People v. Bell

476 N.E.2d 1239, 132 Ill. App. 3d 354, 87 Ill. Dec. 247, 1985 Ill. App. LEXIS 1818

Opinions

PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Following a bench trial, defendant, Sherman Gibson, also known as Sherman L. Morris, was sentenced to concurrent terms of 10 years for rape, 10 years for deviate sexual assault, four years for robbery, and four years for attempted deviate sexual assault; defendant Levester Bell was sentenced to concurrent terms of seven years for rape, seven years for deviate sexual assault, three years for robbery, and three years for attempted deviate sexual assault. Defendants filed separate appeals which have been consolidated.

Defendants in a joint brief contend (1) they were denied their constitutional right to confront the victim, the complaining witness, by admitting her preliminary hearing testimony into evidence in the trial; and (2) the trial court erred in allowing the arresting officer to testify as to the defendants’ out-of-court identification by the victim. We affirm.

The preliminary hearing was held on July 1, 1982, at which the victim was the only witness to testify. On direct examination she stated that she was 24 years old and that on June 30, 1982, at 3:15 a.m. she was walking on Halsted Street when two men, whom she identified in open court as defendants, grabbed her arms from behind. They took her to a school park at 52d Street and Lowe Street, where each defendant committed acts of vaginal and anal intercourse and one of the defendants unsuccessfully demanded oral sex. Defendant Gibson took $4 from her coat pocket, took a blue bag from her into which he deposited some barbecued ribs, and took her Avon kit.

On cross-examination, she stated that it was dark at the time of the attack, but that she could see her assailants’ faces because “they had lights around the park though. I could see their faces, you see, good.” She testified that she did not know what street the school park was on because she does not read very well and cannot read a street sign; further, that she can read “[o]nly little words that I understand like, dog, cat and things like that.” She was asked whether she had attended school and whether she had attended any special classes. The prosecutor’s objections to both questions were sustained. She testified that she did not know how long it took to reach the park, but that she could tell time. She did not scream when they first grabbed her, but did start screaming and kicking “when they did it to me ***.” She did not see a gun or a knife during the attack and neither defendant hit her, but defendant Gibson did pull her hair. She looked at them for a long time when they first grabbed her and when they were walking to the park. Gibson was the one who pulled off her pants and underwear. She tried to hit and scratch them but could not because they were holding her arms.

She stated that the State’s Attorney had told her to use the word “anus” in describing the attack and she admitted that she did not really know what the word meant. She stated that she had used the word “vagina” and that the State’s Attorney had not told her to use it.

Defendants’ attorney cross-examined the witness concerning her identification of defendants to a police officer. The following colloquy ensued:

“Q. Did you point to two other men and tell the police that they were the men who had did [sic] this to you?

A. Just them, (indicating).

* * *

Q. You never told any police officers that two other men were the ones had done this to you?

A. Just them two. I said, not them other two, just them two there, (indicating defendants).

Q. When you were with the police, did you point to two other men, not these men, and tell the police these were the ones?

A. No just them two I pointed to.”

At the conclusion of the preliminary hearing, the court found probable cause as to each defendant. An information was thereafter filed and the subsequent proceedings were held before a different judge.

Prior to trial, the prosecution initially moved to use the preliminary hearing testimony of the victim as substantive evidence on the ground that she had died of natural causes on April 10, 1983, since the preliminary hearing. Defendants moved in limine to exclude the transcript from evidence. At the hearing, on the motions, defendants presented documents from the Board of Education, Department of Mentally Handicapped, which indicated that the victim was “mentally restricted,” with an intelligence quotient measured at various times as between 62 and 83, and that her later scores may have been inflated due to the many times which she had taken the test. After specifically finding that the victim was competent to testify based on her detailed answers to questions, her consistent recall, and her mental and chronological ages, and also had been adequately cross-examined by defendants’ counsel, the trial court then granted the State’s motion that the preliminary hearing testimony be used at trial and denied defendants’ motion that it be excluded.

Defendants thereafter waived jury trials, and the cause proceeded as a bench trial. The State presented the transcript of the victim’s testimony at the preliminary hearing which was admitted into evidence over defendants’ objections. By agreement, defendants reserved the right to subsequently move to strike the preliminary hearing testimony based on the competency of the victim. Testimony of other witnesses was presented.

Officer Frank Sarabia testified. He and his partner, William Van Vranken, were on duty in their patrol car about 3:20 a.m. on June 30, 1982, when they heard a woman, the victim herein, screaming. She told the officers that she had just been raped in a park at 52d and Lowe streets by two men and had been robbed of four or five dollars and a blue bag with Avon products in it. She described one of the men as a tall black man, dark complexion, wearing a maroon jacket, gray slacks, and a hairnet. She added that this assailant was taller than Van Vranken, who was 5 feet 8 or 9 inches tall. The victim described the second offender as a black man, about Van Vranken’s height but with a heavy build, wearing a black jacket which she described as “neat looking,” Levis, and a shirt. The officers put out a “flash message” over the radio to other police cars in the vicinity and then began to tour the area with the victim. The police stopped two black males at Garfield Boulevard and Peoria Street, but the victim immediately stated that they were not the offenders. The police continued their search and stopped two more black males at Garfield and Green streets. One of the men had a blue bag in his hand. When the car was about 20 to 30 feet from the men, the victim said, “Those are the two men that raped me.” One of the two men attempted to flee, but stopped when he was warned that he would be shot. The officer then identified defendant Bell as the man in the maroon jacket and defendant Gibson as the man who had been carrying the blue bag. The bag at the time of the arrest only contained some barbecued ribs. The officer took the bag and, without showing it to the victim, asked if there was anything about her bag which she could identify. She said that it was a Woolworth’s bag. The officer checked the bag taken from Gibson and verified that it was a Woolworth’s bag. At the time of their arrests, Gibson was wearing a “neat” black jacket and Bell was wearing a maroon jacket. Bell had five $1 bills on his person.

On cross-examination, the witness admitted that his police report indicated that the defendants had not resisted arrest and that the flash message stated only that the offenders were two black males, one. wearing a black suit coat and one wearing a longish jacket. The report contained no information concerning the offenders’ ages, heights, builds or complexions, nor mentioned either a hairnet or a blue bag.

Dorthea Parker, the victim’s mother, testified that her daughter died on April 10, 1983. On cross-examination, she testified that the victim was “slightly retarded,” and suffered from epilepsy. She was supposed to take Demerol, “phenobarb,” and Myzelon, although at the time of the incident on June 30, 1982, she was not taking these medications. She also suffered from sickle cell anemia. She had attended special schools where she studied vocational skills, and she had worked as an Avon sales representative. The witness testified that the victim’s condition had improved over the years insofar as her ability to learn was concerned and that she was no longer considered retarded. On redirect examination, the witness stated that her daughter frequently took the bus by herself and was able to find her way to and from Hallas Industries (a workshop for the retarded and epileptic).

Albert Conroyd, a Chicago police officer, testified that he was assigned to a squadrol on June 30, 1982, and transported Bell and Gibson in the squadrol to the 9th District. They were the only prisoners in the vehicle. After the prisoners were removed, Conroyd checked the squadrol and discovered several packets of Avon products on the floor. He turned the packets over to Officer Sarabia. The squadrol had not contained the packets prior to the placement of defendants in the vehicle.

The parties stipulated that, if called to testify, James Van Tilburg, a microanalyst with the Chicago police department, would testify that he had analyzed vaginal and rectal smear samples taken from the victim and that the former sample had tested positively for the presence of semen and that the latter had tested negatively. The prosecution then rested. Both defendants moved for directed findings of acquittal, which motions were denied.

Defendants introduced a tape recording of the message read into the radio by Officers Sarabia and Van Vranken on June 30,1982.

Levester Bell testified in his own behalf and presented an alibi defense. He stated that about midnight on June 30, 1982, he was with a friend, Marvin Hasted, Hasted’s wife, and Sherman Gibson. The four went to two establishments to buy food and liquor and let Gibson out of the car about 2:10 a.m. Bell then went home. About five minutes later, Gibson appeared in Bell’s upstairs room where Bell had been talking to his two cousins. The four played cards, and Bell and Gibson left to get food. They got a ride from a friend of Gibson’s to a restaurant called Leon’s Barbecue and arrived there at about 3:10 or 3:15 a.m. Gibson’s friend left and about 37 minutes later, they picked up their food and left. They stopped at a bench in a park at 57th and Racine and began to eat. Because the bag that their food had been wrapped in was excessively greasy, they looked for another bag to put around the food. They found a blue bag on a bench and put the brown bag containing their food in the blue bag. They began walking toward 55th and Halsted to catch a bus when they saw a car drive into a tree in the park. As they walked over to look at the crash, they saw two police officers in a squad car who had two men in handcuffs outside the car and a woman inside the car. The officers called to Bell and Gibson and informed them that they were under arrest. The witness described the men in handcuffs as “dark-skinned, about my complexion, my height, and everything,” and stated that they were wearing dark clothing. The officers took the handcuffs off the two men and handcuffed defendants. The witness denied ever having any Avon products and denied raping and sodomizing the victim. Sherman Gibson testified on his own behalf and corroborated Bell’s statements.

It was stipulated that if called to testify, Dr. Christina Orfei would testify that she is a medical doctor who was treating the victim in June and July of 1982 for a seizure disorder; that the victim was to take 100 milligrams of Dilantin twice a day and 250 milligrams of Depakene to prevent seizures; that the failure to take the medicines would make her more vulnerable to seizures, 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 shortly after the attack.

The parties also stipulated that if called to testify, Dr. Herman, a psychologist employed by the University of Illinois Hospital, would testify that the victim’s scores on the Wechsler Adult Intelligence Scale were as follows: verbal I.Q. of 72, performance I.Q. of 83, and full scale I.Q. of 76; that because the verbal part of the test contains a cultural and socio-economic bias, blacks, Hispanics, and poor people generally do poorly on that section of the test; that the performance I.Q. is the best indicator of the victim’s actual intelligence and that an 83 would place her in the dull-normal range; and that repeated testing would tend to inflate the scores.

Annette Lee testified on behalf of the defense. She stated that she was related to both defendants. On June 30, 1982, at about midnight, she 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 both defendants. On June 30, 1982, both defendants arrived at her house, but she could not remember what time. They played cards for about half an hour and defendants left at about 3:30 a.m.

Both defendants rested and moved to strike the preliminary hearing testimony, which motions were denied. After hearing closing arguments, the court found both defendants guilty of rape, deviate sexual assault (anal intercourse), robbery, unlawful restraint, and attempted deviate sexual assault (oral sex). Judgment was entered on the findings and sentences imposed. Defendants appeal.

Opinion

Defendants’ first contention on appeal is that the trial court violated their right to confrontation in admitting into evidence the preliminary hearing testimony of the complaining witness and that the cross-examination was unduly restricted in scope and nature. The State responds that the defendants’ confrontation rights were not violated because the deceased victim had testified under oath and was face-to-face with defendants at the preliminary hearing before a judicial tribunal at which defense counsel conducted a probing cross-examination of the victim’s ability to recall the events of the previous evening.

“[PJrevious testimony of a witness who dies pending trial is admissible at that trial if an adequate opportunity for cross-examination was present when the testimony was originally given.” (People v. Tennant (1976), 65 Ill. 2d 401, 410, 358 N.E.2d 1116, 1120.) “Adequate opportunity to cross-examine means an opportunity to effectively cross-examine, and merely providing an opportunity to cross-examine at the preliminary hearing is not per se [an] adequate opportunity.” (People v. Horton (1976), 65 Ill. 2d 413, 417, 358 N.E.2d 1121, 1124.) Since the trial herein, section 115 — 12 has been added to the Code of Criminal Procedure of 1963, effective January 1, 1984, which provides:

“A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” (Ill. Rev. Stat. 1983, ch. 38, par. 115-12.)

In the instant case, defense counsel cross-examined the witness at the preliminary hearing and was allowed to inquire extensively into the lighting conditions at the scene of the crime, the victim’s opportunity to observe her attackers, and the victim’s efforts to resist and cry out. The victim denied that she had identified any other persons as her attackers. She further testified under cross-examination that when they were walking to the school park she had been staring at them because she was afraid. She also said that she could see their faces because of the lights around the park. In addition, she was with them in the park for over an hour. The trial court sustained the prosecutor’s objections to a defense inquiry concerning the attackers’ clothing.

The question whether ample opportunity to cross-examine was afforded at the preliminary hearing does not lend itself to a per se analysis and must be decided on a case-by-case basis. (People v. Horton (1976), 65 Ill. 2d 413, 416, 358 N.E.2d 1121.) In the instant case, it does not appear that the opportunity for cross-examination was unduly restricted. Defense counsel was allowed to cross-examine the witness concerning her ability and opportunity to observe her attackers, whether she had identified any other persons as her assailants, as well as her own testimony concerning the specific elements of the crimes charged. Foreclosure of inquiry into the attackers’ attire, in light of the victim’s positive identification of both defendants, does not, in our view, mean that defendants were denied ample opportunity for cross-examination. (Cf. People v. Chism (1978), 65 Ill. App. 3d 33, 37-38, 382 N.E.2d 377.) The inability to pursue this line of inquiry, and the possibility that some inconsistencies in the witness’ description of the offenders’ clothing would be adduced, affect the weight to be given that testimony rather than its admissibility. (See People v. Chism (1978), 65 Ill. App. 3d 33, 37-38, 382 N.E.2d 377; People v. Mendoza (1978), 62 Ill. App. 3d 609, 616-17, 378 N.E.2d 1318; People v. Sanford (1975), 34 Ill. App. 3d 485, 488-89, 340 N.E.2d 255.) Where the victim has the opportunity to observe and afterwards makes a positive identification, the sufficiency of the recognition becomes a question of fact for the trial court. (People v. Ervine (1965), 64 Ill. App. 2d 82, 87-88, 212 N.E.2d 346.) This standard was met in the instant case, inasmuch as the victim testified that she was with defendants in lighted areas for over an hour, that she had stared at their faces, and that she had identified them to the police. Defendants were afforded the opportunity to cross-examine as to these crucial elements. We conclude that the trial court’s ruling did not constitute a significant limitation on defendants’ right to cross-examination.

Defendants also assert that the trial court’s refusal to allow them to further explore the victim’s education and disabilities constitutes error. Defendants have not argued that this subject of inquiry was relevant to any issue other than the witness’ competency, and they have not challenged the trial court’s determination of that issue. As this court has recently held, a witness who is mentally retarded is legally competent to testify so long as the witness has the capacity to observe, recollect, and communicate. (People v. Spencer (1983), 119 Ill. App. 3d 971, 977, 457 N.E.2d 473.) In Spencer the witness was a mild-to-moderate retarded adult who could not talk or use a standard sign language but who could understand questions and could respond best to leading questions. On that basis she was held competent to testify. In the instant case, the witness could not only speak but also responded effectively and, as the trial court noted, with consistent recall to leading questions. Defendants’ inability to delve into the witness’ competency at the preliminary hearing did not result in any prejudice to them, especially in light of the fact that they were afforded a full and complete opportunity to litigate the issue of competency at the hearing on the motions concerning the admissibility of the transcript of the preliminary hearing testimony. The matter was further explored at trial when Dorthea Parker, the victim’s mother, testified to her daughter’s condition. We conclude that under these circumstances, the foreclosure of inquiry at the preliminary hearing did not constitute a denial of a meaningful opportunity to cross-examine the witness. It follows therefrom that the admission of the preliminary hearing testimony was not error. See People v. Tennant (1976), 65 Ill. 2d 401, 410, 358 N.E.2d 1116.

Defendants next contend that the trial court erred in allowing the arresting officer to testify to an out-of-court identification made by the victim where that witness did not testify to the identification. The prosecution responds initially that this issue was waived by the failure to object either at trial or in the post-trial motion. (See generally People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223.) This court, of course, is empowered to consider alleged errors which may have deprived the accused of substantial means of enjoying a fair and impartial trial. (People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856; 87 Ill. 2d R. 615(a).) Analyzing the merits of defendants’ contention, it appears that there was no error in the admission of the officer’s testimony. The general rule is that before a third person may testify to a witness’ out-of-court identification of an accused, the witness must first testify to the identification. (People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223.) In the instant case, the victim testified in her preliminary hearing testimony that she had pointed out both defendants, and no one else, to the police. When introduced at trial, this testimony is a sufficient foundation for the police officer’s corroborative testimony. People v. Marshall (1977), 47 Ill. App. 3d 784, 788, 365 N.E.2d 367.

For all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.