People v. Brownell, 82-155

• Citation: 462 N.E.2d 936,123 Ill.App.3d 307,78 Ill.Dec. 817
• Decision Date: 11 April 1984
• Docket Number: No. 82-155,82-155
• Parties: , 78 Ill.Dec. 817 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis Jay BROWNELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 936

462 N.E.2d 936

123 Ill.App.3d 307, 78 Ill.Dec. 817

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis Jay BROWNELL, Defendant-Appellant.

No. 82-155.

Appellate Court of Illinois Second District.

April 11, 1984.

G. Joseph Weller, State Appellate Defender, John J. Barrett, Paul J. Glaser, Asst. State Appellate Defenders, Elgin, defendant-appellant.

Daniel Doyle, State's Atty., Rockford, Phyllis J. Perko, William L. Browers, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

UNVERZAGT, Justice:

The defendant, Curtis Jay Brownell, was charged by information filed February 10, 1978, in Winnebago County with rape, attempted murder, aggravated kidnapping (based on rape), armed robbery and armed violence (based on rape). (Ill.Rev.Stat.1977, ch. 38, pars. 11-1, 8-4, 10-2, 18-2 and 33A-2.) The defendant, pursuant to negotiations, pleaded guilty to rape, attempted murder and aggravated kidnapping. He was sentenced to 50 years for rape, 25 years for aggravated kidnapping and 50 years for attempted murder, the attempted murder sentence to be consecutive to the other two sentences, which were to be concurrent, and all three sentences to be consecutive to sentences entered in a case against the defendant in Boone County.

The defendant's motion to withdraw his guilty plea was denied. The defendant appealed, and this court reversed and vacated the judgments and sentences entered against him on those three offenses, and vacated and set aside the defendant's guilty pleas thereto. The cause was then remanded to allow the defendant to plead anew and for further proceedings consistent with this court's opinion. People v. Brownell (1980), 86 Ill.App.3d 697, 41 Ill.Dec. 882, 408 N.E.2d 304. On remand, after reinstatement of the remaining two charges which were dismissed pursuant to the defendant's original plea agreement, the defendant waived a jury trial and after a bench trial held on November 23 and 24, 1981, the defendant was found guilty (and neither insane nor mentally ill) on all five charges. On February 4, 1982, the defendant was sentenced to 50 to 150 years for each of the five offenses, the sentence for attempted murder to be consecutive to those for the other four offenses, which were to be concurrent, and all five sentences to be "consecutive with any penalty that's been imposed in Boone County under 78-CF-37."

Three issues are presented in this appeal: (1) whether the defendant's inculpatory statements should have been suppressed; (2) whether the defendant's sentences should be vacated and the cause remanded for resentencing because the murder sentence imposed in Boone County was vacated by the Illinois Supreme Court; and (3) whether the defendant's conviction and sentence for armed violence must be vacated as being a lesser included offense of rape.

A detailed recitation of the facts is not necessary for an understanding of the issues. The offenses charged were committed against a woman seven months pregnant whom the defendant abducted from a laundromat. He drove her to a secluded area, raped her, and then attempted to kill her by running over her with his car. Due to the amount of the snow on the ground, and her position in front of the car, she was not crushed and managed to run to safety at a nearby residence. Neither she nor her unborn baby sustained any critical or permanent injury.

I. Suppression of statement.

The defendant claims his written statement was improperly admitted at trial because it was involuntary under the fifth and fourteenth amendments to the United States Constitution and under article I, section 10 of the Illinois Constitution. (U.S. Const., amends. V and XIV; Ill. Const.1970, art. I, § 10.) Further, he claims his statement was obtained in violation of his right to counsel under the sixth and fourteenth amendments to the United States Constitution, and under article I, section 8 of the Illinois Constitution. U.S. Const., amends. VI and XIV; Ill. Const.1970, art. I, § 8.

Initially, the State asserts the defendant has waived consideration of this issue because it was not specifically included in his post-trial motion as required by section 116-1 of the Code of Criminal Procedure of 1963. Ill.Rev.Stat.1981, ch. 38, par. 116-1.

The post-trial motion filed here indisputably was a "boiler-plate" motion; not only was it non-specific as to the errors alleged, but twice it referred to errors occurring in the context of a "jury" trial when it was a bench trial. It has been held that failure to pursue one of the devices for challenging a confession--either by preliminary hearing on a motion to suppress or by appropriate objection thereto at the trial--ordinarily precludes consideration of the matter on appeal. (People v. Taylor (1965), 33 Ill.2d 417, 421, 211 N.E.2d 673; People v. Calderon (1981), 101 Ill.App.3d 469, 477, 57 Ill.Dec. 21, 428 N.E.2d 571.) Further, notwithstanding the general requirement that issues not raised in the defendant's post-trial motion cannot be urged as a ground for reversal on appeal (People v. Pickett (1973) 54 Ill.2d 280, 296 N.E.2d 856), the issue nevertheless may be preserved if the defendant objected at trial (People v. Moody (1979), 75 Ill.App.3d 674, 31 Ill.Dec. 441, 394 N.E.2d 643), or, in general, if the issue has been brought to the trial court's attention, the trial court has ruled on it, and the defendant would be prejudiced if the error is established as well-founded. People v. Washington (1980), 85 Ill.App.3d 522, 40 Ill.Dec. 954, 407 N.E.2d 185.

The defendant here did challenge the admissibility of the statement in his pretrial motion to suppress. The court denied the motion, and admitted the defendant's written statement during the trial over the defendant's timely objection thereto. Consequently, the court had two opportunities to rule on the matter, and was thereby substantially afforded the opportunity to prevent the potential error before trial and to reconsider the alleged error at trial. Thus, the essential purpose which a post-trial motion serves was met. See People v. Jackson (1981), 84 Ill.2d 350, 359, 49 Ill.Dec. 719, 418 N.E.2d 739.

As a second argument for precluding review of this issue, the State argues the Illinois Supreme Court's decision in People v. Brownell (1980), 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181, should serve to support a rejection of the claim made here. In that appeal, the defendant also raised the issue of the admissibility of his confession. However, that case was concerned only with the defendant's confession of the murder of Louise Betts in Boone County. The defendant's statement regarding the victim of the offenses here was the last of a total of three statements which were given by the defendant to the police during the same time frame. As far as can be determined from reading the court's decision in that case, the defendant challenged the admissibility of his statement on the same grounds he now asserts. The State points out no "constitutionally significant" facts occurred between the time the defendant gave his statement in that case and the time he made the instant statement which would merit any further review of the issue.

The defendant, however, does not concede that the decision in People v. Brownell (1980), 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181, is dispositive here. He points out that decision omits any discussion of several aspects of the case which are part of the record here. The first aspect he points to was a remark by prosecutor Gemignani that the defendant's attorneys, Messrs. Gaziano and Pumilia, could "cool their heels awhile" when he was informed they wished to see the defendant. Further, after that time, when the defendant was brought downstairs, he was informed his wife and his attorney were there. When the defendant hesitated as to whom to see first, defense counsel began yelling at the defendant through a glass partition in the attorneys' conference room that the defendant should talk to him first, and the defendant did talk with him first.

Another aspect the defendant contends was not discussed in that prior opinion is the "new evidence" that the defendant's clergyman, Father Denson, had been asked by the police officer who let the priest in to see the defendant, to ask the defendant "whether or not he will talk to us [the police]."

Insofar as the first aspect raised by the defendant is concerned, the record of the first suppression hearing in this case shows the circumstance of a heated argument occurring between the defendant's attorneys and the prosecutor, which prompted the "cool their heels" remark. A stipulation between defense attorney Pumilia and the prosecutor, Gemignani, was related to the court during the first suppression hearing. Fairly construed, the stipulation indicated the prosecutor had no intention of depriving the defendant of his right to see counsel. Pumilia stipulated that Gemignani had no knowledge of the coincidence of events (i.e., Pumilia and Gaziano's request to see the defendant, and the presence of the defendant's wife in the visitors' room), and that there was no attempt on Gemignani's part to have the defendant see his wife before his attorney. Just prior to the stipulation, the record shows there was a denial by detective Arbisi on redirect examination that he stated to the defendant "either [you can see] your wife or your lawyer." (Emphasis added.) Consequently, it does not appear that incident, even if it had been raised in the prior appeal of the Betts murder, would have had any effect on the court's decision as to the voluntariness of the defendant's statement there. The defendant here is bound by his attorneys' stipulation during the first suppression hearing that those actions of the prosecutor did not amount to an attempt to keep the defendant from consulting with his attorney and he will not be allowed to argue those circumstances now in support of his appeal.

Neither p...