APPEAL from the Circuit Court of Fulton County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 5, 1980.
The defendant in this case, William Ford, appeals from convictions for the offenses of indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(3)) and attempt (rape) (Ill. Rev. Stat. 1975, ch. 38, par. 8-4(a)). He was tried by a jury and sentenced by the court to a single term of 15 to 25 years in the Illinois Department of Corrections. He was 51 years old at the time of his arrest.
The complainant in the case was a 12-year-old girl, who testified that on May 13, 1977, at approximately 3:50 p.m., she was home alone watching television when a man she had never seen before came to the door, asking for directions. She noticed a green station wagon parked in the driveway. The man at the door told her that he was a friend of her grandparents and was supposed to visit them someday. He then asked to use the bathroom. When he emerged, the complainant asked him if he wished to call her grandparents and the man replied that he did not. She became frightened and began to cry. The man grabbed her, held her close to himself and kissed her, placing his tongue in her mouth. He said that there must be a bedroom in the house and she replied that there was not. He then forced her upstairs and into a bedroom and told her to remove her clothes and get onto the bed. She removed all of her clothing except her shoes and socks and lay on the bed on her back. He removed his pants, but did not take off his undershorts. He got on top of her and kissed her on the mouth. He forced her to touch his genitals. She smelled alcohol on his breath. After about two minutes she told the man that she heard someone pulling into the driveway. The man got up to look out the window and the complainant ran downstairs and out the door. She ran a quarter mile to the home of her nearest neighbor. The neighbor testified that the complainant ran up to her house naked and yelling, "* * * come quick and help me. Hurry. I have been raped."
When questioned by Deputy Dan Daly of the sheriff's police, the complainant described the man as tall, between 5'9" and 6 feet, with brownish gray hair. He wore gold-rimmed bifocal glasses and a dirty white T-shirt, over which he wore a blue jean jacket. He wore green work pants and a black baseball cap. His undershorts were white with a red pattern.
After the complainant reached her neighbor's house, the neighbor called the police. Two other witnesses testified that they saw a dark green station wagon parked in the driveway of complainant's home at the time of the incident. Before the police arrived, the neighbor and the complainant observed a green station wagon going west past the house. The complainant said it was the same car she had seen in her driveway. Deputy Dan Daly of the sheriff's police and the complainant's parents then arrived at the neighbor's house. While they all were standing in the yard, the complainant noticed the car drive past again. She recognized the car and the black baseball cap and cried out, "There he is. Get him," and pointed. It was then 5:55 p.m. Deputy Daly noticed that Deputies Matt Bohler and Paul Ford were driving in a pickup truck about 300 yards behind the station wagon. Daly radioed them to stop the station wagon, and both he and the complainant's father entered their vehicles and followed the station wagon. Daly passed the other vehicles and ultimately stopped the station wagon south of Smithfield. The driver of the station wagon was the defendant, whom Daly had known since 1975. Defendant Ford was taken to the county jail. His car was left unattended on the road south of Smithfield.
After arriving at the sheriff's office, Daly asked Gerald Kinnamon to tow the defendant's car to the jail. When the car arrived at the jail, Daly noticed for the first time a light brown tool box behind the front seat of the floorboard. He testified that he had not looked for anything like that at the time of the arrest. While the car was parked along the rural road, it was unlocked and a window was open. At the jail, the defendant was asked to empty his pockets. He removed his wallet and 20 or 30 drill bits. Deputy Daly testified that the defendant also removed a ball point pen and a packet of wood bits from his pockets. Attorney Bill Davis was at the jail at the time and was asked to take the personal property envelope to the defendant's wife. None of the contents was marked for identification.
The next morning, Saturday, May 14, 1977, the complainant's father reported to the sheriff that his toolbox and several drill bits and end wrenches were missing from his garage. The garage door was closed, but unlocked. He had last used his tools the previous morning. He identified the tool box that had been found in the defendant's car as his. Among the tools he was missing was a red container in which the bottom was falling out (People's exhibit No. 5). This held wood bits, among which was an antique bit that his wife's grandfather had given him (People's exhibit No. 9), which he claimed he could pick out of a hundred. He was also missing a feeler gauge, used in automotive tuneups (People's exhibit No. 6), and a ball point pen bearing the name of a local firm (part of People's exhibit No. 4).
Mrs. Ford testified that attorney Bill Davis came to her home on May 13 and told her that her husband was in jail. He brought her an envelope with some drill bits, loose change and her husband's billfold. She removed the change and billfold and took the drill bits to the basement where she dumped them into a box with other drill bits, nails and small objects. On May 14, the sheriff came to her house and stated that he wanted the drill bits for evidence. Mrs. Ford went to the basement, grabbed a handful of drill bits, put them in a coffee can and took them upstairs. She was not sure they were the same drill bits that Davis had brought her. The only items she identified as having been brought by Davis was People's exhibit No. 5, the packet of wood bits.
Ronald Hungerford, the defendant's 33-year-old nephew, testified that the defendant was at Hungerford's home in Cuba, Illinois, on May 13, 1977. On that date, at 3:15 p.m., the defendant drove up to Hungerford's yard and the two of them talked for 15 minutes to a half hour. The witness thought the defendant had been drinking because he was talking a little slower than normal. A half-pint bottle of liquor was found in defendant's station wagon at the time of his arrest.
The jury found the defendant guilty of indecent liberties with a child, attempt (rape), and contributing to the sexual delinquency of a child. Judgment of conviction was entered on the first two charges. The charge of contributing to the sexual delinquency of a child was withdrawn because that charge was a lesser included offense as to the conviction for indecent liberties.
The defendant's first contention on appeal is that the court erred in admitting into evidence, after a hearing on a motion to suppress, the drill bits and other small tools that Mrs. Ford gave to Sheriff Ellsworth when he came to her house on May 14. The sheriff drove to Mrs. Ford's house in his police car, although he was in plain clothes and unarmed at the time. He was accompanied by his wife, who remained in the car. Mrs. Ford recognized him. Sheriff Ellsworth testified that he knew Mrs. Ford. Sheriff Ellsworth said to Mrs. Ford that, if she didn't mind, he would like to have the drill bits that Bill Davis had brought her the previous night, for evidence. Mrs. Ford went into the house and returned with a coffee can full of nails, drill bits, and other small tools. The evidence envelope was rolled up and stuffed into the can. She scooped up some drill bits, placed them into the envelope and handed the envelope to Sheriff Ellsworth. The drill bits thus seized were identified by the complainant's father at trial as being similar in appearance to the drill bits he was missing. Among the items turned over to Sheriff Ellsworth by Mrs. Ford was a red plastic case, smeared with paint and having a loose bottom. This case contained wood bits. Complainant's father identified it as being similar in appearance to one he was missing. Among the bits in this case was an antique wood bit which complainant's father testified he could identify from among a hundred.
Mrs. Ford testified that, after having been given the envelope by Bill Davis on the night of the 13th, she removed her husband's billfold and change and took the envelope to the basement, where she emptied the rest of its contents into a box containing her husband's small tools.
1 The defendant argues that Mrs. Ford did not have common authority over the basement and the box wherein her husband, the defendant, kept nails and small tools. "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared." United States v. Matlock (1974), 415 U.S. 164, 170, 39 L.Ed.2d 242, 249, 94 S.Ct. 988, 993.
2 The defendant has correctly pointed out that "[c]ommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 (1964) (night hotel clerk could not validly consent to search of customer's room), but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (United States v. Matlock (1974), 415 U.S. 164, 171 n. 7, 39 L.Ed.2d 242, 250 n. 7, 94 S.Ct. 988, 993 n. 7.) The facts of this case indicate that Mrs. Ford did not possess a mere, technical property interest in the basement and the box such as would preclude her from consenting to their search. She both placed the bits with her husband's tools and extracted the bits from among those tools with apparently no hesitancy whatsoever. The evidence shows a mutual use of the basement and joint access to the tools, such that it is reasonable to recognize that Mrs. Ford had the right to permit the inspection in her own right and that Mr. Ford has assumed the risk that she might permit the common area to be searched. The evidence establishes a mutual use and control of the basement and the wife's right to access to the box of tools. The basement was not locked, and the wife was not instructed not to handle the tools. The mere fact that the defendant alone may have used these tools does not indicate that his wife was denied the mutual use, access to, or control over them. (See People v. Stacey (1974), 58 Ill.2d 83, 89-90, 317 N.E.2d 24.) The court found by a preponderance of the evidence that Mrs. Ford had the requisite common authority and we cannot disagree with that finding.
3, 4 The defendant further argues that Mrs. Ford's consent was not voluntary, but was the product of subtle coercion. The evidence clearly shows that Mrs. Ford and Sheriff Ellsworth knew one another. Sheriff Ellsworth was courteous toward Mrs. Ford, and in no way tried to deceive her. He told her forthrightly that he wanted the drill bits as evidence. He was accompanied by his wife, although his wife did remain in the sheriff's car. He was dressed in plain clothes and unarmed. Mrs. Ford was 23 years old at the time. The requested seizure occurred during daylight hours. "[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given * * *. Voluntariness is a question of fact to be determined from all the circumstances * * *." (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L.Ed.2d 854, 875, 93 S.Ct. 2041, 2059.) "The trial court's determination of the voluntariness of a consent is to be accepted on review unless its findings are clearly unreasonable." (People v. Sommer (1977), 45 Ill. App.3d 459, 461, 359 N.E.2d 1190; People v. DeMorrow (1974), 59 Ill.2d 352, 358, 320 N.E.2d 1, 5.) The trial court found that, under the totality of circumstances, Mrs. Ford's consent was voluntary and free from coercion. (Compare People v. Haskell (1968), 41 Ill.2d 25, 241 N.E.2d 430; People v. Lind (1938), 370 Ill. 131, 18 N.E.2d 189.) This finding was clearly reasonable and will not be disturbed.
5 The defendant further contends that it was improper for the sheriff to seek the evidence by consent at all and should have obtained a warrant. He cites us to Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 36 L.Ed.2d 854, 863, 93 S.Ct. 2041, 2048, wherein the Supreme Court stated: "As with police questioning, two competing concerns must be accommodated in determining the meaning of a `voluntary' consent the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Despite its reference to "legitimate need," the Supreme Court does not go on to hold that a warrant must be obtained in all cases where it is possible to do so. In fact, the court says that even in "those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. * * * [A] search pursuant to consent may result in considerably less inconvenience for the subject of the search and properly conducted is a constitutionally permissible and wholly legitimate aspect of effective police activity." (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 228, 36 L.Ed.2d 854, 863, 93 S.Ct. 2041, 2048.) An uncoerced consent search has consistently been held to be reasonable under the fourth and fourteenth amendments, and is a recognized exception to the general warrant requirement. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 36 L.Ed.2d 854, 858, 93 S.Ct. 2041, 2043-44.) The actual seizure that occurred was less obtrusive of the rights of the defendant and his wife than a general search of their premises would have been. Moreover, the seizure here produced more reliable evidence than would a seizure of goods discovered by means of a search pursuant to a warrant. Mrs. Ford had been given custody of the evidence by Bill Davis. She knew where she had placed the drill bits and other items and was in a position to retrieve the same items that were in the defendant's pockets on the night of his arrest. We, therefore, hold that the failure to obtain a warrant did not violate the defendant's constitutional rights in this case.
The defendant also contends that the trial court erred in admitting into evidence People's exhibits Nos. 4, 5, 6 and 9, on the grounds that no proper foundation was laid for their admission. The defendant contends that such foundation was lacking because the admitted evidentiary items were neither subject to a continuous chain of custody by the police, nor were they positively identified at trial. People's exhibit No. 4 was the envelope into which the defendant placed the contents of his pockets on the night of his arrest. This envelope was delivered to Mrs. Ford that night and retrieved from her the next morning. Included in the exhibit were some drill bits and a plastic pen bearing an advertisement for a local firm. People's exhibit No. 5 was a small red case containing wood bits. Its bottom was loose, and it was smeared with paint. People's exhibit No. 6 was a gap thickness gauge, and People's exhibit No. 9 was an antique wood bit. Exhibits Nos. 5, 6 and 9 were all taken from the envelope of exhibit No. 4 for display in court.
6, 7 "The use of physical objects before a jury falls into two categories: 1, real evidence, which Wigmore calls `autoptic,' and 2, demonstrative evidence. * * * Real evidence involves the production of some physical object which had a direct part in the incident * * *." (Smith v. Ohio Oil Co. (1956), 10 Ill. App.2d 67, 74-75, 134 N.E.2d 526.) A proper foundation for the evidence offered by the State in this case must consist of two parts. First, the evidence must be linked to the defendant. Second, it must be linked to the crime. (People v. Rogers (1976), 42 Ill. App.3d 499, 502, 356 N.E.2d 413; People v. Fair (1977), 45 Ill. App.3d 301, 304, 359 N.E.2d 848.) ...