{ "id": 5409196, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Freeman Johnson, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1975-05-09", "docket_number": "No. 59430", "first_page": "799", "last_page": "807", "citations": [ { "type": "official", "cite": "28 Ill. App. 3d 799" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "256 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 463", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2888309 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0463-01" ] }, { "cite": "60 Ill.2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414551 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0001-01" ] }, { "cite": "298 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill.App.3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2936171 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/1051-01" ] }, { "cite": "265 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2904431 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0331-01" ] }, { "cite": "250 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill.2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848428 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0508-01" ] }, { "cite": "263 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill.2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "321 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill.App.3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509007 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0886-01" ] }, { "cite": "415 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172884 ], "opinion_index": 0, "case_paths": [ "/us/415/0164-01" ] }, { "cite": "223 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill.App.2d 26", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2565747 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0026-01" ] }, { "cite": "389 F.2d 305", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2097504, 3577716 ], "opinion_index": 0, "case_paths": [ "/f2d/389/0305-01" ] }, { "cite": "474 F.2d 699", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1252447 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/474/0699-01" ] }, { "cite": "496 F.2d 57", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 180495 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/496/0057-01" ] } ], "analysis": { "cardinality": 848, "char_count": 19105, "ocr_confidence": 0.744, "pagerank": { "raw": 1.666016394831255e-07, "percentile": 0.6951841593853542 }, "sha256": "b7986d1b52d956f1d8e720ea89e80631187a7517bcaa9aaebf10ff7e7baab3a8", "simhash": "1:fff2b8ef68240c7d", "word_count": 3225 }, "last_updated": "2023-07-14T21:36:05.902616+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Freeman Johnson, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial defendant was found guilty of burglary, armed robbery, and rape in violation of section 19 \u2014 1, 18 \u2014 2 and 11 \u2014 1(a) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, pars. 19 \u2014 1, 18 \u2014 2 and 11 \u2014 1(a).) He was sentenced to concurrent terms of 25 to 75 years on the rape and armed robbery and 5 to 15 years on the burglary plus 5 years\u2019 parole on all sentences. On appeal he contends: (1) the trial court erred in denying his motion to suppress certain physical evidence; (2) the court erred in admitting certain hearsay evidence; (3) his due process rights were violated by the State\u2019s assertion that stains on his clothes were paint from the window of the complaining witness\u2019 apartr ment; (4) the suggestive line-up procedure violated his due process rights; (5) he was not proven guilty beyond a reasonable doubt; (6) he could not be found guilty of all three charges since they arose out of the same facts; and (7) the sentences imposed were excessive.\nThe following evidence was adduced on defendant\u2019s pretrial motions to suppress certain physical evidence and to suppress the line-up identification.\nFor the defense:\nPeter Tortorice\nHe is a Chicago police officer. At 2:45 A.M. on August 2, 1972, he and his partner, Officer Daniel Zelago, proceeded to 4929 W. Washington in Chicago to investigate the report of a rape and robbery. They met Bernice Davis and John Patterson at the scene.\nPatterson told them that as he was sleeping in the back bedroom of Davis\u2019 first-floor apartment, a male Negro about 18 years old, 5'7\" tall, weighing 140 to 150 pounds and wearing a dark shirt and light-colored pants had climbed through tire window. The intruder told him: \u201cDon\u2019t make any sound, I got a partner who is in another room\u201d and then left the bedroom. The window had been freshly painted and smudge marks could be seen in the paint.\nBernice Davis told them that after she awoke, her assailant hit her. He was 18 years old, weighed about 140 pounds, and was wearing dark upper clothing and light-colored pants. He put a sharp object at her neck and said: \u201cDon\u2019t make a sound, somebody else is in the other room with the gentleman, and somebody will end up getting hurt.\u201d He then forced her to have sexual intercourse with him. Before leaving the apartment, he took two purses.\nTortorice and Zelago then spoke to Dolores Graham, the victim\u2019s neighbor. She told them that she had seen a male Negro with a dark shirt and light-colored pants come out of Bernice Davis\u2019 front door and enter a building down the street.\nThey immediately went to the building at 4911 W. Washington, and inquired at the first-floor apartment and then at the second-floor apartment regarding whether anyone there fit the assailant\u2019s description. They were directed to the basement apartment.\nWhen they knocked on the door of that apartment a man answered. They asked if any 18-year-old boys were there. Another man who identified himself as Mr. Johnson came to the door. When Johnson told them that one boy was sleeping on the couch, they asked to see him. The room was dark and they went to the couch to see the boy. As they shined their light around the room, in addition to the boy on the couch, they saw defendant sitting in a chair. He was fully clothed and had white paint on his pants leg and on his hands and aim. Tortorice recognized defendant as the person they had stopped at about 1 A.M. that morning in the 5000 block of Washington. They had completed a \u201cfield contact card\u201d at that time which listed 4911 Washington as defendant\u2019s address.\nThe officer asked defendant where he had been earlier in the evening. Johnson, who had identified himself as defendant\u2019s father, said that defendant had been home all evening. However, upon being told that the officers had stopped defendant earlier that evening, Johnson admitted that defendant could have left while he was asleep.\nTortorice then told the father that they would have to place the defendant under arrest for suspicion of rape, and as he and his partner moved toward the defendant, defendant reached \u201cby the cushion.\u201d His partner grabbed him and recovered a can opener from under the front part of the cushion. Tortorice asked Johnson if they could look around the apartment Johnson said: \u201cSure, we got nothing to hide, go right ahead.\u201d He searched the apartment and found two purses in the bathroom. One contained Bernice Davis\u2019 identification cards.\nPolice Officer Daniel Zelago\nIn addition to the testimony corroborated by Tortorice, Zelago testified that while they were talking to the defendant, the father came out and asked what was going on. Zelago saw the young man get up and bend down. Right next to his chair was the couch. Zelago went there and put his hand where the defendant\u2019s was and pulled out a sharp object which turned out to be a can opener. Then they arrested him.\nBernice Davis, called for the defendant\nShe called the police to report a rape and robbery. Two officers responded and sh\u00e9 described her assailant as 18 or 19 years old, about 140 pounds, wearing dark upper clothing and lighter pants. He had thick lips and didn\u2019t have a bushy head of hair. She did not recall a band-aid on his forehead.\nFreeman Johnson, defendant\nFollowing his arrest he was taken to a police station. While handcuffed, he was placed in a small office. The police brought the complaining witness to the office and she observed him. He had not seen her at the station prior to that time. The line-up occurred 5 or 6 minutes later. He has used the name Dale Miller as an alias.\nBernice Davis, for the State\nShe did not see the defendant at the station prior to the line-up nor did anyone show her any pictures of the defendant. She did not look into a small room at the station.\nDefendant\u2019s motions were denied and at trial the following witnesses testified for the State.\nBernice Davis\nOn the evening of August 1, 1972, her two aunts, her daughter, and John Patterson were staying with her at her apartment at 4929 W. Washington. Patterson, who was helping her paint and decorate, was staying in the back bedroom and she was sleeping in the living room. The window in the back bedroom had been painted white a few days earlier.\nAt about 2 A.M. she was awakened. She jumped up and defendant', who was the only other person in the room, hit her several times. She could see him clearly by the light which was shining in through a transom. He said: \u201cDon\u2019t holler, don\u2019t scream, don\u2019t say anything my friend is in back with a gun and he is a crazy mother fucker, he will kill somebody.\u201d He told her to remove her nightgown. He tore it when she did not respond fast enough. He then placed a sharp object to her neck and forced her to have sexual intercourse with him. Afterwards, when he demanded money, she told him that her money was in her purse. He then covered her head with a pillow, hit her, took two purses which contained $127 and her identification cards, and left by the front door.\nShe then called the police. When they arrived, she described her assailant. The police left, but about 10 or 15 minutes later returned with her purses. She identified the defendant in a line-up at the police station about two hours after the incident.\nJohn Patterson\nHe substantially corroborated Bernice Davis\u2019 testimony. At 2:15 A.M. he awoke and looked at his clock. As he started to lie back down, defendant sprang from the foot of the bed, placed a sharp object against his neck and asked about the valuables in the house. Defendant told him not to make any noise because his partner, who was in the other room, had a gun and would shoot someone. The defendant then left the bedroom. Patterson heard someone talking in the other room. About 10 minutes later he saw Bernice Davis. Her nightgown was tom and her face was puffed and scratched. She said she had been raped and robbed. Later that morning he viewed a line-up at the police station and identified the defendant as the intruder.\nDolores Graham\nShe lives at 4931 W. Washington, next door to Bernice Davis. At about 2 A.M. on August 2, 1972, she heard a noise. When she looked out her window she saw a young male Negro come out of Davis\u2019 apartment and enter another building about four doors away.\nPolice Officer Peter Tortorice\nHe essentially repeated the testimony he had given on the motions. Additionally, he testified that he observed smudges in the fresh paint on the window of the back bedroom. He noticed no paint stains on defendant when defendant was stopped prior to the incident, but he did see paint stains on defendant at the time he was arrested. After the arrest the officers returned with the purses to Bernice Davis\u2019 apartment and she identified the purses.\nThe parties stipulated that the swab taken from Bernice Davis\u2019 vagina on August 2, 1972, disclosed the presence of sperm. The court, over defendant\u2019s objection, admitted into evidence the can opener and a purse which had contained Davis\u2019 money and identification cards. Defendant presented no evidence, and the jury returned a verdict against him.\nOpinion\nThe defendant contends that the trial court erred in denying his motion to suppress physical evidence. He complains that neither the can opener nor the purse should have been admitted into evidence. (We note that only one purse was admitted into evidence.)\nDefendant first complains that the can opener should not have been admitted since it was not seized incident to lawful ariest, but rather was seized prior to arrest. However, if probable cause to arrest without a warrant exists, it is immaterial that a search precedes \"an arrest. (United States v. Jenkins (2nd Cir. 1974), 496 F.2d 57; United States v. Riggs (2nd Cir. 1973), 474 F.2d 699; Bailey v. United States (D.C. Cir. 1967), 389 F.2d 305.) In the instant case when the officers were looking for the assailant, they had a description given by three people and they had information that he had entered a particular building. They were told by another resident in that building that some young people lived in the basement apartment. Then when they encountered defendant in that apartment they recognized him as the person they had stopped earlier in the evening. They knew-that a crime had been committed and had reasonable grounds to believe that defendant was guilty of the offenses. It is clear that this search was reasonable, as the item in the couch may have been a weapon and probable cause for arrest existed prior to the seizure of the can opener.\nDefendant also complains that the trial court erred in admitting'the purse. He states, that no showing was made that the person who consented to the search had \u201ccommon authority\u201d over the premises and also that the consent was a result of coercion.\nAt trial defendant failed to produce any evidence proving that the consent was improper in any way as required by section 114 \u2014 12(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114\u2014 12). The only evidence adduced at trial showed the person giving consent was defendant\u2019s father, that defendant resided at this address and that the purses were found in the bathroom. It was reasonable for the officers to believe that the defendant\u2019s father also resided at this address (People v. Rodriquez, 79 Ill.App.2d 26, 223 N.E.2d 441), and defendant offered no evidence to contradict any of these points.\nA person who has common authority with another to use certain premises may consent to a search of those premises. (United States v. Matlock, 415 U.S. 164. See also People v. Johnson, 23 Ill.App.3d 886, 321 N.E.2d 38.) In the case at bar, the father who resided with defendant consented to a search of the bathroom which would clearly be an area over which he had common authority.\nDefendant also states that the consent was not freely given, but was the result of implied coercion. Whether a consent was given freely \u201cis a question of fact to be determined from the totality of all the circumstances.\u201d (Schneckloth v. Bustamonte, 412 U.S. 218, 227.) Here, although the police arrested defendant at night and in his father\u2019s presence, defendant\u2019s father, who obviously was aware of what was happening, said: \u201cWe got nothing to hide, go right ahead\u201d when asked by the officers if they could search the apartment. The police did nothing improper. They did not intimidate or coerce Johnson and defendant was present at the time the consent was given. The mere fact that the consent here was given at night does not render the consent invalid. The motions to suppress were properly denied.\nDefendant next contends that the trial court erred in admitting certain hearsay evidence. He argues that Officer Tortorice\u2019s references at trial to his father\u2019s statement that defendant could have left the house while his father was sleeping violated his constitutional right of confrontation and his right not to testify against himself. The instant statement does not indicate that defendant actually left the house. It indicated only that defendant could have left while his father was sleeping. Since Officer Tortorice testified that he had seen defendant earlier in the evening, even if the father\u2019s statement did indicate that defendant had left the apartment, such evidence would only have been cumulative. In these circumstances, we cannot say that the statement required defendant to testify or that it violated his right of confrontation.\nDefendant next contends that his due process rights were violated by the State\u2019s assertion that stains on his clothes were paint from the window of the complaining witness\u2019 apartment. In opening statements and in closing arguments, the State argued that the stains on defendant\u2019s clothes were white paint from the windows of the complaining witness\u2019 apartment. He argues that the State should not have made such comments in the absence of scientific proof that the stains were paint and that if paint, were paint from the complaining witness\u2019 window. The 'law is' clear that a prdsec\u00fator' in argument may draw' reasonable inferences from the record. (People v. Hairston, 46 Ill.2d 348; 263 N.E.2d 840.) Here, Officer Tortorice testified that the stains were paint. There'is nothing in the record to \u2019 contradict his testimony or to establish that Tortorice is not competent to recognize paint stains. Scientific' evidence was riot required. Tortorice also testified that when he' s\u00e1w the def\u00e9ridant before the incident defendant did not have such stains on this clothes, but at the tim\u00e9 of arrest he did. Moreover, Tortorice saw the smudges in the paint on the windows. In these circumstances, the prosecutor\u2019s comments were justified.\nDefendant next contends that the suggestive line-up procedure violated his due process rights. He argues that he was the person in the \"center of the line-rip and the only person with paint stains on his clothing. We note that this argument was riot raised by defendant in Ms pretrial motion. There, defendant argued that the line-up was suggestive because there was'a confrontation prior to the line-up. A line-up wMch- suggests that someone is the perpetrator of a crime is improper, (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) However, ev\u00e9n if police procedrires were improper, identification testimony which has \u00e1n indeperident basis in fact is admissible. (People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685; People v. Blewett, 11 Ill.App.3d 1051, 298 N.E.2d 366.) The record here clearly shows that during the incident the coinplaining witness had ample opportunity to observe the defendant. The lighting was good' and defendant m\u00e1d\u00e9- no attempt to cover his face. Moreover, she not only identified him witMn a few hours of the incid\u00e9rit, but once again in open court. Her identificatiori was positive and credible! Patterson also identified defendant. Even if the line-rip had been conducted improperly, the identification had an independent basis in f\u00e1ct: The trial court properly admitted Bernice Davis\u2019 identification testimony.\nDefendant next contends that he was riot proven guilty beyond a reasonable doubt. He argues That the identifi\u00e9\u00e1tion testimony \u25a0 was vague, -\u00a1doubtful and uncertain and that one man could not have c\u00f3riimitted the crimes. The l\u00e1w' is well established that iri a jury-trial the'er\u00e9dibility-'-of witnesses and qriesfions of fact must be resolved by the jriry.'-Here, the jury heard th\u00e9 \u00e9viderice and chose t\u00f3 believe\u2019the State\u2019s witnesses.- We cannot say that this beli\u00e9f was misplaced. Defendant was ideritified by two eyewitnesses arid he was linked to the crime by the paint stains and by the proceeds of the robbery.\n\" \u2022 Defendant, relying upon People v. Lilly, 56 I11.2d 493, 309N.E.2d 1, conterids that since the cririies of r\u00e1pe, armed robbery and burglary \u25a0Were' \u00bf'single transaction arid wer\u00e9 not independently motivated, only one conviction can stand. Alternatively, he contends that if the crimes did not arise from the same transaction, the lesser offense of burglary must be reversed. Having examined the record, we do not believe the rape and the armed robbery arose out of the same conduct, but rather that they were two separate and unrelated offenses. People v. Williams, 60 Ill.2d 1; People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343.\nIn Williams defendant was found guilty of murder, aimed robbery and burglary. The court held that since defendant entered with intent . to commit the robbery there were two offenses arising out of the same conduct, but that only the conviction for the most serious can stand. In die instant case since the burglary occurred as part of the rape or robbery, it was committed with intent to perform one of these crimes and \u25a0arose as part of the conduct necessary for completion of one of those acts. Therefore, the judgment on the lesser offense of burglary must be reversed.\nDefendant finally contends that his sentences are excessive. While this court, in its discretion, may reduce sentences, this discretion is. exercised with great care in view of the trial court\u2019s superior opportunity to make such judgments. Here, defendant had a prior criminal record and the instant crimes are of a serious nature. The trial court sentenced him to concurrent terms of 25 to 75 years, and these sentences are within the statutory limits. In the circumstances of this -cas\u00e9, we cannot say - that defendant\u2019s, sentences are excessive.\nFor the foregoing reasons, the judgments finding defendant guilty of armed robbery and rape are affirmed, and the judgment finding defendant guilty of burglary is reversed.'\nAffirmed in part, reversed in part.\nDRUCKER and SULLIVAN, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (John Thomas Moran and Marc Fogelberg, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Forrest M. Tatel, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Freeman Johnson, Defendant-Appellant.\n(No. 59430;\nFirst District (5th Division)\nMay 9, 1975.\nJames J. Doherty, Public Defender, of Chicago (John Thomas Moran and Marc Fogelberg, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Forrest M. Tatel, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0799-01", "first_page_order": 823, "last_page_order": 831 }