People v. Paino, 84-0867

• Decision Date: 11 October 1985
• Docket Number: No. 84-0867,84-0867
• Citation: 137 Ill.App.3d 645,92 Ill.Dec. 251,484 N.E.2d 1106
• Parties: , 92 Ill.Dec. 251 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ollie PAINO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1106

484 N.E.2d 1106

137 Ill.App.3d 645, 92 Ill.Dec. 251

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ollie PAINO, Defendant-Appellant.

No. 84-0867.

Appellate Court of Illinois,

First District, Fifth Division.

Oct. 11, 1985.

James J. Doherty, Public Defender of Cook County, Chicago (Alison J. Norwood, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat, James S. Veldman, Christopher J. Cummins, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

LORENZ, Justice:

Following a jury trial, defendant, Ollie Paino, was convicted of rape, armed robbery and deviate sexual assault. (Ill.Rev.Stat.1983, ch. 38, pars. 11-1, 18-2 and 11-3.) He was sentenced to a 30-year term for rape to be served consecutive to concurrent 25-year terms for armed robbery and deviate sexual assault. Defendant contends on appeal that the trial court erred in failing to suppress his lineup identification because it was obtained in violation of his right to counsel, that he was prejudiced by the introduction of certain hearsay evidence and that his sentences were excessive.

Complainant testified that at 11:00 p.m. on June 10, 1982, she was entering her apartment on North Sheridan Road in Chicago when a man, subsequently identified as Floyd Mulkey, put a gun to her head and forced her into a car driven by defendant. The men drove north on Lake Shore Drive for some time, then parked under an overpass and raped complainant. After stopping at a gas station for directions, they drove to the south side of the city. During this time, Mulkey and defendant rummaged through complainant's briefcase and purse and removed $10.

Upon reaching the south side, defendant let Mulkey out of the car for the purpose of buying beer. He then drove complainant to an area under the elevated tracks, turned on the interior car light, and forced her to submit to acts of oral and anal intercourse. When Mulkey returned to the car, complainant persuaded the men to release her in exchange for her bankcard and access code number. She then entered a cab and told the driver to take her to the police. Complainant stated that the ordeal lasted approximately three hours.

Officer Carol Lewandowski testified that when she encountered complainant at 2:00 a.m. on June 11, 1982, complainant was very upset and stated that she had been raped. After providing the officers with a description of the offenders, she was taken to a hospital for treatment.

Forest Mayfield testified that he was driving on Sheridan Road on the evening in question and observed a man abduct complainant at gunpoint. He followed the car for several blocks ascertained the license plate number and pulled into a nearby condominium building where his wife called the police. Mayfield then continued to drive around the area in search of the car. When he saw a squad car he flagged it down and gave the police the license plate number and description of the car.

Detective Patricia Riegler testified that she listened to a tape of a "911" telephone call in which defendant's brother, Joe Paino, informed police that defendant had stolen the car used in the offense. Based upon this information, Riegler obtained photographs of possible suspects and displayed them to complainant, who tentatively identified defendant and a man named Kevin Irby. However, in a June 12, 1982, lineup which included Kevin Irby but not defendant, complainant failed to identify anyone. Four days later, complainant viewed a lineup which included defendant's brother, Joe Paino, and again failed to make an identification. On June 18, 1982, complainant viewed a third lineup which included defendant, and positively identified him as one of her attackers. She identified Floyd Mulkey in a separate lineup.

Prior to trial, defendant moved to suppress his lineup identification on the grounds that his right to counsel had been violated because he was indicted by the grand jury on the same day that he was identified in a lineup without benefit of counsel. It was established that the lineup took place at 10 a.m., but no evidence was presented as to the time the indictment was obtained. The trial court denied the motion.

At the sentencing hearing, defendant was sentenced to a 30-year term for rape to be served consecutive to his concurrent 25-year terms for armed robbery and deviate sexual assault. His accomplice, Floyd Mulkey, entered a negotiated plea of guilty to the offenses of rape, deviate sexual assault, aggravated kidnapping and armed robbery and received concurrent 18-year sentences. The circumstances surrounding the determination of defendant's sentences will be detailed later in connection with our discussion of that issue.

Defendant first contends that the trial court erred in failing to suppress the lineup identification because it was obtained in violation of his sixth amendment right to counsel. He argues that since the lineup was held on the same day he was indicted, his right to counsel had attached.

The right to counsel attaches at or after the initiation of the adversary judicial process. (Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.) However, the fact that a defendant was indicted on the same day as the lineup is not in itself sufficient to show that the right to counsel had attached at the time of the lineup. People v. Harrell (1982), 104 Ill.App.3d 138, 60 Ill.Dec. 264, 432 N.E.2d 1163.

In People v. Harrell, as in the case at bar, the State initiated adversarial judicial proceedings against the defendant on the same day that he was identified in a lineup. However, there was no indication in the record as to whether the lineup took place before or after the complaint was filed and the arrest warrant issued. Noting that the existence of error will not be presumed, the court stated that in the absence of evidence showing that the documents in question were obtained before the lineup was conducted, it would resolve the silence of the record against the defendant. Accordingly, the court held that the right to counsel had not attached at the time of the lineup.

We find the instant cause indistinguishable from the situation presented in People v. Harrell. Although the record established that the lineup was conducted at 10 a.m., there is no indication of when the grand jury indictment was obtained. Since defendant has failed to affirmatively show the existence of error, we must presume that his right to counsel had not attached at the time he was identified in the lineup.

Defendant next contends that he was irreparably prejudiced by the introduction of certain hearsay evidence, which was elicited by the State in violation of a pretrial ruling that such evidence could not be used at trial. The evidence in question was Detective Riegler's testimony that she learned from a "911" phone tape that defendant's brother, Joe Paino, had informed the police that defendant had stolen the vehicle used in the offense. Defendant argues that this evidence influenced the jury on the issue of whether he was properly identified as one of the offenders.

It is the duty of the reviewing court to consider the trial record as a whole in determining whether a new trial is warranted. (People v. Ammons (1983), 120 Ill.App.3d 855, 76 Ill.Dec. 377, 458 N.E.2d 1031.) A conviction will not be reversed because of alleged errors in the trial court unless it appears that the guilty finding was the result of such errors. (People v. Morehead (1970), 45 Ill.2d 326, 259 N.E.2d 8, cert. denied, 400 U.S. 945, 91 S.Ct. 251, 27 L.Ed.2d 251.) Generally, a trial court's prompt action in sustaining an objection and instructing the jury to disregard the improper testimony serves to cure any potential prejudice. People v. Seider (1981) 98 Ill.App.3d 175, 53 Ill.Dec. 413, 423 N.E.2d 1217.

Detective Riegler testified that she listened to a tape of a telephone call regarding an automobile theft which led her to obtain photographs of persons possibly involved in the instant offense. A defense objection was sustained at this point, and the trial court instructed the jury to disregard Riegler's statement. Subsequently, on cross-examination, defendant elicited further testimony from Riegler showing that the call was made by a man named Joe Paino, who indicated that the car driven by defendant on the night in question was a stolen vehicle. In our judgment, the trial court's action in sustaining defendant's objection and instructing the jury to disregard the statements served to cure any prejudice which may otherwise have resulted. Furthermore, we do not believe that the testimony in question influenced the outcome of the trial in light of the clear and convincing identification testimony of complainant, who observed defendant under conditions which would permit a positive and reliable identification to be made. We also note that defendant's assertion that the trial court precluded him from clarifying the objectionable testimony is not supported by the record.

Defendant next contends that the trial court erred in ordering that his 30-year sentence for rape run consecutive to his concurrent 25-year sentences for armed robbery and deviate sexual assault.

The relevant statute provides in pertinent part:

"(a) When multiple sentences of imprisonment are imposed on a defendant at the same time * * * the sentences shall run concurrently or consecutively as determined by the court. * * * The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class I felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently...