Appeal from the Circuit Court of Lake County; the Hon. John
Hughes, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 13, 1983.
Defendant, Leon Young, appeals following a bench trial from his convictions of rape, aggravated kidnaping, and unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1(a), 10-2(a)(3), 10-3(a).) He was sentenced to 10 years' imprisonment. On appeal he raises the following issues for our consideration: (1) whether the trial court erred in denying his motion to suppress his confession; (2) whether reversible error was committed in conducting the hearing on the motion to suppress simultaneously with the bench trial; (3) whether defendant received the effective assistance of counsel; and, (4) whether defendant's convictions for aggravated kidnaping and unlawful restraint should be vacated as lesser included offenses of rape.
Prior to trial, defendant, age 16, filed a motion to suppress his pretrial statement on the ground that it was taken from him in violation of his fourth, fifth, sixth and fourteenth amendment rights. The motion also asked that the complaining witness' pretrial photographic identification of the defendant be suppressed on the ground that the identification was the result of an unduly suggestive procedure. By agreement of the parties, the hearing on the motion was heard simultaneously with the trial.
At approximately 8:30 a.m. on April 16, 1981, Carol Vidovich, the 17-year-old complainant, was walking near a school in Waukegan looking for Cohan Pharmacy, where she planned to apply for a job. When she reached the school area, the defendant whistled at her, told her he thought he knew her from somewhere and asked her for a cigarette. Ms. Vidovich told him he was mistaken; however, she gave him a cigarette and the two began walking and talking together. The defendant stated he would take complainant to a place where she could meet some people from the area. He asked her whether she wanted to "get high," and complainant indicated she did. The two then walked down a ravine and into a small shed where they sat on some bricks, talked and smoked a marijuana cigarette. They engaged in certain banter which started to cause Vidovich some degree of alarm, including the defendant feigning that he was going to hit the complainant with a saw found lying in the shed. There also was some pushing and shoving to see if the complainant could get out the door. She did testify that she thought these activities were in the nature of joking around. She testified they then sat down and were talking when defendant suddenly grabbed her, threw her against the wall of the shed, and told her to remove her shirt. A struggle ensued during which defendant repeatedly hit complainant and demanded that she remove her shirt. When complainant refused, defendant grabbed her shirt, ripped it, and finally removed it. He then removed her pants, pushed her to the ground, removed his own pants, and had sexual intercourse with her. When he got up complainant was able to grab her pants and flee. She fell, cutting her foot and knee, but ultimately was able to run to a nearby house, where she telephoned the police.
Sergeant Henley and Officer Hansen arrived at the scene, and at trial Sergeant Henley described the complainant as "totally hysterical." Her blouse appeared stretched at the top and she had a large cut on the bottom of her right foot. The officers administered first aid, and complainant described her assailant and related the events leading up to and including the rape. The officers and the complainant went to the scene of the rape, where Sergeant Henley observed fresh tracks in the ravine area. He also saw the shed, and inside observed an old rusted saw, some shoes, a comb, and a pack of cigarettes and a lighter.
Isabel Ortega, testifying through a translater, and Martha Aireoles, a 13-year-old girl who was staying at Mrs. Ortega's house, testified that the complainant appeared at the house on April 16 and asked to use the telephone. Both these witnesses testified Vidovich was crying. The complainant told Aireoles that she had just been raped.
Lab reports were introduced into evidence by stipulation. Tests of vaginal smear and aspirate were positive for the presence of sperm and semen, as were tests conducted on the crotch area of Ms. Vidovich's pants. An examination of Vidovich's sweater indicated a "ragged hole" at the neck opening, and the fibers in the material showed a "downward force action."
Evidence on the motion to suppress was, by agreement of the parties, presented concurrently with the trial. Sergeant Bullock of the Waukegan Police Department testified that at approximately 2:30 p.m. on April 16, 1981, he showed Ms. Vidovich two school yearbooks, for 1979 and 1980, and two other photo albums. One photo album contained approximately 250 photos of juvenile male and female Negroes. The other contained approximately 200 photos. The complainant went through the two photo albums and was able to identify her attacker in two separate photographs. Sergeant Bullock then checked out the two photographs chosen by Ms. Vidovich and determined that defendant was the subject in both photographs. He ordered defendant to be brought into the station.
At approximately 4:15 p.m. Waukegan police officer Arthur Temp brought defendant and his mother into the station for questioning. Defendant and Officer Temp sat in an interview room, and defendant's mother and Corporal Mischikovski of the Waukegan Police Department sat in a connected room eight to 15 feet away. Defendant's mother was informed of the charges against her son, and his mother stated that defendant could not have committed the rape because he was in school at the time. She stated she had witnesses who could verify this fact. Her statements were admitted without objection by defense counsel. Another photograph was then taken of defendant, and at approximately 5 p.m. the defendant and the two officers went to another interview room down the hall where defendant was interviewed. Defendant was read his Miranda rights one at a time, and defendant said he understood his rights but refused to sign the rights waiver form "because his mother told him never sign anything without her being there." Corporal Mischikovski then left the room and Officer Temp asked defendant whether he had been at school that day. Defendant responded affirmatively, stating he had arrived there at 8 a.m. and left at 2:30 p.m. Defendant said he did not miss any school time that day, and thereafter told Officer Temp he did not wish to talk to him any further. Defendant's statements were also admitted without objection. It was approximately 5:15 p.m. at that time, and Officer Temp advised Corporal Mischikovski of defendant's refusal to speak. Defendant was thereafter placed in a juvenile holding cell without further questioning. Defendant never requested an attorney.
At approximately 6:30 p.m. on April 16, Corporal Mischikovski removed defendant from the holding cell and brought him back to the interview room, where he was requestioned by Sergeant Bullock. Sergeant Bullock testified that prior to requestioning he asked defendant "if he understood the rights as they were presented to him earlier by Officer Temp." Defendant replied, "you mean the right to remain silent and stuff?" Sergeant Bullock responded affirmatively, and again asked defendant whether he "thoroughly [understood] those rights?" Defendant indicated he did and subsequently made an inculpatory statement regarding the rape. Defendant refused to sign the statement, but acknowledged that the statement was true.
Officer Mischikovski testified that he had contacted defendant's school and learned from the school principal and several other teachers that defendant did not attend his first and second period classes, the time during which the rape was alleged to have been committed. The statements of the school principal were admitted without objection. After hearing arguments on the motion to suppress, defendant's motion was denied.
Officer Hansen of the Waukegan Police Department testified as the sole defense witness. The officer arrived at the scene shortly after complainant called the police, and at trial he testified as to the events of the rape, as they were reported to him by complainant. Following Officer Hansen's testimony, defense counsel stated she did not have any other witnesses because the school people she had attempted to subpoena were on vacation.
After hearing arguments by the parties, the trial court found defendant guilty of rape, aggravated kidnaping and unlawful restraint. Defense counsel filed a post-trial motion for a new trial or for judgment notwithstanding the verdict. At the hearing on the post-trial motion, defense counsel asked for leave to withdraw from defendant's case, and a new counsel was substituted. ...