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People v. Harper

JULY 31, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ANDREW HARPER AND JOHN HOLMES, JR., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed. MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

OFFENSE CHARGED

Murder of one Atallah Sadallah. Ill Rev Stats 1963, c 38, § 9-1.

JUDGMENT

After a jury trial, both defendants were convicted as charged and a verdict of death was returned. However, pursuant to Ill Rev Stats 1965, c 38, § 1-7(c)(1), the court sentenced both defendants to terms of 100 to 150 years.

DEFENDANTS' CONTENTIONS ON APPEAL

1. The court erred in denying defendants' motion to suppress their confessions.

2. Defendants were not proven guilty beyond a reasonable doubt.

3. The court erred in denying defendants' motion for severance.

4. The court erred in denying defendants' motion to sequester the jury.

5. Defendants were denied due process of law by the method of jury selection employed by the court.

EVIDENCE AT THE HEARING ON DEFENDANTS' MOTION TO SUPPRESS THEIR CONFESSIONS

Officer William Lenz testified for the State that on January 10, 1963, he was at Area 4, Homicide, with several other detectives and officers. He noticed three officers talking to the two defendants about 3:15 p.m. All were seated at a table in the squad room, and neither of the defendants was handcuffed. The witness talked briefly to them at 4:00 p.m. with Officers Walker and Anderson present. Defendants were then placed in separate rooms adjoining the squad room.

He stated that he read some reports, and at 6:00 p.m. again talked with both defendants. He talked first to Holmes and questioned him for approximately 25 minutes concerning the killings of Jake Allen and Atallah Sadallah (the victim in this case). Holmes was handcuffed at this time. Then he talked to Harper, who was not handcuffed, about the same incidents. Both defendants related certain facts about the killing of Sadallah.

At 8:00 p.m., the witness had a brief visit with Holmes, asked him what he wanted to eat, and then sent for it. He next saw Holmes at 8:30 p.m., when Mr. Getty, the Assistant State's Attorney, arrived at the station. At 9:00 p.m., both defendants were involved in a lineup. He was also present at approximately 11:30 when Holmes gave a statement to Mr. Getty, which was recorded by a court reporter. This same routine occurred in a different room with defendant Harper at approximately 1:00 a.m. on January 11. He was with defendants from the time the confessions were concluded until the squadrol came.

He stated that defendant Holmes' physical appearance remained the same from the time he first saw him until he last saw him, which was sometime after 1:00 a.m. He did see Holmes spitting up blood around 8:30 p.m., and asked about his condition. Holmes told him that he had a nervous stomach, so they obtained a quart of milk for him.

Witness never struck either defendant. He was in the squad room during most of the day and had occasion to observe who entered and left the room where defendants were being held. He testified that no one threatened defendants or beat or struck them. No one promised them leniency to induce a confession.

Detective Robert Walker testified for the State that he and Detectives Mason and Invergo arrested defendants on January 10, 1963, at approximately 2:45 p.m. at a welfare station on West Madison. Each man had a loaded gun and Holmes said they were riding in a stolen car. Defendants were brought to Maxwell Street police station where questioning began concerning five or six different robberies in Area 4. There was no conversation about the Sadallah matter. At 4:15 p.m., defendants were turned over to the homicide section, including Detectives Lenz and Anderson, for further questioning. After this, he saw defendants in handcuffs at various times.

He did not advise either man of a right to remain silent nor did he permit either man to make a phone call. Neither he nor anyone else struck defendants or made any threats or promises to obtain confessions, and defendants made no complaints about the way they were being treated. He did see defendant Holmes spitting up blood during an interrogation. Holmes told him that there was nothing he could do to help, as he had been drinking quite a bit and had ulcers and a bad stomach.

Richard J. Mason and Michael Invergo, police officers, testified for the State that they assisted in the arrest of defendants. Their testimony was substantially similar to that of Detective Walker. Invergo, however, had left the station at 5:00 p.m. and did not see Holmes spit up any blood.

L. Michael Getty testified for the State that he was an Assistant State's Attorney on January 10, 1963, and had occasion on that day, at 8:30 p.m., to see defendants at the Maxwell Street station. He met first with defendant Holmes, advised him of his right to remain silent, and asked him if he wished to make a statement. Holmes said that he did. In response to a question, Holmes also stated that he had been treated well by the police. Holmes related certain facts about the death of Jake Allen. Getty then met Harper, and advised him of his right to remain silent. Harper also indicated that he had been treated well and made no complaint to the witness. He talked to Harper for 15 minutes concerning the Allen incident.

After the showup, he again talked with Holmes, who related facts about Sadallah's death. He advised Holmes of his rights, and suggested that they restrict the conversation to Jake Allen. After a visit with Harper, where a similar discussion took place, Getty returned to Holmes' room, and the court reporter then came in and took a written statement. The same process was repeated in defendant Harper's room culminating in a written statement.

Getty then returned to defendant Holmes and, using the same procedure involving two separate interrogations, obtained a written confession with respect to Sadallah's death. Harper, in like manner, also gave a statement. The witness stated that the initial oral statements of both defendants were substantially the same as those that were later recorded by the reporter.

The following morning, at the State's Attorney's office at 2600 South California Avenue, he read to defendants, and they read in his presence, the statements that had been recorded the previous night. They made corrections, initialed each page, and signed their names on the last page of each statement.

Defendants did not complain to him of any mistreatment. He did not see Holmes spitting up blood, nor did he see either defendant in handcuffs at any time. He did notice defendants drinking from cups and believed that he saw them eating some food during the course of the evening. When defendants signed the statements, they said they had slept but "not very well."

James Anderson, a police officer, was on duty at Area 4 on January 10, 1963. He observed and questioned defendants during their detention. He never struck them nor promised them leniency. Defendants never complained in his presence about their treatment. He did see them in handcuffs, and he saw defendant Holmes spitting blood. He questioned him about it, but Holmes merely replied that he had a bad stomach. Defendants were given something to eat that evening.

Paul Esling, a shorthand reporter for the State's Attorney's office, took two separate statements from each defendant concerning the deaths of Allen and Sadallah, respectively. Defendants never complained to him of bad treatment, nor did he see Holmes spit up blood. Neither he nor anyone else struck either defendant or made any threats or promises. He did not hear the Assistant State's Attorney caution defendants that they did not have to "make any statement against their constitutional rights."

Defendant Harper testified that he and Holmes were handcuffed at the time of their arrest at the welfare station. They were taken to Area 4, made to unload their pockets, and placed in separate rooms. Harper was handcuffed to a radiator. Police officers periodically came into the room to ask him questions about some robberies. Harper testified that he was not told of a right to remain silent, nor was he permitted to place a telephone call.

He testified that he was beaten by policemen many times during his detention at Area 4, and identified several. Sometimes he was struck from behind and didn't see who was responsible. He also heard Holmes crying in the other room and when they were brought together he noticed that Holmes was bleeding from the mouth. Holmes told him that he was hit in the stomach with a flashlight.

Harper testified that he did not tell Mr. Getty the truth because one of the policemen who had inflicted the punishment was present and he was afraid he would have to undergo more of the same treatment. The statement that he gave was not given voluntarily, although it was the only time at the station when he was not handcuffed. He was not allowed to sleep, and ate at midnight only after making the confession. He stated that he made the confession up, that it was a falsification, a lie. The police had given him stacks of papers containing complaints from Area 4 with facts and information which he used in making up his statement. He was in "a regular formal lineup with eight or nine men." He signed the confession on January 11, but was not brought into court until January 31, 21 days after his arrest.

Defendant Holmes testified similarly as to the facts concerning the arrest. He stated that he was then transported to the police station, placed in a small room, and handcuffed to a radiator. He was beaten by several detectives while in that room, and identified them in court. The only one who didn't strike him was Officer Invergo. Detective Walker caused him the most pain by hitting him in the stomach with a flashlight. Several of the officers intermittently questioned him about some robberies. He told them he didn't know anything about those robberies and, consequently, "that's what kept me getting beat by these officers."

He stated that he didn't know anything about Atallah Sadallah. However, he did talk to Mr. Getty about Sadallah's killing following the second showup at the station. When he gave the statement, his condition was poor, as he was tired, sleepy, hungry and spitting blood. Mr. Getty later gave him a statement to be signed, although he never cautioned the witness as to his right not to give a statement or of any constitutional rights. After signing the statement, he ...


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