People v. Seider

423 N.E.2d 1217, 98 Ill. App. 3d 175, 53 Ill. Dec. 413, 1981 Ill. App. LEXIS 2971
Appellate Court of Illinois·Decided June 26, 1981·No. 79-1570·Published·Cited by 26 cases

Opinion

Mr. JUSTICE MEJDA

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of deviate sexual assault and unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, pars. 11 — 3 and 10 — 3) and was sentenced to a term of 10 to 30 years.

On appeal, he contends that: (1) prosecutorial misconduct deprived him of a fair trial; (2) the presentation of a police officer’s opinion evidence on ultimate facts denied him a fair trial; (3) he was denied his constitutional right of counsel when he was prevented from consulting with his counsel during a recess; (4) the out-of-court identification and subsequent in-court identification of defendant were illegal products of defendant’s arrest in violation of his fourth amendment rights; (5) he was denied his constitutional right of confrontation when the court excluded a police report; and (6) the eyewitness identification was not so strong as to make the alleged errors harmless. We affirm.

On November 11, 1976, at 8:30 p.m., the victim was near the train station at Ashland and Armitage Avenues. She was grabbed by a man who placed a handcuff on her left hand, pushed her into a car and then forced her to commit a deviate sexual act. Following the act she was unhand-cuffed and released. After her assailant drove away, the victim stopped a police car. Bécause she spoke only Spanish and the police officers she stopped did not, the officers walked with her for a half block where they met Officer Rosa who was fluent in Spanish. The victim related the details of the incident to Officer Rosa, describing her assailant as a white male, 30 to 34 years old, 5'7" tall, 180 pounds, with “Gastona” hair. She indicated that her assailant had a knife and that she was handcuffed. She also stated that he drove a yellow four-door car with the partial license plate number 9565. She later identified defendant as her assailant.

Although the police report forms provide a space to indicate the use of weapons, the police report prepared after conferring with the victim did not indicate that a weapon was used, nor did the report make reference to the use of handcuffs.

Five days later on November 16, 1976, Officer Harte observed a two-door car with a yellow body, black roof and a license plate number WM 9065, make an illegal U-turn on North Avenue just east of Ashland Avenue. After the car made the turn, it pulled up to a bus stop on North Avenue. The driver leaned over, as if he were talking out of the passenger door window to a woman who was standing at the bus stop. The woman looked for a second and then turned her back to the car. The officer ultimately curbed the vehicle and approached defendant, the driver. Harte explained to defendant that he had been stopped for a traffic violation and that his car resembled one which had been used in a crime a few days earlier. Upon defendant’s agreement to accompany him to the police station, Harte searched defendant’s car and recovered a pair of chrome handcuffs, a knife and a can of dog repellent. Defendant was taken to the police station and later released.

The following evening defendant was arrested and taken to the police station where he was placed in a lineup and identified by the victim. Defendant was 5'11" tall, 210-220 pounds with dark brown hair. He told the police that on the night in question he was at a bar with two friends.

At trial, defendant testified that he was at a bar with friends between 8 and 11:30 p.m. on November 11, 1976, and that he. did not have any contact with the victim on that day. The night defendant was arrested, a police officer called one of his friends, Robert Domcyk, who stated that defendant had been at a bar on the night of November 11, 1976. At trial, Domcyk testified that he saw defendant at the bar around 8:30 p.m.

Nicolette Mavronas, another friend, testified on direct examination that she met defendant pursuant to a prior arrangement at 8:05 p.m. on the night of November 11, 1976. However, on cross-examination she indicated that it was close to 8:30 p.m. when defendant arrived.

Thereafter, defendant was found guilty of deviate sexual assault and unlawful restraint and sentenced to a term of 10 to 30 years. Defendant appeals.

Opinion

I

Defendant first contends that the State’s cross-examination of defendant was improper, prejudicial and denied him a fair trial in that the State: (á) cross-exámined defendant in minute detail as to the facts and circumstances surrounding an 8-year-old prior burglary conviction to which defendant pleaded guilty;, (b) inferred defendant improperly invoked constitutional rights and delayed in advising the police of his alibi; (c) inferred defendant was involved in disreputable activity as part of his employment; and (d) presented innuendos that defendant lied concerning his residence. The State maintains that the questions asked during defendant’s cross-examination were entirely proper and within the scope of defendant’s direct examination.

(a)-

Defendant maintains that it is prejudicial and reversible error for the State to cross-examine a defendant concerning the details of a prior conviction. Defendant submits that his brief statement that in 1970 he pleaded guilty to a charge of burglary which involved the breaking into a restaurant and juke box because he needed money could not excuse the State’s lengthy cross-examination concerning his plea of guilty. The State responds that the questions posed were entirely proper in that they addressed matters about which defendant had testified during direct examination.

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People v. Seider, 423 N.E.2d 1217, 98 Ill. App. 3d 175, 53 Ill. Dec. 413, 1981 Ill. App. LEXIS 2971 (Ill. Ct. App. 1981).

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