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People v. Moore





APPEAL from the Circuit Court of Winnebago County; the Hon. ROBERT C. GILL, Judge, presiding.


Rehearing denied March 10, 1980.

The defendant was convicted of rape and murder and sentenced to serve concurrent terms of imprisonment of not less than 20 nor more than 50 years for murder and not less than 20 nor more than 40 years for rape.

In this appeal he raises the following contentions: (1) his oral statement given to the Winnebago County police was the fruit of an illegal arrest and should have been suppressed; (2) that the State used inadmissible hearsay testimony to rebut his alibi testimony; (3) that the trial court committed reversible error in allowing the State to introduce evidence which suggested the defendant had a propensity to commit sexual offenses and (4) the State was improperly allowed to prejudice the defense by challenging the defendant as to his opinion of the veracity of the police officers whose testimony was at variance with his.

The rape and murder of which the defendant was convicted occurred at Faith Home in Rockford, which was a shelter for indigent persons. Those who were able to pay were charged a nominal fee; those who were actually without funds were not charged.

The defendant was, by his own testimony, a drifter, 40 years old and an alcoholic. He had moved around from one place to another and had a criminal record, although not a very serious one at the time he came to Rockford in the summer of 1977. Sometime between August 21 and August 27, he sought shelter at the Faith Home and was allowed to share a room with another resident by the name of Courtney Miller. The defendant registered under the name of Craig Johnson. A woman named Mabel Berg, who was about 70 years old, also was a resident of the Faith Home where she had lived for about 14 years.

On the morning of August 27, 1977, Mabel Berg was found dead in her bed, the victim of rape and strangulation. An issue raised in this appeal is that a statement given to the police by the defendant was the fruit of an illegal arrest. We will set forth the circumstances immediately preceding and following Mabel Berg's death in some detail as being relevant to that issue.

Courtney Miller, the defendant's roommate, told the police he had last seen the defendant around 2:30 a.m. on August 27, when the defendant came back to his room after being out. Defendant was fully clothed at that time. Miller said the defendant then left the room and was gone for a period of 30 minutes to an hour. When he returned he woke Miller by turning on the light and at that time, Miller testified, he noticed the defendant had no shirt on. The defendant then left the room again saying he was going to clean up. The defendant did not return to the room and was not seen again at the Faith Home. He left behind a suitcase and some articles of clothing.

At around 6:30 that morning, Kathy Worthington, who acted in a managerial capacity for Dr. and Mrs. Avery, who owned Faith Home, discovered Mabel Berg dead in her bed, lying in a pool of blood with scratches and bruises on her neck and other parts of her body. A medical examination showed she had been strangled, and a sperm test showed she had been subject to sexual intercourse. At first Kathy Worthington attempted to cover up the rape and murder, saying she had found Mabel Berg alive around 6:30 a.m. when she first saw her and that after leaving her alive and then returning to her room about 7:30 a.m., she found Mabel Berg dead, apparently a victim of epilepsy, with which she was afflicted. Kathy Worthington had changed the bed and removed the bloody sheets and washed Mabel Berg's body. Later, she informed police, she had found an "Afro"-type comb near Mabel's body, a fact she did not immediately disclose to the police. When she was confronted with the coroner's finding of death by strangulation and evidence of rape, she admitted she had attempted to cover up Mabel Berg's violent death for the sake of the home's reputation and to save Dr. and Mrs. Avery serious embarrassment. Her later statement to the police told of her discovery of Mabel's death and her realization that she had probably died in the course of a rape. There was no evidence found of a break-in of the premises. The defendant in his statement to the police claimed the door was open when he returned to the home around 2:30.

Upon questioning Courtney Miller the police learned of the defendant's occupation of a room in the home with Miller, of his late return to the room in the early morning of Mabel's death, of his leaving fully clothed and then returning shirtless, after which he went out again and was not again seen. The police then made an intensive search for the defendant in the Rockford area but could not find him. On September 15 the Rockford police had a warrant issued for the defendant's arrest on the ground of obstructing justice and leaving the jurisdiction to conceal his knowledge of a crime. On October 12 the defendant was arrested in Des Moines, Iowa, on a public intoxication charge, as the result of which the warrant issued by the Rockford police and the fact that he was wanted also on a Washington, D.C., parole violation came to light.

The defendant had been given a suspended sentence on the public drunkenness charge; however, he was held by the Des Moines authorities on account of the Rockford warrant (and possibly on account of the parole violation, although that is not clear). Two Rockford police officers arrived at the Des Moines jail in the late afternoon of October 13 and immediately after seeing the defendant gave him his Miranda warnings and interrogated him about the Berg murder. According to the testimony of Detectives Sweet and Burgess of the Rockford Police Department, the defendant made an oral confession, after some 30 to 40 minutes of interrogation, in which he said that he had re-entered the home about 2 to 2:30 a.m., after being out; that he had entered the home through an unlocked front door and gone to his room; that he had then left the room and gone down to Mabel Berg's room. She told him to leave and he left but he then returned, removed his clothes and had sex with her against her will. He said he was drunk and according to the officers he told them, "I always do those things when I'm drunk." They said he did not acknowledge choking or striking her but when asked if he had choked her and put the scratches on her neck he said, "he must have." The police said he further told them, "Man, I'll tell you, I had sex with that woman but I didn't know she was dead." Asked if he had left his Afro comb in Mabel's room, he replied, "I must have."

The defendant refused to sign a written statement. He said he wanted to talk to a lawyer. The detectives then transported him back to Rockford where he was charged with the rape and murder of Mabel Berg. At trial the defendant took the stand and denied having raped or murdered Mabel Berg or having been in her room on the night in question.

The defendant contends his oral statement to the police was inadmissible because it was the fruit of an illegal arrest. The defendant argues that the Rockford police lacked probable cause to issue an arrest warrant for obstruction of justice based on the facts known to them at the time it was issued, and the lack of probable cause to issue the warrant made the subsequent arrest and interrogation illegal. The defendant says the police did not feel they had enough evidence to constitute probable cause to issue a warrant for murder or rape, but they merely wanted to question the defendant. Being unable to locate him, they spread a wider net for him by issuing a warrant and distributed it generally to the police computer network, charging him with obstruction of justice. The defense argues there was no probable cause to so charge him since his disappearance from the scene had no suspicious implication inasmuch as he was known to be a drifter who came and went constantly and never stayed in any one place very long and did not bother to take his few possessions with him when he left since they were charity clothes which could be replaced at his next stopping place. Being a drifter his disappearance had no guilty overtones; therefore, the warrant was a "fishing expedition," and had no validity. See Henry v. United States (1959), 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168; People v. Edge (1950), 406 Ill. 490.

While we agree that the disappearance of the defendant and his abandonment of his personal possessions were not persuasive evidence in view of his having no ties to the community and to the possessions being charity items, easily replaced without cost, we are inclined to agree with the trial court that, taking all of the circumstances together, probable cause for the arrest warrant was established. The trial court had to consider that (1) the defendant had, according to the witness Courtney Miller, been in the room about 1:30 a.m., but thereafter was absent from the room for an undetermined period between 1:30 a.m. and 3 a.m., corresponding to the coroner's estimate of the possible time of Mabel Berg's death, which was between 2:30 a.m. and 4 a.m.; (2) the defendant had left the room wearing a shirt but had returned shirtless and appeared to be upset and had then put on another shirt, had left and was not seen again; (3) an "Afro" comb had been ...

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