People v. Carroll

• Citation: 631 N.E.2d 1155,260 Ill.App.3d 319,197 Ill.Dec. 696
• Decision Date: 15 December 1992
• Docket Number: Nos. 1-89-2866,1-90-0422,1-90-1191 and 1-90-1525,s. 1-89-2866
• Parties: , 197 Ill.Dec. 696 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester CARROLL, Alan Papendik, Richard Ausmus, and Brian Papendik, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1155

631 N.E.2d 1155

260 Ill.App.3d 319, 197 Ill.Dec. 696

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester CARROLL, Alan Papendik, Richard Ausmus, and Brian

Papendik, Defendants-Appellants.

Nos. 1-89-2866, 1-90-0422,

1-90-1191 and 1-90-1525.

Appellate Court of Illinois,

First District, Second Division.

Dec. 15, 1992.

Rehearing Denied Jan. 27, 1993.

Michael J. Pelletier, Deputy Defender of the State of Illinois, Chicago (Kenneth L. Jones, of counsel), for defendants-appellants Lester Carroll, Alan Papendik, Brian Papendik.

Genson, Steinback & Gillespie, Chicago (Marc W. Martin, of counsel), for defendant-appellant Richard Ausmus.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Theodore Fotios Burtzos, Brian Clauss, Susan Schierl, of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendants, Lester Carroll (Carroll), Alan Papendik (Alan), Brian Papendik (Brian), and Richard Ausmus (Ausmus), were given separate jury trials and found guilty of attempt (murder), aggravated criminal sexual assault, aggravated battery, and aggravated kidnapping. Carroll, Alan and Ausmus were each given sentences of 40 years on the attempt (murder) conviction and 35 years on the aggravated criminal sexual assault conviction. Brian was sentenced to 20 years for attempt (murder) and 20 years for aggravated criminal sexual assault. All terms were to be served consecutively. The defendants appeal their convictions and their sentences.

On May 2, 1987, defendants were arrested and charged with the above-noted offenses which were committed in the early morning hours of April 15, 1987. The victim, S.S., a 16-year-old girl who was five months pregnant at the time, testified to the following events. On April 14, 1987, she had gone to her aunt's home on 35th Street and Western Avenue in Chicago. Her boyfriend had planned to pick her up at midnight, but when he later called to inform her that he would be late, she agreed to wait until she heard him sound his car horn.

At approximately 1 or 1:30 a.m., S.S. heard a car horn, but when she went outside, no one was there. Because she was locked out of the house, she went to a pay phone about a block away to call her aunt. On her way back to the house, defendants, who were in a car, began to harass her. Alan then got out of the car and forced her at gun point into the front seat. Carroll was driving the car, Brian was in the front passenger seat, and Alan and Ausmus were in the back seat. As they were riding in the car, the four men were drinking beer, all the while hitting S.S. and calling her names.

After driving for a long time, they exited the highway, stopped the car, and two or three of the men got out. Shortly thereafter the men returned to the car and they continued onward. Carroll eventually pulled the car off the highway and stopped near a grassy field, which was later established to be near Joliet, in Will County. Alan, Brian and Ausmus then alighted from the car. S.S. attempted to escape, but Carroll grabbed her by the arm, pulled her back into the car, and told her that they were going to rape and kill her. At that point, Alan, Brian and Ausmus returned to the car. Carroll, Alan, and Ausmus then took S.S. into the field, where they beat her severely, and each of them took turns sexually assaulting her; more specifically, all three of the men forced S.S. to have vaginal, oral and anal intercourse with them. Additionally, Carroll tried to insert a bottle into S.S.'s vagina and rectum. Brian served as a lookout while the other three defendants sexually assaulted S.S., and he never had sexual contact with her.

After Alan, Ausmus and Carroll had sexually assaulted S.S., they returned to the car, where Brian told them to kill her because he did not want to become involved with the police. Carroll, Alan and Ausmus then returned to where S.S. was lying, and Carroll told her that they were going to kill her because they did not want to get involved with police. ¹ Carroll then choked S.S., Alan punched her repeatedly in the stomach, and Ausmus tried to suffocate her by stuffing her pants down her throat. Alan also told S.S. that he was going to kill her baby while he was squeezing and punching her stomach. The defendants then left S.S. for dead.

When S.S. regained consciousness later that morning, it was already daylight. She crawled to the highway to signal a passing car and was able to attract the attention of a motorist who called an ambulance which took her to Saint Joseph's hospital in Joliet. She was admitted to the hospital where she stayed for two weeks and was treated for a fractured skull, a concussion, a broken jaw, a torn labia and a bleeding spleen.

Chicago police detective John Smith testified to the following events. On May 1, 1987, at approximately 2 p.m., Detective Smith and his partner, Detective Rusnak met Debbie Ausmus (Debbie), Richard Ausmus's stepmother, in an alley at 37th and Wood Streets. She told them that she had information that two weeks before, her stepson Richard, Brian and Alan Papendik, and another male by the name of Lester, had abducted a white female from the area of 35th and Western, drove her to an area around Joliet, sexually assaulted and beat her, and then left her for dead. She described Lester as a white male in his twenties, and said that the automobile they used was a "blue beater" that belonged to Lester's sister, Kim. Debbie then showed the detectives the location of Alan Papendik's apartment.

Upon returning to the police station, Detective Smith called the Will County sheriff's office and was informed that they had investigated an incident that had occurred approximately two weeks prior in which the victim was abducted from 35th Street and Western Avenue in Chicago and was taken to a field near Joliet where she was sexually assaulted and beaten. After obtaining copies of the police report relating to this incident, which substantiated the information received from Debbie, Detective Smith obtained police photographs of the four assailants. On May 2, 1987, he contacted S.S. at her home and asked her to identify the men from an array of photographs. She was able to identify Alan, Brian and Carroll, but not Ausmus. ² Detective Smith, along with Detectives Foley and Meier, then went to Alan's residence and arrested him. Alan, after being Mirandized, later directed the detectives to his brother Brian, and Alan told them that they could find Carroll there as well. When the detectives arrived at the indicated location, they noticed that parked out front was an automobile matching S.S.'s and Debbie's description of the vehicle with which S.S. was abducted. After knocking on the door of the apartment, a white female opened the door and identified herself as Kim Carroll ("Kim"), the owner of the apartment as well as the blue vehicle. With Kim's consent, the detectives entered the apartment and arrested Brian and Carroll. The detectives then went to 3528 South Hamilton and arrested Ausmus. At 6 p.m. on May 2, 1987, S.S. identified all four defendants in a lineup.

Shortly after their arrest, and after having been Mirandized, defendants spoke separately to Detective Smith and made inculpatory statements regarding their involvement in the criminal activity. Defendants then were interviewed by Assistant State's Attorney Beth Herndobler, and each confessed to his participation in the crimes. More specifically, Carroll admitted to driving S.S. and the other defendants to the field and raping and beating her; he also admitted that he told S.S. that defendants had to kill her so she could not identify them. Alan admitted to being in the car with his three companions, sexually assaulting the victim and watching her being beaten by Ausmus and Carroll. Brian admitted that he forced S.S. into the car between himself and Carroll, that he rode to the field with the other three men who later sexually assaulted her, and that he saw Alan stuffing the victim's pants in her mouth while Carroll was choking her. Finally, Ausmus confessed to having been in the car with his three friends, but that Alan and Carroll sexually assaulted S.S. while he had his back to them. He stated that he may have sexually assaulted the victim as well, but that he was too intoxicated to remember; he also stated that Alan and Carroll were the ones who beat her.

Defendants were charged with more than one hundred offenses, but by the time of trial, only ten charges remained, all of which were alleged to have occurred in Cook County on April 15, 1987; and, as previously noted, each defendant was found guilty by separate juries of attempt (murder), aggravated criminal sexual assault, aggravated battery and aggravated kidnapping. At the hearings on aggravation, mitigation and sentencing, the trial court found that the aggravated battery and aggravated kidnapping charges merged into the other offenses, and sentenced Carroll, Alan and Ausmus to 40 years, and Brian to 20 years, for attempt (murder); Carroll, Alan and Ausmus were sentenced to extended terms of 35 years, and Brian to 20 years, for the aggravated criminal sexual assault, all sentences to run consecutively.

I.

In their first assignment of error, defendants assert that the State failed to prove the element of venue beyond a reasonable doubt for each of the offenses of which they were convicted.

Our supreme court has invariably held that venue is a material allegation which the State must prove beyond a reasonable doubt along with the other elements of an offense. (People v. Hagan (1991), 145 Ill.2d 287, 300, 164 Ill.Dec. 578, 584, 583 N.E.2d 494, 500; People v. Allen (1952), 413 Ill. 69, 76, 107 N.E.2d 826, 829; People v. Pride (1959) 16 Ill.2d 82, 86, 156 N.E.2d 551, 553; People v. Church (1937), 366 Ill. 149, 158, 7 N.E.2d 894, 898; People v. Gregor (1935), 359 Ill. 402, 194 N.E. 550; People v. Kubulis (1921), 298 Ill. 523, 528, 131 N.E. 595, 597; ...