People v. Rassmussen

• Citation: 143 Ill.App.3d 11,97 Ill.Dec. 176,492 N.E.2d 612
• Decision Date: 25 April 1986
• Docket Number: No. 83-1856,83-1856
• Parties: , 97 Ill.Dec. 176 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald RASSMUSSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 612

492 N.E.2d 612

143 Ill.App.3d 11, 97 Ill.Dec. 176

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald RASSMUSSEN, Defendant-Appellant.

No. 83-1856.

Appellate Court of Illinois,

First District, Fifth Division.

April 25, 1986.

As Modified on Denial of Rehearing, June 13, 1986.

James J. Doherty, Public Defender of Cook County, (Karen S. Szpajer, Asst. Public Defender, of counsel), Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook (Joan S. Cherry, James S. Veldman, Christopher J. Cummings, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

Defendant Ronald Rassmussen was charged in a four count indictment with two counts of deviate sexual assault (Ill.Rev.Stat.1979, ch. 38, par. 11-3(a) ) and two counts of indecent liberties with a child (Ill.Rev.Stat.1979, ch. 38, par. 11-4(a)(2) ). After a bench trial, the circuit court of Cook County found defendant guilty of both counts of deviate sexual assault and merged the indecent liberties counts with the assault counts as lesser included offenses. At the sentencing hearing, after the State erroneously informed the court it had failed to make any findings on the indecent liberties charges, the court entered judgment on those counts as well and sentenced defendant to concurrent terms of eight years on the deviate sexual assault counts and six years on the indecent liberties counts. On appeal, defendant asserts 11 errors which require reversal of his conviction, remand of the case for a new trial or remand of the case for resentencing. For the reasons set forth below, we affirm in part and reverse in part, vacate sentence and remand for resentencing.

The record reveals that defendant's arrest resulted from evidence obtained by Chicago police officers while pursuing an investigation into child sexual exploitation. On April 7, 1982, Police Officer Brian Killacky located a 14-year-old runaway boy working in Chicago as a prostitute. He in turn led Officer Killacky to another runaway boy. Both youths lived with defendant in Lyons, Illinois. The second youth told the police he wanted to move back home to Chicago, but stated he needed to remove his personal belongings from defendant's apartment. Thereafter, he unlocked the door to defendant's apartment with a key, allowed the police to enter in order to help him, and they found defendant asleep in his bedroom. The officers awakened defendant, identified themselves and asked defendant to go to the living room so that they could speak with him. Other officers remained in the bedroom and, in the course of helping the youth gather his belongings, they discovered a number of photographs depicting nude children which defendant admitted to owning.

The police seized these photographs and later determined that one of the boys pictured in them was defendant's 14-year-old nephew Ron C. Ron C., after being questioned, identified 12-year-old Larry S., the complaining witness and victim, as the other boy pictured in one of the photographs with him. When questioned together, both boys stated to the police that defendant had engaged in sexual relations with them. At trial, however, Ron C. retracted his and Larry S.'s statement that defendant had engaged in sexual relations with them, whereas Larry S. specifically testified that defendant sexually assaulted him while Ron C. "held him down."

Prior to trial, defendant moved to quash his arrest and suppress the photographs. The court denied defendant's motion to quash, but granted the motion to suppress the photographs based on its determination that they were not in plain view when the officers discovered them and were seized without a search warrant and without defendant's consent. I.

On appeal, defendant contends for the first time that the testimony of Larry S. should have been suppressed. Defendant argues that the identity of Larry S. and his subsequent testimony were products of the illegal search of his apartment in violation of the Federal and Illinois constitutions prohibiting illegal searches and seizures (U.S. Const., amends. IV, XIV; Ill.Const.1970, art. I, sec. 6) and, thus, "the fruit of the poisonous tree" (Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455).

The State argues that defendant's failure to raise this issue at trial or in his post-trial motion for a new trial constitutes a waiver of the alleged error under section 116-1(c) of the Illinois Code of Criminal Procedure which provides that a motion for a new trial "shall specify the grounds therefore." (Ill.Rev.Stat.1985, ch. 38, par. 116-1(c).) Where waiver of an issue occurs, constitutional or otherwise, that issue cannot be urged as a ground for reversal on review. (People v. Precup (1978), 73 Ill.2d 7, 16, 21 Ill.Dec. 863, 382 N.E.2d 227.) In response, defendant contends that under the plain error rule (Ill.Rev.Stat.1985, ch. 110A, par. 615(a) ), a reviewing court may consider errors not properly preserved for appeal where their nature is such as to deprive an accused of his constitutional rights. People v. Willis (1976), 39 Ill.App.3d 905, 907, 351 N.E.2d 330.

Although the waiver rule "is not an ironclad rule" (People v. Dickerson (1979), 69 Ill.App.3d 825, 828, 25 Ill.Dec. 930, 387 N.E.2d 806), neither is the fruit of the poisonous tree doctrine applicable to all evidence discovered in an illegal search (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455). The doctrine does not apply to (1) evidence discovered from an independent source, (2) evidence sufficiently distant in causal connection from the controverted search and seizure so that any connection has become so attenuated as to dissipate any taint or (3) evidence which inevitably would have been found without an illegal search. Satisfaction of any of the foregoing removes the evidence in question from the purview of the doctrine. United States v. Twomey (7th Cir.1974), 508 F.2d 858, 865.

In the instant case, it is unnecessary to address the State's waiver contention because we have determined that Larry S.'s testimony was an acorn from a mighty oak rather than the fruit of the poisonous tree. Granting establishment of the primary illegality--the search of defendant's apartment--the evidence to which defendant objects was not obtained by exploitation of the illegality, but rather by means sufficiently distinguishable to be purged of the primary taint. (See Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455.) First, no nexus exists between the crime of which defendant was convicted and Larry S.'s identity and testimony. Both were not discovered as a result of the tainted photographs, but rather as a result of an independent source, i.e., defendant's nephew Ron C. told the police that he had brought 12-year-old Larry S. to defendant's apartment where the 52-year-old man sexually assaulted him. Secondly, at the time of the illegal search the police had no knowledge either of the victim's identity or the crimes against him. Accordingly, the police did not enter defendant's apartment to gather evidence on the deviate sexual assault and indecent liberties charges which were later filed against defendant--they entered defendant's apartment to help a runaway youth who was living with him to gather up his personal belongings. Sufficient distant causal connection from the controverted search and seizure, therefore, existed and any connection between the events was so attenuated as to dissipate any taint. See People v. Pettis (1973), 12 Ill.App.3d 123, 298 N.E.2d 372.

We further briefly note that the Illinois cases relied upon by defendant with respect to this issue are distinguishable from the present case. In People v. Albea (1954), 2 Ill.2d 317, 118 N.E.2d 277, and People v. Martin (1942), 382 Ill. 192, 46 N.E.2d 997, unlike the circumstances here, the testimony suppressed directly dealt with the police department's motivation for conducting the illegal search, each having been conducted to gather evidence of crimes for which the police had prior knowledge.

We also disagree with defendant that suppression of Larry S.'s testimony would serve the remedial objectives of the fourth amendment exclusionary rule--deterrence of future police misconduct. As mentioned above, discovery of Larry S.'s identity and his subsequent testimony were not the fruit of the illegal search. In addition, the record discloses that Larry S. voluntarily went to the police station when requested to appear and he willingly testified at trial. Suppression of his testimony therefore would result in penalizing him, the government and the community, and would do nothing to advance the objectives of the exclusionary rule. See United States v. Ceccolini (1978), 435 U.S. 268, 275, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 275.

Accordingly, we hold that the trial court properly admitted the testimony of Larry S.

II.

Defendant next argues that the failure of his trial counsel to move to suppress Larry S.'s testimony was tantamount to ineffective assistance of counsel requiring a new trial. We disagree. In Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2063, 2068, 80 L.Ed.2d 674, 693, 698, the supreme court established a two-prong test to adjudicate sixth amendment ineffective assistance of counsel claims. That test is whether or not (1) a defendant's counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A defendant must also overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 466 U.S. 668, 689, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674, 694-95.

Applying the above test to the instant case,...