People v. Walker

• Decision Date: 16 December 1988
• Docket Number: No. 84-0973,84-0973
• Citation: 532 N.E.2d 447,177 Ill.App.3d 743,126 Ill.Dec. 762
• Parties: , 126 Ill.Dec. 762 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald WALKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 447

532 N.E.2d 447

177 Ill.App.3d 743, 126 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald WALKER, Defendant-Appellant.

No. 84-0973.

Appellate Court of Illinois First District, Fifth Division.

Dec. 16, 1988.

Randolph Stone, Public Defender of Cook County; Donald S. Honchell, Asst. Public Defender, of counsel, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Cook County; Joan S. Cherry, Mary Pat Butler, James P. Stevenson, Asst. State's Attys., of counsel, Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

This is an appeal by defendant, Gerald Walker, from a conviction and sentence of 12 years for rape. On September 3, 1982, Walker was indicted for deviate sexual assault, aggravated kidnapping and armed violence. On June 9, 1984, after a jury trial, Walker was found guilty of rape and sentenced to 12 years' imprisonment. The victim of the rape, L.S., was the daughter of a Chicago police officer. The sole issues raised on appeal by defendant is whether the police officer's warrantless arrest and subsequent use of evidence, direct and indirect fruits of the arrest and his detention, violated Walker's 5th, 6th and 14th amendment constitutional rights.

On July 18, 1983, Walker filed a motion to suppress his identification, a motion to suppress his arrest without a warrant, and to suppress the evidence obtained after the arrest. The State filed no responsive pleading to the defendant's motions and he was the only one who testified at the hearing on the motion to suppress. His testimony was to the effect that he was at his parent's home, and that he did not see or hear, either the victim or her father, enter the house of his parents because he was in the bedroom at the time they entered. He heard someone say "Your son, Gerald, raped me." He then went into the living room of his home where the victim, in the presence of the defendant and her father, a police officer, stated that defendant was the person who raped her. The police officer then arrested defendant and subsequently fingerprinted him and took blood and saliva from him.

The trial court denied defendant's motion to suppress. At the trial the evidence revealed that the victim's father, a Chicago police officer, was called home from his work after the victim returned from the hospital. She told her father she had been raped and that she had seen the offender with a boy she knew as "June" just before her attack. She and her father left to speak with June. June told them defendant was the one whom he had been standing with at the time. June directed the victim and her father to defendant's grandmother's house. There they ascertained defendant's home address.

Upon their arrival at defendant's house, L.S. and her father, who was in uniform, were invited in by defendant's mother. In a subsequent conversation between L.S., her father, and defendant's mother, the defendant came into the room and L.S. stated, "That's the dog who raped me." The police officer, L.S.'s father, then arrested him, took him to the police station, and effected booking procedures and obtained the evidence sought to be suppressed.

Defendant raises two main points on appeal. One, that his arrest, without a warrant, was illegal and thereby bars the evidence obtained thereafter as the fruits of an illegal entry and, two, the failure of the trial court to give the jury a tendered instruction on impeachment by omission was error.

For the following reasons we affirm.

When a voluntary consent is given to enter one's residence and an arrest is made thereafter, based on probable cause, none of the arrestee's constitutional guarantees are violated. (People v. Bean (1981), 84 Ill.2d 64, 48 Ill.Dec. 876, 417 N.E.2d 608.) That consent need not be given by the arrestee, it may be given by one who controls the premises. United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242.

The facts in this case discloses that L.S.'s and her father's entry into the apartment was with the consent of defendant's mother. Prior to the entry, the arresting police officer had reason to believe that defendant was the one who raped his daughter, based on the conversation with June. When his daughter confronted defendant after the consensual entry and identified him as the party who raped her, there were reasonable grounds to arrest defendant. Although the State presented no evidence at the hearing on the motion to suppress, in reviewing the propriety of a motion to suppress or quash an arrest, an appellate court may consider the entire record and is not confined to only that evidence presented during the pretrial motion. (People v. Cole (1988), 170 Ill.App.3d 912, 120 Ill.Dec. 744, 524 N.E.2d 926.) A pretrial ruling on a motion to suppress is procedural rather than substantive and is required of a defendant simply to avoid extended collateral inquiries at trial. People v. Caballero (1984), 102 Ill.2d 23, 79 Ill.Dec. 625, 464 N.E.2d 223.

It appears that the State raised the question of a consensual arrest for the first time on appeal. A prevailing party may raise, in support of a judgment, any reason appearing in the record (People v. Sloan (1986), 111 Ill.2d 517, 96 Ill.Dec. 55, 490 N.E.2d 1260), although this rule does not apply when the new theory is inconsistent with the position adopted below or the party has acquiesced in contrary findings (People v. Franklin (1987), 115 Ill.2d 328, 105 Ill.Dec. 211, 504 N.E.2d 80). The record in the court below disclosed that the initial hearing revolved around probable cause to arrest rather than the consensual nature of the entry. The State did not argue in the trial court a theory inconsistent with its position in this court. Therefore, we find no basis in the record to reverse the trial court's denial of defendant's motion to suppress even though the consent issue was first argued on appeal.

As his final point, Walker urges the court to find error in the trial court's refusal to give the following tendered instructions:

"The omission of a witness to state a particular fact under circumstances rendering it likely that he would state that fact, if true, may be shown to discredit his testimony as to such fact.

It is a general principle of evidence that the failure to assert a fact when it would have been natural to assert, it amounts in effect to the assertion of the nonexistence of the fact."

These two instructions have some foundation in the law of evidence even though they are not covered by the court's standard instructions. Defendant bases his claim of error on this point on the fact that the victim stated that her offender had a chipped tooth and bore ears that stuck out. Two other police officers and her father testified that the victim did not describe these characteristics. There were other alleged discrepancies in L.S.'s testimony and that of the police as to what direction the defendant went after the attack and whom she went with when they went to talk to June, in addition to other alleged discrepancies.

These tendered non-I.P.I. instructions went to details of the events described by the victim and the police officer, her father, subsequent to her rape. The evidence as to her rape by defendant with a gun at her throat was clear and convincing. The trial court did submit to the jury the I.P.I. criminal instructions covering inconsistent prior statements and the weight factor to be given same and the general duty to assign weight and credibility. It has been held not to be error in a criminal case to refuse a tendered instruction which accurately states the law applicable to a case if that principle has been covered correctly and sufficiently by another instruction. People v. Smith (1978), 67 Ill.App.3d 672, 24 Ill.Dec. 277, 385 N.E.2d 44.

In this case the trial court adequately instructed the jury on impeachment by giving the I.P.I. instructions on the point, and its refusal to give defendant tendered instructions to the effect of the victim's failure to state a fact was not, under the circumstances and facts of this case, error justifying the overturning of the jury's verdict.

Accordingly, we affirm defendant's conviction and sentence.

AFFIRMED.

LORENZ, P.J., concurs.

PINCHAM, J., dissents.

Justice PINCHAM, dissenting:

I dissent. What's good for the goose is good for the gander. The cases are legion which hold that a defendant who fails to raise an issue and obtain a ruling thereon in the trial court or who fails to present an issue on his motion for a new trial, waives the issue and cannot raise or rely on such issue for the first time on appeal. (People v. Jackson (1981), 84 Ill.2d 350, 358-59, 418 N.E.2d 739, 49 Ill.Dec. 719.) In People v. Carlson (1980), 79 Ill.2d 564, 576-77, 38 Ill.Dec. 809, 404 N.E.2d 233, the supreme court stated, "The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently." In People v. Precup (1978), 73 Ill.2d 7, 16, 19, 21 Ill.Dec. 863, 382 N.E.2d 227, the supreme court pointed out that "the question of denial of effective assistance of counsel was first raised in the appellate court and that at no time did either of the defendants raise this issue in the trial court, * * *." The court concluded that "the general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues." The Precup court further concluded that, "the issue was not raised by the defendants during the trial and was not called to the court's attention in the motion...