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People v. Bacon

OCTOBER 29, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LORENZO B. BACON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALVIN J. KVISTAD, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT AS MODIFIED ON REHEARING:

A jury found the defendant guilty of the offenses of attempted murder and aggravated battery. He was sentenced to terms of fourteen to twenty years and eight to twelve years respectively. The finding and sentence with respect to the aggravated battery charge were subsequently vacated.

On appeal, defendant contends: (1) that the trial judge erroneously denied defense motion for discharge under the statute requiring trial within 120 days of arrest; (2) that the court erroneously permitted the State under guise of impeachment, to place before the jury as substantive evidence, statements by defendant's co-indictees implicating defendant in the crime charged; (3) that the denial of defense motion for a hearing to determine the voluntariness of those statements was improper; (4) that statements elicited from defendant were in violation of the principles established by the Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436 and should therefore have been suppressed; (5) that certain physical evidence was the fruit of a statement elicited from the defendant in violation of the Miranda doctrine and should therefore have been suppressed; (6) that the trial court erred when it failed to make findings of fact and law upon denying defense motions to suppress; (7) that the trial court should not have allowed the State to introduce evidence of crimes other than the one for which defendant was being tried; (8) that defendant was denied a fair trial; and (9) that the giving of an instruction relating to the credibility of defense witnesses was improper.

The State's evidence in its case in chief may be summarized. At approximately 10:00 A.M. on October 23, 1967, Police Sergeant Rourke was driving his marked squad car in a southerly direction on south Halsted Street in Chicago. He observed an automobile slide through a stop sign. The driver of that car was signaled to pull to the curb and the three occupants were ordered out of the car. They were brought to the rear of their car where they were patted down. The men were then told to remain at the rear of the car. While Rourke was calling for assistance two of the men left their positions. At Rourke's command one returned but the other, identified by Rourke as defendant, kept walking to the passenger side of the car. Defendant then fired a shot which struck Rourke in the lower abdomen. Rourke returned the fire wounding one of the three. The trio fled the scene in their car. Another police officer, coming upon the scene moments later, attempted to follow the fleeing trio. He found their car abandoned. Crime laboratory technicians lifted fingerprints from the car which were established to be those of defendant.

The State Police arrested defendant at Farmer City, Illinois, and took him to Pontiac, Illinois, to await the arrival of the Chicago police. When the Chicago police arrived in Pontiac they searched defendant and informed him of his rights in regard to questioning. Defendant stated that he did not want to say anything and he was not interrogated. He was then placed in the rear seat of a police car for the return trip to Chicago. On returning to Chicago they went directly to Area Two Police Station where Sergeant Murtaugh took command of the investigation. When Murtaugh informed defendant of his rights, defendant responded that he understood. Defendant requested permission to telephone his father. The police then provided a telephone which defendant used in an unsuccessful attempt to reach his father. Defendant then told the police that he would like to call an attorney whom he knew. The police gave defendant a telephone directory but he was also unsuccessful in his attempt to contact the attorney.

Defendant was then taken to another police station for a line-up. There he again tried unsuccessfully to contact his father. Although no interrogation took place at this station, defendant overheard the police officers mention the names of defendant's co-indictees, Pillow and Turner. Defendant then asked whether the others involved in the case were in custody. On being informed that they were, he asked for the man in charge of the investigation because he wanted to "tell it like it was." Murtaugh was summoned and once again informed defendant of his rights. After a reading of the four warnings defendant responded that he understood. He then made a statement implicating himself as the person who shot Rourke.

The police took defendant to Rourke's room in Little Company of Mary Hospital where defendant said "That's the sergeant I shot." Rourke then identified defendant as his assailant. Defendant was then taken to a third police station for processing. There he was asked by Murtaugh whether he had anything else to say. Defendant said he would show the police where the gun could be found. He then led the police to a clump of bushes in an alley where the gun was discovered. Several police officers testified that during the entire time defendant was in custody he made no attempt to escape and he was not physically abused.

The evidence presented by defense may be summarized. On October 23, 1967, defendant arrived home at approximately 8:00 A.M. He received a telephone call from his father at 8:30 A.M. and defendant called his friend Ollie Ross at 9:30 A.M. He made arrangements to meet Ross later than morning. Defendant went to the dry cleaner and on his return trip met Mattie Bell with whom he had a brief conversation occurring about 10:00 or 10:15 A.M. He arrived home about 10:30 A.M. As he was entering the building his father arrived. They talked of defendant's upcoming trip to see his mother in Wichita. At 11:00 A.M. defendant kept his previously arranged meeting with Ollie Ross. While they were having a drink Ross told defendant that Pillow had been wounded. At 3:00 P.M. defendant boarded a bus for Wichita. As he stepped off the bus for a bite to eat at Farmer City, Illinois, he was apprehended and searched by the State Police. He was taken to Pontiac where the Chicago police came for him. The Chicago police unsuccessfully attempted to persuade defendant to make a statement. On the return trip to Chicago defendant was punched repeatedly by the officers.

They arrived at a Chicago police station about 2:45 A.M. on the morning of October 24, 1967. There defendant met Murtaugh, who jabbed defendant in the stomach with a pistol after he asked to call his attorney. While at the first police station defendant was not allowed to make any telephone calls. He was taken to another police station where he was beaten, placed in a line-up, and then beaten again. Once more he unsuccessfully requested permission to call an attorney or his father. The police than transported defendant to the hospital in which Rourke was recovering. There, Rourke identified defendant as the man who shot him. Defendant was taken to yet a third police station where he was photographed and fingerprinted. Murtaugh then placed defendant in a car which transported them to an alley where another police car was awaiting them. There he was instructed to pick up a gun.

When defendant's father arrived home from work on the afternoon of October 23, 1967, he was met by the police who had already searched the home. They told him that his son had shot a policeman. Bacon, Sr. advised the police that his son was on the way to Wichita. After some of the police left he telephoned a friend and asked her to come to his house. The friend arrived at 6:00 P.M. and stayed throughout the night. They were awake all night talking. The telephone never rang after midnight.

Although Pillow and Turner made statements to the police naming defendant as Rourke's assailant, at trial they named another as the person who shot Rourke. They indicated that the previous statements were involuntary and were the product of police persuasion.

The State introduced rebuttal evidence to impeach the testimony of Pillow and Turner. This is set forth in detail below.

Opinion

(1) Defendant contends that he was entitled to discharge under Ill. Rev. Stat. 1967, ch. 38, par. 103-5. *fn1 The basis of this contention is his assertion that he occasioned no delay from March 5, 1968, to the time of trial, ...


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