People v. Rosenborgh

Decision Date12 July 1974
Docket NumberNos. 55658,59586,s. 55658
Citation315 N.E.2d 545,21 Ill.App.3d 676
PartiesPEOPLE of the State of Illinois, Plaintiff-Aappellee, v. Michael ROSENBORGH et al., Defendants-Appellants. PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John J. SMITH, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender of Cook County, Chicago, for defendants-appellants; John T. Moran, Jr., Asst. Public Defender, of counsel.

Bernard Carey, State's Atty. of Cook County, Chicago, for plaintiff-appellee; Patrick T. Driscoll, Jr., Marianne Jackson, Kenneth L. Gillis, Frederic I. Chaimson, Terrence McQuigg, * Asst. State's Attys., of counsel.

LORENZ, Justice:

I.

A jury found Michael Rosenborgh guilty of armed robbery, aggravated kidnapping, and attempt (rape) in violation of sections 18--2, 10--2(a)(3) and 8--4 of the Criminal Code (Ill.Rev.Stat.1967, ch. 38, pars. 18--2, 10--2(a)(3) and 8--4.); John Smith guilty of armed robbery, aggravated kidnapping, and rape in violation of sections 18--2, 10--(2a)(3), and 11--1(a) of the Criminal Code (Ill.Rev.Stat.1967, ch. 38, pars. 18--2, 10--2(a)(3) and 11--1(a).); and Jerome Smith guilty of armed robbery and aggravated kidnapping in violation of sections 18--2 and 10--2(a)(3) of the Criminal Code (Ill.Rev.Stat.1967, ch. 38, pars. 18--2 and 10--2(a)(3).). Two co-defendants, Terry Davis and Matthew Jordan, were acquitted. Jerome Smith and Rosenborgh were sentenced to concurrent terms of two to eight years and John Smith to concurrent terms of twenty to forty years.

From these convictions all three appeal contending that: (1) they were not proved guilty beyond a reasonable doubt, (2) the State's use of various identification procedures violated due process of law, (3) the trial court erred in not allowing them to call either the complainants or other arresting officers at the hearing on the motions to suppress, and (4) they did not receive a fair trial.

At a hearing on pre-trial motions to suppress evidence and identifications, the following pertinent evidence was adduced.

Police Officer Robert Frodin

On the evening of August 11, 1969, he briefly spoke to the complainants at St. Francis Hospital and was given a description and license number of a car. John Smith was arrested by Midlothian Police as a result of this information. Later at about 1:30 a.m. at the Blue Island Police Station, Smith stated that he had loaned his car to the other defendants earlier in the evening. While John was sitting in a chair being questioned, Diane Wilmot and Mona Sullivan both entered the station and saw him. Later Mona saw John again and stated that he had attacked her. At about 2:00 a.m. John accompanied several police officers when they arrested the other defendants. On their arrival at the station Frodin conducted a line-up of six people, including all five defendants, which was viewed by the four complainants. He instructed the complainants to mark on their line-up tally sheets only the numbers of those they could positively identify. Mona Sullivan and Arthur Steelman identified John Smith, Jerome Smith, Davis and Rosenborgh. Mona placed a question mark after Rosenborgh's number. Diane Wilmot identified Jerome Smith and Jordan. Donald Carlisle identified Jerome Smith and Rosenborgh. Frodin also testified that the defendants participated in another line-up (relating to other crimes) but the complainants were not present.

Defendant John Smith

He was arrested by Midlothian Police as he got out of a car at an all-right gas station. He know nothing a about the car and had received it only a few minutes before. He was taken to the Blue Island Police Station where he alone was shown to some of his accusers, but they were unable to identify him. He did not see Mona Sullivan at the police station or at any time on the night of the occurrence. He was with the policy when they went to arrest the other defendants, but he denied telling the police anything. He and the other defendants participated in seven line-ups, all of which were observed by the complainants. During the course of the evening, he was threatened and beaten. He testified he has a weak memory and only a kindergarten education. During his testimony, a dispute arose when Mona Sullivan and Diane Willmot entered the courtroom after a motion to exclude witnesses had been granted. The court was certain that they had exited The court was certain that they had exited the conclusion of his testimony, John Smith's counsel made requests to call the complainants and the other arresting officers. The court, after observing that John's entire testimony was not credible, denied these requests and a motion to suppress.

Annabelle Rosenborgh

She is Michael Rosenborgh's mother. Sometime after midnight on the morning of August 12, 1969, three police cars arrived at her home. Two police officers, one white and one black, came to the door and arrested her son. She accompanied them. After arresting the three other defendants, they all went to the Blue Island Police Station. She observed only one line-up. She heard one of the officers say to the complainants: 'I thought you said it was four boys and we have six boys here.'

Defendant Michael Rosenborgh

Three police officers, none of whom were black, arrested him. John Smith was with the officers. He participated in four or five line-ups and his mother was present for at least three of them. Different people viewed the line-ups.

Defendant Matthew Jordan

He was arrested at his home in the early morning hours of August 12, 1969, by six police officers, including Officer Frodin. John Smith was with the officer. He participated in four or five line-ups. One of the police officers told the witnesses that they had to identify someone. He saw Mrs. Rosenborgh during the first line-up.

Defendant Terry Davis

He was arrested at his home by five police officers. John Smith was with them. He participated in four or five line-ups and different people were in the last few line-ups. He did not see Mrs. Rosenborgh at the station that night.

Defendant Jerome Smith

He was arrested at home. Everyone in his family, except his brother John, was there. At the station, he participated in six line-ups. Different people observed each line-up. He saw Mrs. Rosenborgh at the first line-up.

The trial court then denied Rosenborgh's Jerome Smith's, Davis' and Jordan's request to call the complainants as witnesses, their motions to suppress, and their motions to be severed from the trial of John Smith and ordered the trial to proceed.

During voir dire examination of the jury, a female juror was asked whether she had ever been the victim of any crimes. She said she had been the victim of a robbery over twenty years ago. No challenge was made and she was sworn in as a member of the jury. After the trial had begun, she requested to speak to the judge. She told him that she had been raped in connection with the robbery but had been too embarrassed to tell the court. She assured the court that she had not told any of the jurors about the incident. She was not asked exactly what she had said or to whom she had said it. The court excused her from further service with the jury, denied defendants' motions for mistrial, and proceeded with the trial using an alternate juror.

At trial the following witnesses testified for the State:

Mona Sullivan

Sometime after 10:00 p.m. on August 11, 1969, she was sitting with Donald Carlisle in the front seat of Carlisle's car in Calumet Park Grove and Diane Wilmot and Arthur Steelman were in the back seat. A car of Negro youths parked nearby. Two of them came over and asked for cigarettes. They produced weapons, ordered Carlisle to get in the right rear seat, and commandeered the car. Michael Rosenborgh drove and Jerome Smith sat beside the right rear door next to Carlisle. The car with the other Negroes followed.

After driving for about ten or twenty minutes, she cars stopped beside the road. Rosenborgh got out, opened the left rear door where Diane was sitting, and ordered her to come with him. However John Smith approached, closed the rear door, and directed her to stay with the others. John Smith then drove Carlisle's car while Rosenborgh followed in the other car. Jerome Smith warned John not to go near the house and John replied: 'Don't worry, I know where I'm going, Jerome.' After driving another ten or twenty minutes, they stopped in an unlighted garage.

John and Jerome Smith got out of the car and locked Carlisle and Steelman in the trunk. Rosenborgh then got in the back seat with Diane and John Smith got in the front seat with the witness. Rosenborgh unzipped Diane's pants. He hit her after she zipped them back up. John ordered the witness to remove her clothes and upon her refusal, with the help of Rosenborgh who ripped her bra, John removed them. She ripped John's white striped tee shirt near the neck. John then raped her. After penetration she passed out. The assailants left when they heard a motorcycle backfire. They took her purse and address book. She ran after John Smith to get the keys for the trunk, but John said he did not have them. She got a good look at him and noted the license number of his auto. At trial she identified a photograph of the auto. Carlisle and Steelman forced their way out of the trunk through the back seat and they all went to a nearby house and called the police.

She was taken to St. Francis Hospital and was examined by a doctor. Although she did not see the doctor's report, she thought it had been given to the police. During her testimony, John Smith requested he be shown all medical reports. These had previously been the subject of a pretrial discovery motion. The prosecutor denied any such reports were in his file and Officer Frodin, the investigating officer who was sitting at the prosecutor's table, also denied he had any reports.

She and her mother went from the hospital to the police...

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18 cases
  • People v. Hartzol
    • United States
    • United States Appellate Court of Illinois
    • November 27, 1991
    ... ... People v. Lark, 127 Ill.App.3d at 934, 83 Ill.Dec. 121, 469 N.E.2d 728; People v. [222 Ill.App.3d 645] Hefner (1979), 70 Ill.App.3d 693, 696-95, 27 Ill.Dec. 96, 388 N.E.2d 1059; People v. Rosenborgh (1974), 21 Ill.App.3d 676, 684, 315 N.E.2d 545 ...         In addition, Clark's testimony strongly corroborated the identification testimony of Linda and Daniel. We conclude that the pretrial identification procedures here were not unfairly suggestive and even if tainted, the resultant ... ...
  • People v. Smith
    • United States
    • United States Appellate Court of Illinois
    • March 31, 2005
    ... ... Rosenborgh, 21 Ill.App.3d 676, 686, 315 N.E.2d 545 (1974) ...         Initially, we flatly reject the trial prosecutor's statement that "[g]enerally, the law is that civilians do not testify at motions to suppress identification unless there has been a preliminary showing there is some sort of ... ...
  • People v. Smith
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    • December 15, 2005
    ... ... Rosenborgh, 21 Ill.App.3d 676, 686, 315 N.E.2d 545 (1974) ...         Initially, we flatly reject the trial prosecutor's statement that "[g]enerally, the law is that civilians do not testify at motions to suppress identification unless there has been a preliminary showing there is some sort of ... ...
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    • United States Appellate Court of Illinois
    • December 20, 1983
    ... ... It has been held repeatedly under similar circumstances that no discovery violation has occurred, even if absence of the subject matter remains unexplained. See e.g., People v. Rosenborgh (1974), 21 Ill.App.3d 676, 315 N.E.2d 545, cert. denied (1975), 421 U.S. 919, 43 L.Ed.2d 787, 95 S.Ct. 1584; People v. Molsby (1978), 66 Ill.App.3d 647, 23 Ill.Dec. 309, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill.App.3d 449, 7 Ill.Dec. 323, 364 N.E.2d 484; People v. Steptoe (1976), 35 ... ...
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