Appeal from the Circuit court of Du Page County; the Hon. John
J. Nelligan, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 30, 1986.
Defendant, Thomas Kokoraleis, was charged by indictment with the murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)) of Lorraine Borowski. At the conclusion of a nine-day jury trial, guilty verdicts were returned on both charges. Defendant appeals, raising five issues for review: (1) whether his statements to police officers were voluntary; (2) whether the trial court erred in excluding statements by two other men which failed to mention defendant's participation in the offense; (3) whether the State proved the corpus delicti of the rape offense; (4) whether the natural-life prison sentence for murder should be reduced; and (5) whether the extended-term sentence for rape is lawful. For reasons developed later in this opinion, we reverse defendant's murder conviction and remand that cause for a new trial. We reverse defendant's conviction for rape because the State failed to present evidence independent of defendant's confession tending to establish the commission of rape.
The following recitation of facts provides a general background of the events precipitating this prosecution. We do not include an exhaustive statement of facts because many of the facts are discussed where necessary to resolve the legal issues raised by defendant. Specifically, the facts surrounding defendant's statements to the police officers are abbreviated here because they are recited more comprehensively in our treatment of the voluntariness issue later in the opinion.
On October 10, 1982, Steven Grist, a 15-year-old resident of Darien, discovered the remains of a human in some brush amidst trees and tall grass in the Clarendon Hills Cemetery. Du Page County deputy coroner Peter Siekman arrived at the scene and found a greatly decomposed human body and clothing remains. He later prepared a death certificate for Lorraine Borowski.
Also present at the cemetery on October 10, 1982, was Douglas Miller of the Du Page County sheriff's department. He found the skeleton on its back with a pullover top on the body. Puncture holes were discovered on the lower portion of its back side. Both of the clasps on the bra found around the body were closed. Miller did not recall if the panty hose was discovered pulled up to the waist, but stated the pair of pants found on the body was separated at the center seam.
Defendant did not testify at his trial. The principal evidence linking defendant to the crime was a tape-recorded statement, played to the jury and submitted to the jury as two statements, which defendant made to certain police officers in November 1982. The statements concerned the homicides of Borowski and Linda Sutton, a black woman killed in May 1981. The statements were admitted at trial after the court denied defendant's pretrial motion to suppress the statements on the basis that they were the result of physical and mental coercion and hence were involuntary.
Several detectives of the Du Page County sheriff's office testified concerning the events preceding and the substance of defendant's confessions. On November 10, 1982, nearly one month after the victim's remains were discovered, Detectives John Sam and Warren Wilkosz of the Du Page County sheriff's office were canvassing the Villa Park neighborhood of defendant's father. Wilkosz knew that Robin Gecht (Gecht), Edward Spreitzer (Spreitzer), and Andrew Kokoraleis (Andy), defendant's brother, had been arrested and charged with the murder, rape, and mutilation of women in the Chicago area. Sam was investigating the Borowski homicide, and Wilkosz had been assigned to the suspected Sutton homicide. At approximately 2 p.m., defendant approached the detectives on the street, introduced himself as Andy's brother, and expressed a desire to talk about Andy.
Defendant agreed to travel with the detectives to the Villa Park police station. Subsequently, defendant agreed to take a polygraph examination, which occurred at approximately 5:15 p.m. at the Elmhurst police station that same day. At approximately 6:45 p.m., Sam and Wilkosz began questioning defendant, and at 8:42 p.m., defendant gave a taped statement to the officers regarding the Borowski homicide which was played to the jury.
Defendant stated that he, Spreitzer, and Andy grabbed a woman at a shopping mall and forced her into a light-gray, two-door 1977 car. They stopped at a motel located 10 minutes away and checked into a room. Spreitzer brought the woman into the room and undressed her. Each person except for defendant had intercourse with the woman, whose hands were tied to the bed and whose mouth was gagged. Andy then took out a 3- or 4-foot length of wire, tied it on her left breast, and squeezed until the breast came off. Spreitzer then struck an ax against her chest and killed her. After dressing the victim, the three men put her in the car, drove to a cemetery at approximately 11 a.m., and dropped the body in some short grass.
Sometime after the questioning concluded at the Elmhurst police department, Sam and Wilkosz drove defendant back to the Du Page County sheriff's office. Passing the intersection of Route 83 and St. Charles Road, Sam asked defendant if the area looked familiar and defendant answered that it did. Defendant thought it looked like the location where the white girl was picked up. Sam said defendant then directed them to the REMAX office, which he identified as the spot where the abduction occurred.
In addition to defendant's confession and his identification of the scene of the abduction, the State introduced the testimony of several witnesses who supplied facts about the events on May 15, 1982. Kathleen Zingraf, who lived in an apartment building on the same floor as that of the victim, said she saw the victim leaving her own apartment at approximately 8 a.m. on May 15, 1982. Robert Cercone, who was then the manager of a store located in a shopping center at Route 83 and St. Charles Road in Elmhurst, observed a commotion involving a woman next to an open car door at approximately 8:30 a.m. on May 15, 1982. Also testifying was Thomas Luehring, who drove his car into the shopping-center parking lot that day between 8:05 and 8:15 a.m. He observed a gray, four- or five-year old American car leaving the parking lot driven by a white man with curly light-brown hair who was between 18 to 30 years old.
The owner of the victim's place of employment, Donald Stibbe, testified the victim was scheduled to work that day. Upon arriving at the office in the shopping center after 8:30 a.m., he noticed some keys, money, and other items on the sidewalk near the office and thereafter called the police. The items were later identified as belonging to the victim.
The State also offered the testimony of Frank Orlosky, a physical anthropologist, who examined the remains of the victim on October 11, 1982. He was asked to determine signs of trauma that might be related to a cause of death. Skin covered the abdominal region and lower chest, pelvic bones, left thigh, ankle and foot, the right thigh, leg and foot, and the left arm and part of the right arm. He attributed the missing skin to chemical and insect decomposition. While he located the right nipple, the skin ended 2 inches below where the left nipple should have been located. He found no trauma in the left breast area, although he acknowledged a clean cut in the area of the left breast would leave no signs of mutilation or trauma. In the lower thoracic area, skin extended from 8 inches above the navel to 4 1/2 inches below the navel.
The first vertebra of the body was missing, as were some bones in the fingers and toes. Orlosky detected primary trauma on the sternum. He observed a circular frontal entrance wound in the upper part of the bone and an exit wound on the other side; sharp bones spines protruded inward. Circular entrance and exit wounds, 2 millimeters in diameter, were observed on the second left and right ribs. Injury to the sixth and seventh thoracic vertebrae was evident. Also observable were superficial scrapes and trauma on the spinus process of the ninth vertebra. The head of the 11th right rib was absent, and the rib was displaced. The nasal bone was fractured. Orlosky stated his examination revealed that certain of the entrance wounds were in the victim's back. In Orlosky's opinion, the circular wounds were caused by a small, circular object like an ice pick.
Following presentation of the State's case, the defense offered the testimony of several witnesses who worked at the motel where defendant stated the events took place. During May of 1982, Ann Bruenning was employed as a maid and laundry person from 9 a.m. to 3 p.m. seven days a week. She recalled nothing unusual regarding the condition of the rooms that month; no thefts of mattresses or bed sheets, no overturned furniture, no handcuffs, and no large amounts of blood on the floor or furniture. Similar testimony was offered by Harry Lux, one of the owners of the motel who also lived on the premises and stripped 80% of the linen. In May 1982 he noticed no mattresses or sheets missing, no handcuffs, and no large amounts of blood in any room.
Defendant also introduced the testimony of Dr. Albert Stipes, a psychiatrist, regarding his examinations of defendant. Stipes described defendant as functioning in the borderline range of intelligence, just above mental retardation. As he was eager to please people, he would provide an answer even if he did not know the answer to an inquiry. Defendant is intimidated by authority and is susceptible to being led easily. Stipes admitted on cross-examination that no question existed as to defendant's sanity and that defendant's fund of general knowledge is average. Defendant's intelligence level does not affect his morality or his truthfulness.
After the close of proofs, the case was submitted to the jury, which returned guilty verdicts on the charges of murder and rape. Finding that the offenses constituted exceptionally brutal and heinous conduct, the court on September 7, 1984, imposed a term of natural-life imprisonment without parole for the murder conviction and an extended term of 60 years' imprisonment for the rape conviction. Defendant filed a timely notice of appeal on September 14, 1984.
• 1 Defendant first contends the trial court erred in denying his motion to suppress his confessions. The State responds that the trial court correctly concluded the statements were voluntary. A determination whether a statement has been given voluntarily requires a court to consider the "totality of the circumstances." (People v. Martin (1984), 102 Ill.2d 412, 426-27, 466 N.E.2d 228, 234, cert. denied (1984), 469 U.S. 935, 83 L.Ed.2d 270, 105 S.Ct. 334; People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, 606, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731.) The test for voluntariness is whether the statement was made freely and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. (People v. Martin (1984), 102 Ill.2d 412, 427, 466 N.E.2d 228, 234; People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, 606; People v. Holloway (1985), 131 Ill. App.3d 290, 307, 475 N.E.2d 915, 928.) Other relevant factors are the age, education and intelligence of the accused, the duration of the questioning, and whether the defendant was given his constitutional rights or was subjected to physical punishment. (People v. Martin (1984), 102 Ill.2d 412, 427, 466 N.E.2d 228, 234; People v. Holloway (1985), 131 Ill. App.3d 290, 307, 475 N.E.2d 915, 928.) A reviewing court may consider evidence introduced at the trial as well as at the suppression hearing in determining whether the trial court's decision denying the motion to suppress was correct. (People v. Caballero (1984), 102 Ill.2d 23, 36, 464 N.E.2d 223, 229-30, cert. denied (1984), 469 U.S. 963, 83 L.Ed.2d 298, 105 S.Ct. 362.) In determining whether a defendant's confession is voluntary, the finding of the trial court will not be disturbed unless contrary to the manifest weight of the evidence. People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, 606, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731; People v. Cortez (1986), 143 Ill. App.3d 1024, 1027, 494 N.E.2d 169, 171.
We first discuss the duration of defendant's interrogation because this factor defines the scope of our subsequent analysis. Defendant essentially complains about four statements which were admitted into evidence at trial. Three of the statements were made on November 10, 1982. The first statement, recorded as an audio tape concerning the Borowski homicide, began at 8:40 p.m. and ended at approximately 9:40 p.m. A typed transcript of this first statement, introduced as the State's exhibit 1, was signed by defendant at 2:50 a.m. on November 11, 1982. The second statement, also taken as an audio tape concerning the Linda Sutton homicide, began at 10:30 p.m. In his third statement, defendant told Detectives Sam and Wilkosz that the incident involving Linda Sutton occurred in May 1981 at the same Villa Park motel where he claimed Borowski was murdered.
Based upon these facts, the State argues that the relevant time frame for assessment of the police conduct is from sometime after 2 p.m., when defendant approached Detectives Sam and Wilkosz, until the statements were obtained late in the evening on November 10. Defendant counters that the police conduct which occurred during the entire 50 hours of questioning must be considered as it demonstrates the police officers' intent to obtain a full confession regardless of defendant's constitutional rights. We agree with the State that the officers' conduct following the three statements made by defendant on November 10 is irrelevant to the voluntariness of those three statements.
Defendant also asserts that one statement which he made on November 12, 1982, was involuntary and thus was improperly admitted by the trial court. This statement was made by defendant to a detective on November 12, 1982, and was introduced through the testimony of Detective Sam. In analyzing the voluntariness of this statement, the actions of the police officers on November 11 and November 12 are relevant. We therefore first review the actions of the detectives which occurred prior to the three statements made by defendant before 12 p.m. on November 10. After determining the voluntariness of the first three statements, we proceed to analyze the impact of the November 11 and 12 police conduct on the voluntariness of defendant's fourth statement, made on November 12.
The testimony at the suppression hearing indicated that the questioning during the period from 2 p.m. to 12 p.m. on November 10 was not continuous. Defendant approached the detectives sometime after 2 p.m. on November 10, informing them he wished to talk about his brother Andy. (Cf. People v. Davis (1983), 95 Ill.2d 1, 24-25, 447 N.E.2d 353, 364, cert. denied (1983), 464 U.S. 1001, 78 L.Ed.2d 697, 104 S.Ct. 507 (where, in finding statement voluntary, the court noted that the defendant, like defendant here, initiated the contact with the police officer).) Defendant agreed to travel with the detectives to the Villa Park police station, and they arrived at 2:30 to 2:45 p.m. Sam informed defendant that he was free to leave and to use the phone.
Defendant then began discussing how Gecht controlled other people, including Andy. Within a few minutes, Wilkosz asked defendant if he would undergo a polygraph examination, and defendant agreed. From 3:15 p.m. until 5:15 p.m., when the examination began, defendant was not questioned about the murders. The polygraph examination lasted 1 1/2 to 2 hours. After the detectives discussed the test results with Commander John Millner of the Elmhurst police department, who conducted the polygraph examination, defendant was questioned until his first audio tape, concerning the Borowski homicide, which lasted from 8:40 to 9:40 p.m. Defendant gave a recorded statement concerning the Sutton homicide, which lasted from 10:30 to 10:50 p.m. Defendant gave a third statement from 10:50 to 11:10 p.m. concerning the murder of an oriental woman. Only the first two statements were introduced at defendant's trial. About 12 p.m. on November 11, Wilkosz and Sam drove defendant to the Du Page County sheriff's office, and during the trip they passed the scene of the Borowski abduction. Defendant identified the shopping center where the abduction occurred. Upon arrival at the Du Page office, defendant received a meal. After eating, defendant was questioned by Detective Larson regarding a fourth homicide. Defendant read and signed his typed statement regarding the Borowski homicide at 2:50 a.m.
• 2 As is evident from this recitation of events, defendant was not subject to 12 to 14 hours of continuous questioning prior to making his statements. After six hours of contact with the officers, defendant gave his first statement in which he implicated himself in the Borowski homicide. Even if the duration of questioning is extended to include the time period prior to his review and signing of this statement in typed form, the time period with the detectives was only 13 hours. The officer testified that defendant was told he could use the phone and that he never requested to use the phone. The duration of the questioning prior to his review of the Borowski statement is not so long as to render the trial court's denial of defendant's motion to suppress against the manifest weight of the evidence.
We must next consider the significance of police conduct following defendant's November 11 written statement at 2:50 a.m. on the voluntariness of defendant's statement made to detectives on November 12, 1982. In his November 12 statement, defendant identified one of two cemeteries which he had visited on November 11 as the cemetery where they left the victim's body.
Following his review of his statement regarding the Borowski homicide, defendant was not questioned. Instead, the detectives made arrangements for defendant to sleep, placing a mattress and bedding in the interview room of the Du Page County sheriff's office. While defendant slept, Wilkosz said one of his hands was handcuffed to the wire-mesh storage locker. However, Detective Thomas Vosburgh of the Du Page County sheriff's office stated defendant was not handcuffed when he first observed defendant sleeping in the interview room between 6:30 to 7 a.m. on November 11.
According to Vosburgh, defendant awoke after 7 a.m., had breakfast, and showered. Defendant was provided with a candy bar, cigarettes, and coffee between 8:30 to 12 that morning. After receiving Miranda warnings, defendant was questioned between 10 a.m. to 12 a.m. on November 11 regarding the disappearance of a different female. From 12 to 3:15 p.m., Vosburgh drove defendant to certain areas and then returned him to the station. One-half hour later, Vosburgh and Detective Kurzawa of the Du Page County sheriff's office drove defendant to two cemeteries. One detective stated defendant was not questioned during this 1 1/2-hour trip.
Later that day, defendant was provided with dinner and then was taken to a hotel in West Chicago. Another detective brought donuts to the hotel room. Defendant gave a statement from 7:30 to 8:25 p.m., which was recorded in the hotel room by a court reporter, Gloria Apostolos. Apostolos testified at the hearing that prior to the statement, defendant, in response to the ...