MARTIN: You don’t know what that do you? A. Not really.
* * * Q. Which one of men had the barbecue with him?
MR. Objection. LOEB:
THE Sustained. COURT:
* * * there a car MR. MARTIN: Was accident at this time? Objection. MR. LOEB:
THE Do know about a car accident? you anything COURT: A. No. there a car accident at [Wjasn’t
MR. MARTIN: 55th and Peoria? to the whole line of Objection question-
MR. LOEB: Objection. ing.
THE Sustained. COURT:
* * * Q. these two men run out of the park? [D]id Objection. MR. LOEB: You answer. may
THE COURT:
A. Yes. see where went? you
MR. MARTIN: Did MR. Objection. LOEB:
THE COURT: Sustained.” *25 ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE THE STATE OF OF TORGESON, Defendant-Appellant. SCOTT 83 — 1103 Second District No. 10, 1985.
Opinion April filed