*1 have held essential of counsel which we effective assistance of Cook County of the circuit court judgment directions to with reversed, and cause is remanded this defender and than the counsel other public appoint with this consistent further opinion. proceedings remanded, with directions. Reversed and RYAN, dissenting. MR. JUSTICE (No. 44250. ILLINOIS,
THE PEOPLE OF THE OF STATE Appellee, BROWN, v. BOBBY MACK Appellant. Opinion May filed *2 RYAN, J., part. took no
SCHAEFER, J., dissenting. BROWN, MACK BOBBY se. pro General, SCOTT, WILLIAM Attorney Spring- J. field, CALKINS, and ROBERT S. State’s Attorney, General, ZAGEL, Peoria B. Assistant Attorney (JAMES LITTERST, and ROLAND N. Assistant State’s Attorney, for the People. counsel), delivered the MR. DAVIS opinion JUSTICE : court Brown, was defendant,
The Mack indicted Bobby for the circuit court of Peoria the crimes County rape He found and indecent liberties with child. both after a trial and was sentenced by jury, charges for less nor more Illinois State than seven Penitentiary affirmed the than eleven court years. appellate 669, 267 Brown, 131 Ill.App.2d conviction (People the defendant’s we petition granted N.E.2d 142), leave to appeal. in this claims appeal years age, *3 he in
that was his to counsel right deprived preindict- identi- and ment confrontations by “lineup” photographic fication; in while that his identification by photograph erred in the that the court denying was custody improper; motion; erred that the court defendant’s discovery pretrial on the indecent a of not to direct verdict refusing him to liberties and that the State failed charge; prove a reasonable doubt. guilty beyond a grade a was 6th 12-year-old girl, prosecutrix, 4, 1969, on March testified that after school student. She her at a house which she to meet her mother to look rent; at arrived the mother to that when she intended the that there she waited on house no one was and porch; her identified thereafter, man, who was later shortly from the back defendant, trial came as the during her invited the front door and house, entered through warm; first, at that she refused into the house where was kitchen; entered the that then and accepted me her: to something?” then asked “Are you give going allow “No, doesn’t mother and when she answered my her head threatened to cut that,” he a saw and picked up it; and his off then “all right,” with that she said he and bedroom, sat on bed direction, went into down; her shirt on orders she her that his pushed pulled up he knees, to her but when and down her pulled panties “No,” and down,” said said “I’m have to come she gonna and he that then went to kitchen began resisting; consented and returned with the saw and she then intercourse; to an that she felt submitted act pain, loose, told her mother and ran home and finally wriggled and and had that father she been raped; parents offense, brother returned with her the scene when found one there and and that no called police; assailant, arrived, of her she them a they gave description and taken to the was then hospital.
A medical examination of indicated occurred, that intercourse had that blood was flowing from in the due a tear A vagina hymen. vaginal smear male indicated the presence sperm. who in the house in had been residing
question about two basis, months repair-rent arrested about hours later and advised of his rights. While he was in two officers custody, showed police of six different photographs individuals to one of the including defendant. She identified the defend- ant from the as the man who photographs her. raped Contrary good police procedures, pictures returned files without record being kept of the other five identity whose persons photo- had been submitted to her. graphs either Subsequently, day following day, *4 both and her mother prosecutrix were taken to the station where the police viewed four in prosecutrix persons a a through window, which lineup her to see permitted them did but not them see her. All were permit four dressed alike and each one walked alone before the
98 the defendant as identified window. The again not defendant did time the man who her. At this raped have an attorney.
However, shortly lineup, prior that he was had advised a officer been by suspected police him to wanted a they appear young girl; rape he had the to have an attorney. in a and that right lineup; The record Nevertheless, he a waiver of counsel. signed and understanding- that the defendant knowingly indicates waived his to counsel at ly right lineup. after to counsel at a can be waived right lineup
the accused has been
advised
his
v.
States
rights. (United
218, 237,
Although
of whether
the defendant had
the waiver of the
signed
to counsel when the
shown to the
right
photographs
counsel
such
right
when the defendant
not
has
himself is
procedures,
present,
been
this court.
rejected by
Holiday
(People
Also,
Ill.2d
failed to raise the
307.)
need
court, and,
in the trial
question
consequently,
considered here.
v. Hanna
Ill.2d
defendant next contends that the
proce-
pretrial
him
were so
dures used to
identify
lineup
photograph
to mistaken identification as
and conducive
suggestive
*5
he
him of due
of law.
asserts
Particularly,
deprive
process
of him
that it was error
show
police
photographs
he
to the
while he
in
In this
custody.
respect,
prosecutrix
in
relies
statement
in
Identification
Eye-witness
71:
Wall,
Criminal
Patrick
“Where
Cases
by
page
(1965)
however,
is known and in
custody,
showing
suspect
even
witnesses
usually
photographs
improper,
when
fair
used in
them is a
one.”
showing
procedure
However, we do not
this statement as authoritative
regard
this
The
point.
practice
showing photographs
suspects
essential
witnesses is
to effective law enforcement. The
inherent in the
have been
dangers
recognized by
practice
Court,
nevertheless,
United
initial
States
but
Supreme
identification
has its
The
Court
photograph
approval.
has held
facts,
that each case
own
must be considered on its
and that convictions
on in-court
based
identifications
identification
will be set
following
pretrial
photograph
aside on that
if the
identification
ground only
photographic
sowas
as to
rise to a
procedure
suggestive
impermissibly
give
substantial likelihood
very
misidentification.
irreparable
377, 382-385,
Simmons v. United States
390 U.S.
19 L.Ed.2d
While we that each instance acknowledge pretrial identification should be examined to deter- photographic mine whether unreasonably suggestive procedures used, we are to hold that such identification ready never when can is in procedure used Circumstances necessitate such custody. may procedure, and to well effective law prohibit may very hamper enforcement. case, at the this on a motion hearing suppress evidence,
identification officers testified they police showed the of six different subjects prosecutrix photographs the defendant. The record does not reflect that the including officers directed her attention to the police any way defendant’s or in that he was any way photograph suggested the one who attacked her. review of the A record indicates done; that she or suggestive
that nothing improper identified a time and one at viewed the photographs her attacker. as from them among defendant relative at the trial cross-examined extensively officers were examination and such to the photographic for error in photographic failed potential expose identification procedures. to view had opportunity ample and dress facial characteristics and to have his *6 could mind, so that she positively
impressed
inwas
even
hold that
though
him. We
identify
to
him
used
custody,
identify
by photo-
procedure
to
rise
was not so
as
suggestive
give
graph
“impermissibly
likelihood of
misidentifica-
to a
substantial
very
irreparable
377,
v. United States
390 U.S.
tion.” Simmons
(1968),
384,
1247, 1253,
19 L.Ed.2d
without unfair techniques. any suggestive did the defendant from the police fying photographs, was until she the matter with the discuss prosecutrix told that one was not asked to view some She suspects. from the had identified she the man whom the suspects of the in the all Additionally, photographs. participants were of and dress. the same lineup appearance that the The burden lineup proving procedure the defendant. v. Blumenshine unfair was upon (People 508, In the absence 42 Ill. 2d 511-512.) that used evidence demonstrating procedures did not we hold that this suggestive, lineup due the defendant of his constitutional right deprive of law. process to observe had a good opportunity of him and
the defendant. a She gave description detailed to enable he wore which was clothing sufficiently him hours. She to locate and arrest within 24 him identified made an identification from photograph, of the Her later at the trial. in a and description lineup,
101 his admission was corroborated defendant’s clothing offense was on the that he wore such clothing day of the the identification committed. We cannot say doubtful, or uncertain defendant was so vague a conviction which must be reversed. People produced 339 Ill. Fiorita (1930), for
The defendant filed motion discovery prior evidence, state- trial which requested specifically physical of the witnesses, and “evidence in ments possession on the issue State favorable to the defendant generally The trial court guilt.” requests granted specific „time, motion from granted and time subsequently, documents, denied the further but requests specific and the of the motion. This motion ruling general request date of criminal thereon were effective our prior 110A, rules 411- 1971, ch. discovery (Ill.Rev.Stat. pars. and are not of our views under such rules. indicative 415)
The defendant does not that he claim was denied access to evidence which was in the any specific possession State, nor he he does indicate how was prejudiced the failure of the court to the broad grant general discovery request. U.S. Brady Maryland L.Ed.2d 83 S.Ct. Court Supreme *7 “*** held that of suppression by prosecution evidence favorable to an accused due violates request upon where the evidence is to either or to process material guilt ***.” punishment 83, U.S. And in (373 v. 87.) People Moses, 84, 11 Ill.2d 89, we stated: “Where page that there is appears evidence in the and control possession of the favorable to prosecution defendant, ‘a right sense of demands available, that it justice should unless there are reasons Here strong otherwise’.” the court granted of the of all discovery names for the witnesses State and the of evidence its inspection physical of possession. denial general was without discovery to further prejudice requests by during At the of the proceedings. close direct examination the court ordered the State to all produce written statements as well as referring any prior reports oral statements which she had made. every Reports officer who were for the defend- testified produced ant. All identifiable in the documents possession State, were which requested We find that to all relative discovery produced. pertinent matters and that not called was defendant has granted, to our attention the court’s occasioned any prejudice denial of the “catch-all” of his motion. discovery part Anderson we noted that People evidence the defendant’s and at guilt persuasive 500 we -stated: “We will not therefore aside the set page because of a bare technical of the trial judgment ruling court unless there is some indication that the result present would have been different had the of the trial court ruling Tribbett, been otherwise. 272.” The defendant next erred in claims that court the indecent to the and in liberties submitting charge jury to direct a verdict of not such refusing charge the indictment, which read: Mack “That said Bobby did fondle, Brown touch and other acts too commit lewdly to be the records of court gross this spread upon intent said acts done with body (named prosecutrix), He the sexual desires of Mack Brown.” satisfy Bobby urges this offense should not have been submitted there no in the trial because evidence introduced jury lewd any fondling touching complaining witness, other than the act of intercourse. Section 4(a) 11— of the Criminal Code ch. (3) par. (Ill.Rev.Stat. under which this count of the indictment was 4(a)(3)), 11 — brought, provides: Any
“(a) person of the age years upwards of 17 who performs or submits to of the following acts with age child under the of 16 commits indecent liberties with a child:
(3) Any touching or of either the fondling lewd to person child or the done or submitted with the satisfy to or to the sexual desires intent arouse of person either the child or the or both.” to of Committee Comments section 4(a)(3) 11— theCriminalCode of 1961 ch. par. (S.H.A., 4(a)(3), 11— it is stated: “The of subsection p. language 379), (a)(3) broad to more those acts probably enough encompass described in the two subsections. specifically preceding However, the Committee it more felt desirable to include situations, two for those specific descriptions precise rather than contact, to all inter- lump physical including course, into the of subsection general terminology (a)(3).”
In section subsections and state: 4(a), (1) (2) 11— intercourse; “(1) Any act of sexual (2) Any act of deviate sexual conduct”. However, the indictment itself the defendant charged with committed, in addition to lewd having touching, “other acts too to be the records of this gross spread upon ” court. This allegation, though sufficiently inept, broad include act of sexual intercourse which of performed upon person prosecutrix. An act intercourse falls within the clearly scope child; offense indecent with a and committing liberties evidence sexual intercourse is sufficient satisfy of lewd and charge The trial court fondling touching. and submitted such correctly charge jury properly thereon. the defendant to direct verdict for refused In the bar, case at and indecent charges rape liberties of one grew out transaction. The act of sexual intercourse which constituted rape also the indecent liberties offense. Under encompassed circumstances, such prosecutor required elect with reference he seek which would charge 590, 592-593; conviction. 402 Ill. Gray (People Tinnell 385 Ill. The jury 540-542.) returned verdicts separate finding offenses However, indecent liberties. rape *9 was sentenced under which the order
judgment he was or for which the offense offenses failed to specify been have one should imposed sentenced. sentence Only of sexual arose from the act the offenses which two the been for have intercourse, and such sentence should Duszkewycz offense—the rape. (People greater not erred in Thus, the court trial 260-261.) the offense for which sentence the imposed. specifying he was the defendant is that of Another contention He reasonable doubt. urges a beyond proved guilty of the girl years that the of prosecutrix competency —a must be seriously. age testify, questioned —to the the defendant challenged The shows that record on that a of the and that hearing competency prosecutrix, of the The held of the jury. outside presence question defendant, the for the examined court, well as counsel as her understanding to carefully. relating girl very Questions of to her truth, to the and of the tell concept obligation Her indicate were to and her. responses right wrong, put her and that of age, she had the understanding that girl her to testify. was sufficient such understanding qualify on Because trial two inquired judge separate occasions concerning competency prosecutrix that had to a doubt there testify, argues in his He mind. that between the first and second implies the State’s hearings, coached so Attorney girl answers meet of the would with the approval judge.
The one first two hearings by separated day. evidence, was on the motion suppress unusual, and the second was trial. There is during nothing in the trial court’s necessarily inquiry improper, fact, these occasions. considering age and the which she seriousness charges the trial court’s brought against precautions and conduct were justified. of a minor is to be deter- witness competency
mined not but age, intelligence degree child, It and such decision rests with the trial is judge. that his where there has been an abuse discretion only determination will be reversed. v. Ballinger (1967), (People 621-622; Ill.2d v. Davis find no of an abuse of discretion We proof 436-437.) here.
The defendant also urges testimony entitled little did not because she weight a full of her attacker give description police, that she failed to to her the one saw as identify presented with which she was threatened.
This contention concerns not so much the weight the evidence as the of the witness. credibility (People Evans 25 Ill. 2d there are Where *10 (1962), 199.) conflicts or inconsistencies in the of witness, testimony the will determine whether or not the of jury testimony that witness Here, is reliable. the chose to believe the jury and we will not disturb its finding.
Certain alibi witnesses testified for the He defendant. was not bound to the of defense alibi prove beyond reasonable doubt to entitle him to It was acquittal. sufficient if the defense, raised a point, reasonable of doubt his at the time and of presence place the commissibn of the offenses The burden of charged. the proof State to the defendant of prove guilty such offenses beyond a reasonable doubt. People Collins 179, 189; 49 Ill.2d (1971), v. Pearson People 19 Ill. 2d (1960),
The alibi witnesses in defendant the home placed of on the in Roy Taylor from day about 4:00 or question 4:30 P.M. until 6:00 P.M. The incident occurred between 4:15 and 4:30 P.M. One of the alibi witnesses was a cousin of and of these witnesses testimony varied in certain and contradicted that respects defendant.
It was the function of the to make a jury determina- tion of the of the alibi credibility and of witnesses
weight to the of the We given totality testimony. cannot overturn the verdict because the jury simply evidence to it was v. Setzke presented conflicting. People 582, 586; v. Fort 491, 499.
It is our conclusion that the evidence presented was sufficient jury convict defendant of the offenses with which he was charged. stated,
For the reasons we find that jury in a reason- justified finding guilty beyond doubt, able and we affirm the trial court judgment the offense of and we finding rape, of the trial and courts to modify judgments appellate entered sentence was crime specify rape only.
Judgments modified affirmed. no MR. RYAN took the considera- part JUSTICE tion or decision this case. SCHAEFER, dissenting.
MR. JUSTICE should of conviction that a I cannot agree judgment case. be affirmed in this when in the custody defendant was No reasons was shown photographs.
the prosecutrix in the even of convenience —are suggested necessity —or con- blatantly this improper to justify majority opinion whether to tell makes duct which impossible *11 her based upon identification lineup subsequent recognition recognition photograph States, 390 U.S. v. United Simmons actual offender. (See 1253, As 383, 1247, 88 377, Judge S.Ct. 967.) 19 L.Ed.2d in the appellate in his stated dissenting opinion Stouder is the for reason such court, procedure “The only apparent namely is condemned reason for which such practice later witness of a creation predisposition 683, 267 at Ill.App.2d re-identify suspect.” (131 assert in this court While the majority N.E.2d 153.) that failed cross-examination potential expose error procedures, photographic no obvious there seems realistic possibility cross-examination, such a since showing potential officers had no or of record of kept photographs used. identity whose persons photographs It should also noted that majority court in this acted case appellate apparently upon an erroneous alibi an affirmative assumption defense and that the burden rested 614; Pearson, establish it. See v. 19 Ill.2d People 465, 468; Nicholls, v. Johnson, People Collins, Ill.2d 188-191. 91; People (No. 42753.
THE ILLINOIS, PEOPLE OF THE OF STATE Appellee, CANALE,
v. THOMAS A. Appellant. Opinion May filed