People v. McCartney

• Decision Date: 14 November 1990
• Docket Number: No. 1-88-3361,1-88-3361
• Citation: 563 N.E.2d 1061,206 Ill.App.3d 50
• Parties: , 150 Ill.Dec. 934 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John McCARTNEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1061

563 N.E.2d 1061

206 Ill.App.3d 50, 150 Ill.Dec. 934

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John McCARTNEY, Defendant-Appellant.

No. 1-88-3361.

Appellate Court of Illinois,

First District, Third Division.

Nov. 14, 1990.

Sheldon L. Banks, Chicago, for defendant-appellant.

Cecil A. Partee, Cook County State's Atty., Chicago (Renee Goldfarb, Gale O'Brien, LaTisha Martin, of counsel), for plaintiff-appellee.

Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, John McCartney, was convicted of aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14(b)(1)) and sentenced to 30 years' imprisonment in the Illinois Department of Corrections. Defendant appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erroneously permitted impeachment of his alibi witnesses; (3) the trial court abused its discretion in denying his motion for a new trial; and (4) the trial court abused its discretion in imposing the sentence. We affirm.

T.O., the seven-year-old complainant, testified as follows: On April 8, 1988 he and his playmate were riding their bicycles down Washtenaw and Talman Avenues. T.O. saw a yellow truck parked on Thorndale. A white male, dressed in a pink and white striped sweat shirt and blue jeans, got out of the truck. T.O. described the man as tall and about as big as his dad and that he had a scratch over his right eye on his forehead. T.O. and the man walked into a gangway together.

After they went into the gangway the man pulled down his pants and began shaking his "ding dong." T.O. indicated on his body that the man's "ding dong" was located between his legs. The man then pulled down T.O.'s pants and licked his "ding dong." When the man finished, he said good-bye to T.O. and told him not to tell his mother. T.O. pulled up his pants, went home, put away his bicycle, and immediately told his mother what had happened.

A few days after the incident T.O., accompanied by his father, went to the police department to look at a photo array. He testified that when he first saw defendant's photograph at the police department he initially said to his dad, and then to the police, "that's him."

A few days afterwards, T.O., again accompanied by his father, returned to the police station to view a line-up. He identified defendant as his assailant.

On cross-examination T.O. testified that his playmate was not with him at the time of the assault, but had returned to T.O.'s house. Further, in response to defense counsel's question that T.O. had not told his mother immediately, but had waited a couple of hours instead, T.O. responded, "[y]es." T.O. also testified that there was something different about the hair and muscles of the man in the photograph.

T.O.'s mother, A.O., testified. Her testimony essentially corroborated T.O.'s, except she stated that on the morning of the 8th, T.O. returned home from riding his bicycle at about 10 a.m. He told her about the incident almost immediately upon his arrival. However, they had not called the police until about 1 1/2 hours later. T.O. was crying and upset and he told her that "some man licked [his] ding dong." T.O. was six years old when the incident occurred.

M.O., T.O.'s father, also testified. He was with T.O. when he looked at the photo array. When T.O. identified defendant in the photograph book M.O. summoned Detective Carey Orr, who was conducting the photo identification. According to M.O., Detective Orr asked T.O. why he thought the man in the photo he had chosen was his assailant. T.O. responded because it looked like him, that he had the same color hair, even though it was a little different, and that he had big muscles. At Detective Orr's instruction, T.O. looked through the rest of the photo array, however, he made no other identifications. Detective Orr's testimony concerning the photo identification essentially corroborated that of M.O.

M.O. further testified that when he and T.O. went into the police station for the line-up, after the blinds to the viewing window were opened, T.O. immediately identified defendant and stated, "[t]here he is, dad. There he is." On re-direct examination, M.O. stated that neither he nor anyone else had suggested to T.O. who to pick out in either the photo array or the line-up. Detective Warren Gavin, the officer who conducted the line-up, corroborated M.O.'s testimony.

Officer Barbara Bereckis, a Chicago police officer, testified that on April 8, at about 11:58 a.m., she interviewed T.O. at his home. According to her, T.O. identified his assailant as a white male, approximately 30 years old, dark brown hair, with a scratch on the right side of his face, on his forehead.

On cross-examination, Officer Bereckis stated that she heard T.O.'s parents tell another officer that T.O. had not told them about the incident until a few hours after he had arrived home. When questioned about T.O.'s description of defendant's truck, Bereckis initially stated that the "[c]losest we could come was yellow." She then stated that T.O. had told her yellow.

Recitation of the testimony of other State's witnesses, which was largely corroborative, would only be cumulative. Therefore, their testimony will only be stated where required to adequately address defendant's arguments.

Jean Gibson, defendant's mother, testified on defendant's behalf. On April 8, 1988 she was at home. According to her, at 9:30 a.m., defendant, her daughter, Gina McCartney, and their friend, Terry Dean came into the house. Defendant was dressed in a suit at the time. Defendant slept there with his girlfriend, Tracy Walsh, the rest of the day. At 6 p.m. that evening defendant and Walsh left the home. Walsh corroborated Jean's testimony concerning defendant's presence in the home on April 8.

Eunice Mosco, a friend of Jean's, also testified on defendant's behalf. She stated that on Friday, April 8, 1988, at about 9:15 a.m., she saw defendant and his sister in a red car at a local gas station located at "Devon and Bell". Mosco went to the passenger side of the car, stuck her head inside and said hello. When asked whether she saw the scratch on defendant's face, she responded that she was not looking at him in that way.

Patricia Boyd, Mosco's sister, essentially corroborated Mosco's testimony, with the exception of the fact that Boyd stated that she usually works on Saturdays and that it was a Saturday when she and Mosco had seen defendant at the station.

Gina McCartney also testified. She stated that on the evening of April 7, defendant and a friend, Terry Dean, came into the bar where she works and stayed until the 2 a.m. closing. Afterwards, she, defendant, and Dean went to a couple of other bars. On the morning of April 8th, at about 8:30 a.m., the three headed for home. On the way, they stopped at a gas station on "Devon and Belmont". When she got out of the car to get cigarettes, she saw Eunice go over to the car and speak to defendant. Gina returned to the car and the three then went to her mother's home. According to Gina, they arrived home at about 9:10 a.m. William Dean ¹ corroborated Gina's testimony.

Defendant's first contention raises a question of sufficiency of the evidence at trial. He maintains that he was not proved guilty beyond a reasonable doubt and he urges several points in support of reversal. We disagree.

"Allegations of sexual misconduct are easily made, hard to prove, and harder to defend." (People v. Douglas (1989), 183 Ill.App.3d 241, 251, 131 Ill.Dec. 779, 538 N.E.2d 1335, citing People v. Nunes (1964), 30 Ill.2d 143, 195 N.E.2d 706.) Accordingly, in order to sustain a conviction for aggravated criminal sexual assault where the defendant denies the charge, the testimony of the complainant must be either clear and convincing or corroborated by other evidence. People v. Cregar (1988), 172 Ill.App.3d 807, 819, 122 Ill.Dec. 613, 526 N.E.2d 1376; People v. Server (1986), 148 Ill.App.3d 888, 894, 102 Ill.Dec. 239, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 108 S.Ct. 131, 98 L.Ed.2d 88.

There is no requirement that testimony be crystal clear and perfect in order to qualify as clear and convincing. (People v. Born (1987), 156 Ill.App.3d 584, 590, 108 Ill.Dec. 699, 509 N.E.2d 125; Server.) Minor variances affect only credibility (Cregar 172 Ill.App.3d at 820, 122 Ill.Dec. 613, 526 N.E.2d 1376, citing People v. Redman (1986), 141 Ill.App.3d 691, 95 Ill.Dec. 866, 490 N.E.2d 958), a factor, properly left for resolution by the trier of fact (Cregar, 172 Ill.App.3d at 820, 122 Ill.Dec. 613, 526 N.E.2d 1376). As long as any discrepancies do not detract from the reasonableness of the complainant's testimony, it may be held to be clear and convincing. (Redman, 141 Ill.App.3d at 703, 95 Ill.Dec. 866, 490 N.E.2d 958.) Needless to say, our review of the trial court's judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant's guilt. People v. Johnson (1986), 114 Ill.2d 170, 190, 102 Ill.Dec. 342, 499 N.E.2d 1355, cert. denied (1987), 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802; People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274.

Defendant first argues that T.O.'s testimony concerning his height and weight was unclear. He points to testimony that T.O. told one police officer that his assailant was about 30 years old while he told another that he was between 30 and 40. Additionally, defendant points to a police officer's testimony that T.O. had not been clear about defendant's height, while he told another officer that defendant was six feet tall.

We notice no unclarity in this testimony. Further, we decline to consider the officer's testimony concerning T.O.'s lack of clarity in description as impeachment...