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12/16/88 the People of the State of v. Gerald Walker

December 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GERALD WALKER, DEFENDANT-APPELLANT



Before this court, the People do not and indeed they cannot contend that the victim's identification of the defendant as her assailant to her officer-father in the defendant's home after their warrantless entry operated back as adequate preentry authority for their entry, which was made before the identification.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

532 N.E.2d 447, 177 Ill. App. 3d 743, 126 Ill. Dec. 762 1988.IL.1820

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by defendant, Gerald Walker, from a conviction and sentence of 12 years for rape. On September 3, 1982, Walker was indicted for deviate sexual assault, aggravated kidnapping and armed violence. On June 9, 1984, after a jury trial, Walker was found guilty of rape and sentenced to 12 years' imprisonment. The victim of the rape, L.S., was the daughter of a Chicago police officer. The sole issue raised on appeal by defendant is whether the police officer's warrantless arrest and subsequent use of evidence, direct and indirect fruits of the arrest and his detention, violated Walker's fifth, sixth, and fourteenth amendment constitutional rights.

On July 18, 1983, Walker filed a motion to suppress his identification, a motion to suppress his arrest without a warrant, and to suppress the evidence obtained after the arrest. The State filed no responsive pleading to the defendant's motions, and he was the only one who testified at the hearing on the motion to suppress. His testimony was to the effect that he was at his parent's home and that he did not see or hear either the victim or her father enter the house of his parents because he was in the bedroom at the time they entered. He heard someone say "Your son, Gerald, raped me. "He then went into the living room of his home where the victim, in the presence of the defendant and her father, a police officer, stated that defendant was the person who raped her. The police officer then arrested defendant and subsequently fingerprinted him and took blood and saliva from him.

The trial court denied defendant's motion to suppress. At the trial the evidence revealed that the victim's father, a Chicago police officer, was called home from his work after the victim returned from the hospital. She told her father she had been raped and that she had seen the offender with a boy she knew as "June" just before her attack. She and her father left to speak with June. June told them defendant was the one whom he had been standing with at the time. June directed the victim and her father to defendant's grandmother's house. There they ascertained defendant's home address.

Upon their arrival at defendant's house, L.S. and her father, who was in uniform, were invited in by defendant's mother. In a subsequent conversation between L.S., her father, and defendant's mother, the defendant came into the room and L.S. stated, "That's the dog who raped me." The police officer, L.S.'s father, then arrested him, took him to the police station, and effected booking procedures and obtained the evidence sought to be suppressed.

Defendant raises two main points on appeal. One, that his arrest, without a warrant, was illegal and thereby bars the evidence obtained thereafter as the fruits of an illegal entry and, two, the failure of the trial court to give the jury a tendered instruction on impeachment by omission was error.

For the following reasons we affirm.

When a voluntary consent is given to enter one's residence and an arrest is made thereafter, based on probable cause, none of the arrestee's constitutional guarantees are violated. (People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608.) That consent need not be given by the arrestee; it may be given by one who controls the premises. United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988.

The facts in this case disclose that L.S.'s and her father's entry into the apartment was with the consent of defendant's mother. Prior to the entry, the arresting police officer had reason to believe that defendant was the one who raped his daughter, based on the conversation with June. When his daughter confronted defendant after the consensual entry and identified him as the party who raped her, there were reasonable grounds to arrest defendant. Although the State presented no evidence at the hearing on the motion to suppress, in reviewing the propriety of a motion to suppress or quash an arrest, an appellate court may consider the entire record and is not confined to only that evidence presented during the pretrial motion. (People v. Cole (1988), 170 Ill. App. 3d 912, 524 N.E.2d 926.) A pretrial ruling on a motion to suppress is procedural rather than substantive and is required of a defendant simply to avoid extended collateral inquiries at trial. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

It appears that the State raised the question of a consensual arrest for the first time on appeal. A prevailing party may raise, in support of a judgment, any reason appearing in the record (People v. Sloan (1986), 111 Ill. 2d 517, 490 N.E.2d 1260), although this rule does not apply when the new theory is inconsistent with the position adopted below or the party has acquiesced in contrary findings (People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80). The record in the court below disclosed that the initial hearing revolved around probable cause to arrest rather than the consensual nature of the entry. The State did not argue in the trial court a theory inconsistent with its position in this court. Therefore, we find no basis in the record to reverse the trial court's denial of defendant's motion to suppress even though the consent issue was first argued on appeal.

As his final point, Walker urges the court to find error in the trial court's refusal to give the following tendered instructions:

"The omission of a witness to state a particular fact under circumstances rendering it likely that he would state that fact, if true, may be shown to discredit his testimony as to such fact.

It is a general principle of evidence that the failure to assert a fact when it would have been natural to assert it, amounts in effect to the assertion of the nonexistence of the fact."

These two instructions have some foundation in the law of evidence even though they are not covered by the court's standard instructions. Defendant bases his claim of error on this point on the fact that the victim stated that her offender had a chipped tooth and bore ears that stuck out. Two other police officers and her father testified that the victim did not describe these characteristics. There were other alleged discrepancies in L.S.'s testimony and that of the police as to what direction the defendant went after the attack and whom she went with when they went to talk to June, in addition to other alleged discrepancies.

These tendered non-Illinois Pattern Jury Instructions instructions went to details of the events described by the victim and the police officer, her father, subsequent to her rape. The evidence as to her rape by defendant with a gun at her throat was clear and convincing. The trial court did submit to the jury the IPI criminal instructions covering inconsistent prior statements and the weight factor to be given same and the general duty to assign weight and credibility. It has been held not to be error in a criminal case to refuse a tendered instruction which accurately states the law applicable to a case if that principle has been covered correctly and sufficiently by another instruction. People v. Smith (1978), 67 Ill. App. 3d 672, 385 N.E.2d 44.

In this case the trial court adequately instructed the jury on impeachment by giving the IPI instructions on the point, and its refusal to give defendant-tendered instructions to the effect of the victim's failure to state a fact was not, under the circumstances and facts of this case, error justifying the overturning of the jury's verdict.

Accordingly, we affirm defendant's conviction and sentence.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. What's good for the goose is good for the gander. The cases are legion which hold that a defendant who fails to raise an issue and obtain a ruling thereon in the trial court or who fails to present an issue on his motion for a new trial waives the issue and cannot raise or rely on such issue for the first time on appeal. (People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) In People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, the supreme court stated, "The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently." In People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, the supreme court pointed out that "the question of denial of effective assistance of counsel was first raised in the appellate court and that at no time did either of the defendants raise this issue in the trial court. "The court concluded that "the general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues." (73 Ill. 2d at 16.) The Precup court further concluded that "the issue was not raised by the defendants during the trial and was not called to the court's attention in the motion for a new trial. Under the well-established law of this State, the question has been waived and cannot be raised for the first time on review." 73 Ill. 2d at 19.

These foregoing objection and waiver principles are also applicable to the State. In People v. Holloway (1981), 86 Ill. 2d 78, 91-92, 426 N.E.2d 871, the supreme court pointed out and held, "We turn next to the question of whether the State has waived its right to challenge the standing of defendant Moore. The State made no objection when counsel for defendant Moore orally joined in defendant Holloway's motion to suppress. . . . Issues not raised in the trial court are generally considered waived on appeal. [Citation.] The principle of waiver applies to the State as well as the defendant in a criminal case. . . .. As noted in McAdrian [ People v. McAdrian (1972), 52 Ill. 2d 250, 254], one of the basic considerations supporting the rule preventing a party from raising issues for the first time on appeal is that '[ the ] failure to urge a particular theory before the trial court will often cause the opposing party to refrain from presenting available pertinent rebuttal evidence' which could have a bearing on the Disposition of the question. [Citations.] Consequently, we hold that the State has waived its right to challenge the standing of defendant Moore." (Emphasis added.) These principles pronounced in Holloway, that the State cannot raise an issue for the first time on appeal and that issues not raised by the State in the trial court are considered waived on appeal, were cited and relied on in People v. Weber (1981), 98 Ill. App. 3d 631, 633, 424 N.E.2d 874, and People v. Chianakas (1983), 114 Ill. App. 3d 496, 501-02, 448 N.E.2d 620.

Although clearly applicable to the State, the majority has not applied these principles to the State in the case at bar. The majority's reliance on the arresting officers' specious consensual entry into the defendant's home was not raised by the State or ruled on in the trial court and is raised by the State for the first time on the instant appeal. This is clearly erroneous, grossly unfair and it is not in accord with, but rather directly contradicts, the foregoing authorities and the more recent decision of the supreme court in People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80.

The defendant's motion to quash his arrest and suppress evidence was filed on July 18, 1983. The motion alleged that the defendant was arrested in his home on July 4, 1982, without a warrant, in violation of his constitutional right to be secure in his person and home from unreasonable search and seizure. The motion further alleged that during his "arrest and subsequent detention, the police and prosecution became aware of the existence of physical evidence, witnesses and other evidence all the direct and indirect fruits of the arrest and detention. "The motion prayed that his arrest be quashed and that the evidence derived therefrom be suppressed.

The defendant also filed on July 18, 1983, a motion to suppress identification. This motion too alleged that the defendant was arrested without a warrant in his home on July 4, 1982, that he was there identified as an alleged rape offender, and that admission of evidence thereof at his trial was and would be violative of the defendant's fifth, sixth, and fourteenth amendment constitutional rights. This motion prayed that this identification of the defendant be suppressed.

The State did not file any responsive pleadings or answer either to the defendant's motion to quash his arrest and suppress the evidence derived therefrom or to the defendant's motion to suppress his identification. Both of the defendant's motions came on and were consolidated for an evidentiary hearing on September 30, 1983, 2 1/2 months after the motions were initially filed on July 18, 1983. The State did not call a single witness on the evidentiary hearing of the motions.

The defendant was the only witness who testified on the evidentiary hearing of the motions to quash and suppress and his testimony was uncontroverted. He testified on direct examination that on July 4, 1982, between the hours of 11 p.m. and midnight, he was with his parents and siblings at their home at 6820 South Aberdeen Street, when and where he was arrested by a uniformed police officer. The defendant testified that the officer did not show him a warrant for his arrest. The assistant State's Attorney then stipulated that the officer had no process for the defendant's arrest or for the officer's entry into the defendant's home. Thereupon, the defendant further testified that he was in his bedroom and when he heard a girl say to his mother, "Your son, Gerald, raped me,"the defendant jumped up, put on his robe and came out of his bedroom. The defendant did not know who the girl was. She told the officer that the defendant had raped her. The officer placed the defendant under arrest and took him from his home to a police station, where he was booked, fingerprinted and his blood and saliva were taken, without his consent.

The defendant testified on cross-examination that he did not see or hear the officer come into his home and that he was in his bedroom when the officer entered his home. The defendant related that he knew a policeman was in the house before he came out of his bedroom and that no one called him out of his bedroom. When asked how did he know to come out of his bedroom, the defendant responded that he heard the girl say, "Your son, Gerald, raped me," and he jumped up, put on his robe and came out. He then saw a girl whom he did not know and who was with a uniformed policeman and who said that the defendant was the person who had raped her.

The defendant rested on the motion to quash and suppress and, as stated, the State chose not to present any evidence or witnesses. The assistant State's Attorney made a motion "for a directed finding" and stated:

"Your Honor, the defense case in its best light shows that without any evidence concerning the nature of the cause of the presence of the policeman. We have [a] uniformed policeman and the crime victim present. The victim points out the offender to the policeman . . .. He has not sustained his burden, and I move that his motion be denied."

At no time in the trial court did the assistant State's Attorney raise, rely on or even discuss consensual entry as the authority for the officer's entry into the defendant's home without probable cause and without a warrant. The assistant State's Attorney argued to the trial court, quite erroneously, that because the defendant did not establish the circumstances of the officer's entry into his home, the defendant did not "sustain his burden." The assistant State's Attorney made absolutely no effort to justify or authorize by evidence or argument the officer's entry into or presence in the defendant's home.

In response and opposition to the assistant State's Attorney's foregoing argument to the trial court to deny the defendant's motion to quash and suppress, the defendant's attorney pointed out to the trial court that, "He's [the police officer's] there in the house." The trial court responded, "It was not said who brought who in or how they [happened] to be there." The defendant's attorney thereupon requested, "May I ask leave then to reopen?" The assistant State's Attorney objected, and the trial court responded to the defense attorney's request, "Well, no. I don't think it could change the circumstances here appreciably anyway . . .." "We'll assume that it was as you have suggested." Thus, when the defendant's attorney sought to establish the circumstances of the officer's entry into the defendant's home, which the State concedes before this court was not the defendant's burden, he was precluded from so doing by the prosecutor's objection and the trial court's ruling that "it could [not] change the circumstances here appreciably anyway." "We'll assume that it was as you have suggested." Thereupon, the trial court ruled on the motions to quash the defendant's arrest and suppress as follows:

"Well, the court is [at] somewhat of a disadvantage in that it has not been established how the people came together in this premises. However, from what has been heard, it appears that the victim of the rape on July 3rd or July 4th somehow or other entered the home of the defendant with a police officer and accused the defendant of a forceable felony, and that would establish probable cause for the arrest. . . . I'm assuming further that the criminal acts and the arrest were close in time, within less than a 24-hour period; and for those reasons the motions are denied." (Emphasis added.)

Thus, regarding the officer's entry, the trial court simply stated or found that " the victim . . . somehow or other entered the home of the defendant with a police officer." (Emphasis added.) From the foregoing it is undeniably apparent that the assistant State's Attorney, and the trial court as well, were really unconcerned with the method via which the officer gained admission into the defendant's home in ruling on the defendant's motion to quash and suppress, and more importantly, denied the defendant's request and would not permit him to establish by his presentation of further evidence the circumstances of the officer's entry even though it was not the defendant's burden.

The defendant urges that the trial court's denial of the motions was erroneous and I agree (and so does the majority for that matter). The fourth amendment to the ...


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