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People v. Boerckel





APPEAL from the Circuit Court of Montgomery County; the Hon. PAUL M. HICKMAN, Judge, presiding. MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Montgomery County, defendant, Darren Boerckel, was found guilty of the offenses of rape, burglary and aggravated battery. The court thereafter imposed respective terms of imprisonment of 20 to 60, five to 15, and two to six years, to be served concurrently. Defendant appeals.

Of the issues raised on appeal, we shall address the following: whether the trial court erred in admitting defendant's confession; whether the trial court erred in denying the discovery of certain material; whether the evidence was sufficient to support defendant's convictions; whether the sentence was excessive; and whether the court erred in denying a motion to determine defendant's fitness for sentencing.

The instant offenses stem from an incident which took place sometime between 10:30 and 11 p.m. on August 23, 1976, in Litchfield, Illinois. At that time, a young man dislodged a window fan and entered the residence of an 87-year-old woman. Once inside, the man threw the woman onto the floor, and raped her.

The principal evidence against defendant at trial was his written confession, which was admitted over objection, and the testimony of the two law enforcement officers to whom defendant's confession was made.

The written confession consists of three pages. The first page is an Illinois State Police form which purports to be defendant's waiver of certain constitutional rights, commonly referred to as Miranda rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602). The final two pages set forth a detailed statement of the circumstances of the offense indicating that the defendant was the rapist. Each page is signed by defendant Boerckel and witnessed by Mt. Olive police officer David Lienard and Illinois State Police detective Larry Huggins.

In the remainder of its case, the State endeavored both to show that the crimes had been committed and to corroborate the defendant's confession.

Medical testimony established that the victim had had forceful sexual intercourse on the evening in question, that she had suffered a slight fracture of a rib and a compression fracture of her left tibia, a leg bone, and that she was not able to bear any weight on her left leg for a period of time after the incident.

The victim's son-in-law, James McCart, testified over objection that he received a telephone call from his mother-in-law between 10:30 and 11 p.m. on August 23, 1976. She was crying and stated to him, "Jim, can you come and get me? Some man broke in my window and raped me." Mr. McCart immediately called the Litchfield police department. He and his wife, Alice, then got dressed and drove to the victim's residence. Both of the McCarts estimated that they arrived at her house within 15 minutes after receiving the telephone call.

Jim and Alice McCart each gave an account of what happened upon their arrival, the main portion of which was a recounting of the statements made by the victim. Testimony as to these statements was allowed on the basis of the excited utterance exception to the hearsay rule.

Mrs. McCart's account was more complete. She indicated that her mother was nervous, upset and crying when they arrived. Mrs. McCart asked her mother if she was hurt, at which time she related what happened. She told them that a man had first come to her bedroom window and awakened her and that he then pushed in a dining room window fan and came in the window. After gaining entry, he grabbed her and threw her on the couch and from there onto the floor where he raped her. During the assault he choked her, and when he had finished he exited by the same window.

Although the victim could not see her attacker, she knew he had long hair because she put up her hands and felt it. She also believed he was a young man. Mrs. McCart further indicated that her mother was wearing a nightgown and no undergarments at the time of the attack.

The details of the defendant's confession were substantially the same as those given by the victim to the McCarts. The record further established that defendant had shoulder-length or longer hair at all relevant times and that he told Detective Huggins while being interrogated that the woman he raped was not wearing any underpants.

The expert testimony of IBI criminalist James Bald was also offered by the State. Mr. Bald testified that 43 percent of all caucasians have type O blood and that type O blood is characterized by the presence of a high level of H substance in the red blood cells. He further testified that 80 percent of the general population are what is known as secretors; that is, their saliva and other bodily solutions will exhibit the substances which are in their red blood cells. Mr. Bald ran tests on a blood sample and a saliva sample from defendant. He was able to determine that defendant has type O blood and is a secretor. Mr. Bald also ran several tests on certain stains found on the victim's nightgown. The initial tests revealed that the stains were human seminal material. He then tested for the presence of the various factors. This test revealed the presence of the H substance only. He was therefore able to conclude that the seminal material came from a male with type O blood who was a secretor. Mr. Bald estimated that approximately 39 percent of all caucasians are type O secretors.

The defendant presented an alibi defense through the testimony of his grandmother, Cora Buzick. She testified he was home with her at the time of the rape.

Prior to trial, defendant filed a motion to suppress his confession. After an evidentiary hearing, the court denied the motion. In this appeal the defendant asserts the same three grounds for suppression which he raised in that motion, namely, that the confession is a product or "fruit" of an illegal arrest, that he did not knowingly and voluntarily waive his Miranda rights and that his confession is the result of coercion and therefore involuntary.

In the suppression hearing, the testimony of Officer David Lienard and Detective Larry Huggins was offered by the State to establish the admissibility of defendant's oral and written confessions. These officers testified concerning the circumstances attending the giving of the confessions both in the suppression hearing and at trial. The following facts may be gathered from their testimony.

Since the Litchfield police had indicated to Detective Huggins that defendant was considered a strong suspect in the rape case, the detective was anxious to talk to him with reference to his investigation. Consequently, on August 31, 1976, Detective Huggins told Officer Lienard to keep a look out for defendant and if he saw him to inquire if he would talk to Huggins. Officer Lienard was not directed to arrest defendant.

At approximately 2:50 p.m. Officer Lienard, while patrolling in Mt. Olive, saw defendant standing on a street corner. The officer pulled his squad car to the curb and told defendant that Detective Huggins wanted to talk to him. The defendant apparently agreed. At any rate, he did not indicate that he did not want to go to the station. According to Lienard, defendant was not under arrest and was free to leave if he wanted to. Officer Lienard then drove defendant to the Mt. Olive police station, which was a block away. Once at the station, Lienard called the State Police headquarters in Litchfield and told the dispatcher to contact Huggins and tell him that defendant was at the Mt. Olive police station. After Officer Lienard had placed the call, the defendant asked if he could return to the corner where he had been originally located in order to tell his girlfriend to go on to work. Thereafter, defendant and Lienard walked to the corner, and Lienard observed defendant tell his girlfriend that he was waiting to talk to Detective Huggins. They then returned and remained in the main office until Detective Huggins arrived at around 3:45 p.m.

Detective Huggins identified himself, informed defendant that he was conducting an investigation into the rape which had occurred in Litchfield and asked defendant if he would be willing to talk to him about the case. The defendant said he would be glad to.

Prior to asking any questions of defendant, Huggins read defendant his Miranda rights from a card. Huggins paused after each right and asked defendant if he understood it before going on to the next one. The defendant indicated that he understood them all. The detective further informed defendant that he was not under arrest, that he was free to go when he wanted to and that he could stop talking to him or demand a lawyer at any time.

The defendant initially told Huggins that while walking to a neighborhood gas station on the night in question to purchase a coke, he saw two men on the victim's porch. One of the men was wearing a stocking cap. When he returned from the station they were gone. Defendant then indicated that there was nothing else he could tell Huggins. At this point, Huggins advised defendant that fingerprints had been found on a window fan at the burglarized premises and that he felt they could be defendant's. The defendant then admitted breaking into the house but denied the commission of the rape. Huggins told defendant that medical evidence had established that the victim was raped and that it was not logical that defendant had burglarized the house as described by the victim but had not committed the rape. After several moments of silence, defendant broke down and said, "I did it." He then described the manner in which the offense took place.

Prior to reducing defendant's confession to writing, Huggins readvised defendant of his Miranda rights by reading them to him from the form which comprises page one of the written confession introduced at trial. After reading each right, Huggins paraphrased it into simpler language. The defendant indicated he understood his rights and placed his initials on corresponding lines. Defendant then signed a waiver of rights provision.

Since defendant indicated he did not write very well, Detective Huggins wrote out the statement using same or similar words to those of the defendant. When the two-page confession was completed, Huggins read back each page separately, and the defendant acknowledged both pages as being his statement and placed his signature at the bottom of each one.

According to Huggins, there was no physical evidence linking defendant to the crime before the interrogation. After defendant made his statement, he was no longer free to leave, but he was not formally arrested until sometime later when he was delivered to the Litchfield police station.

The testimony of defendant and his mother, Caroline Boerckel, was offered in support of defendant's motion to suppress. The gist of Mrs. Boerckel's testimony was that defendant's reading skills were very limited.

The defendant testified that he felt that he could not have chosen to leave when confronted by Officer Lienard. Defendant exhibited his reading ability by reading the Miranda warnings aloud, omitting the words he did not know. Defendant's recitation was incomprehensible consisting of pronouns, prepositions and simple verbs. Defendant further testified that he signed the three pages of his confession because he was upset about a "lot of things."

On cross-examination, defendant first maintained that he did not make a statement and that he did not see anything written on the paper. He later conceded that he knew when he signed the statement that it said he had raped the victim. He further agreed that no one forced him to sign the statement and that he did so of his own free will.

The linchpin of defendant's argument that his confession is a fruit of an illegal arrest is that he was arrested before he made his confession.

• 1 An arrest involves the following three elements: authority to arrest; assertion of that authority with intent to effect an arrest; and restraint of the person to be arrested. (People v. Robbins (1977), 54 Ill. App.3d 298, 369 N.E.2d 577; People v. Ussery (1974), 24 Ill. App.3d 864, 321 N.E.2d 718.) With respect to the element of intent to effect an arrest, the intent of the officer and the understanding of the arrestee are both essential. (People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870; People v. Ussery.) However, the understanding of the arrestee is not synonymous with his subjective belief at the time but rather with what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes. People v. Wipfler.

• 2 By denying defendant's motion to suppress, the trial court made an implicit finding that defendant was not under arrest prior to incriminating himself. Such finding was entirely correct. The record does not establish either an act done with the intent to effect an arrest or restraint of the defendant.

Both officers testified that defendant was not under arrest and that he was free to leave at any time prior to confessing. In addition, Detective Huggins specifically told defendant before questioning him that he was not under arrest and that he was free to leave whenever he wanted to. The record before us is devoid of any procedures, acts or utterances of an officer which one normally associates with placing someone under arrest. The evidence, viewed as a whole, does not support a finding that either officer intended to arrest defendant at any time before he confessed or that defendant could have harbored a reasonable and objective belief to the contrary. This is true despite the fact that Detective Huggins told defendant he believed the fingerprints found at the scene could be defendant's at a time when he had no basis for such belief. Detective Huggins candidly ...

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