People v. Rehbein

• Decision Date: 13 October 1977
• Docket Number: No. 76-985,76-985
• Citation: 369 N.E.2d 190,54 Ill.App.3d 93
• Court: United States Appellate Court of Illinois
• Parties: , 11 Ill.Dec. 736 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George REHBEIN, Defendant-Appellant.

Page 190

369 N.E.2d 190

54 Ill.App.3d 93, 11 Ill.Dec. 736

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George REHBEIN, Defendant-Appellant.

No. 76-985.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 13, 1977.

James Geis, Deputy State Appellate Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, for plaintiff-appellee; Laurence J. Bolon, Timothy D. Quinn and Mary C. Shropshire, Chicago, of counsel.

LINN, Justice.

Defendant, George Rehbein, was charged with deviate sexual assault and aggravated kidnapping. (Ill.Rev.Stat.1975, ch. 38, pars. 11-3, 10-2.) Following a jury trial, in the circuit court of Cook County, defendant was convicted of deviate sexual assault and acquitted of aggravated kidnapping but convicted of the lesser included offense of unlawful restraint. (Ill.Rev.Stat.1975, ch. 38, par. 10-3.) He was sentenced to concurrent terms of 4 to 10 years for deviate sexual assault and 1 to 3 years for unlawful restraint. On appeal, defendant contends: (1) the prosecutor's cross-examination of him to show that after receiving Miranda warnings, he had not told the investigating officer that the victim waved at him first, violated his constitutional right to remain silent and denied him a fair trial; (2) the prosecutor improperly argued facts not in evidence, referring to defendant as a sex maniac, speculating he would have committed other crimes and urging the jury to return guilty verdicts in order to combat the crime wave; and (3) the conviction and sentence for unlawful restraint must be reversed because it arose from the same conduct as the deviate sexual assault charge.

We affirm the trial court.

The victim, a 21 year old single woman testified that on August 2, 1975, a rainy Saturday morning, she was standing in a doorway at Ashland Avenue and Altgeld at 8:15 a. m., waiting for a bus to take her to work at a hardware store several miles away. A car pulled up and a man she mistook for her upstairs neighbor, "Merle," offered her a ride by pointing with his thumb. She ran to the car and got in. She then recognized that the man, whom she identified in court as defendant, was not her neighbor; and she told him she did not need a ride and could take a bus. At this time the car was moving south on Ashland Avenue. Defendant asked how far she was going on Ashland and she replied she was going to Armitage, 5 blocks south. After 3 blocks, however, defendant turned left on Webster. She told defendant this street was not Armitage, and defendant said he would turn around. He stopped under a viaduct, grabbed her arm and told her he would stab her and beat her if she did not listen to him. He then performed an act of cunnilingus on her. The victim told defendant she lived alone, and, if he took her home, he could do whatever he wanted. He agreed. However, when defendant stopped for a red light at Ashland and Webster, she jumped from the car and screamed. Defendant threw her pocketbook out of the car. She walked behind defendant's car and copied down the license plate number as AC 9513. Defendant drove away and she then went into an auto shop across the street where she was informed that the police had already been summoned.

At the police station she spoke to Chicago Police Investigator Hussion and told him that defendant was wearing dark blue pants and a light blue shirt with paint on it. She described his car as copper-colored and having two doors. That afternoon she accompanied the investigator and Joseph Minneci, her boyfriend, to defendant's home in Berwyn, and waited outside in a police car. A few minutes after the investigator went in, defendant, wearing the same shirt, approached the car saying he wanted to talk to her.

A certified copy of defendant's Illinois Motor Vehicle registration was admitted in evidence, and it showed that license number AC 9513 was issued to defendant on June 16, 1975, for a 1966 Buick.

Chicago Police Officer James Mellett testified he answered a radio assignment at approximately 8:40 a. m. The victim was "visibly shaken" and had a bruise mark on her upper left arm.

Joseph Minneci testified he worked with the victim at a hardware store. He arrived at the auto shop shortly after the police, and he saw that the victim was in the squad car and she was shaking and crying hysterically. Her clothes were in disarray and she had a black and blue mark on her arm. Later, he accompanied the victim and Officer Hussion to defendant's home in Berwyn. About a minute after Hussion had left the car, defendant approached the car and said, "I want to talk to you" and made a motion with his hand. Minneci, however, locked the door, rolled up the windows and grabbed the victim, who was crying and screaming. The defendant stood at the window, saying, "I want to talk to you about this," then left and returned 5 minutes later with Officer Hussion. The four people then went to the police station in the police vehicle.

Chicago Police Officer James Hussion testified he interviewed the victim at approximately 9:30 a. m. Her clothes were disheveled and she had a bruise on the upper part of her left arm. He called defendant and explained that his license number had become the subject of an investigation and asked if he still had those plates in his possession. Defendant said he still had the plates but they were on a blue Buick which was inoperable and was in his garage and had not been driven for some time. Defendant said he had been home all night. The officer explained he would have to investigate to see if there were two plates on defendant's car. He then went to defendant's home in Berwyn, accompanied by the victim and Minneci, who waited in the car. Defendant told Officer Hussion the car was in the garage and to go out and look at it. Defendant's wife showed him to the garage where he observed a brown or copper-colored Buick covered with raindrops with license plates matching those described by the victim. He immediately walked back to the house and informed defendant the car in the garage was a copper-colored Buick and his plates were affixed to it. Defendant was informed of his constitutional rights. Officer Hussion then "explained" to defendant that the color of his car matched that given by the victim, that the plates matched, and that the car was "covered with rain" indicating it had been recently driven. Defendant denied any knowledge and, after requesting permission to contact an attorney, made a telephone call. Defendant agreed to go to the police station to talk to an assistant State's Attorney. Defendant was placed under arrest after arriving at the police station.

Defendant testified he was driving in his vehicle on Ashland Avenue and looking in the windows for help-wanted signs, when he observed the complainant who waved to him as he was passing by. He backed up to the intersection and offered her a ride. She agreed and got into the car. She asked him his name and he asked her name. He told her he was in the area looking for a job. After driving a few blocks they approached an industrial area. He asked if it was all right if he turned off Ashland and she told him she was in no particular hurry. He parked under a viaduct and told her she was "cute" and a pretty girl and he could "like her" a lot. She thanked him for the compliment and he put his arm around her and kissed her. He did feel her breast "a little bit from the outside," but denied that he committed an act of deviate sexual conduct. She then suggested they go to her place, but demanded money en route. When he told her he had none, she told him he would be sorry and jumped out of the car. She left her pocketbook and he told her to take it. On cross-examination defendant denied that he told Investigator Hussion on the telephone that his car was blue, that his car had not been out of the garage all night or that his car was not in operating condition. He claimed he did say he was in the area in the car. During cross-examination the following colloquy took place:

"Q (Assistant State's Attorney): Now, did you ever tell Investigator Hussion while in your house, that the girl waived (sic) to you first?

A I wanted to seek attorney before I would say anything to anybody.

Q. Well, you didn't tell him that did you?

A Tell him what now?

Q You didn't tell him that the girl waived (sic) to your car first, did you?

A I believe in consulting my attorney before I say anything.

Q Now, is the answer yes or no? You didn't tell the investigator that, did you?

A I asked him that I wanted an attorney. I called for attorney at my home.

Q So, your answer, I take it then, sir, is you did not tell Investigator Hussion A I didn't tell him anything.

Q About what you're talking about in court today, is that right?

A I didn't tell him anything, right."

Defendant admitted when he talked to Investigator Hussion on the telephone he did not tell him the version to which he testified; but he explained the officer had only asked about the license plate numbers, and he only told the investigator that the car was his.

The victim testified in rebuttal that defendant never asked her name, and she did not ask defendant his name. She denied asking defendant for money.

OPINION:

As set forth above, during cross-examination, the prosecutor elicited testimony that following his arrest defendant did not tell Officer Hussion that the victim waved to him. Defendant claims the State thereby used his silence at the time of his arrest, after he had been given the Miranda warnings, to impeach his testimony contrary to Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. Although defendant did not object on this ground at trial and did not raise the issue in his written motion for a new trial, similar violations of the accused's right to remain silent have been held to be plain error, hence reviewable under Supreme Court Rule 615(a). People v. Robinson (1976), 44 Ill.App.3d 447, 3...