dissenting:
I agree with the defendant and my colleagues that the principal issue at the trial of this cause was the identification of the assailant of Leticia Hernandez, which I will later address. However, I would not reverse the judgment of the circuit court and will therefore address all the other issues presented by the defendant.
On October 5, 1981, a 13-year-old female child was raped. She asked the assailant, “Why me?” and he responded that he liked Mexicans and that he had been watching her for a long time. Upon being released by the assailant, the victim immediately went home, reported the incident to her mother, and then called the police. She was taken to the local hospital where the rape was medically verified. On October 6 she gave an in-depth interview to the officers and described the assailant. Subsequent thereto, on October 9, hypnosis was performed by an officer without any suggestions whatsoever regarding any description of this defendant. Sometime thereafter the victim identified the defendant from a series of photographs. Later she identified the defendant at a physical lineup procedure, and then again in court.
The defendant claims that the identification testimony of the complainant should have been suppressed or excluded because she was hypnotized before trial. As indicated above by the majority, most courts have ruled that the suggestiveness in a hypnosis session is a factor that may affect the credibility of the witness, not the admissibility of the testimony, and here we have á session without any semblance of suggestiveness whatsoever. In fact, the victim gave her description of the assailant prior to the hypnosis; the session was tape recorded and the lack of suggestiveness therein verified. Nothing resulting from the hypnosis changed her description of the defendant, except to then add that he was “ugly.” The court ruled that hypnosis did not taint the identification. Obviously the victim’s identification had an origin which is independent of any suggestiveness and was not tainted by the hypnosis. Therefore the identification testimony was not inadmissible by reason of the hypnosis.
The defendant also claims that his identification subsequent to the lineup should have been suppressed because he was not represented by counsel when the identification was made. Certainly there is no right per se to counsel at the identification made prior to the commencement of the prosecution. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) And, as certainly, it is unquestioned that after formal criminal proceedings have been instituted against the defendant, the defendant has a right to have counsel present at an in-person lineup. (United States v. Wade (1967), 338 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) Here the defendant was represented by counsel at the lineup. It is uncontroverted that the voices of those participating, including the defendant, at the lineup could not be heard. The victim did not identify the defendant until subsequently asked, shortly after the defendant’s representative had left, whether she could identify the assailant without having also heard his voice, and then she did. What occurred outside of the presence of the defendant’s counsel was testified to by Leticia and Officer Jencon; the credibility of that testimony was for the trial judge to determine, and he obviously found that no activity adverse to the defendant occurred. As in State v. Kimball (1976), 14 Wash. App. 951, 546 P.2d 1217, in an analogous factual situation, the court held that even though counsel was not present at the identification, the identification was admissible. By my view the admission of the additional lineup identification was not reversible error.
The next issue presented by the defendant is whether the trial court failed to exercise properly its discretion when it arbitrarily denied the defendant’s pretrial motion in limine to exclude evidence of other crimes. Defendant’s argument is without merit. The trial judge’s remarks at the pretrial hearing, granted on the defendant’s motion, indicate that he was exercising his discretion. Clearly he did not refuse to consider the motion in limine. Under the facts presented in the instant case only the defendant’s supposition suggests arbitrariness.
In exercising its discretion, the trial court should determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) As has been heretofore indicated, the principle issue here is the identity of the perpetrator. One of the most legitimate uses of other crimes evidence is where identity is at issue. (See People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.) In the instant case, the prime characters are a 13-year-old female victim and a defendant with a sex offense record. The defendant’s claim that he was denied a fair trial when the trial court allowed the State to introduce evidence of his prior criminal conduct at a bench trial is without merit. The other crime was the sexual assault of another 20-year-old Mexican female in the same neighborhood, which was admitted by the defendant. The trial court properly admitted that evidence to establish the defendant’s modus operandi. The facts are sufficiently similar, as has been detailed otherwise by the majority, in my opinion.
The defendant’s next argument, that the permitting of cross-examination of the defendant about his past possession of a gun was erroneous, is also of little merit. The defendant testified on direct that he did not have access to a gun on the date of the instant offense. I believe it is within the discretion of the trial judge to allow cross-ex-animation to test credibility regarding the subject matter. See People v. Gray (1980), 85 Ill. App. 3d 726, 410 N.E.2d 493.
While the State concedes that the defendant’s conviction for armed violence based upon the offense of indecent liberties must be vacated, the State does not agree that the offense of armed violence based upon the offense of unlawful restraint should be vacated. This defendant was convicted of both rape and armed violence based upon the underlying offense of indecent liberties with a child, the same act of sexual intercourse, and thus one of the two convictions must be vacated. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, and People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.) The People elect that the conviction of armed violence (indecent liberties with a child) be vacated.
However, this defendant’s conviction for armed violence based upon unlawful restraint may stand. (See People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322.) The two offenses were separately accomplished and not part of one physical act. The defendant accosted the victim as she walked down the street, held a gun on her, and forced her into the back seat of his car. Thereafter, after driving her to a different location, he proceeded to rape her. The offenses are not included within the same section of the criminal code. Both convictions may stand.
The defendant also argues that the offense of unlawful restraint cannot be used as a predicate felony. It is the People’s contention that the legislative intent is clear that armed violence may be based upon a Class 4 felony of unlawful restraint, because “a person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2.) The language should be given its plain meaning. Had the legislature intended that the offense of unlawful restraint not be a predicate offense for armed violence, it could have easily so provided as an exception. Prosecutorial discretion must be recognized. (People v. Graham (1975), 25 Ill. App. 3d 853, 323 N.E.2d 441.) And, we have held the general statutory construction rule requiring that a specific statute prevail over a general one is not sufficient to demonstrate a legislative preference for prosecution under one applicable statute rather than another (People v. Cole (1980), 84 Ill. App. 3d 347, 405 N.E.2d 347), I would hold that “any felony” means any felony.
Whether the vacatur of the armed violence conviction based upon indecent liberties mandates a remand for resentencing, is the final issue put by the defendant. I would rule not. In the recent supreme court case of People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E. 477, Justice Ward writing for the majority observed there that the trial court had imposed concurrent sentences for both armed violence and the underlying felony, that both convictions could not stand, but that remandment was unnecessary. The record here shows that this defendant previously pleaded guilty to the offenses of kidnaping and intimidation after having been charged with two rapes, and it is clear that the sentences imposed in the instant case are justified independently of each other. Under the circumstances, remandment for resentencing is unnecessary.
Finally, with regard to the superseding issue, whether the defendant’s identity as the victim’s assailant was proved beyond a reasonable doubt, defendant’s position is that the total evidence presented by the State failed to so establish, while the People’s position is that the identification was positive and sufficiently corroborated.
Though a judge, as fact finder, is required to resolve all facts and circumstances in evidence on the theory of the defendant’s innocence, rather than his guilt, if that can reasonably be done (People v. Sheppard (1949), 402 Ill. 347, 83 N.E.2d 587), here, in my opinion, we do not have such a case. The record indicates that the victim, a 13-year-old female, gave a description of this defendant prior to any hypnosis, and did not vary that description except for minor discrepancies through the trial, hesitating only because she preferred both at the lineup and at trial to hear the defendant speak as well. Her concern for the truth seems obvious. Her identification was positive, and without any hesitation when she initially identified the defendant by photograph. The only questionable factor included in her testimony was whether the assailant had a hairy chest, as she indicated he did in cross-examination, and that factor was specifically a subject for the judge’s observation and determination as the finder of fact. The trial judge witnessed the removal of the shirt of the defendant to view the defendant’s chest; the defendant was allowed to put his shirt back on, and thereafter the defendant was asked by his counsel whether he had ever used any artificial means of removing hair, and he responded negatively. Obviously defendant’s credibility and what is a hairy chest in the eyes of a 13-year-old, and what is a chest with or without some hair were for the trial judge to decide.
This victim had an opportunity to view her assailant for some 10 or 15 seconds while he crossed the street, when he put a gun on her and caused her to get into the back seat, and thereafter when he put a blanket over her face. Afterwards it would appear that she pulled the blanket down, looked at the back of the assailant’s head for a time, and then he caught her and caused the blanket to be again put over her face. Thereafter at various times he replaced the blanket over her eyes with her blouse, and then again the blanket, and thereafter he placed a towel over her eyes. Her level of certainty at the confrontation with the assailant were factors to be considered by the trial judge in evaluating the reliability of her pretrial identification and her testimony. In addition there was some corroboration of the identification. All the expert testimony regarding hair samples and semen did not exclude the defendant. Further the attack upon Sandra Hernandez was admitted by this defendant. In my opinion the identity testimony by the victim was clear and convincing.
Most importantly, the evidence here is not so culpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused. (People v. Peyton (1980), 84 Ill. App. 3d 181, 405 N.E.2d 18.) It should be noted that all of the defendant’s alibi witnesses were thoroughly impeached. My consideration of the record and the well-done briefs presented to us in this case do not suggest that we should overrule the trial judge in this bench trial. I would vacate the armed violence based upon indecent liberties conviction, and affirm the convictions for rape and armed violence based upon unlawful restraint.