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09/28/89 the People of the State of v. Billy Stevens

September 28, 1989





544 N.E.2d 1208, 188 Ill. App. 3d 865, 136 Ill. Dec. 433 1989.IL.1546

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.


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


Defendant was charged by information with 11 counts arising out of a residential burglary in Vermilion County that involved theft and sexual assault of a 64-year-old woman, and a later break-in at a nearby residence. A jury convicted defendant of aggravated criminal sexual assault, criminal sexual assault, residential burglary, theft (over $300), criminal damage to property, and trespass to residence. We affirm.

Defendant Billy J. Stevens was charged by information with two counts of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-3) (counts I and II), two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(a)(5)) (counts III and IV), two counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-13(a)(1)) (counts V and VI), one count of theft (over $300) (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(a)(1)) (count VII), two counts of criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, par. 21-1(a)) (counts VIII and IX), and two counts of trespass to residence (Ill. Rev. Stat.

Defendant filed a pretrial petition for examination by an expert to determine his fitness to stand trial. The trial court questioned defendant at the hearing on the motion and as a result determined there was no bona fide question as to his fitness for purposes of trial. The court concluded defendant understood the charges against him, the nature of the proceedings, and was able to assist in the preparation of his defense. The motion for expert examination was denied.

Also prior to trial, defendant made a motion to suppress a tape-recorded statement made to law enforcement officials after his arrest. The statement contained a full confession by defendant of the offenses charged. The following evidence was heard at the hearing on the motion.

The State called Investigator John Howard, who testified that on January 25, 1988, he took a tape-recorded statement from defendant while he was in custody in connection with a complaint made by D.W. The officer indicated prior to taking the statement he advised defendant of his Miranda rights. A carbon copy of the warning and rights waiver form signed by defendant was admitted into evidence. Officer Howard and Investigator Miller were present when defendant read the Miranda warning out loud and initialed the end of each paragraph. Defendant indicated he understood his rights, had no questions, and agreed to sign the waiver form and talk to the officers. Both officers also signed the form. According to Howard, defendant was slow in reading the rights form, but was able to read it back to the officers without difficulty. Defendant did not ask Howard to explain or repeat anything.

In addition, Howard advised defendant of the crime the police were investigating and what evidence they were seeking. Howard denied he threatened defendant or promised him leniency in the course of the interview. Defendant did not seem confused or under the influence of drugs or alcohol. Howard opined defendant gave his statement voluntarily.

On cross-examination, Howard testified defendant was arrested on January 23, 1988, and had been in custody around 30 hours when he gave the tape-recorded statement. Howard knew defendant had only a tenth-grade education and noticed he appeared upset at different times during the interview. On redirect, Howard denied defendant was upset at the time he read and signed the rights waiver form.

At the hearing on the motion to suppress, defendant testified he did not understand his rights when he waived them. He said he was frightened and upset at the time and gave the statement to the investigators because they pressured him and told him "nothing bad would happen." On cross-examination, defendant denied the officers gave him an opportunity to ask questions, but admitted they asked him if he understood his rights and he answered in the affirmative.

In rebuttal, the State called Investigator Gary Miller, who testified he was present when defendant gave his recorded statement. Defendant indicated he understood his constitutional rights and did not have any questions. Miller remembered defendant did not read the waiver form quickly and was upset at the time. However, the officer did not consider defendant's emotional condition unusual under the circumstances.

Defense counsel argued for suppression of the statement due to defendant's lack of education, his emotional state, and because the statement was nothing more "than a product of his mistaken desire to please or desire to placate his captors." Counsel also suggested the statement was not given voluntarily. The State argued defendant's statement was knowingly, voluntarily, and intelligently given. The Miranda rules were followed, defendant had no questions and did not claim the officers put words in his mouth. Moreover, defendant was not unfamiliar with the criminal Justice system. The court agreed and denied the motion.

The court also heard defendant's pretrial motion to sever the charges relating to the D.W. break-in from those alleged to have been committed at the H.F. residence. Defendant argued the D.W. and H.F. residences are approximately one mile apart and the offenses committed at each address were separate, independent, and dissimilar. Defendant suggested his case, as it pertained to the D.W. break-in, might be prejudiced by the strong evidence the State had against him relating to the H.F. break-in. The State argued both offenses involved residential break-ins which occurred on the same evening and within blocks of each other. The court denied the motion and held as follows: "The closeness of proximity of place, time and similarity of circumstances all lead me to the Conclusion that this was one transaction."

At the trial on May 17, 1988, D.W.'s daughter, L.W., testified that on January 23, 1988, she lived with her mother, D.W., and her father on King Street in Tilton. L.W. left the house at about 8 p.m. that night after checking the back door and locking the front door. At that time the house was neat and clean and her mother was in bed. L.W. said she came home around 2 a.m. January 24, 1988, and found one of the front door window panes had been broken and the house had been ransacked. L.W. found her mother huddled on the floor in the corner of the spare bedroom. She appeared as if she were in shock and she had scratches on her face. D.W. immediately told her daughter: "I have been raped." D.W. took a bath before L.W. took her to the hospital.

D.W. testified she took a prescription sleeping pill at 7 p.m. on January 23, 1988. Around 7:30 p.m. she took an additional pill and fell asleep thereafter. D.W. woke up screaming when she felt someone grab her in the chest area. After dozing off again, she awoke to find her nightgown and panties were torn. The clothing was not torn when she went to bed. D.W. remembered taking a bath before going to the hospital, but, due to her dazed condition, did not recall coming home. On cross-examination, D.W. admitted she told the examining physician at the hospital she did not remember any sexual penetration or sexual contact that evening.

D.W.'s husband, O.W., testified he came home around 2 a.m. on January 24, 1988, and found his house had been robbed and ransacked. O.W. said one windowpane was broken out of the front door. The television was moved from the bedroom to the front porch along with a china clock, and a jewelry box was sitting on the davenport. The VCR wires had been cut and the VCR, valued at $389, was missing. A checkbook and some cash had also been removed. Later that day, O.W. found his VCR and transistor radio lying in the bushes in his yard. O.W. testified his wife is 64 years old and was born December 18, 1923.

H.F. testified that on January 23, 1988, she lived on South Central Street in Tilton. Around 10 p.m. that evening she heard the sound of glass breaking in her basement. H.F. dialed 911 and remained on the phone until the police arrived. Meanwhile, the intruder, later identified as defendant, came upstairs and sat down at her kitchen table. Defendant was mumbling the name "Bobby" while sitting with his head in his hands. Defendant did not threaten H.F. When H.F. shined a flashlight in his face, defendant got up and went back downstairs. Nothing was taken from the residence. H.F. identified the defendant in court as the man who broke into her home.

Officer Bill Trosper testified he found a broken window and a left black tennis shoe in the basement of H.F.'s residence. Trosper followed tracks from the residence depicting the print of a left bare foot and a right tennis shoe.

Deputy Sheriff Cash Cook testified he too followed footprints leading from the Central Street area to a locomotive railroad yard in Tilton. The train master had reported an individual was seen entering a train. Cook found defendant crouched in a locomotive. He was wearing a shirt, pants, and only his right black tennis shoe. The deputy took defendant to the residence of H.F., where she identified him as the intruder. On cross-examination, Deputy Cook said defendant appeared intoxicated at the time he was taken into custody. No stolen items were found on his person.

Sergeant Gary Miller testified he assisted in investigating the D.W. and H.F. break-ins and was present on January 25, 1988, when defendant gave a taped statement to him and Investigator John Howard. Miller said defendant was read the Miranda rights, which he then read back and initialed. Defendant said he understood his rights and agreed to talk to the officers without having been threatened or promised anything.

Karen Kucharik, a forensic pathologist, testified she performed a chemical test on the torn nightgown and panties of D.W. The tests were all negative for the presence of semen or saliva. A microscopic test for spermatozoa was negative as well. Kucharik also tested vaginal, rectal, and oral swabs taken from D.W. at the hospital and the results were similarly negative. On cross-examination, Kucharik said none of the tests conducted indicated D.W. had experienced sexual intercourse the night of the home invasion. Her investigation did not indicate defendant committed a sexual offense against D.W.

Kevin Horath, a latent print examiner, testified no latent fingerprints recovered at the D.W. residence matched the actual prints belonging to defendant. Horath said it is possible to touch items in a house without leaving prints.

Investigator John Howard testified he investigated the scene of the D.W. break-in on January 24, 1988. Howard found a window had been broken, the home ransacked, and several items moved within the home. Howard dusted some objects at the scene in an attempt to recover latent fingerprints. He indicated it is unusual to find a suspect's prints at the scene of a crime.

Howard first talked to defendant on January 24, 1988, around 7 a.m. after he was arrested in connection with the recent break-ins. Officer Gary Miller was also present. After having read and signed the constitutional rights warning and waiver form, defendant admitted he broke into the H.F. residence in an attempt to get warm after he had wrecked his car. Defendant told the officers that prior to the wreck he had been drinking at his brother Bobby Treadway's house. He denied having been in the King Street area or within the D.W. residence.

Howard testified he next talked to defendant on January 25, 1988, at approximately 11:45 a.m., again in the presence of Sergeant Gary Miller. Defendant was a second time advised of his Miranda rights, after which he read and initialed the waiver form. Howard denied threatening defendant, making promises, or discussing the details of the D.W. break-in before defendant made his statement. However, he admitted the officers originally told defendant they were investigating a complaint of criminal sexual assault and asked defendant if he had entered the residence on King Street. Initially, defendant again denied involvement in the D.W. break-in, but later, after changing his story several times, admitted the following in a taped statement, which was played in open court before the jury.

Defendant indicated he read and signed the waiver form. He said on January 23, 1988, he was on his way to the liquor store, but instead decided to go home. He stopped on King Street because that was where he thought he lived. He went up to a residence, tried his key, and when it would not work he forced the door open. Defendant then entered the residence, went through some drawers in an attempt to find some of his clothes, and got in bed with a woman he thought was his wife. Defendant had sex with the woman and forced her to perform an act of fellatio. When the woman cried "rape," defendant said he took a VCR "and some other stuff" and left. Defendant did not know what he did with those items. Defendant first became aware he was not in his own home while in the King Street residence when he realized he was making love to a woman who was not his wife. He did not know the reason why he took the items out of the King Street residence after that realization.

After he left the residence on King Street, defendant said he was on his way back to his brother's house when he wrecked his car. After the wreck, defendant got out of the car and began running. He ran across some tracks to another house, where he broke out a basement window and entered the residence in an attempt to get warm. Defendant tried to find a place to lie down so he could sleep and sober up. After a woman shined a flashlight on him, defendant talked to her awhile and told her his name was Bobby Treadway. When the woman threatened to call the police, defendant went back out the basement window. He then climbed into a train engine in order to keep warm. Defendant fell asleep inside the train and woke up when the sheriff found him.

When the trial continued on May 18, 1988, Dr. Ben Welch testified he examined D.W. in a hospital emergency room on January 24, 1988. D.W. told the doctor she thought she had been sexually assaulted, but could not recall any sexual penetration. Dr. Welch recalled D.W. seemed drowsy and slightly confused. A thorough examination of D.W. revealed no evidence of trauma to her genitalia, face, neck, or elsewhere. The tests performed did not show any sperm present in the vaginal area. Bathing does not remove sperm located deep within the vagina. On cross-examination, Dr. Welch testified that 50% of the time there is no evidence of trauma in rape cases, if the victim does not resist. The doctor opined that if the victim passed out before the penetration occurred, he would not expect to find any visible signs of trauma to the vaginal area.

At the close of the State's evidence, defendant made a motion for a directed verdict as to counts I through VIII, alleging there was no evidence of criminal intent when defendant entered the D.W. residence, and further, no evidence a sexual assault had in fact occurred. The motion was denied.

The defendant testified on his own behalf. He said that on January 23, 1988, around 7:30 p.m., he went to his brother's house in Tilton where he ate, played cards, drank, and watched a movie. Around 9:30 p.m. he left to go to the liquor store in Danville. After purchasing some liquor, defendant hit a telephone pole while on the way back to his brother's house. Defendant then ran to Central Street, where he kicked in and entered the basement window of a residence because he was cold. Defendant remembered he went upstairs and sat at the kitchen table until a woman shined a light on him. He then exited the same way he came in, walked to a train, and crawled inside until the sheriff found him.

Defendant told the jury he had admitted to the police all along he had entered what he later learned was the H.F. residence. According to defendant, Officer Howard asked him if he had also raped a woman on King Street. Howard was not satisfied with defendant's denial of that offense. Defendant said the officers told him they had evidence he had raped and robbed D.W., so defendant said he confessed just to keep them from bothering him. On cross-examination, defendant admitted he read and waived his constitutional rights. He explained he made the statements contained in the recorded interview only because the officers told him to and because they said nothing bad would happen to him. Defendant lied to the officers in order to stay out of trouble.

The testimony of Reverend J.T. Riggs for the defense was not allowed as to his knowledge of a specific act evidencing defendant's propensity to admit to crimes he did not commit. An offer of proof was made outside the presence of the jury wherein Riggs testified he once suspected defendant of stealing some tools in 1986. When defendant was confronted, he initially denied the theft, but later confessed. Riggs said he immediately returned to the jobsite and found the tools in a locked room where he had left them. When Riggs later apologized to defendant and asked him why he confessed to something he did not do, defendant said he did it so that Riggs would not be angry.

The jury found defendant guilty of the offenses of residential burglary, aggravated criminal sexual assault, criminal sexual assault, theft (over $300), criminal damage to property, criminal trespass to property, and criminal trespass to residence. Defendant was acquitted of counts II, IV, and VI. He was sentenced to concurrent terms of 10 years for

First, defendant argues the trial court improperly denied the pretrial motion to suppress his tape-recorded confession. According to defendant, he was not capable of knowingly, voluntarily, or intelligently waiving his rights under the principles of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant maintains his low level of intelligence enabled the police officers to coerce a confession from him. In support of this contention, defendant points to the evidence heard at the suppression hearing and at trial that the investigating officers were aware defendant had only a tenth-grade education and was in emotional distress at the time they took his statement. Defendant testified he could not read or write adequately; however, the interrogating officers recalled he read aloud the waiver form slowly, but with little difficulty.

Defendant further argues he confessed after 30 hours of incarceration only because of the investigators' pressure. Defendant points out he did not confess to the D.W. break-in until the second interview and only after the officers told him the details of the offense and relentlessly questioned him over a long period of time. Defendant felt the only way to escape the pressure was to confess to something he did not do. According to defendant, the persistent and intense questioning by the police ...

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