APPEAL from the Circuit Court of Vermilion County; the Hon.
PAUL M. WRIGHT, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The defendant who was charged with aggravated kidnapping, unlawful restraint, rape, and indecent liberties with a child, appeals from his conviction of aggravated kidnapping and unlawful restraint and from the sentence of 10 to 25 years imposed on the aggravated kidnapping conviction. The defendant was found guilty of those two charges by a jury verdict, the trial court having directed verdicts for the defendant on the charges of rape and indecent liberties with a child because venue had not been established in Vermilion County.
At approximately 8 P.M. on August 1, 1971, the complaining witness, 12-year-old Cindy Drollinger, and a companion, Jackie Morris, were walking to the Drollinger home in Hoopeston, Illinois, when two men driving a red 1964 Chevrolet called to the girls, asking how to get out of Hoopeston. Both girls approached the car; Jackie Morris gave directions, and then the driver asked whether the back tire was flat. The driver then got out of the car and seized both girls. He succeeded in forcing Cindy into the car, but Jackie Morris escaped and ran into the Drollinger home. The two men then drove the victim out of town and sexually assaulted her. Jackie Morris notified Cindy's father of the incident, describing the automobile, and Mr. Drollinger in turn reported the incident and the description of the automobile to the police.
At approximately 9:15 P.M., the defendant and co-defendant James Brandys were stopped by the police in Milford, Illinois about eleven miles north of Hoopeston, driving a red 1964 Chevrolet bearing 1971 Michigan license plates. The defendants told the Milford police they were unfamiliar with the area, but they had not been in Hoopeston other than at the junction of the east and north highways there. While the defendants were stopped, Mr. Drollinger and a companion, Jerry Yonkers, who were searching for Cindy and a red 1964 Chevrolet, arrived on the scene. Mr. Drollinger talked to the defendants, both of whom denied seeing his daughter, and both Drollinger and Yonkers noticed several large damp spots in the middle of the back seat of the automobile. Defendants opened the trunk at the request of Drollinger which disclosed nothing and after determining that the automobile was not stolen, the Milford police permitted the defendants to continue on their way. At about 11:45 P.M. on the same night, Cindy was brought to her home by a man who lived in the vicinity where the abductors had put her out of their car after the assault.
On August 4, 1971, Officer Mannin of the Hoopeston Police Department accompanied Cindy Drollinger, Jackie Morris, and their parents to Three Oaks, Michigan, where both the defendants resided, to determine whether the girls could identify the defendants and the automobile used in the abduction. Both girls were able to unequivocally identify defendant Brandys' 1964 Chevrolet as the car driven by the men in Hoopeston, and Mr. Drollinger positively identified the car, the back seat of which had stains, as the car he had seen stopped in Milford on the evening of the offense. Officer Mannin, accompanied by Michigan State Trooper DenHouten, proceeded to the defendant DeMorrow's home. Another occupant of the residence, Miss Koch, at first told the policemen that the defendant was not at home and that they could not enter if they did not have a warrant. Officer Mannin and Trooper DenHouten searched the grounds and upon going back to the front of the house after observing a rear bedroom window open, they entered the house and found the defendant in a rear bedroom. The defendant was placed under arrest; both officers testified that they gave him his Miranda warnings and the defendant was then handcuffed. Trooper DenHouten testified that when he asked the defendant if he knew what they were there for that defendant replied, "I think it involves the two girls down in Illinois."
Cindy Drollinger had stated that the larger of her assailants was wearing a yellow shirt and a blue vest. When asked about the clothing that he had worn on the preceding weekend, the defendant indicated the clothes hamper from which officer Mannin obtained two yellow shirts. When asked if he owned a vest as described by Cindy, the defendant stated that he did not. Officer Mannin testified that he then asked defendant whether he could look through the house for the vest and defendant agreed, saying he had nothing to hide. Officer Mannin found a blue overall-type vest in the closet of the rear bedroom and when confronted with it, defendant said that it was not his but Miss Koch's.
A lineup was held in Michigan but Cindy Drollinger was unable to make any statement whatsoever. Officer Mannin testified that "She couldn't talk. She was crying, all she could do was shake her head and tremble and cry."
Both defendant DeMorrow and co-defendant Brandys testified that on the weekend in question they had gone to Waverly, Indiana, to visit Brandys' uncle. Upon preparing to return to Michigan on August 1, the defendants were advised by the uncle that Danville, Illinois would be the closest place to procure beer since Indiana was dry on Sunday. Defendants stated that they drove to Danville where they purchased beer and gas, then proceeded on Route 1 in Illinois, at one point detouring on a country road to avoid being seen drinking the beer and to relieve themselves. They testified that they did not leave Route 1 at Hoopeston, Illinois, but rather they proceeded on north to Milford, Illinois, where they were stopped by the police and where they conversed with Mr. Drollinger. Defendant testified that when he was arrested at his home in Michigan, he knew about the incident from the officer who had stopped them in Milford, and from the defendant Brandys' wife who told him why the police were looking for him. The defendant stated that he was wearing an orange shirt on August 1 and that he had never worn a blue denim vest nor did he own one.
Prior to the trial, a hearing was had on a motion to suppress both defendants seeking the suppression of the evidence obtained from Brandys' car and defendant DeMorrow further seeking the suppression of the clothing taken from his house, alleging that he never consented to the search which was conducted without a warrant following his arrest. Both Trooper DenHouten and Officer Mannin testified that when asked about the clothing he had worn over the weekend the defendant indicated the two shirts were in the clothes hamper and consented to the search which revealed the vest. In an order including an extensive discussion of the facts and case law on the matter, the trial court denied the motion to suppress.
At the trial, both Cindy Drollinger and Jackie Morris identified both defendants. The girls, as well as Mr. Drollinger and the Milford police officer, identified photographs of the 1964 Chevrolet belonging to defendant Brandys as the one observed in Illinois on the day of the offense.
Following a jury verdict of guilty on the charges of aggravated kidnapping and unlawful restraint, convictions were entered on those offenses. A hearing was had on the application for probation of the defendant DeMorrow and probation was denied.
A hearing on aggravation and mitigation was held which revealed that the defendant was on parole in Michigan at the time of the offenses. Defendant was sentenced to 10 to 25 years.
The defendant raises three issues on appeal: (1) whether the shirt and vest found in his home should be suppressed as products of an unlawful search and seizure; (2) whether the defendant was proven guilty beyond a reasonable doubt, due to the complaining witness's inability to identify him at a lineup three days after the offense; and (3) whether the sentence imposed is excessive.
• 1 In 1961, the United States Supreme Court held that all evidence obtained by search and seizures in violation of the United States Constitution was inadmissible in State courts. (Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.) Illinois had adopted a similar exclusionary rule regarding evidence obtained in violation of the Federal or Illinois constitutions. However, consent to what might otherwise constitute an unreasonable search is a waiver of the constitutional right so long as the consent is truly voluntary. (Zap v. United States, 328 U.S. 624, 90 L.Ed. 1477, 66 S.Ct. 1277.) The defendant denies that he told the officers to go ahead and search and contends that his acquiescence could not constitute a voluntary consent where the officers had entered his home without either an arrest warrant or a search warrant, arrested him, placed him in handcuffs, and then asked him about the clothing in a manner which to him indicated that they were going to search regardless of anything he might say or do. The question of whether consent has been given is a factual matter to be determined by the trial court and where the evidence on the issue is in conflict, the reviewing courts will accept the finding below unless it is clearly unreasonable. (People v. ...