Appeal from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding. Judgment affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
In a two-count indictment, the defendant, William Johnson, and one Charles Culp were jointly charged with theft of an automobile exceeding $150 in value and with criminal trespass to vehicle. In a subsequent jury trial upon this indictment, the defendant was convicted only of criminal trespass to vehicle, a misdemeanor and a violation of Ill Rev Stats (1965), c 38, § 21-2. After motions for a new trial and in arrest of judgment were denied, judgment was entered and the defendant was sentenced to one year in the County Jail. He appeals contending: (1) the trial court erred in denying the defendant's motion to suppress his oral confession based upon an alleged lack of voluntariness; (2) the alleged inconsistency of the jury in convicting him only of criminal trespass to vehicle, thereby, by implication, acquitting him of theft showed a reasonable doubt that he had committed any crime at all; (3) prejudicial remarks of the prosecutor in closing argument constituted reversible error, denying the defendant a fair trial; (4) the trial court committed prejudicial error by failing to instruct the jury that the alleged verbal admissions of the defendant should have been received with caution. The facts follow.
At the hearing on the pretrial motion of the defendant to suppress his oral confession, the State produced as witnesses the two officers who arrested the defendant without a warrant; the two officers who drove the squadrol which transported the defendant and his coindictee, Culp, from the arrest scene to the police station; and the two detectives who conducted the arrest investigation. The two arresting officers testified that they did not threaten or strike the defendant when they arrested him along with Culp at 2:00 a.m. on August 20, 1965, and neither did the two officers driving the squadrol which arrived shortly thereafter. Continuing, the officers stated that they could not remember if they advised the defendant of his right to remain silent or to consult with counsel. They did say that the defendant, at the arrest scene, denied any participation in the theft of the automobile and never asked to see a lawyer.
The two police officers who drove the squadrol that morning testified that they did not strike or threaten the defendant nor did anyone in their presence. As for the testimony of the detectives, Shereikis testified that he and his partner, Krause, were assigned to an arrest investigation of an auto theft. Accordingly, they arrived at the police station at approximately 2:45 a.m. on August 20, 1965, whereupon they met the defendant and Culp. On cross-examination, Shereikis stated that he did not advise the defendant of his right to remain silent and his right to counsel. In the detective's questioning of the defendant in the police station, the accused orally admitted that he was walking in the particular neighborhood where the crime occurred and stated that "he was looking for a car to ride around in and they happened to find one." Culp also orally admitted his participation in the theft. (At the time of the trial, Culp had pleaded guilty and was awaiting sentencing.) Detective Krause corroborated this testimony and testified that he did not advise the defendant of his right to remain silent and of his right to counsel.
In support of his motion to suppress, the defendant testified that one of the two arresting officers allegedly struck him and Culp and promised to release them in exchange for money. They were not struck after being put in the squadrol.
Charles Culp corroborated the testimony of the accused. On cross-examination, he identified one of the arresting officers as being the one who struck the defendant and asked for money, and he also identified one of the squadrol officers as having struck them.
The State then called, in rebuttal, the arresting officer whom the defendant and Culp had charged with alleged police misconduct at the arrest scene. The officer denied these accusations. The motion to suppress the oral confession of the defendant on the basis of its alleged involuntariness was then denied.
At the trial of the cause before the jury, the State presented three witnesses: the owner of the auto which was stolen; one of the arresting officers; and one of the detectives in whose presence the defendant had allegedly made an oral confession. The first witness for the State, Raven Knighten, established her ownership of the auto, stated that it was a red 1963 Chevrolet Corvair for which she had paid $1,900 in cash in addition to her old car, and testified that on August 19, 1965, at about 6:00 p.m., she parked this vehicle in front of her home. When she and her husband left their home in his car at approximately 7:30 p.m. that same evening, her auto was parked where she had left it. When they returned to their home between 9:00 and 9:30 p.m. that same evening, August 19, 1965, her car was gone. Her husband reported this to the police, and the next morning he went to the police station and reclaimed it. Upon examining her car, she noticed that "the ignition switch had been snatched out; it was hanging. . . ."
On cross-examination, this witness stated that when she parked her auto in front of her home, its doors and windows were locked. Furthermore, before her husband left with her that night, he also checked the car to determine that its doors and windows were locked. When she examined the car after its recovery, she did not notice any windows broken but a screwdriver was on the floor. Her husband had left some of his tools in her car prior to the theft. This was her husband's screwdriver.
One of the arresting officers called by the State testified that at approximately 2:00 a.m. on August 20, 1965, he and his partner, in their squad car, saw an automobile, with its headlights off, fail to stop for a red traffic light. The vehicle was a red 1963 Corvair and there were two people in it. Continuing, this police officer testified that he and his partner then gave chase and were able to halt the vehicle in an alley. Both vehicles came to a stop, head-on, approximately 10-15 feet from each other. This officer immediately put the police spotlight on the driver of the other vehicle and observed that he was "a male negro, dark complexioned, thick lips, and he wore a red shirt." The driver of this auto was under his observation for one or two minutes. The arresting officer then identified the defendant in the courtroom as being the driver of the red Corvair which he and his partner had stopped in the alley.
The driver and the occupant of the Corvair were successful, however, in fleeing from the police at the time of the initial confrontation. The police examined the Corvair and noticed that the ignition had been pulled. It was the testimony of this police officer that in continuing the search in the immediate neighborhood for the occupants of the auto, he and his partner, while in their squad car, saw two men turn a corner and walk toward them. One of the men was the same man whom this witness had seen earlier driving the red Corvair. He was wearing a red shirt. When the police officers called to them, both men started to flee. The record is silent as to how the police apprehended them. Continuing, this witness testified that in answering the questions of the police officers concerning why they were in this neighborhood at approximately 2:30 a.m., the defendant stated that he was visiting a friend who lived in the neighborhood but could not remember his name or address. The police officers then ascertained, through police communications, that the 1963 Corvair was a stolen vehicle. The defendant and his companion were transported to a police station in the squadrol.
On cross-examination, the arresting officer stated that when he saw the defendant on the street immediately prior to placing him under arrest, the accused was 15-25 feet away from the squad car and the street was very well lighted with vapor lights. He saw the red shirt immediately and was able to see the defendant's face well enough to be positive he was the man he had seen earlier driving the stolen vehicle. It was this officer's testimony that at the scene of the arrest, the accused denied stealing the auto.
One of the detectives who conducted the arrest investigation of the defendant and Culp testified for the State and stated that he had a conversation with the defendant in the police station at approximately 2:45 a.m. on August 20, 1965. Also present were the two arresting officers and the detective's partner. In response to the questions of this witness, the defendant stated orally that he and Culp "noticed this Corvair; they got in the car, Johnson said he found a screwdriver in the car, `popped' the ignition, started the car, and drove it away."
On cross-examination, this witness testified that he transcribed the oral remarks of the defendant onto a piece of paper and he later incorporated these written notes into the arrest investigation report signed by both detectives. This report was then identified as Defendant's Exhibit #2, and after reading it, the detective admitted that it failed to contain a statement made by the defendant that he found the screwdriver in the car and used it to "pop" the ignition. On redirect examination, the detective testified that the arrest investigation report contained a statement that the defendant orally admitted "popping" the ignition, but on recross-examination, ...