APPEAL from the Circuit Court of Cook County; the Hon. JAMES
MEJDA, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Defendants, Andrew Brooks and Celester Jones, were tried together and found guilty of armed robbery and murder by a jury in the circuit court of Cook County. Brooks was sentenced to terms of 10 to 30 years on the armed robbery charge and 30 to 70 years on the murder charge, the terms to run concurrently. Jones was sentenced to terms of 10 to 30 years on the armed robbery charge and 40 to 80 years on the murder charge, the terms to run concurrently. Both Brooks and Jones have appealed and their appeals have been consolidated in this court.
Between 8 and 9 P.M. on November 20, 1967, five boys, Jones, Brooks, Hubbard, Williams and Hart, 17 and 18 years of age, were in an apartment. Hubbard showed the other boys a .22 rifle which had the barrel sawed off. As the group left the apartment with the rifle they saw an insurance man in the lobby of the apartment building. They decided to rob him. While doing so Jones shot the insurance man who died from his wound. The boys took $35 from his pocket and fled to Hart's apartment where they divided the money. Hubbard gave his share back. Hart put the rifle in a drawer in his sister's room.
The next morning the police received information that Hubbard had told another boy that some boys had shot an insurance man in his apartment house. Three officers on questioning Hubbard learned that Jones and Brooks were involved. Hubbard agreed to help the police locate them. The police did not arrest Hubbard because they did not think he was involved. Brooks was located first, placed under arrest, advised of his constitutional rights and placed in the squad car with the three officers and Hubbard. A little later Jones was seen on the street and Hubbard pointed him out to the police. Jones was then arrested and informed of his constitutional rights and placed in the squad car with the others. Both Jones and Brooks were informed that they were under arrest for the shooting of the insurance man. On the way to the police station the officers purchased sandwiches for lunch for themselves and the three boys. Jones and Brooks were not questioned about the crime while in the squad car. On arrival at the police station the three boys were taken to a room that had a table and chairs in it. They were given their sandwiches and the three officers went into the next room and sat at a table to eat their lunch. The table was near the door to the room where the boys were sitting. The door was open and some of the officers could see the boys from the table and the boys could see the officers.
As the officers were eating they overheard a conversation among the three boys. Brooks asked Hubbard why he was not under arrest and accused Hubbard of participating in the crime and of receiving money. Hubbard admitted that it was his gun but stated he had not shot anyone and had given the money back. Brooks then said that Jones shot the man. Jones remained silent and did not reply to the accusation. The conversation was held in the normal tone of voice and was plainly audible to the officers. It is not contended that Jones did not hear the accusation. The officers then entered the room and informed Hubbard that he also was under arrest. Later Jones admitted to an officer that he had shot the decedent but claimed it was an accident. He stated that he just pointed the gun at the man and it went off.
Jones, Brooks and Hubbard were jointly indicted. Each was represented by a different attorney and each moved for a severance and separate trial which motions were denied. The court likewise denied the motion of each defendant to suppress his statement and a motion to suppress the sawed-off rifle.
After the trial started the court declared a mistrial as to Hubbard and granted him a severance because of information elicited from a State's witness during cross-examination by Jones's attorney.
Both defendants contend that the court should not have permitted the officers to testify as to the conversation they overheard in the police station among Jones, Brooks and Hubbard, claiming a violation of their fourth amendment rights, relying on Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507. Admittedly, as defendants contend, Katz states that the fourth amendment "protects people, not places." However, Katz also states that what a person knowingly exposes to the public is not a subject of fourth amendment protection. (389 U.S. at 351, 19 L.Ed.2d at 582.) In United States v. White (1971), 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122, the court stated that the problem is not what the privacy expectations of particular defendants in particular situations may be, but what expectations of privacy are constitutionally justifiable. (401 U.S. at 751-2, 28 L.Ed.2d at 458-459.) White also held that Katz did not overrule On Lee v. United States (1952), 343 U.S. 747, 96 L.Ed. 1270, 72 S.Ct. 967, to the extent that On Lee held that overheard conversations were admissible as evidence though "talking confidentially and indiscreetly with one he trusted." We do not therefore find anything in Katz which requires us to hold that the defendants' fourth amendment rights were violated when the police officers overheard their conversation. The facts of this case do not indicate any expectation of privacy at any time on the part of defendants. The door between the two rooms was open. The officers were seated at a table where some of them could see the defendants and defendants could see them. The conversation among the defendants was carried on in a normal tone of voice and was easily overheard by the officers.
It is also contended that the statements which were overheard violated the defendants' fifth amendment rights. Defendants had been advised of their constitutional rights as prescribed by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The statements which were overheard were not elicited by interrogation by or on behalf of the police. Miranda specifically excludes from the application of its holding statements freely and voluntarily given without any compelling influence. (384 U.S. 436, 478, 16 L.Ed.2d 694, 726, 86 S.Ct. 1602.) In People v. Doss (1970), 44 Ill.2d 541, as a result of urging by a co-defendant, information was given directly to the police by a defendant who had previously elected to remain silent. This court held that such conduct did not amount to interrogation and that the information thus given fell within the above exception noted in Miranda. The conversation involved in this case falls within the same exception.
Defendants raise a further constitutional objection to the introduction of the evidence of the overheard conversation. It is their contention that the admission of this testimony violated their sixth amendment constitutional right to confront the witnesses against them, citing Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620.
In our case it was Brooks who initiated the overheard conversation by saying to Hubbard, "Why aren't you under arrest? It was your gun that was used and you got some of the money, why aren't you under arrest with us?" Hubbard replied, "Well, it was my gun, but I didn't shoot anybody," and Brooks answered, "Well, I didn't shoot anybody either, Celester shot the man."
In this conversation between Brooks and Hubbard, we find no violation of Brooks' sixth amendment right of confrontation. Brooks had implicated himself by his own comments and he did not disagree with anything that Hubbard said nor did he do anything other than adopt Hubbard's statements. It is well established that when an extra-judicial statement by a third person is admitted to be true by an accused the same is admissible in evidence at his trial. People v. Hanson (1964), 31 Ill.2d 31; People v. Johnson (1970), 44 Ill.2d 463.
As to Jones' sixth amendment right to confrontation it must be remembered that it was Brooks who accused Jones of shooting the man. At the joint trial Brooks took the stand and testified in his own behalf. He was cross-examined by the State and he denied having had a conversation with Hubbard in the presence of Jones and denied that he told Hubbard that Jones had shot the man. Counsel for Jones did not cross-examine Brooks. In Nelson v. O'Neil (1971), 402 U.S. 622, 29 L.Ed.2d 222, 91 S.Ct. 1723, the Supreme Court considered a factual picture similar to the one now before us and concluded that the defendant had not been denied his right to confrontation. The court held that the testimony of the declarant at the trial denying that he had made the out-of-court statement was more favorable to the accused than any that cross-examination by counsel could produce had he affirmed the statement as his. See also California v. Green (1970), 399 U.S. 149, 26 L.Ed.2d 489, 90 S.Ct. 1930. In view of the availability of Brooks at the trial for cross-examination and his denial ...