{ "id": 5625609, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HENSON, Defendant-Appellant", "name_abbreviation": "People v. Henson", "decision_date": "1978-03-10", "docket_number": "No. 14268", "first_page": "42", "last_page": "48", "citations": [ { "type": "official", "cite": "58 Ill. App. 3d 42" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "326 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "137-38" } ], "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2788528 ], "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0767-01" ] }, { "cite": "338 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871719 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0745-01" ] }, { "cite": "203 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "32 Ill. 2d 88", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2838826 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/32/0088-01" ] }, { "cite": "354 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 956", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491343 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0956-01" ] }, { "cite": "186 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "26 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5355774 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/26/0190-01" ] }, { "cite": "371 N.E.2d 165", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3412096 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0663-01" ] }, { "cite": "358 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2813975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0447-01" ] }, { "cite": "305 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461953 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0523-01" ] }, { "cite": "345 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630198 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0612-01" ] }, { "cite": "346 N.E.2d 486", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2716147 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0619-01" ] }, { "cite": "310 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "56 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404489 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0560-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 6, "pin_cites": [ { "page": "617" }, { "page": "97" }, { "page": "2244" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 817, "char_count": 14061, "ocr_confidence": 0.895, "pagerank": { "raw": 2.5130098890994983e-07, "percentile": 0.8107186944103691 }, "sha256": "b103ec4870d6a6e4d2c4b5d165c1e87216f98bd5b3780156b7ab1cb9057d49dd", "simhash": "1:284a10973ed7b07b", "word_count": 2406 }, "last_updated": "2023-07-14T18:22:59.686785+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. CHARLES HENSON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE WEBBER\ndelivered the opinion of the court:\nDefendant and his co-defendant, Stanley Stigleman, were charged by information filed in the circuit court of Sangamon County with the offenses of rape of Ms. H., rape of Ms. B., burglary with intent to commit rape and burglary with intent to commit theft. Defendant alone was charged with deviate sexual assault. The cases were severed for trial on motion of Stigleman. After a jury trial defendant was found guilty of all charges and thereafter was sentenced to 8 to 20 years on each sex offense and 2 to 6 years on the burglary offense, all sentences to run concurrently. This appeal followed.\nBy reason of the issues raised by defendant and by reason of a prior order of this court concerning Stigleman, a detailed recitation of the shocking and sordid evidence is not necessary. Suffice it to say, the record discloses adequate factual bases upon which a jury could find the defendant guilty beyond a reasonable doubt.\nDefendant raises three issues on appeal: (1) misconduct by the prosecutor in commenting in closing argument on defendant\u2019s right of silence and on matters not in evidence, the effect of which denied defendant a fair trial; (2) failure of the State to prove defendant accountable for the rape of Ms. B. by failing to prove that the act was against her will; and (3) failure of the State to prove that defendant possessed the necessary specific intent to commit burglary on account of the influence of drugs and alcohol.\nIssue No. 1 arose in the following manner. After the events leading to this prosecution occurred, defendant was interviewed by several police officers at several different times. At first he protested his complete innocence, but after being faced with a crucial piece of evidence, he changed his story and made an incriminating statement. Motions to suppress the statement were denied. At trial defendant claimed that Ms. H. had consented to the sexual acts, he admitted that he had not mentioned any consent by the victim in his statement to the police; he also asserted that he had not read the statement carefully, although he admitted to signing it and initialing each page and knew that it was an important document.\nA portion of the prosecutor\u2019s final argument went as follows:\n\u201cMiss Scott [prosecutor]: * * * He said, however, that Dickerson just wrote a lot of things down and that he, Henson, just glanced at it and just signed it and didn\u2019t read it.\nHe never bothered to tell Officer Palmer or Officer Dickerson his defense that they consented, because he didn\u2019t want to be involved in rape.\n# # #\nMiss Scott: There is good old Dickerson. He\u2019s just dreaming this up, and he\u2019s writing it down, anything he wants. And this man who is under arrest and charged with rape and who\u2019s been advised of his rights, he knows he signed a waiver of his rights. He remembers that. Doesn\u2019t bother to read a five-page statement, just signs it.\nAnd he keeps his defense a secret for three months from July 30th until yesterday afternoon. Perfectly good defense if it\u2019s believable.\nMr. Ray: Object to that comment, your Honor, I think it\u2019s improper.\nThe Court: That objection will be sustained. Refrain from that statement, Miss Scott.\nMiss Scott: Ladies and gentlemen, he had every opportunity to tell Officer Palmer on the night of July the 30th that those girls consented, and he didn\u2019t. And he had every opportunity to tell Chief Dickerson on the 31st that those girls consented.\nMr. Ray: Same objection, your honor.\nThe Court: Same ruling.\u201d\nSome further detail is necessary at this point in order to understand the prosecutor\u2019s statement. As indicated above, defendant made several statements. On the night of July 30, 1976, he went to the police station with Officer Palmer, and, after receiving the usual Miranda warnings, even though he was not under arrest, answered oral questions and denied any involvement in the offense. He then stood in a lineup and afterwards returned to the police station for several more hours of oral interrogation during all of which he denied involvement. The following day, July 31, 1976, Officer Dickerson confronted him with a crucial piece of evidence and defendant then changed his story and made an oral and written statement incriminating himself after again receiving the Miranda warnings.\nDefendant places his chief reliance on Doyle v. Ohio (1976), 426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244. That case held that * 9 every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.\u201d\nTwo things are immediately apparent about this statement: (1) It refers to silence generally, not silence in part, and (2) the ambiguity is tied directly to the Miranda warning, nothing else.\nAs to the first proposition, much debate has been engendered as to whether Doyle overrules a line of prior Illinois cases holding that where a defendant does not remain completely silent, his failure to offer an exculpatory story to the police may be used for impeachment purposes. People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166, People v. Allen (1976), 37 Ill. App. 3d 619, 346 N.E.2d 486, People v. Fleming (1975), 36 Ill. App. 3d 612, 345 N.E.2d 10, and People v. Kent (1973), 15 Ill. App. 3d 523, 305 N.E.2d 42, are typical of such cases.\nPeople v. Robinson (1976), 44 Ill. App. 3d 447, 358 N.E.2d 43, intimated, that the court felt that the prior cases were still good law but distinguished that case before it from Doyle.\nWe do not believe that the Doyle court intended to lay down a blanket prohibition on silence of every variety. It prohibits comment or cross-examination on refusal to make any statement except a general denial, but does not go so far as to say that the prosecutor is barred from comment on a partial statement. \u201cSilence\u201d is one of those absolute words like \u201cunique\u201d which admit of no degrees. Silence is the absence of sound and in human context denotes \u201cuncommunicative.\u201d In the words of Jonathan Swift, 9 9 whose uncommunicative heart will scarce one precious word impart 9 9\nThe Doyle court itself acknowledged the situation when it said in a footnote:\n\u201cWe recognize, of course, that unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.\u201d 426 U.S. 610, 617 n. 7, 49 L. Ed. 2d 91, 97 n. 7, 96 S. Ct. 2240, 2244 n.7.\nWe also deem it significant that Doyle tied the right of silence to the Miranda warning. One of the rubrics in Miranda, interminably familiar to every active trial court, is \u201canything you say can be used against you.\u201d If defendant\u2019s theory were correct, that any prior statement can be barred by a subsequent contradictory statement, there would be no need for the warning. Doyle did not bar silence under all circumstances, only the silence engendered, if at all, by Miranda. Implicit in the doctrine of Miranda is the waiver of the right of silence, and if it is properly waived and a statement given, then the State may use that statement against the defendant in any legitimate way.\nWe therefore conclude that Doyle bars comment and cross-examination only as to silence claimed as a result of Miranda warnings, but does not bar comment on statements given after such warning. Robinson so held. There, the defendant said, \u201cI know my rights. I did it, but I\u2019m not going to tell you why.\u201d The court construed the statement as a claim of Miranda privilege.\nThere is a further difference between the case at bar and Robinson. In Robinson, the defendant was apparently in control of all his faculties and in the words of the court only \u201cstated the obvious\u201d and then claimed privilege. In the case at bar, the defendant stated to Dickerson, \u201cI was so high that I don\u2019t remember what happened, but I guess I screwed her. That\u2019s all. I don\u2019t remember much else, but after that I walked out.\u201d If, by his own statement, defendant could scarcely remember the act itself, it offends logic to be able to recollect consent.\nSince we have concluded that Doyle and its associated cases are no bar to the comment in the instant case, we need not reach two additional reasons advanced by the State as to its proper conduct, viz., that it was invited by defendant\u2019s direct testimony under the rule of our recent decision in People v. Saulsbury (1977), 55 Ill. App. 3d 663, 371 N.E.2d 165; or that it was harmless error.\nDefendant\u2019s second attack on the prosecutor\u2019s closing argument is against the following:\n\u201cI suggest to you that what happened to S. . . H. . . and what happened to D. . . B. . . is an outrage, that it could happen at all is an outrage. Those two girls will shudder every time they see shadows on the wall at night for the rest of their lives. They will live with that, and it will follow them, and it will haunt them, and they will try to forget it and they won\u2019t be able to.\u201d\nDefendant claims there was not evidence as to the nervous state of the victims.\nNowhere in this appeal has defendant contended that he was not proved guilty beyond a reasonable doubt of forcible rape of Ms. H. He questions only his accountability for the rape of Ms. B. Since we hold later in this opinion that the rape of Ms. B was forcible and against her will, both rapes were, in fact, forcible. It is a matter generally recognized and admitted that a forcible rape is an extremely traumatic experience for the victim. Therefore, we view the prosecutor\u2019s comments as a legitimate inference from the evidence. It is always proper for a prosecutor to dwell on the evils of the crimes. (People v. Williams (1962), 26 Ill. 2d 190, 186 N.E.2d 353; People v. Holmes (1976), 41 Ill. App. 3d 956,354 N.E.2d 611.) In Holmes, the prosecutor commented that the victims would never forget the armed robbery, and the court held no error was committed.\nAs to issue No. 2, defendant contends that the rape of Ms. B. by his co-defendant Stigleman was not shown beyond a reasonable doubt to be forcible and therefore he is not accountable for it. We disagree.\nDefendant\u2019s contention is apparently based on Ms. B.\u2019s admission on cross-examination that she did not scream nor cry for help and that she did not seek to escape on two occasions when Stigleman temporarily left the bedroom. There was further testimony that Stigleman possessed a shiny object but told her that it was not a knife and that Ms. B. smoked a cigarette with him after the act.\nA woman need not resist a rapist where such resistance would be futile or endanger her life, nor where she is overcome by superior strength or paralyzed by fear. People v. Smith (1965), 32 Ill. 2d 88, 203 N.E.2d 879; People v. Hendon (1975), 33 Ill. App. 3d 745, 338 N.E.2d 472.\nDefendant chooses to ignore other testimony that Ms. B. was shaking with fear before and during the episode; in the circumstances the assurance of a rapist that a shiny object is not a knife scarcely carries the clarion ring of reassurance. Further, there was evidence that Stigleman awakened her and told her not to make any noise and she would not be hurt. The hour was 3 a.m., an hour at which some deus ex machina was unlikely to appear. Ms. B. testified that she took the cigarette in an effort to calm her nerves.\nAfter the episode had concluded and the intruders had departed, prompt complaint was made to the landlady who found both girls shaking and semihysterical.\nWe have carefully examined the record and find defendant\u2019s contention to be without merit. He seems to view the entire incident as a piece of airy persiflage. We do not.\nDefendant\u2019s final contention is that he was incapable of forming the necessary intent for burglary by reason of alcohol and drugs. Evidence was introduced that defendant had consumed considerable beer together with several seconal tablets during the evening prior to the episode. Officer Dickerson testified that defendant told him that he (defendant) was \u201cscrewed up.\u201d However, defendant did not tender any instructions on voluntary intoxication nor argue the defense to the jury. He assumes that the introduction of the evidence is a sufficient basis to permit him to argue the point on appeal. It is not so. In People v. Worsham (1975), 26 Ill. App. 3d 767, 771, 326 N.E.2d 134, 137-38, the court said:\n\u201cHowever, it is not enough merely to introduce relevant evidence. If a defendant does not articulate his theory in argument and fails to tender jury instructions identifyng it, he cannot reasonably complain on appeal if the trial court, unaided, fails to divine his intent. The failure to offer or request an instruction on an affirmative defense constitutes a waiver of the issue.\u201d\nIt can readily be seen why defendant did not, or could not logically, offer such an instruction. As mentioned above, intoxication sufficient to negate intent would likewise be sufficient to negate recollection of consent. Defendant presented to the jury an. elaborate scenario what happened between him and the victims on the night in question prior to entering the apartment. Having done this, he was in no position afterwards to argue that he was so intoxicated as to have no memory.\nThe failure of defendant to articulate the affirmative defense at the trial level and the further failure to tender an instruction on it constitutes a waiver of the point. We need not examine the evidence further, although we are convinced after a careful examination of the record that defendant\u2019s actions were not those of a person whose reason was overcome by alcohol and drugs.\nThe verdicts and judgments are affirmed.\nAffirmed.\nGREEN, P. J., and REARDON, J., concur.", "type": "majority", "author": "Mr. JUSTICE WEBBER" } ], "attorneys": [ "Fred B. Hoffman, of Springfield, for appellant.", "C. Joseph Cavanagh, State\u2019s Attorney, of Springfield (Robert C. Perry, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HENSON, Defendant-Appellant.\nFourth District\nNo. 14268\nOpinion filed March 10, 1978.\nFred B. Hoffman, of Springfield, for appellant.\nC. Joseph Cavanagh, State\u2019s Attorney, of Springfield (Robert C. Perry, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0042-01", "first_page_order": 64, "last_page_order": 70 }