People v. Gholston

• Citation: 464 N.E.2d 1179,124 Ill.App.3d 873,80 Ill.Dec. 196
• Decision Date: 05 June 1984
• Docket Number: 82-287 and 82-3144,82-278,Nos. 82-248,82-249,s. 82-248
• Parties: , 80 Ill.Dec. 196 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth GHOLSTON, Danny Gholston, Anthony Gholston, Dennis King and David Love, Defendants-Appellants, and Jerry Cummings, Joseph Thurmond, Darrell King and Anthony Hart, Defendants.
• Court: United States Appellate Court of Illinois

Page 1179

464 N.E.2d 1179

124 Ill.App.3d 873, 80 Ill.Dec. 196

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth GHOLSTON, Danny Gholston, Anthony Gholston, Dennis King and David Love, Defendants-Appellants and Jerry Cummings, Joseph Thurmond, Darrell King and Anthony Hart, Defendants.

Nos. 82-248, 82-249, 82-278, 82-287 and 82-3144.

Appellate Court of Illinois First District, Second Division.

June 5, 1984.

[80 Ill.Dec. 200] James J. Doherty, Public Defender of Cook County, Judith A. Stewart, Asst. Public Defender, and T. Lee Boyd, Jr., Boyd & Boyd, Chicago, for defendants-appellants

Richard M. Daley, State's Atty., of Cook County, Michael E. Shabat, Kevin Sweeney, David A. Cuomo, Asst. State's Attys., Chicago, for plaintiff-appellee.

DOWNING, Justice:

A grand jury charged nine defendants with rape (Ill.Rev.Stat.1979, ch. 38, par. 11-1), deviate sexual assault (Ill.Rev.Stat.1979, ch. 38, par. 11-3), two counts of indecent liberties with a child (Ill.Rev.Stat.1979, ch. 38, pars. 11-4(a)(1), (2)), two counts of robbery (Ill.Rev.Stat.1979, ch. 38, par. 18-1), five counts of aggravated battery (Ill.Rev.Stat.1979, ch. 38, pars. 12-4(a), (b)(9)), and two counts of conspiracy to commit robbery (Ill.Rev.Stat.1979, ch. 38, par. 8-2).

The following defendants appeal from their convictions and indicated sentences: Kenneth Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was an aggregate term of 258-years imprisonment. David Love, after a bench trial, was found guilty as charged and sentenced to an aggregate term of imprisonment, the exact length of which is not clear from the record. Danny Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was a concurrent term of 50-years imprisonment. Dennis King, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 30-years imprisonment. Anthony Gholston, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 25-years imprisonment.

Six grounds for reversal are presented for our review: (1) that the trial court improperly denied defendants King, Love and Danny Gholston's motions to quash their arrests; (2) that the trial court improperly denied defendant Anthony Gholston's motion to suppress inculpatory oral and written statements; (3) that it was On December 27, 1980, at approximately 11:40 p.m., complainants Richard Fink ("Fink"), Matthew Kennedy ("Kennedy") and a 15-year-old girl ("victim") were traveling in the city of Chicago on the northbound "el" after having boarded the train at the Fullerton Avenue station. Although their destination was Evanston, the three youths got off the train at the Thorndale station because Kennedy was feeling ill. After a short while, the three moved to the north end of the "el" platform where they waited for the next train. While the youths listened to music playing on Kennedy's radio, they were approached by a group of four or five males. Following several minutes of conversation, one of the males, later identified as defendant Joseph Thurmond, became very angry, grabbed the radio which was being held by Fink, and threw it down onto the tracks. Upon retrieving the radio, Kennedy was grabbed by one of the males and pinned against a sign on the platform. As Kennedy proceeded to fight with one of his assailants, later identified as defendant Danny Gholston, Kennedy's coat was pulled over his head, his gloves were taken and his wallet, containing $25, was removed from his rear pocket. Kennedy was then ordered to "drop [his] pants and shut up."

[80 Ill.Dec. 201] constitutionally impermissible for the trial court to order two jury trials and four bench trials to be conducted in a single proceeding; (4) that certain evidentiary rulings made by the trial court resulted in prejudicial error; (5) that defendant Love was not proved guilty beyond a reasonable doubt; and (6) that the trial court abused its discretion in determining defendants' sentences.

At approximately that same time, Fink was surrounded by three males, two of which were later identified as defendants Jerry Cummings and Anthony Gholston. Fink was thereupon held while he was beaten on the head and face, and kicked in the legs. Four or five dollars and some bracelets were taken from his person. Kennedy was also beaten on the head and face at this time; however, he and Fink managed to eventually break free and run down the stairs of the "el" platform where they telephoned the police.

At some point during the altercation, another group of three or four males ran toward the victim, surrounded her and began to feel her breasts through her winter jacket. Two of these assailants were later identified as defendants Kenneth Gholston and Dennis King. While crying and trying in futility to keep her tights and underwear from being pulled off, the victim was eventually pushed down onto the platform.

Defendant Kenneth Gholston was the first to rape the 15-year-old girl while other males stood around them yelling "Let me get in there, let me have some * * * "; "spread them wider * * * if you're not good we'll kill you." As several of the males fondled the victim's breasts through the jacket which they were unable to pull off of her, Kenneth Gholston told them that she was "good" and that they should take her home and put her "on the stroll." At some point thereafter, Kenneth Gholston lifted the victim up by her hips and attempted anal intercourse. He then stood up and allowed one of his companions, later identified as defendant Darrell King, to rape the girl.

While Darrell ¹ King was having intercourse with the victim, he put his hand around her throat, choked her and told her to shut up. At this point, defendant Anthony Gholston crouched down near the victim's face and forcibly inserted his penis into her mouth. As the young girl cried, the other assailants continued to yell "Let me get in." When Darrell King and Anthony Gholston were finished sexually gratifying themselves, defendant Dennis King proceeded to get on top of the victim and choke her as he inserted his penis into her vagina.

While Dennis King raped the victim, defendant Danny Gholston crouched down near her face and forcibly inserted his penis into her mouth. Soon thereafter, Danny Gholston yelled at Dennis King to "Let me get in there"; King then stood up to allow Danny Gholston to get into a position to rape the victim. The next thing the victim remembered was that David Love exchanged places with Danny Gholston and stated that "he was going to get his."

As a southbound train approached the Thorndale station, the victim was picked up and thrown down onto the tracks. Defendant Love then jumped off the platform, pulled the girl into the snow nearby and raped her. When Love was finished, the victim begged him not to kill or hurt her; however, before he stood up, Love hit the girl in the face very hard. Thereafter, the victim heard nothing but the sound of a train departing from the Thorndale station.

It was at this point that the victim observed a lot of blood and mucus around her vaginal area. She then began to crawl back toward the tracks. Reaching the platform, she proceeded along in the snow to a point where she could push herself up onto the surface of the platform. A gentleman standing nearby saw her, removed his jacket and put it around her shoulders. After a northbound train pulled into the station, the victim explained to the engineer what had happened. An order was then immediately dispatched from the train to stop the last southbound "el" that had left the Thorndale station. Soon thereafter, Fink met the victim on the platform, told her that everything was going to be okay, and carried her downstairs. After Kennedy, Fink and the victim provided the police with a description of the offenders, they were taken to a hospital for treatment. ²

Officer Gene Harris, assigned to the 19th District Tactical Unit of the Chicago police department, received an emergency dispatch on the night in question at approximately 12:25 a.m. He and his partner proceeded to the Belmont and Sheffield "el" station to intercept the southbound train on which defendants were riding. At the train station, the two police officers boarded the first car of the two-car southbound "el" when it arrived; three other Chicago police officers boarded the second car. Officer Harris then began to search for persons matching the description of the rapists. He observed six of the nine defendants seated across from each other, conversing in the rear of the first car. After obtaining their addresses and ordering them off of the train, Officer Harris placed Dennis King, Darrell King, Danny Gholston, David Love, Anthony Hart and Joseph Thurmond under arrest.

On the morning of December 28, 1980, the six defendants arrested at the Belmont station were identified in a lineup. The victim recognized Dennis King, Danny Gholston, David Love and Darrell King; Kennedy recognized Danny Gholston and Joseph Thurmond; Fink recognized Anthony Hart and Joseph Thurmond. Anthony Gholston and Jerry Cummings were arrested later that day. Kenneth Gholston was arrested on January 18, 1981. Following interviews conducted by Irving Miller, an assistant State's Attorney assigned to the Area 6 Felony Review Unit, incriminatory statements were obtained from Kenneth Gholston, David Love, Danny Gholston, Jerry Cummings, Anthony Gholston and Dennis King. Thereupon, each of the nine defendants were charged by indictment with rape, deviate sexual assault, indecent liberties with a child,...