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People v. Gholston

OPINION FILED JUNE 5, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH GHOLSTON ET AL., DEFENDANTS-APPELLANTS (JERRY CUMMINGS ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

A grand jury charged nine defendants with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3), two counts of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, pars. 11-4(a)(1), (2)), two counts of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1), five counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12-4(a), (b)(9)), and two counts of conspiracy to commit robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-2).

The following defendants appeal from their convictions and indicated sentences: Kenneth Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was an aggregate term of 258 years' imprisonment. David Love, after a bench trial, was found guilty as charged and sentenced to an aggregate term of imprisonment, the exact length of which is not clear from the record. Danny Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was a concurrent term of 50 years' imprisonment. Dennis King, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 30 years' imprisonment. Anthony Gholston, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 25 years' imprisonment.

Six grounds for reversal are presented for our review: (1) that the trial court improperly denied defendants King, Love and Danny Gholston's motions to quash their arrests; (2) that the trial court improperly denied defendant Anthony Gholston's motion to suppress inculpatory oral and written statements; (3) that it was constitutionally impermissible for the trial court to order two jury trials and four bench trials to be conducted in a single proceeding; (4) that certain evidentiary rulings made by the trial court resulted in prejudicial error; (5) that defendant Love was not proved guilty beyond a reasonable doubt; and (6) that the trial court abused its discretion in determining defendants' sentences.

On December 27, 1980, at approximately 11:40 p.m., complainants Richard Fink (Fink), Matthew Kennedy (Kennedy) and a 15-year-old girl (victim) were traveling in the city of Chicago on the northbound "el" after having boarded the train at the Fullerton Avenue station. Although their destination was Evanston, the three youths got off the train at the Thorndale station because Kennedy was feeling ill. After a short while, the three moved to the north end of the "el" platform where they waited for the next train. While the youths listened to music playing on Kennedy's radio, they were approached by a group of four or five males. Following several minutes of conversation, one of the males, later identified as defendant Joseph Thurmond, became very angry, grabbed the radio which was being held by Fink, and threw it down onto the tracks. Upon retrieving the radio, Kennedy was grabbed by one of the males and pinned against a sign on the platform. As Kennedy proceeded to fight with one of his assailants, later identified as defendant Danny Gholston, Kennedy's coat was pulled over his head, his gloves were taken and his wallet, containing $25, was removed from his rear pocket. Kennedy was then ordered to "drop [his] pants and shut up."

At approximately that same time, Fink was surrounded by three males, two of which were later identified as defendants Jerry Cummings and Anthony Gholston. Fink was thereupon held while he was beaten on the head and face, and kicked in the legs. Four or five dollars and some bracelets were taken from his person. Kennedy was also beaten on the head and face at this time; however, he and Fink managed to eventually break free and run down the stairs of the "el" platform where they telephoned the police.

At some point during the altercation, another group of three or four males ran toward the victim, surrounded her and began to feel her breasts through her winter jacket. Two of these assailants were later identified as defendants Kenneth Gholston and Dennis King. While crying and trying in futility to keep her tights and underwear from being pulled off, the victim was eventually pushed down onto the platform.

Defendant Kenneth Gholston was the first to rape the 15-year-old girl while other males stood around them yelling "Let me get in there, let me have some * * *"; "spread them wider * * * if you're not good we'll kill you." As several of the males fondled the victim's breasts through the jacket which they were unable to pull off of her, Kenneth Gholston told them that she was "good" and that they should take her home and put her "on the stroll." At some point thereafter, Kenneth Gholston lifted the victim up by her hips and attempted anal intercourse. He then stood up and allowed one of his companions, later identified as defendant Darrell King, to rape the girl.

While Darrell *fn1 King was having intercourse with the victim, he put his hand around her throat, choked her and told her to shut up. At this point, defendant Anthony Gholston crouched down near the victim's face and forcibly inserted his penis into her mouth. As the young girl cried, the other assailants continued to yell "Let me get in." When Darrell King and Anthony Gholston were finished sexually gratifying themselves, defendant Dennis King proceeded to get on top of the victim and choke her as he inserted his penis into her vagina.

While Dennis King raped the victim, defendant Danny Gholston crouched down near her face and forcibly inserted his penis into her mouth. Soon thereafter, Danny Gholston yelled at Dennis King to "Let me get in there"; King then stood up to allow Danny Gholston to get into a position to rape the victim. The next thing the victim remembered was that David Love exchanged places with Danny Gholston and stated that "he was going to get his."

As a southbound train approached the Thorndale station, the victim was picked up and thrown down onto the tracks. Defendant Love then jumped off the platform, pulled the girl into the snow nearby and raped her. When Love was finished, the victim begged him not to kill or hurt her; however, before he stood up, Love hit the girl in the face very hard. Thereafter, the victim heard nothing but the sound of a train departing from the Thorndale station.

It was at this point that the victim observed a lot of blood and mucus around her vaginal area. She then began to crawl back toward the tracks. Reaching the platform, she proceeded along in the snow to a point where she could push herself up onto the surface of the platform. A gentleman standing nearby saw her, removed his jacket and put it around her shoulders. After a northbound train pulled into the station, the victim explained to the engineer what had happened. An order was then immediately dispatched from the train to stop the last southbound "el" that had left the Thorndale station. Soon thereafter, Fink met the victim on the platform, told her that everything was going to be okay, and carried her downstairs. After Kennedy, Fink and the victim provided the police with a description of the offenders, they were taken to a hospital for treatment. *fn2

Officer Gene Harris, assigned to the 19th District Tactical Unit of the Chicago police department, received an emergency dispatch on the night in question at approximately 12:25 a.m. He and his partner proceeded to the Belmont and Sheffield "el" station to intercept the southbound train on which defendants were riding. At the train station, the two police officers boarded the first car of the two-car southbound "el" when it arrived; three other Chicago police officers boarded the second car. Officer Harris then began to search for persons matching the description of the rapists. He observed six of the nine defendants seated across from each other, conversing in the rear of the first car. After obtaining their addresses and ordering them off of the train, Officer Harris placed Dennis King, Darrell King, Danny Gholston, David Love, Anthony Hart and Joseph Thurmond under arrest.

On the morning of December 28, 1980, the six defendants arrested at the Belmont station were identified in a lineup. The victim recognized Dennis King, Danny Gholston, David Love and Darrell King; Kennedy recognized Danny Gholston and Joseph Thurmond; Fink recognized Anthony Hart and Joseph Thurmond. Anthony Gholston and Jerry Cummings were arrested later that day. Kenneth Gholston was arrested on January 18, 1981. Following interviews conducted by Irving Miller, an assistant State's Attorney assigned to the Area 6 Felony Review Unit, incriminatory statements were obtained from Kenneth Gholston, David Love, Danny Gholston, Jerry Cummings, Anthony Gholston and Dennis King. Thereupon, each of the nine defendants were charged by indictment with rape, deviate sexual assault, indecent liberties with a child, two counts of robbery, five counts of aggravated battery, and two counts of conspiracy to commit robbery.

On November 10, 1981, Anthony Hart pleaded guilty to robbery and aggravated battery. On November 16, 1981, Joseph Thurmond also pleaded guilty to robbery and aggravated battery. That same day, November 16, Darrell King entered a plea of guilty to all charges. Hart and Thurmond each received a concurrent term of seven-years' imprisonment; Darrell King received a concurrent term of 20 years' imprisonment. Two jury trials and four bench trials were thereafter conducted in a single proceeding as to the six remaining defendants. Following Jerry Cummings' bench trial, he was found guilty of robbery, aggravated battery and conspiracy to commit robbery; Cummings was sentenced to a concurrent term of seven years' imprisonment, but is not involved in this appeal.

Regarding the judgments of conviction and sentence of the five defendants involved in this appeal, Anthony Gholston and Dennis King, following bench trials, were found guilty as charged and sentenced, respectively to concurrent terms of 25 and 30 years' imprisonment. Following a jury trial, Danny Gholston was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was a concurrent term of 50 years' imprisonment. Following a bench trial, David Love was found guilty as charged and sentenced to an aggregate term of imprisonment. The specific length of such term, as hereinafter discussed, is not clearly ascertainable. Following a jury trial, Kenneth Gholston was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was an aggregate term of 258 years' imprisonment. *fn3 Specifically, Kenneth Gholston was sentenced to a consecutive term of 60 years' imprisonment for the rape conviction, plus 60 years' imprisonment for the deviate sexual assault conviction, plus 30 years' imprisonment for each of the two charges of indecent liberties with a child, plus 14 years for each of the two robbery convictions, and 10 years' imprisonment for each of the five charges of aggravated battery. All of the terms were to run consecutively. The conspiracy to commit robbery conviction was merged into the two robbery convictions.

It is the propriety of these convictions and sentences which defendants now contest on appeal.

I

Initially, defendants David Love, Dennis King and Danny Gholston contend that there existed no probable cause for their arrests at the Belmont "el" station on the early morning of December 28, 1980.

• 1 Probable cause for purposes of arrest is present when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed, and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill.2d 171, 178, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L.Ed.2d 85, 103 S.Ct. 92.) Mere suspicion that the person arrested has committed an offense is insufficient grounds for arrest; however, it is well settled that the probable cause standard does not require the arresting officer to have in his hands evidence sufficient to convict the accused. People v. Moody (1983), 94 Ill.2d 1, 7, 445 N.E.2d 275; People v. Marino (1970), 44 Ill.2d 562, 573, 256 N.E.2d 770.

• 2 A determination as to whether or not probable cause for an arrest exists in a particular case depends upon the totality of facts and circumstances known to the officers at the time of arrest. (People v. Cobb (1983), 97 Ill.2d 465, 485, 455 N.E.2d 31.) In deciding the question of probable cause in any given case, the courts> are not to be unduly technical; rather, they are to deal with probabilities, i.e., the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Creach (1980), 79 Ill.2d 96, 102, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564.

Moreover, during any probable cause analysis, we must consider that police officers are often required to act upon a quick appraisal of the data before them. As a result, the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to apprehend criminals. People v. Robinson (1976), 62 Ill.2d 273, 277, 342 N.E.2d 356.

Following the rape and deviate sexual assault of the victim, she explained to the engineer of a stopped northbound train what had happened. An order was immediately dispatched from the train to stop the last southbound "el" that had just left the Thorndale station. Very soon thereafter, the victim provided the police with specific descriptions of the offenders. Fink and Kennedy also talked to police officers for several minutes at the Thorndale station. The details given at this time included approximate ages, heights and sizes of the members of the group of black males, as well as specific colors and styles of their coats, jackets and pants.

During the hearing on defendants' motions to quash arrest, Officer Harris testified that he received two dispatches on the night in question at approximately 12:25 a.m. He immediately proceeded with his partner to the Belmont and Sheffield "el" station to intercept the southbound train which had just left the Thorndale station. The two police officers were given a description of 10 to 12 black males, ranging in age from "17 to 20, middle 20's," wearing tan and rust-colored jackets. One of the males was described as wearing a long, dark trenchcoat, while another was described as wearing a dark-colored cap.

Upon their arrival at the Belmont station, Officer Harris and his partner met with five other police officers. When the designated train pulled into the station, the officers told the engineer not to continue southbound and they then split up into two groups. Officer Harris and his partner entered the first car of the two-car "el." All of the black male occupants seated in the front and middle of this car were dismissed as suspects since they were all in their late 20's or older. However, as the two police officers proceeded into the rear portion of the first car, they observed six black males seated across from each other, facing the center of the aisle and conversing with one another.

Regarding their personal characteristics, Officer Harris testified that "the guys were in the age range that was on the broadcast. They had similar clothing. They had tan jackets. * * * The Kings had tan jackets on. Danny Gholston had a rust-colored jacket on, and this was — they had black caps on, small with bibs. This was the description we had received." (Emphasis added.) In addition, "David Love had blue jeans on, black leather jacket covered by a three-quarter length gray coat * * * that was one of the descriptions."

Upon request, the six defendants then gave Officer Harris "west side addresses, 5000 some west on Washington, somewhere north on Long, and in that area like that." *fn4 It was this evidence of geographical proximity from which Officer Harris could reasonably infer that the group of six black males he observed conversing in the rear of the "el" car were, at the very least, acquainted with one another. Such an acquaintance, manifested by riding together in the early morning hours on an "el" not near their alleged addresses, could suggest to an alert police officer, along with the other facts known to him at that time, that these persons were the subjects referred to in the emergency dispatch.

• 3, 4 In essence, considering the totality of facts and circumstances at the time of the arrests, Officer Harris had more than a mere suspicion. He had a reasonable belief based on his 17 years of experience as a Chicago police officer, that the six black males he observed in the rear of the "el" train were the perpetrators of the gang rape and deviate sexual assault of the victim. Since defendants' arrests were lawfully made with probable cause, we hold that the trial court correctly denied their motions to quash these arrests. As defendants' incriminating statements were not, therefore, "fruit of the poisonous tree" (See Wong Sun v. United ...


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