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People v. Gross





APPEAL from the Circuit Court of Rock Island County; the Hon. PAUL E. RINK, Judge, presiding.


Defendant Rodney Gross appeals from a conviction of rape and murder of Della Masengarb (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1(a)(1) and 9-1(a)(2), and 11-1). Defendant was found guilty by a jury and was sentenced to a term of imprisonment of 75 to 100 years.

The record discloses that the nude body of Della Masengarb, with multiple stab wounds, was found in the living room of her Rock Island apartment at 3 p.m. on August 28, 1976, by a police detective. The woman, who was in her mid-twenties, had died 12 to 15 hours earlier as a result of one or more of the stab wounds. Following the discovery of the body, the police also found a one-year-old boy and a four-year-old girl in one of the bedrooms of the Masengarb apartment. The boy was in a crib and the girl was in bed, under the covers. As the officers entered the room, the girl, appearing to be frightened, raised the covers and peeked over the top. In response to a policeman's questions, she stated her name; with whom she lived; that her father was in jail; and that "Rodney" had been there "last night."

Prior to trial, counsel for defendant made a motion in limine asking the court to rule out the out-of-court statement made by the four-year-old girl as an inadmissible hearsay statement. The court denied the motion, and ruled that the statement was admissible under the spontaneous declaration exception. People v. Parisie (1972), 5 Ill. App.3d 1009, 287 N.E.2d 310.

In support of the State's position on the issue of admission of the statement of the four-year-old child, as a spontaneous declaration exception, the State points out, as stated in People v. Parisie, referred to, that:

"It is not the time element that controls, but the existence or lack of spontaneity in the light of the surrounding circumstances that is determinative." (Parisie, 5 Ill. App.3d 1009, 1028.)

The State asserted that, in the instant case, the response was made to questions from the police officer by the four-year-old child, who was obviously frightened, but who answered clearly when asked about her name; who lived on the premises; where her father was; and, when asked who else was there (besides her mother, the four-year-old and her baby brother), she responded "Rodney," and, also, answered a specific question, when asked when Rodney had been there, by replying "last night."

The appellee contends that in determining the admissibility of a declaration of this character by the child, which indicated the presence of "Rodney," many factors justify the admission of such statement by the court, as an exception to the hearsay rule. It is pointed out that the child was only a four-year-old who was frightened. It is clear that the child's statement was obviously spontaneous and could hardly have been calculated by the little child for any purpose, according to the appellee, other than to answer specifically the questions put to her. The fact, also (it is contended), that the little child is only four years old would render improbable any conclusion that the utterance was deliberate and its effect premeditated. The State points to the statement in State v. Duncan (1978), 53 Ohio St.2d 215, 220, 373 N.E.2d 1234, 1237:

"[A] review of cases from other jurisdictions, in which excited utterances by infant declarants were offered in evidence as part of the res gestae, reveals that several courts> have expressly indicated that the strict requirements of the res gestae rule should be relaxed or liberalized in favor of the admissibility of such utterances."

Thus, it is contended, that whether the reply of the four-year-old is deemed a spontaneous declaration or an excited utterance, it serves the ends of justice to follow the liberal approach in favor of admission of what is clearly not a contrived response.

Later, on August 28, 1976, police officers went to the home where defendant lived with the owner, Dean DeBord. The officers obtained permission to search the DeBord house, including the bedroom of his daughter, where defendant had at times slept. The officers found a pair of jeans, which were blood-soaked, in the dirty clothes basket in the daughter's room. They were identified as belonging to the defendant. At 8:20 p.m. on the same day, the defendant, who had known the victim, Della Masengarb, was arrested, read his Miranda rights and taken to the Rock Island Police Department. He was interviewed there by police detectives. Defendant told them that shortly after 1 a.m. on August 28, he drove straight home and remained there the rest of the night.

On August 29, as defendant was being taken out of his jail cell, he volunteered to the detectives that he had lied the night before. He stated that he did not go home after 1 a.m. on August 28, but instead, because he was having car trouble, he parked in a Zayre Store parking lot and fell asleep until approximately 6 a.m.

On August 30, defendant, after being informed of his rights, was interrogated by the Assistant State's Attorney Malvik. Malvik sought to obtain the confession of the defendant by confronting the defendant with the evidence. Defendant denied killing Della Masengarb, or being in her house at the time of the killing. Malvik told the defendant that he "knew it was a horrible thing" and that he "was sure that [the person responsible] didn't mean to do it." Malvik testified also that defendant at that point "didn't say anything and then he said `take me back to my cell.'"

At the trial, Sally Dillon, a supervising criminalist for the Illinois Bureau of Identification, testified for the State that Della Masengarb had a combination of blood types that less than 1% of the population has. She found that same combination of blood types present on the pants belonging to the defendant which the police had recovered from Dean DeBord's house. Sally Dillon stated, on cross-examination, that it was impossible to conclude that the blood on the pants was identical to that of decedent since she could only specify the type of blood, which is a very rare type. Dillon also revealed that defendant's ABO blood type was "O," which is present in approximately 45% of the population. This type of blood was found by Dillon in a fingernail scraping from under the decedent's left thumb. Dillon also microscopically compared hair found on the right little finger of the decedent, with samples of defendant's head hair and with decedent's head hair. The criminalist concluded that the hair found on the decedent's little finger was not similar to that of decedent but was similar in color and characteristics to defendant's hair. Also, in the test of a bed sheet recovered from the bedroom in decedent's home, Dillon found seminal material and blood.

The defendant attempted to rebut the Dillon testimony with the testimony of a Dr. Arthur Simmons, who was a well-qualified pathologist and hematologist. Dr. Simmons also tested the same blood samples and exhibits testified to by Dillon, but pointed out that the blood had become contaminated and the results were inconclusive, since it had been taken from a decedent approximately 17 hours after the estimated time of her death.

Four inmates who had been in the county jail with defendant prior to or during his trial also testified. Three of the inmates testified for the State, on direct examination, that defendant had admitted killing Della Masengarb. The fourth inmate, who was called to testify in rebuttal, testified that he was asked in September 1976 by a sheriff's department employee, to see if the defendant would say anything and to inform the employee of any statements defendant might make. The fourth inmate testified that, in response to his questioning, defendant said he killed a woman with a knife.

The State also presented two witnesses who testified about two extra-indictment crimes defendant had allegedly committed. Twenty-year-old Sherry McCarthy testified that around June 11, 1975, at approximately 2 a.m., defendant broke into her home while she was sleeping, grabbed a ceramic statue and told her to be quiet or he would bash her head in. Defendant then raped McCarthy and forced her to perform a deviate sexual act. Before his departure, defendant warned McCarthy not to tell anyone or he would come back and kill her. McCarthy did not know defendant prior to the incident but observed him earlier in the day across the alley from her house. She reported the incident to the police at that time but the State's Attorney refused to authorize the issuance of a "warrant," she said.

The second witness, 17-year-old Kathryn Gotthardt, testified that at 3 or 4 a.m. on April 13, 1976, defendant broke into her home and entered her bedroom. Defendant held a knife to her throat and said he wanted to talk. The young woman screamed and her parents came into the room, at which time defendant left the house. Gotthardt had known defendant since January 1976, and had gone out with him once prior to the assault. She had also lived for a few days in an apartment with defendant and Don Garrett.

Defendant's counsel made a second motion in limine prior to trial, asking that the State be barred from introducing evidence of two extra-indictment crimes allegedly committed by defendant. The court denied this motion, ruling that the evidence of other crimes was admissible to show modus operandi.

Defendant testified in his own behalf and denied that he killed or raped Della Masengarb. On cross-examination, the prosecutor asked defendant numerous times whether certain witnesses, whose testimony conflicted with defendant's, were lying or mistaken. The first such question posed to defendant was objected to and the court sustained the objection. Defense attorney, however, failed to object to any of the other questions asked of defendant of the same nature.

On appeal in this court, defendant contends (1) that defendant was denied a fair trial and due process by the denial of his motion in limine and subsequent introduction into evidence of other crimes in the trial; (2) that the court erred in instructing the jury to consider the other crime evidence on the issues of identification, presence, intent, motive and design; (3) that the trial court erred in admitting into evidence, as a spontaneous declaration, the out-of-court statement by the four-year-old child of the victim, made more than 12 hours after the occurrence; (4) that the trial court erred in allowing defendant to be cross-examined on the truthfulness of other witnesses, whose testimony conflicted with defendant's and defendant contended he did not waive this error by not objecting at trial and not including it in his post-trial motion; and (5) that the trial court erred in allowing evidence of defendant's silence in response to a question to be admitted into evidence and contended that defendant did not waive this objection.

The State responds that any possible error with regard to the matters referred to by defendant was either waived or harmless or does not operate to negate the positive and clear evidence of defendant's guilt as presented in the course of the trial. We agree with the State that if we were to concede that the matters specified by defendant were improper or erroneous, the record still shows clear evidence of the defendant's guilt. Defendant's blood-soaked jeans, which were found in the dirty clothes basket in a room in which defendant often slept, showed that the jeans had blood of the rare type found to be the type of blood of the decedent Della Masengarb. Defendant offered no explanation for the blood on the pants, even though he testified in the case. The expert found decedent's blood type, which is found in less than 1% of the population, on the jeans, and also found defendant's blood type in scrapings from decedent's fingernail. The expert also determined that the hair found under decedent's fingernail was similar to the defendant's hair. There was also seminal material on the decedent's bloody sheet.

We note also that defendant first told police he had driven home shortly after 1 a.m. on the night of the murder. He later changed his story, stating that he parked in a Zayre Store parking lot because of car trouble and fell asleep there until approximately 6 a.m.

Finally, three county jail inmates testified clearly that defendant had admitted to them that he killed the decedent Masengarb and another inmate testified that defendant said he killed a woman with a knife. ...

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