Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Judgment
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 3, 1967.
Defendant, Leo Lagardo, appeals from a conviction for the offense of armed robbery, after a jury trial, for which he was sentenced to a term of ten to twenty years in the State Penitentiary, on which judgment was entered on February 3, 1963.
On January 11, 1963, defendant was indicted with three coindictees, Isaac James Oshana, Frank Amato and Edward Pung, for having:
". . . committed the offense of robbery, in that they, by the use of force, and while armed with a dangerous weapon, took a clock, watch, television set, camera, radio, typewriter, and two coats from the person and presence of (the complainant), . . ." (Insert supplied.)
On November 2, 1962, defendant and three of his coindictees, met in a restaurant, where they allegedly planned the robbery of one David L. Pruitt. Thereafter on November 3, 1962, coindictees Oshana and Amato and defendant proceeded to Pruitt's apartment in the early morning hours and allegedly with Amato holding the gun, (.22 Derringer) on Pruitt, Oshana, who was also holding a gun, (.38 caliber) tied up Pruitt and one Stanko, who was in the apartment with him. They took articles, which were later identified as the property of complainant and are the items set out in the indictment above. During the course of the robbery, defendant allegedly remained downstairs in the car. Oshana took the goods downstairs, while Amato watched the complainant and Stanko. Defendant helped load the goods into the car. Thereafter, testimony was adduced that Amato left his .22 Derringer in the automobile of Lagardo.
Defendant was arraigned January 18, 1963, and rearraigned on October 8, 1963, after having changed attorneys. At the second arraignment, the People were ordered by the court to furnish the defense with copies of written statements taken from defendant together with a list of witnesses within ten days thereafter. Counsel for defendant moved for leave to withdraw as counsel for defendant, which motion was denied.
On October 19, 1963, after defendant's indictment and arraignment, and unknown to the prosecutors in this case, three police officers, investigating another and unrelated robbery, went to the County Jail, where defendant was incarcerated, to question him. One of these officers testified that they did not know at this time for what offense defendant was being held. The officers knew that defendant was represented by counsel, but did not inform counsel, nor seek his permission to question defendant. The questioning lasted about forty-five minutes to an hour. Asked during the course of the interrogation for what charge he was being held, defendant responded that he was being detained on an armed robbery charge. Officer Mason, testified that defendant thereafter volunteered the statement, "he was not worried about the armed robbery because the two fellows that were upstairs caught the finger and he was downstairs waiting for them." No further questions relating to this offense were directed to defendant.
The officers did not then appreciate the significance of the statement, nor was the prosecutor aware of what had transpired. Consequently, defendant's alleged admission was not brought to the prosecutors' attention until January 15, 1964, five days before the trial was to commence. The prosecutors did not inform the defense of the existence of such admission prior to the commencement of the trial, notwithstanding the previous order requiring the People to produce copies of written statements taken from defendant and to furnish a list of witnesses thereto. The testimony of a coindictee at the trial placed the defendant at the scene of the robbery downstairs waiting in a car. The subsequent introduction of the admission into evidence was the subject of a motion to suppress a confession by defendant, which was denied. Claiming surprise, defendant's counsel requested and received a hearing on the voluntariness of the admission. The voluntariness of the admission is not in dispute on this appeal.
Testimony further revealed that on November 8, 1962, Officer Julien, as a result of a conversation had between himself and one of the coindictees, sought to gain entrance into the defendant's apartment. Announcing his presence, the officer was admitted into the apartment by defendant's wife. Defendant was then placed under arrest and a .22 Derringer gun, observed by the arresting officer on the top of a dresser, was seized.
After the trial had commenced, defendant's counsel made a motion to suppress the weapon on the ground that it had been illegally seized by the arresting officer. The court denied the motion for want of timeliness. Defendant's counsel contended he had been taken by surprise in that he did not know, nor did the indictment indicate, the use of a weapon other than the one already introduced into evidence, and hence his failure to object by pretrial motion. He then requested leave to file a written motion and affidavits in support thereof, which was also denied. The court stating that if counsel were surprised, it was only because his client had withheld information from him and such was not cause to delay the trial.
It is defendant's theory of the case: (1) that police interrogation of an indicted and arraigned defendant, without consent of his counsel, deprives that defendant of his rights under the Sixth Amendment of the United States Constitution, (2) that a motion to suppress evidence is timely even when made after the trial has commenced, and (3) that the defendant was convicted of a charge for which he was not indicted.
It is the Peoples' theory of the case: (1) that statements not deliberately elicited by the police from an indicted and arraigned defendant are not within the protection afforded a defendant under the decision of Massiah v. United States, 377 U.S. 201 (1964), (cited by defendant), (2) that the motion to suppress was untimely and properly denied in that defendant's counsel was not taken by surprise, and (3) that the indictment apprised defendant of the nature of the charges brought against him.
Defendant first contends that police interrogation of an indicted and arraigned defendant, without the presence or consent of his known counsel, deprives him of his constitutional rights to assistance of counsel and due process of law; that this alleged prejudice was compounded by the prosecutors' failure to inform the defense of the existence of the admission prior to trial, in specific violation of the court order entered at the arraignment.
The decisions of Gideon v. Wainwright, 372 U.S. 335 (1963), Escobedo v. Illinois, 378 U.S. 478 (decided 6/22/64), and Miranda v. Arizona, 384 U.S. 436 (decided 6/13/66) have firmly established, as well as extended, the application of the constitutional guarantee of right to assistance of counsel in State proceedings, to preindictment interrogation. Contrary, however, to the argument of defendant's counsel, neither the Escobedo nor Miranda decisions have retroactive application to State proceedings in which the trial had not been commenced prior to the dates on which these two respective opinions were filed. Johnson v. New Jersey, 384 U.S. 719 (decided 6/20/66). The defendant's trial here began on ...