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People v. Muellner





APPEAL from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding.


Defendant, Mark Muellner, was convicted by jury in the Circuit Court of Madison County of two counts of rape and two counts of deviate sexual assault. Following a hearing in aggravation and mitigation, defendant was sentenced to concurrent terms of 4 to 8 years imprisonment; however, 11 days after sentence was imposed, the trial court altered the sentence, upon the State's motion, so as to cause the sentences imposed for rape to run consecutively to those imposed for deviate sexual assault. Defendant appeals from his conviction of all offenses and the sentences imposed thereon.

The charges against defendant arose out of events occurring on August 7, 1976, in Madison County during which it was alleged that defendant, co-defendants Donald Jenkins and Richard Knowles, and others committed numerous acts of rape and deviate sexual assault upon two young women, 18 years of age. The cause was originally tried before a jury in February 1977, but ended in a mistrial when the jury could not agree on a verdict. The record discloses that prior to the commencement of the second trial various pretrial motions were considered by the court in chambers. Defense counsel moved for a change of venue or a continuance because of a newspaper article which appeared in the Alton Telegraph on April 21, 1977, containing various comments concerning the prosecutors' attitudes toward rape cases and featuring a picture of one of the prosecutors. The newspaper article also referred to the fact that the alleged victims had submitted to lie detector tests some time after the incidents. The court denied the motions and that ruling is not challenged by defendant in this appeal.

The court also granted the State's seven-paragraph motion in limine except for paragraph 6. In paragraph 7, which was granted, it was requested that the court exclude any reference to certain record albums purchased by the alleged victims on the evening of August 6, 1976, a matter which the court in the previous trial had ruled irrelevant. It was agreed by the court and counsel that defendant's offer of proof at the first trial pertaining to the purchases be incorporated by reference into the record of this cause. Defendant's offer of proof indicated that his counsel wished to question the alleged victims about two record albums purchased by one of the girls in which he charged there were contained various sexually oriented words and references to drug paraphernalia. As part of the offer of proof, defense counsel cross-examined one of the victims concerning her activities on the night in question, her purchase of the record albums, and her state of mind at the time of the incident. Defense counsel argued that the subject matter and titles of the albums indicated her state of mind at the time she first encountered the men. The offer of proof was denied.

When trial commenced on April 25, 1977, the State called Mary Gavin, a registered nurse at St. Elizabeth's Hospital in Granite City, as its first witness. Gavin testified that the girls had undergone physical and vaginal examinations on the morning of August 7, 1976, and she identified several slides made that morning as well as various items of clothing taken from the girls. She could not recall observing any indication of physical injuries other than in the vaginal area. Another nurse, Connie Pilat, testified to basically the same matters, specifically her assistance during one victim's physical examination. Doctor Joseph Kopp testified that he examined the test slides of both women and found the presence of sperm on each of their vaginal smears, but not on the smears taken from their oral or rectal cavities. Steven Martin, a medical lab technician at St. Elizabeth's Hospital, testified that he performed certain tests on several of the slides which contained specimens from various parts of the womens' bodies.

Sergeant Glen Newsome of the Madison County Sheriff's Office testified that he came into contact with the women at approximately 4:40 a.m. on August 7, 1976. He stated that after taking them to St. Elizabeth's Hospital, he returned with the women and other police officers to the scene of the incident. Newsome also identified various pictures, diagrams, and items of evidence he found at the scene.

The victims testified that on the evening of August 6, 1976, they went shopping. One of the girls, who had approximately $50 in her purse, purchased two record albums. While the victims were driving down a Missouri highway later that evening an automobile containing nine or 10 males passed them. Shortly thereafter, they passed this car before stopping at a service station to use the restroom. When the women pulled into the service station, the automobile containing the men pulled up alongside their car and the men asked the women if they wanted to go to a party; the women responded negatively. According to one of the victims, two of the men, Richard Knowles and a man identified only as Zack, then entered the automobile over her protests. The two men told the women to drive to a nearby park to meet the other men and they complied with their request.

After driving to the park and returning to the station twice, the driver stopped at another service station where she purchased gasoline. Thereafter, she followed the automobile occupied by the remaining members of the group to a tavern which Knowles entered and then returned to her car. She explained that she didn't know what would have happened to her if she had refused to continue driving and that she was worried and concerned. After the stop at the tavern, she proceeded to follow the other auto to another service station where the girls used the restroom while the man named Zack stood outside the door. The three returned to the automobile and followed the other car over the Mississippi River into Madison County, Illinois. After driving a short distance, the automobiles stopped along the side of a road at a location known as Chouteau Island, and the driver was thereupon instructed by defendant Muellner, who had been in the other automobile, to drive her car down a hill. When she refused, defendant pushed her aside in the seat and drove her auto down the hill.

At that point, the driver related that Zack, Knowles and the defendant dragged her across the ground to a location where they subsequently forced her to have sexual relations with them. At the same time, she observed the other girl being dragged in an opposite direction to another point. She stated that with at least five of the men participating she was ultimately forced to engage in 14 or 15 acts of "normal" intercourse, all without her consent. She specifically testified that defendant forced her to have intercourse with him. After approximately 4 1/2 hours, she and the other victim were allowed to leave, but were first warned by the men not to tell anyone about the incident. Before leaving the scene, she discovered that her wallet was missing and she later discovered that the contents of her automobile trunk, including the record albums had been removed. The girls then drove to West Florissant, Missouri, where they were stopped by a police officer whom they informed of the incident.

On cross-examination, she stated that she was not physically forced to follow the automobile with the other men in it on the night in question, nor did she try to escape or seek any assistance at any time preceding the incident although she had the opportunity to do so. She explained that she cooperated with the mens' demands that evening because she was unsure of what would have happened had she not. She also testified that during the drive into Illinois Knowles repeatedly grabbed at her, but that she hit him and refused his advances. She admitted that during their trip back to Missouri after the incident, she passed by several traveler's aid call boxes along the highway as well as one of the service stations at which they had stopped earlier that evening. She also related that their contact with the police after the incident was initiated by her being stopped for speeding. Defense counsel at one point confronted her with a statement she had given to Sergeant Newsome a few days after the incident in which she had said that three men had initially gotten into her car that evening, although she again stated that only two men had done so as she had testified on direct examination.

The other victim testified that shortly after arriving at Chouteau Island she was dragged from the automobile and knocked to the ground by Donald Jenkins. He asked her to undo her belt which she refused at first, but did so after he slapped her. Jenkins and several others at that point forced her to have sexual intercourse with them and to submit to acts of oral sex as well. She related that she was forced to lick one man's rectum twice and after she started shaking and telling them she was going to be sick, she was put back into the automobile where she was joined in the back seat by defendant Muellner and another man. She stated that Muellner forced her to have anal sex with him while in the automobile. After an unspecified period of time, the man left the automobile and the women were allowed to dress and drive away. Before leaving, one of the men remarked that they were "getting off easy." She described her companion as being hysterical during their trip back to Missouri.

Under cross-examination she testified that she had been worried and concerned about the presence of the men before the group reached Chouteau Island and that she was afraid that they might be "ripped off." She did admit that she had at one point earlier in the evening left and reentered the automobile voluntarily.

The defense called Sergeant Newsome as a witness and he testified that shortly after the incident he took a statement from one victim. In that statement, she indicated that she had been forced back into the automobile after stopping at the first service station where the men first spoke with the women and entered the car; that she was struck by one of the intruders; and that three men had entered the automobile. On cross-examination, Newsome described her as being very excited and bordering on hysteria at the time she gave him her statement. No further evidence was presented on behalf of the defendants and after closing arguments the jury found the defendant, and his co-defendants, guilty on all counts.

On June 2, 1977, defendant appeared before the court for sentencing. Prior to the imposition of sentence, defense counsel made an oral post-trial motion to which the State objected and requested that defendant be required to file a written post-trial motion so that the State could enter an adequate response. The court stated that it had reviewed its trial notes and the evidence in the cause and denied defendant's motion for a new trial. The court then proceeded to defendant's hearing in aggravation and mitigation during which the State presented no evidence. After hearing evidence in mitigation on behalf of defendant, the trial court sentenced him to concurrent terms of 4 to 8 years on all counts. After sentence had been imposed, defense counsel made an oral motion that the court reporter be directed to file a notice of appeal for defendant. On June 6, 1977, the State filed a motion for rehearing which was argued and allowed on June 8; although, the court noted that defendant had filed a notice of appeal from the judgment and sentences thereon on June 7. The rehearing was held on June 13, during which the State requested that the court re-examine the sentences imposed on June 2, and modify them so that the sentences on the rape convictions and deviate sexual assault convictions would run consecutively and not concurrently. Defendant objected to the requested modification and ...

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