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People v. Montgomery





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding. MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Defendant, Walter Montgomery, was found guilty by a jury in the circuit court of Cook County of the offense of murder and sentenced to a term of 100 to 200 years in the penitentiary.

Defendant, then 17 years of age, was indicted along with four other boys for the offenses of murder and robbery. His motion for a severance was allowed and he was tried separately. The jury failed to return a verdict on the robbery indictment and the court, on that charge, declared a mistrial. This case, and People v. Steptore, 51 Ill.2d 208, arose out of the same occurrence.

On July 10, 1968, at 10:57 P.M., the Chicago Fire Department received a report of a fire at 1411 South Keeler. In the bedroom of the dwelling at that address, the firemen found the remains of the occupant, Marie Smrz. The witnesses who investigated the fire for the State testified that the fire had been started about 10:45 P.M., an accelerant had been used, and the blaze had been confined to the bedroom. They had found drawers of a dresser in the dining room opened and a jewelry drawer pulled out.

Robert Harris testified that he was acquainted with Mrs. Smrz and on the evening in question was working in a nearby garage when he noticed the fire in her house. He ran to her house, kicked down the front door, and because of the smoke crawled through the house into the bedroom, where he saw Mrs. Smrz lying in flames on her bed. He was unable to assist her because of the smoke and fire. He testified that the fire was confined to the bedroom area and that the rear door of the house was standing open. He also identified defendant as being someone whom he had seen in front of the house when he came out.

Willie McLaughlin testified that he knew defendant by a nickname and that he along with defendant and Ike Steptore had entered the back door of Mrs. Smrz' house about 9:30 that evening by kicking in the glass and unlocking the door. While defendant searched the house for guns or money, the witness took a clock radio, and the boys then left the house. Subsequently, they met several other boys, including Willie Coleman.

Coleman testified that on that evening he met defendant and some other young people and they all proceeded to the back yard of the home of one of the boys, Robert Dismukes. The Dismukes home was two houses away from the Smrz house. Darryl Allen joined them there and he had with him a bottle containing 150 proof rum. While the witness and his girl friend, Delores Johnson, remained together in Dismukes' back yard, the other boys, including defendant, entered the Smrz house. A few minutes later, Dismukes and Steptore left the house and went down the stairs leading from the back porch. Defendant was then standing on the porch. Dismukes yelled at defendant, who re-entered the house. A few minutes later the witness saw defendant, Allen and one other person leave the house. Coleman then walked with Delores Johnson to her home and shortly thereafter returned to the Dismukes house where he heard that the Smrz house was on fire.

Delores Johnson, who was 13 years old, testified that she saw defendant and the others enter the Smrz house and saw Dismukes and Steptore exit shortly afterwards.

Barbara Walton testified that she lived in the same building as Dismukes and knew the defendant. She stated that about two weeks after the fire defendant admitted to her that he and some other boys had entered Mrs. Smrz' house to look for money and that she had awakened and seen them when they were in the bedroom. Defendant said that he was "scared" she would tell, so he poured alcohol on the bed, threw a match on it, and left.

Robert Dismukes and Darryl Allen, both of whom were indicted with the defendant, when called by defendant, testified that they did not know him on July 10, 1968, and had met him after they were all arrested and jailed. Defendant testified that he did not know Allen, Dismukes or the other two boys indicted with them prior to his arrest, and denied being involved in the death of Mrs. Smrz. He testified that on July 10, he was in the Willie Bea Lounge from 6:30 in the evening to one o'clock the next morning. Charles Smith, the bartender at the Willie Bea Lounge, testified that defendant was there from 8:00 P.M. until midnight. In rebuttal, the People called Detective Edward Spellar who testified that he had interviewed Smith in the course of investigating the murder and that Smith had told him he did not know the defendant or anything about the case.

Defendant contends that the judgment must be reversed for the reason that the circuit court erred in denying his motion to suppress his written statement and thereafter committed reversible error in permitting it to be used in impeachment. He argues that the statement was taken in violation of his rights under the fourth amendment in that it was made during a period of illegal confinement following his being arrested without probable cause. He contends also that he was not given the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and the statement was taken in violation of his rights under the fifth and sixth amendments. He argues further that the circuit court erred in its ruling on the motion to suppress in that it attempted to apply a rule other than that of Miranda because defendant's statement, the court said, was exculpatory and not inculpatory.

The record shows that on July 31, 1968, defendant was arrested without a warrant, by three detectives, at his mother's home. He was taken to the Maxwell Street Station where his question and answer statement was taken by Detective Louis Denson. In the statement defendant admitted being at Mrs. Smrz' back door with Dismukes and Steptore. He stated too that four boys, including Willie Coleman, went into the house and when Coleman came out he was carrying a white radio. Defendant denied that he entered the house at any time. The record reflects that the contention that defendant was arrested without probable cause was not made in the motion to suppress, during trial, or in a post-trial motion, and the issue was raised for the first time in this appeal. Although, under similar circumstances we have held that the claim of error was waived (People v. Nilsson (1970), 44 Ill.2d 244), because of the youth of the defendant we are reluctant to invoke the doctrine of waiver. Although the record shows no exigency which would have precluded obtaining a warrant prior to making the arrest, and to do so would have been advisable, it appears that at the stage of the investigation at which this defendant was arrested the police were possessed of sufficient information so that there was probable cause for his arrest. Furthermore, the record, contrary to defendant's contention, shows adequate Miranda warnings prior to and during the taking of the statement. Assuming, arguendo, that the arrest was made in violation of defendant's fourth amendment rights in that it was made without a warrant and without probable cause, we hold that in the absence of a search and seizure issue, and in view of adequate Miranda warnings, the error, if any, was beyond a reasonable doubt, harmless. (Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) We hold further that even assuming that the trial court, as contended by defendant, misinterpreted Miranda, its ruling was not error, and whatever the basis, the correct ruling will not be disturbed.

Defendant contends next that the trial court erred in denying his motion to produce the memorandum made by an assistant State's Attorney during his interview of Willie McLaughlin. McLaughlin's name was included in a list of witnesses furnished defense counsel with "address unknown." There appears to be no question that he had resided at 4414 South St. Louis Street in Chicago since at least the date of Mrs. Smrz' death. Defendant's attorney objected to his being permitted to testify; the court overruled the objection and granted counsel time to question the witness prior to his being called to the stand. During cross-examination of the witness it was shown that the assistant State's Attorney had made the memorandum in question and defense counsel asked that it be produced. Without ascertaining that there was a memorandum the court denied the request. Clearly, the holding in People v. Wolff (1960), 19 Ill.2d 318, required that the court ascertain that there was such a document and examine it in camera, and the failure to do so was error. The record shows, however, that McLaughlin's testimony covers only the period during which the first entry into Mrs. Smrz' home was made and is relevant only to the robbery charge. Under the circumstances the error was not so prejudicial as to require reversal. We note parenthetically that Rule 412 provides disclosure and in camera inspection of the type of memorandum here involved, and the error is not likely to recur.

Defendant contends next that the circuit court erred in permitting Delores Johnson, 13 years of age, to testify without determining her competency as a witness. The record reflects no objection made by defendant at the time, and although we have held that the issue may not be raised for the first time on appeal (People v. Matthews, 17 Ill.2d 502), we have examined her testimony and find that she was obviously competent to testify.

Defendant contends next that he was denied his constitutional right to be confronted with the witnesses against him when the court, over his objection, permitted the People, under the guise of impeachment, to introduce into evidence statements allegedly made by two co-defendants, and which they denied making. He contends, further, that the statements in ...

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