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People v. Mullens

OPINION FILED NOVEMBER 29, 1978.

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

v.

MICHAEL LEROY MULLENS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The defendant, Michael Leroy Mullens, received a sentence of 7 to 21 years after his conviction in a bench trial of rape, burglary and armed robbery. A review of the defendant's contacts with the Harvey police authorities preceding his indictment on these charges will assist in understanding the issues raised by this appeal.

The defendant's first encounter with the law in Harvey occurred at approximately 3:30 a.m. on July 13, 1975 as he was walking south on the 150th block of Paulina Street in Harvey. Harvey Police Officer Briggs testified that while on a routine patrol in a marked car he received a radio communication of a prowler, described as a male Negro, looking in a rear window in the vicinity of 150th and Paulina. The officer drove to 151st and Paulina, and parked his car facing north at the intersection so that he would have an unobstructed view of the entire block to the north. Within a few minutes, he observed the defendant about a third of the way down the block south of 150th Street, and when the defendant came abreast of the police car, Officer Briggs stopped him. Responding to Officer Briggs' inquiry, the defendant gave his name, told the officer he lived at the Harvey YMCA and produced identification consisting of a card which had his name and picture, his date of birth, his social security number and his address in Detroit, Michigan. Officer Briggs asked the defendant why he had not seen the defendant walking down the first third of the block, and the defendant answered he had been urinating in a bush.

Officer Briggs and the defendant differed as to what happened next. The officer testified he asked the defendant to accompany him to the Harvey police station to fill out a field identification card. He stated he told the defendant the police station was closer to the YMCA than where they were, so that the defendant would be getting a lift part way to where he was staying. The defendant, according to Officer Briggs, voluntarily entered the police car for a ride to the station.

The defendant's testimony, on the other hand, was that after he answered the officer's questions and produced his identification card, Officer Briggs patted him down, told him he was under arrest, placed him in the squad car and took him to the police station.

At the station, Officer Briggs prepared a field interrogation card on the defendant. This record called for the defendant's name, address, telephone number, possible nickname, and a physical description of the subject as well as a description of his clothing. Defendant was kept at the station for 10 to 15 minutes and then released.

After the defendant left, an inquiry on him was instituted through the National Crime Information Center, an organization which furnishes intelligence on wanted subjects. The record does not show that the information concerning the defendant given to the National Crime Information Center was anything other than what the defendant supplied to Officer Briggs before, according to the defendant, he was placed under arrest and transported to the Harvey police station. The response to the Harvey police from the National Crime Information Center was that the defendant was wanted in Missouri on a fugitive warrant. This response set in motion a series of moves by the Harvey police which culminated in his being charged with rape, burglary and armed robbery. The conduct of the police before he was charged with these crimes became the subject of petitions by the defendant to quash his subsequent arrest and suppress evidence.

At approximately 4:30 a.m. on July 13, 1975, Officer Briggs and other Harvey police officers went to the Harvey YMCA, used a master key which the YMCA's security officer supplied and in the presence of the security officer opened the door to the defendant's room. Inside, the police officers and the security officer found the defendant lying on the bed asleep. Officer Briggs lifted the defendant off the bed, handcuffed him and moved him to one side of the room. While this was taking place, the other officers commenced to search the room, checking the mattress, opening the drawers and going through the closet including opening an attache case which they found in the closet. The police officers continued to search the room for 5 to 10 minutes after the defendant was taken out of it.

The security officer testified that while the police were searching the room, he told them that he would not permit them to remove anything unless they had a search warrant. When the police officers entered the room along with the security officer there was a television set on a table in plain view. While in the room the officers pulled a drawer out of the table and spilled its contents consisting of coins and bullets on to the floor; one of the officers took the coins and bullets with him when he left notwithstanding the security officer's admonition. The officer also took a small knife which he found in the drawer. The television set was not taken because the security officer insisted the officers leave it in the room until they had a search warrant. Before leaving the room the police sealed it.

Later that day after further discussion between the Harvey police and the YMCA security officer in which the latter persisted in his refusal to permit the police to take the television set until they had a search warrant, the defendant signed a consent-to-search form. When presented with that consent, the security officer permitted the police to search the room again and to seize the television set as well as other items which had not been in plain view. The arrest of the defendant at the YMCA and the search and seizure of items in his room resulted in the Harvey police connecting him with a rape, burglary and armed robbery which took place in a home in Harvey in the early morning hours a week prior to defendant's contact with the Harvey police.

The victim of that offense testified that shortly after 1:30 a.m. on July 6, 1975, she was awakened in her bedroom by a man standing over her with a gun pointed at her head. The man, after calling her by her first name, threatened to kill her if she moved. In the light cast by a small television in the room, the victim was able to see that the man was wearing a blue denim hat and to describe him as weighing 130 pounds and being about 5 feet 8 inches tall. The invader instructed the victim to turn over, covered her head with a sheet and had sexual intercourse with her.

The man then asked the victim whether there were any guns or money in the apartment. She replied that there were coins as well as a pistol on a dresser and a rifle in a closet. While lying in bed with the sheet over her head, the victim could hear the man rummaging through the drawers and closet. She could also hear him talking to her and recalled that he mentioned her name at least twice. After awhile, the man stopped talking and the sound of things being disarranged stopped. The victim got up, called her husband and called the police. Before the police arrived she noticed that some coins, a handgun and a rifle and a 4-inch portable television which had been in the bedroom were missing. When the police arrived, she described what happened and a Harvey police officer testified that she told him at the Harvey police station on July 7, 1975 that she could not identify the person who attacked her but that she would be able to identify his voice.

The day following the rape, the victim attended a voice lineup at the Harvey police station. Although she did not enter a room where the lineup was conducted, she could hear the voices of several men inside. After hearing them repeat various statements she said had been made by the man who raped her the night before, she claimed to recognize the voice of John Dismukes as her assailant. Dismukes was picked up earlier that day by the Harvey Police Department, and when picked up he was wearing a blue denim hat. The victim had never met Dismukes before, but her husband had known him for some time prior to the rape incident. The victim signed criminal complaints charging Dismukes with the offenses committed against her on the night of July 6, 1975.

On July 11, the rifle which was taken from the victim's home was returned to her husband along with 35 rounds of ammunition. The weapon had been found a day earlier by a ...


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