APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Gregory Shepard was charged by information with the offense of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1) and deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3). Upon a jury trial, the defendant was found to be guilty as charged. Judgment was entered on the verdict and the defendant was sentenced to serve a term of confinement in the Illinois State penitentiary of 15 years.
The defendant raises three issues on appeal. First, whether the admission of defendant's confession was reversible error for violation of the principles of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; secondly, whether the trial court erred in not fully instructing the jury on defendant's failure to testify to matters other than the circumstances of his confession; and thirdly, defendant asserts he was denied a fair trial because of an improper question asked by the prosecutor creating an inference of the commission of another crime.
On the night of January 19, 1979, the victim left a bar to walk home, a distance of four blocks. A car pulled up and the driver asked if she wanted a ride. She said no and walked away but was approached by the driver who brandished a knife in front of her face and put her in the car. After driving some distance to a parking lot and stopping the car, the driver told her to remove her clothes. The victim refused and grabbed the knife that had been placed on the dashboard. A struggle ensued and the victim was cut on the finger. The driver regained the knife and placed it on the victim's throat threatening to kill her. The driver subsequently committed acts of oral and vaginal intercourse.
While driving, the driver told the victim that he had attended Waukegan East High School. When she arrived back at the tavern she told a friend that she had been raped by a black man with a knife. The friend took her home, the police were contacted and she was transported to the hospital.
The victim testified that when she got home her checkbook was missing and had apparently fallen out of her purse. She described her assailant as having a short Afro haircut, being about 19 or 20 years old, about 5 feet 10 inches tall and as having pockmarks on his face. At the motion to suppress statements hearing, it was revealed that the defendant was stopped in his green Gremlin vehicle on January 24, 1979, pursuant to a warrant for the driver's arrest. He was placed under arrest and transported in a squad car to the Waukegan police station. The officers testified that Officer Miscichowski had advised defendant of his rights while in the back of the squad car and heard him respond after the rights were given, although the defendant's response was mumbled.
During an inventory search at the station a piece of paper bearing the name, address and phone number of the victim in this case was removed from defendant's pocket. The officers asked the defendant about the piece of paper and the defendant stated that he got the name out of a checkbook. The officers testified that at the same time he requested that they let him go home and he "promised not to do anything anymore."
Approximately two hours after the search the defendant was taken to an interrogation room and read each right from the waiver of rights form. The defendant replied to each of them in the affirmative and stated that he understood each of the rights. Defendant was given the form, appeared to read it, and signed it. Officer Bullock testified that the defendant asked no questions and did not request an attorney or refuse to execute the waiver form.
After the statement was prepared, the officers asked Shepard a further question which they had omitted from the formal interrogation in which the defendant stated that he had placed the victim's checkbook on the steps of her home. This response was recorded in a supplemental police report. Bullock testified that Shepard did not request an attorney, a phone call or family member at the time he gave the statement, and that he was not subjected to threats or promises. Officer Miscichowski testified that he advised the defendant of his rights from memory while in the squad car and that the defendant mumbled a response which he did not understand. At the station Officer Miscichowski found a piece of paper bearing the name of the victim and her address and phone number which he placed in evidence. He could not recall whether any question was asked the defendant about the paper but stated that the defendant probably saw it.
Officer Miscichowski corroborated Officer Bullock's testimony and stated that the defendant had told them the details of the case much as was described by the victim. He added that the defendant told him that when he found the checkbook with the name on it, he looked up the name in the phone book and copied the address and phone number on the piece of paper that was later found in his pocket at the station. Within a day or two after the 19th of January the defendant had telephoned the woman and identified himself as Ray, whereupon the female who answered the phone hung up.
After Miscichowski typed the statement, Shepard appeared to read it and then signed it.
Defense counsel moved to suppress the statement made by defendant and argued that no waiver of rights had been made when defendant was first questioned about the piece of paper found in his pocket. He further argued that the subsequent confession was the fruit of the initial unlawful inquiry.
The defendant took the stand at the suppression hearing. His testimony varies widely from that of the State's. He stated he was never advised of his Miranda rights in the squad car on the way to the station, that he had asked for a lawyer but the officers did not respond, and that when the piece of paper with the victim's name on it was found in his pocket that he said that she gave it to him. He further denied saying that he wanted to go home and wouldn't do it anymore. When he was read the Miranda rights in the interrogation room he stated that he had asked for a lawyer but was told by the police that he could not have one. Defendant stated that he had signed the form and confession because Officer Bullock had placed a gun within 1 1/2 inches from his face. He denied that he made any statement to the police before he was presented with the typed form. He stated he did not read the waiver portion on the form and did not know what "waiver" meant.
The motion to suppress the defendant's confession was denied and the trial court found that the confession was voluntarily ...