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04/30/87 the People of the State of v. Gerald D. Smith

April 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GERALD D. SMITH, DEFENDANT-APPELLANT



Before dealing with the questions raised by defendant individually, we make one preliminary note. The first five of defendant's alleged errors are raised for the first time on appeal. They are, therefore, subject to the principles of waiver. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575; People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742.) We choose to answer the majority of the questions in the interest of maintaining a uniform body of precedent. Hux v. Raben (1967),38 Ill. 2d 223, 230 N.E.2d 831.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 543, 154 Ill. App. 3d 837, 107 Ill. Dec. 630 1987.IL.572

Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

At a jury trial, defendant, Gerald Smith, was convicted of attempt (murder), aggravated kidnaping, aggravated battery, and aggravated criminal sexual assault, in violation of sections 8-4, 10-2, 12-4, and 12-14 respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 10-2, 12-4; Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14). Finding an extended term of imprisonment warranted, the circuit court of Sangamon County sentenced defendant to a term of 60 years' imprisonment on the attempt (murder) count, a term of 60 years' imprisonment on the aggravated criminal sexual assault count, and 30 years' imprisonment on the aggravated kidnaping count. All sentences were to run concurrently. No sentence was imposed on the aggravated battery count. Defendant appeals his convictions and sentences.

The convictions were based on a sexual assault and physical attack on a young woman in the early hours of December 15, 1984. Prior to trial, defendant filed a motion to suppress a statement given by defendant to Sergeant Arthur Avart of the Illinois State Police, alleging that Avart had failed to give him the Miranda warnings prior to obtaining the statement.

Defendant had written a letter to the State's Attorney's office, requesting that someone come and talk with him. At the time, he was incarcerated at the Sangamon County jail. He had recently been convicted of criminal sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 12-13) and was awaiting sentencing. Sergeant Avart was asked by the State's Attorney's office to talk with Smith.

Avart testified at the motion to suppress hearing that he visited Smith on May 23, 1985. The meeting was held in an interview room at the Sangamon County jail. Sergeant Avart did not advise Smith of his Miranda rights, as defendant was not a suspect at that time. Rather, the import of the letter and of Avart's conversation with Smith was that Smith wanted to tell the authorities his former cellmate committed the crimes against the victim. Smith related to Avart that he had had a cellmate named Armin Bredemeyer for a short period. Smith told Avart that Bredemeyer confessed to him that Bredemeyer had raped and beaten the young woman. Smith gave Avart a detailed account of the crime, as allegedly told to Smith by Bredemeyer.

Smith told Avart that he heard Bredemeyer crying, and when he questioned Bredemeyer about the reason, Bredemeyer started talking about the incident, which occurred in December of 1984. Smith told the officer that he had been in a tavern on the south end of Springfield, near Stevenson Drive, in the middle of December 1984, with his boss, Gerald LaPointe, and had witnessed an argument between a young lady and a man and had watched as the woman ran out of the tavern and drove away in her car. Smith noticed the man follow her in a small black pickup truck. Smith said that after he was arrested and started talking to Bredemeyer, Bredemeyer told him that he had been in a bar in the south end of Springfield and that he had gotten in an argument with a young woman and had followed her when she drove away. Bredemeyer told Smith that he followed her onto the interstate and attempted to get her to pull over. He pulled up behind her, flashed his lights, and tried to get her attention.

Bredemeyer supposedly then told Gerald Smith that the woman pulled over to the side of the road. Bredemeyer reached in the woman's car window, removed the keys, opened the door, and hit her. Bredemeyer then got into the car with the victim, having told her that his truck had transmission problems. Then, according to Gerald Smith, Bredemeyer told him that he drove south on Route 4 to the first road to his right, a gravel road. He pulled off and had sex with the young woman. He then became scared and started to choke her. The woman got away, got outside of the car, and tried to run away, but she slipped and fell. Smith then told Avart that Bredemeyer told him that he got out of the car, ran to the woman and "stomped on her" in an attempt to kill her. Bredemeyer then said that he put the woman back into her own car, drove the car to where Bredemeyer had left his truck, wiped what he believed were all the fingerprints out of the car, got in his truck and drove home. Bredemeyer allegedly told Smith that he thought that the victim was still alive when he put her in the car because she was breathing and there appeared to be blood coming from her nose.

Avart stated that Smith never admitted participating in the crime himself and indicated that he would be willing to testify against Bredemeyer. Avart stated that no one else was present during the interview. The interview lasted approximately 45 minutes.

Smith testified at the hearing on the motion to suppress. He stated that Avart was initially accompanied by another officer. The second officer was called out after five minutes or so. Shortly thereafter, according to Smith, Avart told him that although he was a suspect, he was not the primary suspect.

Smith agreed with Avart's testimony that he was trying to inform the authorities Bredemeyer committed the crimes. He essentially agreed with Avart's account of the details of the crime. He stated, however, that Avart had added certain details which did not come from Smith. Smith stated that he did not mention Bredemeyer had pulled off onto a gravel road from Route 4, but merely onto a side road. Also, Smith claimed he never mentioned the car window's being open, Bredemeyer reaching into the window, grabbing the keys, and striking the victim.

The trial court denied the motion to suppress. The court found the statement was initiated by Smith and, throughout the discourse, was completely voluntary.

At trial, the victim testified. In December of 1984, she was divorced and living in Virden, Illinois, with her seven-year-old son. She described her activities on Friday, December 14, 1984, after finishing work at 3:30 p.m. Included among the early evening activities was stringing Christmas lights with her son. Later on, her mother came and took her son for the evening so she could go out.

The victim and a friend went to a tavern in Chatham, where they stayed until around 11:30 p.m. Then, they went to the Curve Inn in Springfield, and her friend left around 1 a.m. She then joined two other friends, Sheila Crays and Tom Gatschenberger. They talked until the bar closed at 3:30 a.m. Crays and Gatschenberger wanted the woman to go with them to Denny's to get something to eat. Crays had earlier testified of her concern that the victim might be intoxicated. Crays took the woman's car keys and drove the woman's car. The woman rode as a passenger. Crays and the woman followed Gatschenberger to Denny's Restaurant where they all had something to eat and the woman had some coffee. They remained at Denny's until 4:30 or 5 a.m., according to Crays. Gatschenberger thought the woman was in much better condition when they were ready to leave.

The victim asked Crays and Gatschenberger to direct her to Route 4. They drove from Denny's to Interstate 55, then to Highway 36, and exited at Route 4. Gatschenberger testified that they lost the woman along the way. The two, Crays and Gatschenberger, stopped at the top of the off ramp to Route 4 for about a minute to wait ...


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