APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. MANNING, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1980.
On May 15, 1979, the defendant, James N. Pleasant, was charged by indictment with one count of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1(a)), and two counts of deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3(a)). Following a jury trial in the Circuit Court of Peoria County, he was convicted on all counts and sentenced to the Department of Corrections to serve concurrent terms of 25 years for each offense. On appeal, the defendant contends that the trial court erred in denying his motion to suppress his confession, and that prosecutorial misconduct, particularly alleged misstatements of an expert witness' testimony during closing argument, constituted reversible error. However, we do not consider the denial of defendant's motion to suppress to be error, nor do we hold the prosecutorial misconduct to be so prejudicial to the defendant that a reversal and a remandment for a new trial is necessitated. Accordingly, we affirm.
At approximately 8 p.m. on May 8, 1979, the victim, Terri Ernst, was washing the outside windows of a Hardee's Restaurant located on McClure Street in Peoria when a small brown car drove up and parked nearby. A man having curly brown hair and wearing a light shirt and dark pants got out of the car and walked across the street toward some houses. As Ms. Ernst finished washing the windows, someone came from behind her, grabbed her while holding a knife to her neck and told her to be quiet. Her assailant then proceeded to take Ms. Ernst behind the Hardee's, where he raped her and forced her to engage in deviate sexual conduct. During the assault Ms. Ernst recognized her assailant as the man she had earlier seen get out of the car, and at the trial identified the defendant, James N. Pleasant, as her attacker. Ms. Ernst testified that during the attack Pleasant told her that he was "a queer" and "asked me if I was a virgin and he told me that I wasn't, I was a whore."
After the attack, Ms. Ernst returned, partially clothed, to the Hardee's. At this time it was approximately 10:30. When she returned, Peoria police officer Gerald Ulrich was at the restaurant. After being informed that a brown car parked nearby could have been involved in the incident, he ran a check on the license number of the vehicle. He also observed a checkbook on the dashboard with Pleasant's name on it. Subsequently, Ulrich was joined by Officers Ron Theobald and Mike Bornsheuer. Ulrich instructed Theobald and Bornsheuer to stake out the vehicle.
Approximately 20 minutes after midnight Theobald observed the defendant enter the car and drive away. Theobald and Bornsheuer followed the defendant in a squad car, and stopped him in the vicinity of Loucks and McClure Streets. Theobald approached defendant's car, and asked the defendant for identification. At this time Theobald smelled the odor of alcohol on defendant's breath. Theobald then requested that Pleasant get out of his car, which the defendant did. Pleasant was then informed he was under arrest for rape, frisked, and handcuffed by Officer Theobald.
Police Officer Larry Layman arrived at the scene as Pleasant was getting out of his car pursuant to Theobald's request. After Pleasant was handcuffed, Layman read him his Miranda rights off of a card issued by the Peoria Police Department. Pleasant indicated to Layman that he understood his rights, and responded affirmatively to Layman's request to talk. At this time Layman asked the defendant his name, age, and address. Layman testified that he, too, smelled alcohol on defendant's breath. Afterwards he was placed in a paddy wagon and taken to the station.
Upon arrival at the station, the defendant was told to remove all of his clothing, which he did. Hair samples and combings were then taken. The defendant was subsequently taken to an interview room upstairs, where he again was read his Miranda rights by Officer Layman. At this time the defendant stated that he did not wish to speak. He did, however, agree to sign a consent for a blood sample. After signing the consent form, defendant was taken to St. Francis Hospital, where three blood samples were taken. The time was approximately 1:40 a.m. After the blood samples were taken the defendant returned to the police station with Officers Layman and Charles Cannon and placed in a holding cell.
Less than half an hour later Pleasant was taken from the holding cell to the interview room by Officer Cannon. The time was approximately 3 a.m. Cannon asked Pleasant "if he recalled the Miranda Warnings that Officer Layman had previously read to him." Pleasant stated that he did. Cannon then asked the defendant if he wanted to talk about the charges against him, and the defendant agreed to do so. Shortly thereafter the defendant made an oral confession followed by a written confession in which he admitted the rape and anal sexual contact with the victim. The written confession was taken at approximately 4:30 a.m., and was preceded by a recitation of Pleasant's Miranda rights. The defendant's motion to suppress his confession was denied, and our first concern on appeal will be the propriety of this ruling by the trial court.
• 1 The defendant contends that his confession should have been suppressed because his right to remain silent was not "scrupulously honored" pursuant to the dictates of Michigan v. Mosley (1975), 423 U.S. 98, 104, 46 L.Ed.2d 313, 321, 96 S.Ct. 321, 326. Mosley, of course, stands for the proposition that a defendant's exercise of his right to remain silent does not permanently preclude subsequent interrogation by the authorities. Reinterrogation is permissible, and statements obtained thereby not rendered inadmissible by the operation of the exclusionary rule, if the interrogating officers scrupulously honor the exercise of the defendant's constitutional right not to speak.
• 2, 3 In determining whether a defendant's right to remain silent was scrupulously honored, a number of factors must be examined. Two of the most crucial are whether there was a significant period of time, during which there was a complete cessation of questioning, between the defendant's exercise of his right to remain silent and the reinterrogation, and whether the reinterrogation was preceeded by a fresh set of Miranda warnings (People v. Faison (1979), 78 Ill. App.3d 911, 397 N.E.2d 1233). "Additional circumstances which tend to demonstrate that the defendant's right to remain silent was scrupulously honored are that a different officer conducted the second questioning and that a completely different subject matter was involved in the second questioning" (Faison, 78 Ill. App.3d 911, 913, 397 N.E.2d 1233, 1235). Most recently, in People v. Savory (1980), 82 Ill. App.3d 767, 403 N.E.2d 118, this court found an additional factor tending to show the defendant's right to remain silent was not violated by the resumption of interrogation to be the presence of something in the record which would justify or explain the defendant's reconsideration of his decision to remain silent (but see Savory, Barry, J., dissenting).
• 4, 5 Utilizing these factors, it is readily apparent that the defendant's right to remain silent was scrupulously honored, and that as a consequence his confession was not subject to suppression. After the defendant first asserted his right to remain silent, there was a complete cessation of questioning for approximately 1 1/2 hours. Although the reinterrogation was not preceded by the recitation of a complete set of Miranda warnings, "it is not necessary to repeat the warnings at the beginning of each successive interview to avoid a Miranda violation." (People v. Bundy (1979), 79 Ill. App.3d 127, 133, 398 N.E.2d 345, 350.) The constitution merely requires that prior to reinterrogation the defendant is given an opportunity to effectively exercise his rights. Here, the defendant was given such an opportunity when Officer Cannon asked him if he recalled the Miranda warnings previously given to him by Officer Layman. Certainly, the repetition of a complete set of Miranda warnings by the officer resuming the interrogation would be the preferable procedure. However, to find that anything other than the giving of a full set of Miranda warnings prior to reinterrogation is per se insufficient under Mosley is to incorrectly emphasize form over substance. Where, as here, a person in custody is asked prior to the initiation of reinterrogation if he recalls the Miranda rights that were given to him previously, and he expresses an understanding of those constitutional rights, he has been given an opportunity to "effectively exercise his rights at the outset of the second period of questioning" (Faison, 78 Ill. App.3d 911, 913, 397 N.E.2d 1233, 1235) that is constitutionally satisfactory. Additionally, the reinterrogation was not performed by the same officer who conducted the previous interrogation, and the taking of defendant's blood samples might explain his decision to waive his previously asserted right to silence. There is no evidence here that the interrogating officer, by resuming the interrogation, unconstitutionally infringed upon the defendant's right to remain silent, or that the defendant's confession was less than voluntary due to persistent and repeated efforts on the part of the police officers to wear down defendant's resistance and make him change his mind (compare United States ex rel. Doss v. Bensinger (7th Cir. 1972), 463 F.2d 576, cert. denied (1972), 409 U.S. 932, 34 L.Ed.2d 186, 93 S.Ct. 239; United States v. Crisp (7th Cir. 1970), 435 F.2d 354; People v. Gibson (1977), 55 Ill. App.3d 929, 371 N.E.2d 341). The motion to suppress the defendant's confession was properly denied.
The second contention of the defendant on appeal is that he was denied a fair trial as a result of a number of improper statements made by the Assistant State's Attorney during closing argument. The defendant first calls our attention to alleged misstatements by the Assistant State's Attorney regarding the testimony of Dr. Marvin Ziporyn, one of the defendant's expert witnesses. Dr. Ziporyn testified that the defendant was suffering from a specific mental disorder, i.e., sociopathic personality disorder, sexual deviation. Dr. Ziporyn described the disorder's effect upon the defendant as follows:
"Now in Mr. Pleasant's case because of his early family experiences, he developed a tremendous preoccupation with sex and, and his entire life has been involved in an effort to keep ...