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11/30/88 the People of the State of v. Eugene Paull

November 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EUGENE PAULL, DEFENDANT-APPELLANT



Before trial, the defense moved to exclude two photographs and three books which were found in a search of defendant's apartment following his arrest. Sharon Olnhausen, who shared the apartment and gave police officers written consent to search the premises, testified that she had signed the consent form only after police officers told her that if she did not consent, they would get a search warrant and "it would look bad" for defendant. Defendant argued that the officers' remarks to Olnhausen constituted coercion which invalidated her consent. He also claimed that the photographs, which showed complainant nude, and the books, whose subject was incest, were unfairly prejudicial. The trial court ruled that the photographs and books were admissible, and defendant contends that this ruling was error.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 1008, 176 Ill. App. 3d 960, 126 Ill. Dec. 381 1988.IL.1724

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Defendant Eugene Paull, charged with aggravated incest and convicted of that offense after a jury trial, appeals the conviction and the six-year prison sentence imposed thereon. He contends that the trial court erred in admitting into evidence items found in his home; in inadvertently suggesting to the jury that he was charged with a second count of the same offense; in allowing unfairly prejudicial cross-examination of a defense witness; and in admitting testimony which accused him of other crimes.

The complaining witness, the younger of defendant's two daughters, alleged that the incident occurred during an August 1983 visit at the home of defendant, who was divorced from her mother. Complainant, who was 16 years old at the time, alleged that defendant invited her to the bedroom he shared with his girlfriend, Sharon Olnhausen; that the two adults performed sexual acts upon her; and that she engaged in sexual intercourse with defendant.

A trial court's decision on the voluntary nature of a consent to search will be accepted on review unless clearly unreasonable and an abuse of discretion. ( People v. Howard (1984), 121 Ill. App. 3d 938, 946, 460 N.E.2d 432.) In our view, the mere statements that the officers would get a warrant and that "it would look bad" for defendant fall far short of establishing coercion or deceit and do not justify reversal of the trial court's finding that Olnhausen's consent was voluntary.

We are similarly disinclined to disturb the trial court's decision that the prejudicial effect of the books and photos did not outweigh their probative value. A reviewing court will not substitute its own judgment on the issue for that of the trial court unless an abuse of discretion is apparent; no such abuse appears here. See People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

Defendant also contends that he was prejudiced by a court error in the reading of the charges against him. At the start of jury selection, the trial court began to read an indictment to the prospective jurors:

"THE COURT: The case before the Court is the case of the People of the State of Illinois versus Eugene Charles Paull, wherein the defendant is charged with on August 1, 1983, with committing the offense of aggravated incest, in that he, a male person, knowing the victim involved herein as his daughter, had sexual intercourse with Teresa Paull, a female, in violation of the statutes.

He is also charged with --

MR. ROSENSTRAUCH [defense attorney]: Excuse me, I believe they have ...


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