People v. Sebag

• Decision Date: 07 December 1982
• Docket Number: No. 81-615,81-615
• Citation: 443 N.E.2d 25,66 Ill.Dec. 502,110 Ill.App.3d 821
• Parties: , 66 Ill.Dec. 502 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael SEBAG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 25

443 N.E.2d 25

110 Ill.App.3d 821, 66 Ill.Dec. 502

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael SEBAG, Defendant-Appellant.

No. 81-615.

Appellate Court of Illinois,

Second District.

December 7, 1982.

Ralph Gust, Jr., Lombard, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton, Scott M. Day, Barbara Preiner, Asst. State's Attys., Wheaton, Phyllis J. Perko, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

VAN DEUSEN, Justice:

After a bench trial, defendant was convicted of public indecency and acquitted of battery. He was sentenced to one year's probation and ordered to pay a fine. Following the trial court's denial of his request for a public defender, defendant had represented himself at trial.

On appeal, defendant contends (1) that he was not proved guilty beyond a reasonable doubt, (2) that the trial court erred in denying defendant's request for the appointment of a public defender, (3) that the trial court failed to properly arraign the defendant or secure a valid waiver of his right to a jury trial and (4) that the trial court erred in admitting certain evidence.

Briefly stated, the evidence, based on the victim's testimony, disclosed that she was a college student living with her grandparents. On the date of the alleged offense, she was sunbathing in the back of the condominium in which she lived and was reading a book. The defendant, uninvited, sat down and engaged her in conversation for about an hour. In the course of that conversation, he talked about his state of sexual arousal and then laid back to show her the rise in his shorts. In answer to the question at trial, "Did he expose himself?" she responded, "Yes. He was. He was sitting Indian style, and he told me that I could look at him if I wanted, that there was nothing wrong with that." She further testified that he touched himself a few times and asked her to look. She said that he rubbed her arm and leg and touched her feet, although she did not give him permission to touch her. She stated she was scared but admitted that she did not tell the defendant to stop nor did she scream. Though she stated that she could not answer the question of whether or not she had made a date with the defendant to see her on the following Friday between 10 and 10:30 a.m., she did admit that she told the defendant he could stop by and that he should ring the bell with the name Wendt, her grandparents' name, on it. The defendant was arrested by the police when he returned Friday morning.

A Wheaton police officer testified that he had investigated the incident. He was permitted to testify regarding the victim's report to the police of the facts constituting the occurrence. In substance, he said that the victim reported that the defendant had touched her and attempted to put his arm around her, that the defendant had been wearing jogging shorts, and that the defendant's penis was hanging out exposed as he was talking to the victim. Defendant, acting pro se, did not object to the admission of this hearsay testimony.

After the State rested, the defendant took the stand in his own defense. He declared his innocence. Then he denied the substance of the victim's testimony.

The defendant was convicted on a charge of public indecency, in that he exposed his sex organ in a lewd manner with the intent to arouse his sexual desires. (Ill.Rev.Stat.1981, ch. 38, par. 11-9(a)(3).) In arguing that he was not proved guilty beyond a reasonable doubt, the defendant relies mainly on People v. Grear (1969), 42 Ill.2d 578, 580, 248 N.E.2d 661, for the proposition that the evidence in sex offense cases must be clear and convincing or substantially corroborated in order to sustain a conviction. He further argues that the evidence in this case, like that in Grear, was not of such a nature so that his conviction should be reversed. However, Grear and the other cases cited by defendant to the same effect are inapposite.

Unlike Grear, the conviction in this case did not "stand or fall on the testimony of the prosecution witness who had only a fleeting opportunity to view [the offense]" nor was there another person present who failed to observe anything out of the ordinary. (42 Ill.2d 578, 579-80, 248 N.E.2d 661.) The complaining witness and the defendant conversed for about an hour, providing ample opportunity to observe. Also, no other persons were in the vicinity at the time to confirm or contradict the complainant's account.

Though the defendant maintains that the testimony adduced at trial did not in any manner establish that he had exposed himself, the complainant did respond "Yes" to the question on direct examination "Did he expose himself?" in the course of her description of the events. The defendant strongly relies on lack of corroboration in the surrounding circumstances. It is true that the evidence showed a delay of several hours in reporting the offense, that the complainant did not leave or ask the defendant to leave, that she did not scream or tell the defendant to stop, that she actually made a date to meet the defendant again, and that the defendant did return at the time agreed upon and did not act in a lewd manner.

However, further explicit detail of the manner in which the defendant exposed himself was furnished through the police officer's testimony regarding the account of the incident which the victim had given to the police. While such testimony was admittedly hearsay, nevertheless it was admitted into evidence without objection. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. (People v. Trefonas (1956), 9 Ill.2d 92, 98, 136 N.E.2d 817.) The admission of hearsay evidence appearing to support the complainant's testimony cannot be raised as error for the first time at the appellate level. (People v. Bachman (1981), 92 Ill.App.3d 419, 421-22, 47 Ill.Dec. 253, 414 N.E.2d 1369; People v. Davis (1970), 126 Ill.App.2d 114, 116-17, 261 N.E.2d 428.) Moreover, since the declarant was present at trial and subject to cross-examination under oath, the principal reason for excluding the evidence as hearsay was not present. People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738.

Since the supreme court in Grear stated the evidentiary requirements in a public indecency case in the disjunctive, substantial corroboration is not necessary where the evidence is clear and convincing. The complainant's testimony that defendant exposed himself was positive and, taken with the additional details related to the police officer, was unambiguous. Credibility of witnesses and the weight to be given to their testimony is generally better left to the trial judge who saw and heard the witnesses and his decision should be disturbed by the reviewing court only in exceptional cases. (People v. Neidhofer (1970), 126 Ill.App.2d 65, 68, 261 N.E.2d 559.) Under the circumstances of the present case, the evidence was sufficient to support the trial judge's finding that the defendant was guilty beyond a reasonable doubt of public indecency as charged. Compare People v. Grear (1969), 42 Ill.2d 578, 248 N.E.2d 661; People v. Neidhofer (1970), 126 Ill.App.2d 65, 261 N.E.2d 559.

Defendant next argues that his conviction should be reversed because he was denied appointed counsel to which he was entitled pursuant to statute. (Ill.Rev.Stat.1981, ch. 38, par. 113-3(b).) The following colloquy took place at defendant's arraignment:

"DEFENDANT SEBAG: Could I have the Public Defender?

THE COURT: No. They won't put you in jail. I will not put you in jail for this.

The only time you get a Public Defender is when you go to jail."

Defendant subsequently proceeded pro se at trial.

Section 113-3(b) of the Code of Criminal Procedure of 1963 provides in relevant part:

"In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. * * * The court shall require an affidavit signed by any defendant who requests court-appointed counsel. Such affidavit shall [contain] sufficient information to ascertain the assets and liabilities of that defendant." (Ill.Rev.Stat.1981, ch. 38, par. 113-3(b).)

In this case, the court made no inquiry into defendant's finances prior to denying his request for appointed counsel, and, upon conviction for one of the two offenses charged, defendant was sentenced to probation for one year in addition to a fine.

The State concedes that in People v. Morgese (1981), 94 Ill.App.3d 638, 50 Ill.Dec. 130, 418 N.E.2d 1124, this court held that an indigent defendant sentenced to probation is statutorily entitled to appointed counsel. (Compare Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, affirming People v. Scott (1977), 68 Ill.2d 269, 12 Ill.Dec. 174, 369 N.E.2d 881 (a criminal defendant is not entitled to appointment of counsel under the Constitution unless the penalty imposed is imprisonment).) However, the State argues that the defendant was under an obligation to establish his indigency. Having failed to do so, the State continues, the defendant, in effect, waived his statutory right to counsel.

In the first place, it should be observed that the trial judge, apparently believing that a defendant not to be sentenced to imprisonment was not entitled to counsel, summarily rejected the defendant's request for appointed counsel based on a misunderstanding of the law and did not give defendant an opportunity to establish his indigency.

An affirmative...