APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Four men were indicted and tried for murder in a jury trial in the circuit court of Cook County. The court directed a verdict of not guilty as to one, Arthur Hale, and the other three were convicted. Alfred Armstrong, who received a sentence of 100 to 150 years, and Jerry Sumlin, who received a sentence of 50 to 100 years, have appealed. Vernon Rhodes has appealed separately.
The murder occurred during an attempted robbery of a tavern in Chicago about 1:45 o'clock in the morning on April 19, 1966. Two men, one carrying a shotgun and the other a .38 caliber revolver, entered the front door and announced a stick-up. Almost immediately there was a flurry of shots and decedent, an off-duty policeman sitting at the bar, was killed by two bullets to the head. In addition his right hand was mangled by a shotgun blast. Two other men sitting at the bar and the bar maid, Ann O'Donnell, testified as occurrence witnesses.
John Auskalnis, a school janitor, stated that he was sitting on the second stool about 5 or 6 feet from the front window and door; that he saw a young colored boy, whom he later identified as Rhodes, walk past the front window, followed almost immediately by Sumlin and Armstrong; that at that time the decedent, sitting to his right on the stool next to the window, wondered out loud what that youngster was doing out at such a late hour; that Armstrong and Sumlin came into the tavern with Armstrong in the lead carrying a shotgun and he heard one of them announce a stick-up; that decedent whirled and pushed him (Auskalnis) off his stool and as he fell he heard the shotgun blast and 4 or 5 shots from a gun, after which the robbers ran. Both before and during the trial this witness was positive in his identification of these three defendants.
Ann O'Donnell stated that she was standing behind the bar up front by the decedent. She too saw Rhodes first as he passed by the front window followed by the other two. She stated Armstrong entered first with his shotgun and Sumlin was immediately behind him with something in his right hand that looked like a gun, and that Rhodes stood behind them just outside the front door. As someone announced a stick-up she said the decedent swung around, and as he pulled out his gun, she heard the shotgun blast. Immediately she ducked behind the bar, heard 4 or 5 shots and then, when she heard decedent fall, she raised up to see the men running out. She too identified these three defendants positively both before and during the trial and stated further that the shotgun introduced in evidence looked similar to the one used by Armstrong.
Gerald Swaluis, a fireman, testified that he was sitting farther down the bar about 20 or 25 feet from the front; that he also saw three men pass the window; that he was just getting up to leave when he heard the explosion and saw decedent fall; that he immediately ran to the back room looking for a way out and he was unable to identify any of the three men.
Walter Powell identified Armstrong, Sumlin and Rhodes as the same three men who had robbed his tavern about 3 miles away at approximately 1:30 o'clock A.M., or 15 minutes before the shooting. He stated that Armstrong had carried a shot gun and that Rhodes had taken a .38 caliber revolver from the tavern. Emil Miskunis, a bartender at a tavern about 2 1/2 miles away, stated that the same three men had robbed his tavern at about 1:15 o'clock that same night and one of them carried a shotgun.
Alvin Adams, an acquaintance of defendants, refused to testify until granted immunity from any prosecution except perjury. He testified that he saw Hale, Rhodes, Sumlin and Armstrong at a vacant building on Flournoy Street about 10:00 o'clock in the evening immediately preceding the shooting and that they had borrowed his car. When they later returned to the building Armstrong was bleeding badly and complaining that he was hurt, asking that someone, "Get this out of me." Sumlin talked to Adams alone and told him that Armstrong got hurt trying to rob a tavern and Rhodes told him out of the presence of anyone else that Armstrong shot a man and he thought it was a "police". Adams also stated that he saw the revolver and shotgun they had with them and that at Armstrong's request he had taken the shotgun to Mrs. Armstrong's house. When he got into his car he noticed blood stains on the front seat.
In a search of Armstrong's apartment a .38 caliber pistol and a shotgun were seized and later introduced in evidence at the trial. A ballistics expert testified that one of the bullets recovered from decedent's body had definitely been fired from this pistol.
It was stipulated that Armstrong was 23 years of age, Hale and Rhodes, 20, and Sumlin 18. Except for character witnesses no other evidence was offered on behalf of defendants.
Defendants do not argue the sufficiency of such evidence to convict but contend that a number of trial errors prejudicially affected the jury's verdicts. They contend that the search which produced the weapons placed in evidence was illegal; that the testimony of Alvin Adams was inadmissible under the "fruit of the poisonous tree" doctrine; that evidence of a separate robbery unrelated to the crime charged was improperly admitted; that statements of co-defendants accusing Armstrong of the crime should have been excluded; that there was a break in the chain of proof on the bullets; that the prosecutor's final argument was improper; and that the common-design rule making all participants equally liable for one another's actions is outmoded and should be abandoned.
The trial court allowed a motion to suppress Armstrong's confession under the rule of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, but he denied the motion as to the revolver and shotgun, finding that Armstrong had consented to the search of his apartment. The evidence on the motion to suppress the guns is somewhat confusing in that it was considered by the court on three different occasions, both before and during the trial. In the first hearing two officers testified that Armstrong had been taken into custody the afternoon of April 19 for an assault on a teacher at Marshall High School. He was asked about his activities on the previous day and how he had received the gunshot wounds on his left hand and arm. He explained that someone he knew by the name of Walter and another man had jumped into his car near the school and had asked him to drive them away quickly; that later two policeman had come to his house looking for Walter for assaulting the school teacher; that when he went to a pool hall to look for Walter about ten men had charged him, accusing him of being an informer, and that as they chased him Walter had fired several shots at him hitting him in the arm. When asked if he had any objections to the police checking his story and searching his apartment he replied that he did not, that he didn't have the key but that his wife would let them in, and if she were not home they could find her at her mother's house, and he gave them her address. At the apartment the police identified themselves to Armstrong's brother-in-law who was baby sitting, explained their purpose and began their search. In 10 or 15 minutes, after they had found a shotgun in a closet, Mrs. Armstrong came home. When she was informed of the reason for their presence and that Armstrong had given his consent to the search, she produced a .38 revolver from a dresser drawer underneath some stockings. Armstrong denied he had given consent and Mrs. Armstrong denied producing or knowing anything about the gun. At this time the court denied the motion to suppress stating that the issue was one of credibility, that he believed the police officers and not the Armstrongs, and that Armstrong in giving his consent was merely trying to talk the police into believing his story as to how he had incurred his wounds.
Subsequently, during the course of the trial, after hearing the testimony of Adams concerning the manner in which he was picked up by the police, the court announced that he had certain misgivings about his prior ruling on the motion to suppress and that he was now inclined to reverse himself. After listening to the argument of the prosecutor that Adams's testimony had no relevancy on the issue and that it was a little late to reverse himself as all defendants were now in jeopardy, the court allowed his original ruling to stand.
Once again, at the close of the State's case and on motion of defendants, four additional police officers were heard concerning the search and Armstrong's consent. At the conclusion of this testimony the court announced that he was now firmly convinced of the credibility of the officers as opposed to the Armstrongs and that he had allowed repeated ...