Appeal from the Criminal Court of Cook County; the Hon.
HERBERT R. FRIEDLUND, Judge, presiding. Judgment reversed and
remanded for new trial.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 17, 1967.
This is an appeal from a conviction in a jury trial for the offense of armed robbery. The defendant, Leo Lagardo, was sentenced to a term of not less than 15 nor more than 40 years in the State Penitentiary. After return of the guilty verdict, defendant made motions for a new trial and in arrest of judgment, both of which were denied and from which this appeal is taken.
At approximately 6:00 a.m. on September 22, 1963, the Polish Roman Catholic Union Museum (hereinafter referred to as the Museum) in Chicago was robbed and numerous historical objects taken therefrom (People's Exhibits 1 thru 25 inclusive). Subsequently, on October 30, 1963, a true bill was returned which jointly indicted Bruno Dispenza, John French, Gene Yocca, and defendant. The defendant was tried separately. The trial commenced on April 13, 1964.
Only one eyewitness to the occurrence was called to testify, Leon Krempec, a night watchman at the Museum. He testified that on the morning in question he was about to go off duty when he was seized and held at gunpoint in an outer hall of the Museum. Although he was only able to see one of the intruders, Krempec stated that four persons participated in the robbery. He based this observation upon the fact that the person holding him at bay had told him that there were four men present. Krempec testified that he had heard the voices of two other persons in the Museum.
On October 18, 1963, Krempec identified Bruno Dispenza at a police lineup as the same person he saw in the Museum on the morning of the robbery. Dispenza was placed under arrest. Krempec, however, was unable to identify any other person/s at the lineup, as Dispenza was the only person who had actually confronted him during the course of the occurrence. On October 19, 1963, a written confession was taken from Dispenza which named French, the defendant, and a man he knew only as Gino, as his accomplices in the robbery. The confession detailed the procedure employed by the four during the commission of the offense. Dispenza stated in the confession that he was 21 years old and that he had received a one-year education in his native country. He, however, stated in the confession that he could read English but that he had difficulty writing it. Dispenza took about four to five minutes to read the three-page statement and then placed his signature on each page thereof.
The same day the confession was obtained, Police Officers Mason, Walker, and Gushi proceeded to the Cook County Jail where they had learned that defendant was being held on another and unrelated charge. As of this time, defendant was represented only by counsel relative to the charge he was then under indictment and in custody for. No appearance of counsel had, as yet, been filed relative to the instant charge. Upon request, the three officers received the defendant's oral and written permission to be interviewed. The interview took place in the conference room of the jail. No physical contact is permitted between inmates and visitors, nor are they allowed to hand objects to one another. The interview took place in absence of counsel and lasted approximately 45 minutes.
Officer Walker, called on behalf of the State, testified that at the interview he informed defendant that the three were police officers and that he had been implicated in the robbery of the Museum, together with French and Yocca in a confession made by Bruno Dispenza. Walker stated that he then handed the confession to a jail clerk who presented it to defendant. He testified that after having read the confession, defendant made the remark, "Well you've got the right men, now prove it." Defendant, thereafter, acknowledged his acquaintance with Dispenza, French and Yocca. Defendant then told Walker that he had called a Chicago newspaper to notify them of the robbery and had attempted to negotiate with them as to the proceeds of such robbery. Walker continued, stating that defendant said that "he would like to make a deal with us, because we did not have all the merchandise that was taken from the Museum." Asked what items were missing, Walker testified that defendant replied, "You don't have the gun. You haven't got the chalice and a small cross." Thereafter, defendant expressed his desire to meet with the officers the following Monday in Judge Wells' courtroom, where he would be on trial, to discuss a "deal."
Walker testified that the following Monday he, Commander Johnson, and Officer Mason sought and obtained defendant's permission to be interviewed in the jury room of Judge Wells' courtroom. The policemen again identified themselves and asked defendant what kind of a "deal" he was looking for. Walker stated that defendant said that he wanted to "walk" in exchange for the return of the merchandise missing from the Museum because he was the only one who knew of its location. Defendant, once again, identified the missing pistol taken from the Museum. This interview lasted approximately 15 to 20 minutes.
Commander Johnson, called on behalf of the State, testified as to this same interview. He stated that he handed Dispenza's confession to defendant who, after paging through it slowly, stated, "Well, your whole case rests with Bruno Dispenza. All we have to do is get him out on bond and we'll hit him, and your case goes with him." Asked by Johnson what sort of a "deal" did he wish, defendant stated, "I want to walk free from this robbery charge." Johnson inquired, "The Museum case?" Defendant replied, "Yes." Again defendant made the remark, "You've got the right guys, now prove it." This second interview, like the first, was made outside the presence of counsel, however, defendant had not, as yet, been indicted nor obtained counsel relative to the instant offense. Neither defendant nor Dispenza testified at the trial.
Throughout the foregoing testimony of Walker and Johnson, the record is replete with objections by defense counsel that any statements made by defendant to the interviewing officers is inadmissible as hearsay. Furthermore, defense counsel voiced strenuous objection to the introduction into evidence of Dispenza's confession because it was based upon hearsay and was never adopted by defendant, hence inadmissible against defendant. Defense counsel also objected to the introduction into evidence of People's Exhibits 1 thru 25 inclusive (the stolen goods) and the giving of certain instructions to the jury. These objections were overruled.
It is defendant's theory of the case that numerous errors warranting reversal were committed in the court below; to wit, (1) the admission into evidence of defendant's self-incriminating response to Dispenza's confession, in absence of counsel, violated his fifth, sixth, and fourteenth amendment constitutional rights, (2) the admission into evidence of Dispenza's confession was hearsay, having never been adopted by defendant, (3) the court improperly instructed the jury as to the law applicable, (4) the court erred in admitting exhibits of allegedly stolen goods which were not recited in the indictment, (5) defendant was prejudiced by a reference, made by a state's witness, to defendant's indictment for another crime, (6) defendant was prejudiced by remarks of the trial judge made in the presence of the jury, (7) the State failed to prove the necessary elements of the offense charged in the indictment, and (8) defendant was prejudiced by the prosecutor's remarks during closing argument.
It is the State's theory of the case: (1) that defendant's incriminating remarks were admissible, (2) that defendant's remarks constituted an adoption of Dispenza's confession thus rendering that statement admissible against him, (3) that the instructions given correctly reflected the applicable law, (4) that all the items taken in the robbery were properly admitted into evidence, (5) that defendant was not prejudiced by the unsolicited testimony of another crime, (6) that defendant cannot complain of the trial judge's remarks because they were made to rebuke defense counsel's misconduct, (7) that the evidence is sufficient to support the indictment, and (8) that the closing argument of the State was proper.
Points (1), (2) and (8) of defendant's theory shall be discussed together because they necessarily relate to one another. Defendant initially relies upon the landmark decisions of Escobedo v. Illinois, 378 U.S. 478 (decided 6/22/64) and Miranda v. Arizona, 384 U.S. 436 (decided 6/13/66). He submits that the subsequent decision of Johnson v. New Jersey, 384 U.S. 719 (decided 6/20/66), which refused to afford retroactive application to the constitutional safeguards promulgated in Escobedo and Miranda, is not binding on state courts. Defendant points out that the Johnson decision was based upon the prospective disruption to the administration of justice in ...