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12/11/89 the People of the State of v. Stephen Holcomb

December 11, 1989




Before addressing defendant's due process claim, it is necessary that we set forth certain established principles. A failure to give a juvenile a detention hearing or adjudicatory hearing within the statutorily prescribed time does not automatically warrant discharge, nor is the failure a per se violation of due process. (See In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060; In re McCall (1982), 108 Ill. App. 3d 164, 438 N.E.2d 1269.) An adjudicatory hearing is not required where the defendant is transferred to the criminal court to be tried as an adult. (See People v. Eckmann (1978), 60 Ill. App. 3d 300, 376 N.E.2d 751.) Finally, although a suspect may challenge his present detention, the mere fact of an illegal arrest or detention does not void a subsequent conviction. See Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (detaining a defendant pending trial without a determination of probable cause); People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403 (failing to give a defendant a prompt preliminary hearing); People v. Thompson (1980), 91 Ill. App. 3d 1111, 415 N.E.2d 648 (failing to promptly bring a defendant before a court for arraignment).


548 N.E.2d 613, 192 Ill. App. 3d 158, 139 Ill. Dec. 228 1989.IL.1924

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


Following a jury trial, Stephen Holcomb (defendant) was found guilty of aggravated criminal sexual assault and armed robbery and sentenced to concurrent terms of 30 years' imprisonment. Defendant appeals his conviction and sentence, contending that (1) the trial court erred in denying his motion to dismiss the indictment for violation of his speedy trial rights; (2) the trial court erred in admitting testimony regarding a subsequent offense committed by defendant; (3) the trial court erred in denying his motion to suppress his statement; (4) the trial court erred in denying his motion to suppress identification evidence; (5) the State failed to prove him guilty of the offenses beyond a reasonable doubt; and (6) his sentence is excessive. We affirm.

Following his arrest on November 6, 1985, for an incident not the subject of the charges here, defendant, who was 14 years old at the time, was held in juvenile detention at the "Audy Home." On November 18, 1985, in connection with the offenses charged in the case at bar, the State filed petitions for adjudication of wardship and to have defendant tried as an adult. The hearing on the petitions, scheduled for December 4, 1985, was continued upon defendant's request to December 18, 1985, and again continued "by agreement" of the parties to January 15, 1986.

A finding of probable cause on the petition for wardship was entered on January 15, 1986, and the State's petition to have defendant tried as an adult was granted on January 17, 1986. On February 19, 1986, defendant was indicted by a grand jury for the instant offenses, and the State and defendant were thereafter granted numerous continuances either on their own motions or "by agreement." On June 30, 1987, defendant filed a motion to dismiss the indictment on grounds that his speedy trial rights had been violated. The trial court denied defendant's motion for discharge and his subsequent motion to reconsider.

Prior to commencement of trial on July 8, 1987, the trial court denied defendant's motion to exclude evidence of a subsequent offense. Defendant also moved to suppress a pretrial statement and pretrial lineup identification, and the trial court conducted a combined pretrial hearing on these motions, during which the following evidence was presented.

Chicago police officer Edward Hansen testified that at approximately 3:45 p.m. on November 6, 1985, while off duty at his home on North Marmora in Chicago, Illinois, he had occasion to arrest defendant following an incident involving victim Lynnea Hill. During the apprehension of defendant, Hansen "tackled" defendant when he continued to run despite Hansen's statements as to his police status. Hansen also struck defendant once in the mouth when defendant kicked Hansen's gun out of his hand and moved towards the gun.

Following defendant's transportation to the 25th district police station by other officers, Hansen had occasion to speak with defendant in an interview room, where he first advised him of his Miranda rights and then questioned him regarding the Lynnea Hill incident. During the conversation, defendant was handcuffed to the wall. At the Conclusion of their conversation, Hansen escorted defendant to the second floor for further investigation by Detectives Raymond Krull and Robert Collins and youth officer Gregory Bernacki. Hansen denied, either during or subsequent to their conversation, threatening or striking defendant or refusing any requests by defendant to speak with family members.

Collins, Krull and Bernacki, all of whom first observed defendant in the early evening at the second-floor police interview room when he was escorted there by Hansen, testified to their contact with defendant on November 6. They denied threatening or striking defendant on that day, and they did not observe Hansen strike or threaten defendant. Krull testified that defendant mentioned that he was struck by Hansen on the street, that defendant stated he wished to make a statement, and that defendant never told them he did not want to make a statement. He further stated that defendant's Aunt Patricia was contacted prior to the conversation with defendant, and she arrived after their conversation with him prior to 8 p.m. Bernacki testified that defendant never told him that Hansen beat him when he was downstairs or stated that he would not talk without the presence of a lawyer or family member. Collins testified that defendant gave an oral statement after he was advised who they were, advised of his Miranda rights, and advised that he could be tried as an adult even though he was only 14 years of age.

After the police became aware that evening that defendant might be a suspect involving a crime pattern of sexual assaults in the "Area 5" district, Krull testified that he drove to the home of Lillian Gonzalez, the victim of the assault in the case at bar, and informed her that they had a suspect in custody. He denied showing any photographs to her. He stated that he stopped four teenage black youths on the street and asked them to volunteer to participate in the lineup. Collins testified that at 8 p.m. on November 6, defendant was placed in a lineup with these four other individuals, all black males, with ages of 16, 18, 19 and 21 and heights ranging from 5 feet 6 inches to 5 feet 9 inches. Gonzalez had previously given Collins a description of her attacker as a black male, 15 to 18, skinny, bumps on the face, high forehead, and short-cropped hair.

Gonzalez testified that she waited in a room at the police station with other victims of sexual assaults before she was brought to a room to view the lineup. She immediately identified defendant as the attacker. Collins, Krull, and Gonzalez all testified that no one told Gonzalez who the suspect was or where he was standing.

Collins also testified that he noticed a cut on defendant's lip, which was not bleeding, and he was aware that defendant was later that night taken to St. Anne's Hospital in Chicago for treatment for his mouth and then taken to the Audy Home.

Collins, Krull and Assistant State's Attorney Patrick McNerney testified to their contact with defendant on November 7, 1985. Krull stated that he and Collins went to the Audy Home on November 7 after they were informed that court documents indicated defendant was 15 years of age and therefore defendant would become an automatic transfer to the criminal division. After defendant also stated that he was 15 years of age, they notified the State's Attorney's felony review unit.

McNerney testified that when he arrived at the Audy Home on November 7, 1985, he introduced himself and his position to defendant and advised him of his Miranda rights. Upon his inquiries, defendant responded that the police had treated him well and that no threats or promises had been made to him. After his conversation with defendant, he left the room, memorialized their conversation to paper, returned and read the statement with defendant. Defendant made two corrections, which were initialed by defendant and himself. He, Krull, Collins, and defendant signed the statement. These events lasted approximately 30 to 40 minutes, at most.

Krull and Collins testified that at no time on November 7 did anyone threaten or strike defendant or tell him he could go home upon signing the statement. Krull stated that defendant never expressed that he did not wish to speak with them and that defendant never requested an attorney. Krull related that although it was Chicago police department policy to have a youth officer present when interrogating a juvenile, no youth officer was present because none was ...

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