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People v. Mccarroll

FEBRUARY 15, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. FELIX M. BUOSCIO, Judge, presiding.


A jury found the defendant, Kenny McCarroll, guilty of deviate sexual assault. (Ill. Rev. Stat. 1965, ch. 38, par. 11-3.) His motion for a new trial was denied and he was sentenced to the penitentiary for a term of five to seven years.

An appeal was taken to the Supreme Court. During the pendency of the appeal, McCarroll filed a post-conviction petition which was dismissed without an evidentiary hearing. The dismissal was also appealed. The two appeals were consolidated and transferred to our court.

The complainant, a college student, was walking home from a bus stop on an early evening in November 1967. Two blocks from her home she noticed a tall black man standing in a gangway two or three feet from the sidewalk; he was wearing a blue jacket and a knit hat. Shortly afterwards, she was attacked from behind; the assailant covered her mouth, put a knife at her throat and demanded her money. From there, about six feet from a street light, the man dragged her into a back yard which was illuminated by a bright alley light several houses away. After tying her hands behind her back with one of her stockings and putting a rag in her mouth, the assailant removed her undergarments, spread her legs apart and put his mouth to her vulva.

Twenty minutes later he tied her feet together and left. He came back with an automobile and lifted her into the trunk. There were holes in the trunk and she saw street lights and signs as she was transported to a brightly lit garage. While she was still in the luggage compartment, he covered her face with masking tape. He then placed her on the garage floor and, despite the fact that she was menstruating, performed another cunnilingus act.

The assailant said he was going to take pictures of her. He posed her lower body and legs in various positions, and she heard the clicks of a camera She also heard a phone ringing in the garage. They remained in the garage about 25 minutes. He became concerned because her shoes had been left in the yard and was afraid someone would find them. He placed her in the back seat of the auto, drove to the area of the first assault, walked her to an alley and told her to wait. He returned with her shoes, books and purse.

He removed the tape from her face, told her to keep her eyes closed, thanked her for her trouble, tried to give her a five-dollar bill and left after saying that he would see that she got home safely. As she ran home, she noticed a blue Chevrolet — the car used in the abduction — drive by. The police responded to her telephone call and she described her assailant as a tall, Negro man, about five feet ten inches to six feet in height, weighing about 180 pounds, and wearing a blue coat and knit hat. She described the automobile as an old, 1953 to 1956, blue Chevrolet with holes cut out of the rear deck near the trunk.

Twelve days after the abduction, a police officer who was patrolling in a blue and white squad car, received information about a man sitting in a 1956 Chevrolet in the area of the crime. He broadcast the information over his radio. When he arrived in the vicinity he saw McCarroll, who fit the complainant's description, walking on a sidewalk. He parked his car and got out. McCarroll saw the squad car and the uniformed officer and started to run. The officer chased him. McCarroll ran three quarters of a block, turned into a gangway, ran down an alley into another gangway and disappeared from the pursuing officer's view. The officer saw him again some 20 minutes later at a police station.

McCarroll had been arrested in his automobile while it was stopped for a traffic signal. The arresting officers, who were aware of the complainant's descriptions of her assailant and his car, responded to the radio message; they drove to the neighborhood, saw the auto which matched the description and, with their guns drawn, ordered the driver to get out. A bone-handled, razor type knife was found in his pocket. An officer who drove McCarroll's auto to the police station noticed a picture of a partially nude woman above the visor. At the station, McCarroll denied committing the offense but when he was confronted with the picture he confessed. The complainant was called to the station and she picked him out of a three-man lineup. In the meantime, officers had been sent to search a garage to which he had a key. They returned with a camera, which he said was his, and three more pictures. After the lineup the complainant was shown the pictures. She did not recognize the one found in the auto but she did the three recovered from the garage. The pictures did not include facial views but she was able to identify herself from the lining of her coat which was visible in the pictures and from the string of a menstrual absorbent which protruded from the vagina of the exposed woman.

Prior to trial, a hearing was held on the defendant's motion to suppress the articles taken from his person, auto and garage, and to suppress his oral admissions of guilt. It was contended in his written motion that his statements and the seizure of his property were the consequences of an invalid arrest and illegal detention. It was contended orally during the hearing that he had not been adequately informed of his constitutional rights and that his confession had been induced by fear and police brutality. The officers who participated in his chase and arrest and those who were present at his confession, denied his contentions and testified as to what was done and said. The motion was denied.

At the trial the complainant identified McCarroll as the man who attacked her. She testified that when she first saw him in the gangway she observed his face but did not notice anything particular about it. She raised her head and glanced at his face several times while the cunnilingus took place in the back yard. She saw it again when he removed the tape from her eyes. She was adamant that the lighting conditions were adequate for her to see his face and she was positive he was her assailant. The police related the circumstances of his arrest and their conversations with him. The knife taken from his person, pictures of his auto, the three pictures and the camera found in the garage, and the complainant's coat were received in evidence. McCarroll denied the offense. He testified he had two jobs one of which was repairing automobiles in another garage and that he was working there the evening of the crime. The owner of the garage and a customer corroborated his whereabouts. The defendant's wife and a friend testified they telephoned him at the garage several times that evening.

The defendant contends on appeal that: (1) his guilt was not established beyond a reasonable doubt; (2) articles taken from his person and his automobile, his admissions of guilt and his identification were the products of an illegal arrest; (3) the identification procedures used by the police were suggestive and tainted his in-court identification; (4) evidence seized without a search warrant from his garage should have been suppressed; (5) he was denied due process of law by the suppression of favorable evidence and (6), his constitutional right to confront witnesses was abridged by the State's refusal to produce a prior statement of the complaining witness which contradicted her trial testimony.

• 1 The defendant's brief makes no distinction between the appeal from his conviction and the appeal from the dismissal of his post-conviction petition. Issues properly related to one are argued interchangeably with issues germane to the other. Furthermore, an issue is argued which was not raised either at the trial or in the petition, and an item of evidence extraneous to the trial record is advanced as a factor to be considered in determining guilt or innocence. We reject the defendant's thesis that in a consolidated appeal such as this, trial and post-conviction issues can be indiscriminately commingled and that issues neither preserved at the trial nor raised in the petition can be intertwined with those that were. We will, therefore, consider the appeals separately (as was done in People v. Moore (1969), 42 Ill.2d 73, 246 N.E.2d 299), and will start with the direct appeal.

• 2 In a direct appeal review is limited to what appears in the trial record. (People v. Jackson (1963), 28 Ill.2d 37, 190 N.E.2d 823.) In this appeal the issues are further restricted to those presented by the defendant in his written motion for a new trial. (People v. Landry (1970), 123 Ill. App.2d 86, 259 N.E.2d 604.) The defendant was ably represented before and during his trial by a privately retained attorney who filed in his behalf a motion for a new trial. The principal points made in the motion were that the defendant was not proved guilty beyond a reasonable doubt and that his statements and admissions should not have been received in evidence because they were obtained in violation of his constitutional rights as set forth in the Miranda and Escobedo cases. Miranda v. Arizona (1966), 384 U.S. 436; Escobedo v. Illinois (1964), 378 U.S. 478. The latter point is not repeated in this appeal. Instead, it is again contended, as it was in the motion to suppress, that his statements and admissions of guilt were erroneously received in evidence because they were the products of an illegal arrest. This ...

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