People v. Genus

• Decision Date: 03 August 1979
• Docket Number: No. 78-624,78-624
• Parties: , 30 Ill.Dec. 815 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerome GENUS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1162

393 N.E.2d 1162

74 Ill.App.3d 1002, 30 Ill.Dec. 815

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerome GENUS, Defendant-Appellant.

No. 78-624.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 3, 1979.

[30 Ill.Dec. 816] James J. Doherty, Chicago, for defendant-appellant; James L. Rhodes, Chicago, of counsel

Bernard Carey, Chicago, for plaintiff-appellee; Marcia B. Orr, Joan S. Cherry and Pamela E. Loza, Chicago, of counsel.

SULLIVAN, Presiding Justice:

After a bench trial, defendant was found guilty of rape and robbery and sentenced to four to six years imprisonment. On appeal, he presents the following issues: (1) whether the burden of proof was improperly placed upon him at the suppression hearing; (2) whether he was proved guilty of rape beyond a reasonable doubt; and (3) whether his out-of-court statements should have been suppressed because (a) he was not It appears that on the evening of September 22, complainant left work at Evanston Hospital where she was employed as a practical nurse and arrived at her high-rise apartment building shortly after midnight. She and a neighbor entered one of the building's two elevators and rode to the seventh floor, where the neighbor disembarked. Complainant continued upward in the elevator until it suddenly stopped at the thirteenth floor. As she was attempting unsuccessfully to open the elevator door, a voice coming from the top of the car instructed her to stand still and remain quiet or "they would blow my (obscenity) brains out."

[30 Ill.Dec. 817] adequately informed of his right against self-incrimination which precluded a knowing and intelligent waiver thereof, (b) his written statement was tainted by the unlawful procurement of an earlier statement, and (c) his statements were the poisonous fruit of an illegal arrest.

As ordered by the voice, she emptied the pockets of her uniform (a two-piece pantsuit), her jacket, and her purse (which included a driver's license, cigarette lighter, identification cards, and a ten dollar bill). She was then told to disrobe, to tie her blouse around her eyes, to unscrew the single light bulb which had illuminated the car, and to stand facing the corner of the elevator. After she had complied with these instructions, the door opened and a young male entered the car. He told her to lie on the floor and then inserted his penis into her vagina and had intercourse with her for approximately three minutes. A second male then entered the car and had intercourse with her for about four minutes. After whistling was heard emanating from the hallway, both males left the car as if they were responding to a signal. She then heard a voice shout, "Lady. I will help. Are you going to call the police?" When she replied that she would not do so, the voice stated that if she pulled a panel back she would find a button which would open the elevator door. After opening the door, she dressed and retrieved the contents of her purse, but the lighter and ten dollar bill were missing. Thereafter, she ascended to her fifteenth floor apartment, where she told her daughter that she had been raped and the police were then called.

On the evening of September 23, Officer Carl Reid and his partner were cruising in the neighborhood wherein complainant resided, looking for leads concerning a series of rapes occurring over a period of several months. In the driveway of a fast food restaurant they encountered two young men who identified themselves as Robert McCoy and Rodney Rhone. The two men accepted an offer to be driven home and, as the police car stopped near their residence, they observed two other men approaching. The officers alighted the vehicle and engaged these men in conversation. When the officers returned, Robert said that "(W)e didn't commit any rapes." Reid then inquired as to what prompted this announcement, in light of the fact that the officers had not mentioned the term "rape" during their prior conversation. Robert responded, "Well, we know about the rapes, everybody over here knows about the rapes." When asked what, if anything, he knew, Robert at first encouraged Rodney to speak to the officers but then admitted that his brother, Michael McCoy, was one of the participants. Robert and Rodney were then taken to the station house and, upon further questioning, they implicated Reggie Smith and defendant.

Reid and his partner, who were in plain clothes, proceeded to the apartment building located across the street from that of complainant where Michael McCoy, Reggie Smith and defendant resided. The officers first visited the Smith apartment where they knocked and, when a woman's voice from within inquired as to their identity, they announced their office. The woman then telephoned the Chicago Police Department for verification and, shortly thereafter, two uniformed officers arrived. Upon seeing them, Mrs. Smith opened the door and admitted all four officers. Reid informed her that they were there to take her son to the station for further investigation. Reggie then went with the officers to the McCoy apartment, where much the Prior to trial, defendant moved to suppress statements made to police after his arrest. In three separate motions, he alleged that his arrest was illegal and that he did not voluntarily or intelligently waive his right against self-incrimination. After an argument between defense counsel and the prosecutor concerning the proper titling of a motion which seeks to suppress evidence on grounds that such was the fruit of an unlawful arrest, the following colloquy occurred:

[30 Ill.Dec. 818] same procedure was employed as to Michael. The group then went to defendant's apartment where Reid knocked on the door, announced his office, and was admitted by defendant's mother. Reid told her he had received information from other participants that her son had committed several rapes. Defendant was then arrested and, while being transported to the station, Officer Reid informed him of his right against self-incrimination by a recitation of the Miranda warnings. After each aspect of such warnings was given, defendant stated that he understood.

"PROSECUTOR: 'I have had a conversation with counsel. I understand the basis is what the defense alleges was an illegal arrest, that there is no outright allegation of police brutality but rather the totality of circumstances originating with the illegal arrest. They don't claim the Miranda was not given.'

DEFENSE COUNSEL: 'That's right.'

PROSECUTOR: 'I have advised counsel available to testify are four officers, and he has indicated that those certainly from his view should be adequate to cover all bases to apprise this Court of the nature of the arrest. Is that correct?'

DEFENSE COUNSEL: 'Right.'

THE COURT: 'And the motion to quash (the arrest)?'

PROSECUTOR: 'Would counsel be kind enough to give us copies of those during the lunch hour?'

DEFENSE COUNSEL: 'Sure. May we proceed?'

THE COURT: 'Yes.'

DEFENSE COUNSEL: 'The first witness we would call to the stand is Mrs. Mary Griffin (defendant's mother).' "

Mrs. Griffin testified that as she was in bed on the evening of September 23, two of her son's football teammates knocked on her front door and asked her son to come out. She heard her daughter tell Reggie Smith and Michael McCoy that her brother was asleep and would not come out. After they continued to knock for about 45 minutes, she opened the door to speak to the boys and about ten Chicago Police officers burst into the apartment with guns drawn. They announced that they were there to take defendant in for questioning about rapes and robberies occurring in the elevators of the building across the street. They waited for defendant to change from his pajamas into street clothes before escorting him from the apartment, and they refused to allow her to accompany defendant in the police car.

The defense then called Officer John Ferguson, who testified that when he first saw defendant in an interrogation room at approximately 3 p. m. on September 24, he introduced himself and gave defendant the Miranda warnings. Defendant said he understood them and was willing to discuss the matter. Officer Ferguson then gave defendant a pencil and paper so that he could, if he chose to do so, record any details he wished to remember. Defendant was then left alone for a period of time, during which he wrote certain details of the rapes and robberies on the paper given him. Later, a written statement was taken wherein Ferguson's questions and defendant's answers were typed by Officer Moore. After reading its contents, defendant signed the statement in which, among other things, he stated that he had been treated well by the police and had been given access to food, drink and toilet facilities.

After the defense rested, the State called only Officer Reid, who testified to the circumstances leading up to and surrounding defendant's arrest as set forth above.

In support of his motions, defense counsel, contending that the police should have At trial, complainant testified as set out above and, in addition, stated that she did not consent to either act of intercourse and that she was unable to identify defendant as one of her assailants. The State then called Officer Ferguson, who after testifying to certain foundational matters, read defendant's pretrial statement which in substance was as follows: That on September 22 between 10 p. m. and midnight Rodney Rhone, Robert McCoy and he were riding on the top of the elevators in the building across the street from where they lived; that each elevator was controlled by two switches on the top of the car one of which stops the elevator and the other opens and closes the door; that shortly after midnight a woman wearing a white nurse's uniform and carrying a purse and jacket entered the elevator; that Robert stopped the car on the thirteenth floor and asked her whether she had any money; that when she denied having...