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People v. Lower

OPINION FILED DECEMBER 16, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT HENRY LOWER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jo Daviess County; the Hon. JAMES B. VINCENT, Judge, presiding.

MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendant was charged in a three-count indictment with murder by strangulation while committing aggravated kidnapping and indecent liberties with a child. He waived trial by jury and was found guilty on all three counts and sentenced to serve not less than 100 nor more than 150 years imprisonment in the penitentiary.

The defendant appeals on the grounds (1) that the court erred in not suppressing his inculpatory statement as being the product of a warrantless arrest made without probable cause; (2) that the State's evidence failed to show that the defendant's statement to the police was the voluntary product of his free choice and that the consent to search his residence and automobile was voluntary, and (3) that the State failed to prove beyond a reasonable doubt that the defendant was legally sane at the time of the offense.

A brief discussion of the background and immediate circumstances of this tragic and bizarre case is necessary before considering the issues raised in this appeal.

On March 4, 1975, Joseph Didier, 15 years old, disappeared while delivering his morning paper route in the City of Rockford. His paperbag was found on the ground along the uncompleted route and the police began an immediate and intensive investigation, suspecting that he had been abducted while delivering his papers.

Rockford police files contained a record of several previous incidents of paperboys being molested while delivering their early morning routes. On February 3, 1973, Scott Lewis, aged 12, had been assaulted while delivering his morning papers by a man who struck him, took him two blocks away to a church, took off his clothes, and spray painted his groin area. Lewis described the man to the police as wearing a gold snowmobile suit with a face cover. On that same date, another paperboy, Richard Hankins, was followed persistently for several blocks while delivering his papers but managed to elude the man who was following him. This man was also dressed in a snowmobile suit, but no color of the suit was given by Hankins in his initial report to the police. On April 12, 1974, Bruce Hagen, a paperboy, was abducted by a man while delivering his morning route. Hagen said the man jumped from behind a bush, placed a hood over his head and put him into the trunk of an automobile. He was then taken to a cemetery and suspended from a tree by ropes. He was then disrobed and tied to a post where he was sexually abused and then was forced to run in circles at the end of a rope which was tied to his wrist. He was left tied to the post with his face covered until he freed himself sometime later. His genitals were also painted. The police, quite logically, connecting the three previous incidents involving paperboys during early morning hours with the disappearance of young Didier, began an intensive search and investigation centered on persons with a record of deviate sexual conduct. All such suspects, however, were released as not being connected with the incident in question. On March 15, 1975, the nude body of Joseph Didier was found in a cabin at the Apple River Boy Scout Camp between Stockton and Rockford. Death had been by strangulation and there were evidences of rope burns on the wrists and evidence of sexual molestation.

On the theory that the crime may have been committed by a person who did not live in the immediate neighborhood of Didier's paper route, but who had reason to travel to Rockford and who was also familiar with the location of the Apple River Boy Scout Camp, the police thought a truck driver, traveling between Stockton and Rockford, might be involved. In the course of the investigation the name of the defendant was mentioned by the plant superintendent of a manufacturing plant in Stockton, as being a truck driver whose route ran between Stockton and Rockford. Upon his name being run through the police computer files, the name of the defendant was disclosed in connection with a case of child molestation. This record was in the Freeport police files and upon further review of the files in Freeport it was discovered that the defendant, Lower, while a member of the Army Air Force, had been arrested in Sparks, Nevada, in 1958, for kidnapping and abusing a young boy. The circumstances were similar to the Hagen and Didier cases in that in the Nevada case the victim was bound by ropes and dragged in a sleeping bag in circles and in the Hagen case the boy had been forced to run in a circle at the end of a rope and had been suspended from a tree. The rope burns on young Didier's wrists showed that he probably had been suspended by ropes around his wrists.

The Freeport police records also indicated that in 1964 the defendant had been involved in a sexual incident in Freeport with a young boy as the result of which he had been committed to Menard Psychiatric Center and in the police files there was a letter from Doctor Graybill (later a witness for the defense in the Didier trial) describing the defendant as a sexually dangerous person. The Freeport police files indicated certain bizarre conduct with the young boy in question involving tying him up with ropes and a simulated hanging.

The county sheriff had also received information from a motorist, previous to defendant's arrest by the Rockford police, that he (the motorist) had observed an automobile parked at the entrance to the Boy Scout Camp, subsequent to Didier's disappearance. The motorist identified the car as probably being a 1968-69 or 1970 Dodge Charger or Roadrunner, which description the police were aware corresponded to the car owned by the defendant. Although the defense contends otherwise, both County Detective Samual Sheehan and Sheriff Specht testified that this information was related to the Rockford police immediately, and prior to the arrest of the defendant.

The police also knew that Lower had an interest in scouting as he had once applied for a position as a scoutmaster or assistant scoutmaster and had been turned down because of his sexual record. They were also aware of Lower's interest in snowmobiling and that the boy scout camp area was used by snowmobilers and the police, therefore, had cause to believe that the defendant was familiar with the scene of the crime because this scout camp was located on this truck route between Stockton and Rockford.

Prior to the arrest, the Rockford police had received a telephone call from a private citizen — Mrs. Timms — suggesting that a man by the name of Lower be investigated in connection with the Didier case because this man had shown an abnormal interest in her son. Perhaps the most damning piece of evidence pointing to the defendant's guilt, however, was his identification from a composite photo, by young Hankins, the boy who had been persistently followed by a man in a snowmobile suit in the early hours of February 3, 1973. Hankins, according to the police, on the morning of March 21, prior to the arrest, unhesitatingly picked out the defendant's photo from a group of five photos as being the person most resembling the man who followed him on that morning. While such identification could not be regarded as conclusive in view of the length of time which had elapsed and the fact that it was a composite photo, it was a strong indication of probable cause for Lower's arrest.

Sergeant Francis of the Rockford Police Department testified that on the basis of all the information the police had accumulated concerning Lower, they decided on March 21, 1975, to arrest and question him concerning the Didier boy's death, when he left work that afternoon. Sergeant Francis stated that he and the detectives who accompanied him had positioned their squad car so as to intercept the defendant, possibly as much as two hours before Lower's anticipated departure from work. The police did not have an arrest warrant and Sergeant Francis explained that the usual practice was not to obtain a warrant where a serious crime was under investigation and the evidence was only circumstantial, but, nevertheless was of such a nature as to justify questioning the suspect before charging him with such a serious crime.

The defendant was intercepted as he left work and was arrested and taken to the Rockford police station where he was given his Miranda warnings. Sergeant Francis testified that the defendant was not told at that time that he was being charged with any particular crime but when he asked the defendant whether he knew what they wanted to talk to him about, Lower asked, "Is it about the Didier boy?" and that within a few minutes after that he began to tell the police the details of the crime. The statements made by the defendant were then condensed into written form and signed by the defendant, relating in detail the circumstances of the crime. There was no indication in the record, nor any contention made by the defendant, that the confession was in any way obtained by threats, intimidation or physical abuse. While under arrest, the defendant was asked if he would consent to a search of his automobile and lodging and he signed a form giving such consent.

We have set forth the circumstances leading to the arrest of the defendant in great detail because the defendant has challenged his trial and conviction as being the fruit of an invalid arrest made without probable cause. It is against the background of the facts related above that the question ...


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