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06/06/89 the People of the State of v. Samuel L. Sledge

June 6, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

SAMUEL L. SLEDGE, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

539 N.E.2d 1312, 183 Ill. App. 3d 1035, 132 Ill. Dec. 506 1989.IL.851

Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and LINDBERG, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Samuel L. Sledge, Jr., appeals his convictions after a jury trial for aggravated kidnaping (Ill. Rev. Stat. 1985, ch. 38, par. 10-1(a)(2), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)), unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a)), and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)). Defendant contends that (1) the trial court erred in denying his motion for a mistrial because the venire from which the jury was picked did not contain a fair representation of blacks; (2) the trial court erred in denying his motion for a mistrial after a witness made a reference implying that defendant had committed other crimes; (3) the trial court erred in denying defendant's motion to suppress his oral and written statements; and (4) the State did not prove him guilty of the crimes beyond a reasonable doubt. We affirm.

On October 18, 1986, the victim, a six-year-old girl, was staying at the home of Pam and Keith Bielema, where her mother's fiance, Joseph Foote, also resided. The victim went to sleep that night on a couch in the basement of that residence. The victim wore pajamas and slept with a pillow decorated by a cartoon character. In the early morning hours of October 19, 1986, the victim was awakened by a man who put the pillow over her face and carried her upstairs and out of the house. Once outside, the assailant dropped the victim onto the grass. The assailant then carried the victim to a small yellow car, placed her in the front seat, and drove to a nearby wooded area. The assailant told the victim to remove her clothing and subsequently touched the victim's vagina with his hand. The assailant then allowed the victim to get dressed and drove her back to the Bielema residence. The victim did not tell anyone what had occurred until the evening of October 19, 1986, when she was questioned by her mother and Foote about the grass stains on her pajamas and the whereabouts of her pillow.

On October 22, 1986, Warren Wilkosz, a detective with the Du Page County sheriff's department, met with the victim at her home. The victim described the assailant as a male black, approximately 25 years old, 5 feet 10 inches, with short, black matted-down hair, green teeth, and a pimple on the right cheek. The victim further stated that the assailant wore a hooded sweatshirt and blue jeans. Wilkosz showed the victim a series of six photographs; however, the victim was unable to identify anyone depicted in the photos. On the following day, after receiving information that defendant fit the description of the assailant, Wilkosz again met with the victim and showed her a second set of six photographs. Defendant was one of the persons depicted in the second photo lineup. The victim identified defendant as the man who removed her from the house.

On October 29, 1986, defendant was arrested by officers from the Village of Oakbrook Terrace after disobeying a traffic control device and fleeing from the police. Defendant was taken to the Oakbrook Terrace police station, where he made statements implicating himself in crimes unrelated to the instant action. Defendant was subsequently transferred to the Du Page County jail. Wilkosz learned of defendant's arrest and went to the Du Page County jail to interview him about the abduction and assault on the victim in the instant action. Wilkosz advised defendant of his rights and spoke with him for approximately one hour. During that time, Wilkosz repeatedly accused defendant of committing the kidnaping and advised him that the victim identified him from a photo lineup. Defendant subsequently implicated himself in the crimes and agreed to prepare a written statement. Defendant signed a written waiver of rights form and drafted a two-page statement that he entered the Bielema residence with the intent to commit a theft, removed the victim from the residence, transported her to a nearby field, touched her vagina, intended to rape her but changed his mind, and transported her back to the Bielema residence. Defendant subsequently signed the written statement. No other witnesses were present during this interview, and no recordings were made at the time.

On November 12, 1986, defendant was charged in a four-count indictment with the offenses of aggravated kidnaping, aggravated criminal sexual abuse, unlawful restraint, and residential burglary. Prior to the trial on those charges, defendant moved to suppress his oral and written statements. Officer Wesley Galavan of the Oakbrook Terrace police department described defendant's initial arrest. Galavan stated that defendant was advised of his rights and voluntarily gave a written statement implicating himself in crimes unrelated to the instant action. Galavan further stated that defendant did not ask for an attorney at any time and was not threatened or abused in any way. Detective Wilkosz testified that he subsequently interviewed defendant at the jail. Wilkosz stated that he advised defendant of his rights and told him that he wanted to talk about the kidnaping of a little girl in Villa Park. Wilkosz further stated that he told defendant that the victim identified him from a photo lineup, and after initially denying involvement, defendant admitted committing the crimes. Defendant subsequently prepared and signed the written statement. Wilkosz testified that defendant never asked for an attorney and was not threatened, beaten, or told that things would go better for him if he confessed.

Karen and David Eyer witnessed defendant's initial arrest and testified on his behalf. Karen Eyer stated that she saw defendant hit his head as the officers were putting him in the car. She further testified that she did not see the officers hit defendant or verbally threaten him. David Eyer similarly testified that he did not hear any of the officers threaten defendant but stated that he saw the police officers "drag" defendant to the police car. On cross-examination, David Eyer testified that defendant was upright at all times. Defendant's father also observed defendant's arrest and testified that he saw one of the officers hit defendant in the head as he was placed in the squad car. Defendant's father could not remember what part of defendant's head was hit or if the officer used his open hand or a fist. Defendant's father further testified that he did not hear any of the officers threaten defendant. All of defendant's witnesses testified that the officers would not tell defendant's father where they were taking defendant.

Defendant testified that he was physically and verbally abused during his arrest. Defendant stated that one of the arresting officers put a gun to his head while another repeatedly hit him in the stomach and side. Defendant testified that none of the officers hit him while he was being placed in the car but one of the officers "slammed" his head in the side of the car. Defendant further testified that he was verbally and physically abused at the Oakbrook Terrace police station and that an officer threatened to shock him with a stun gun unless he made a statement. Defendant stated that he asked for and was denied an attorney and subsequently made a statement before being transferred to the Du Page County jail. Defendant further testified that he requested an attorney when talking to Wilkosz and denied any involvement with the crimes in the instant action. According to defendant, Wilkosz told him that things would go easier on him if he spoke to Wilkosz first. Defendant further testified that Wilkosz told him the details of the crimes before he prepared the written statement.

Wilkosz and officers from the Oakbrook Terrace police department were called as rebuttal witnesses and denied defendant's allegations of physical and verbal abuse or that defendant requested an attorney at any time. However, one of the officers testified that the Oakbrook Terrace police department did equip officers with stun guns. The trial court denied defendant's motion to suppress and ruled that the testimony of the various police officers was more credible than the testimony of defendant and defendant's witnesses.

Defendant also moved to quash his arrest and suppress the identification evidence. Defendant asserted that the arrest was improper and that the photo lineup was suggestive in that defendant's photo portrayed him in a sweatshirt. With respect to the arrest, Wilkosz testified that he did not arrest defendant prior to October 29, 1986, because he wanted to continue the investigation to gather additional evidence. Wilkosz stated that he arrested defendant because defendant's voluntary statement corroborated the victim's identification. The trial court subsequently denied defendant's motion to quash arrest.

With respect to the identification evidence, Wilkosz described the procedure he used in conducting the photo lineups, but denied that defendant's photo portrayed him in a sweatshirt. Wilkosz testified that defendant was depicted in the photo lineup as wearing a high-collared jogging suit that zipped up in the front. The victim also testified at the hearing after the court made an initial finding of competency. The victim stated that the first photo lineup consisted of white people, and the second photo lineup consisted of black people. Although she remembered picking someone out of the second lineup, she could not remember why. The victim was then shown the lineups again, both consisting of blacks. Although she did not recognize anyone in the first lineup, she picked defendant's photo out of the second lineup and stated that he was the man who removed her from the Bielema residence. The trial court subsequently denied defendant's motion to suppress the identification, noting that defendant's photo appeared to depict him in a high collar and not a hooded sweatshirt.

At the beginning of the trial, defendant objected to the panel of jurors brought to the court indicating that, of the 30 prospective jurors, 29 were Caucasian and one was Hispanic. Defendant made an oral motion to discharge the panel. The trial court noted that unless defendant presented evidence indicating that the selection process was tainted, it would be presumed random. The court granted defendant leave to call the jury commissioner and proceeded with jury selection. After the jury was picked and sworn in, defendant tendered Muriel Turner, the acting jury commissioner, and questioned her concerning the method of calling persons for jury service. Turner stated that prospective jurors were summoned on a randomly selected basis from the voter registration list. Turner further stated that there was no way to tell a person's race from the list. Turner guessed that approximately 80 jurors were called to the courthouse each day Monday through Thursday, and of those, between four and eight per week were black. Of the jurors summoned to the courthouse, panels of 24 were randomly ...


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