APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty after a jury trial of the crimes of murder of Francisco Servidio and armed robbery of Caroline Ballinger. After a hearing in aggravation and mitigation, he was sentenced to twenty to thirty-five years for murder and fifteen to twenty-five years for armed robbery, the sentences to run concurrently.
Defendant raises the following issues on appeal: whether the admission into evidence of the testimony of Charles and Mildred Bastin, concerning an illegally seized radio, and of defendant's statement to police violated defendant's fourth and fourteenth amendment rights; whether defendant was proven guilty of the offenses of murder and armed robbery beyond a reasonable doubt; whether the court's failure to instruct the jury on "mere presence" at the scene of a crime denied defendant a fair trial; and whether the sentence imposed by the trial court is excessive.
Defendant and Kenneth Helm were both indicted for the murder of Francisco Servidio and the armed robbery of Francisco Servidio and Caroline Ballinger. Prior to trial defendant moved to suppress a statement which defendant had given to the police, on the grounds that he was not informed of his constitutional rights. The motion was denied. Defendant then moved to sever his cause from that of his co-defendant, which was granted.
Defendant also moved to suppress the use of a radio seized by the police in the apartment of Charles and Mildred Bastin, defendant's brother-in-law and sister. At the hearing, it was established that the police went to the Bastin apartment on the belief that defendant might be residing there. Mr. and Mrs. Bastin answered the door and the officers identified themselves and asked if defendant was inside. Mrs. Bastin testified that the police knew that defendant was her brother. Mr. Bastin told police that he did not know where defendant could be found. The officers asked permission to enter, and before any reply was given, they walked into the apartment. Officer Sandburg confiscated a radio from the top of a bookcase. Since no express invitation was given the police, the trial court granted the defendant's motion to suppress the radio as a product of an illegal search. Defendant then moved to suppress testimony of Charles and Mildred Bastin involving the radio and a statement by defendant to police on the theory that both were the fruits of the illegal search and seizure. The court denied the motion.
The trial began on June 1, 1971 with Mrs. Caroline Ballinger testifying for the State that she, her husband, and the deceased, Francisco Servidio, resided in a first floor apartment at 2513 West Harrison Street in Chicago. At approximately 4:00 A.M. on the morning of May 29, 1970, Mrs. Ballinger was awakened by the ringing of the front doorbell. Looking through the window in the front door, she saw a male whom she did not recognize, who asked to see the deceased and asked to come inside because someone was trying to kill him. After refusing to allow the stranger to come inside, Mrs. Ballinger returned to bed. The witness testified that approximately fifteen minutes later she was awakened by a crash at the back door. While attempting to leave the apartment and seek help, the man she had seen earlier at the front door grabbed her, put a knife to her throat, and pulled her back into the apartment. Another man, not as tall as the one who grabbed her, was also inside the apartment. The two men demanded money and she gave them some. While left alone, she escaped through the back door. She stopped a police car and upon returning to her apartment with the police, she discovered the deceased bleeding profusely from an apparent stab wound, and that $150 belonging to the deceased, $35 of her own money, the deceased's wristwatch, and her radio were all missing.
Charles Bastin testified for the State that on May 29, 1970 at approximately 6:00 A.M., defendant, carrying a radio, and Kenneth Helm, co-defendant, entered the Bastin home. Appearing "high" and "shaky," the two men counted on the kitchen table approximately one hundred dollars, dividing the sum between them.
Police Officer Thomas Sherry testified that on June 3, 1970 defendant voluntarily surrendered himself to the police after a warrant for his arrest was issued. After defendant was placed under arrest, informed of the charges against him, and advised of his constitutional rights, defendant made a statement in the presence of Sherry and another police officer. Defendant stated that at 6:00 A.M. on May 29, 1970 he left the Bastin apartment to go to the Maxwell Street business area to buy some things for his children. He met an acquaintance, one Kenneth Helm. The two men proceeded to the home of the deceased, Francisco Servidio, where Helm said he was going to make some money. Helm went around to the rear of the apartment while the defendant remained outside. When Helm did not reappear after some period of time, defendant entered the first floor apartment from the rear of the building. He saw Helm, butcher knife in hand, standing over the deceased who was lying on the floor bleeding. He told Helm that he wanted no part of the crime, left the apartment, and proceeded down an alley. After Helm later rejoined him, defendant bought a radio from Helm for seven dollars. He also told the police that he knew that the radio was a part of the proceeds of a robbery, that he wasn't sure, in advance, that Helm entered the building to rob someone, and that Helm had a habit of robbing people in the area.
At the end of the State's case-in-chief the defendant moved for a directed verdict. The court granted the motion in regard to the armed robbery of Francisco Servidio, denying it as to the other counts.
Defendant testifying in his own behalf related much the same account of the morning of May 29, 1970 as did Officer Sherry. Defendant claimed that he met Helm between 7:30 and 8:00 A.M., that he had no knowledge of the robbery, that he walked inside the apartment and saw Helm standing over the deceased with a knife in hand, and that defendant received $80 for a painting job. Defendant was convicted of murder and armed robbery and took this appeal.
• 1 Defendant contends that the testimony of Charles and Mildred Bastin should have been suppressed by the trial court as being the product of an unlawful search and seizure. Defendant's first theory of exclusion is that since the identity of the two witnesses was discovered by reason of an unlawful search and seizure of the apartment, their entire testimony should have been suppressed. Defendant cites two cases in support of this contention. (People v. Albea (1954), 2 Ill.2d 317, 118 N.E.2d 277 and People v. Martin (1942), 382 Ill. 192, 46 N.E.2d 997.) The two cases are distinguishable because the identity of the witnesses in both cases was discovered as a result of illegal searches. In the case at bar, Mrs. Bastin testified that the police knew that defendant was her brother. The police officers believing that defendant could be found at the Bastin home went there, where they were confronted by Mr. and Mrs. Bastin at the door. Clearly, the officers knew that the Bastins were potential witnesses before the illegal search of the premises ever occurred and the two witnesses were properly allowed to testify.
• 2, 3 Defendant's second theory is that neither Mr. Bastin nor Mrs. Bastin would have testified but for their being confronted with the illegally seized radio. The court in United States v. Evans (8th cir. 1972), 454 F.2d 813, reached the same issue and upheld the trial court's admission of the testimony into evidence. In Evans, the police illegally searched a Mr. Chandler's car and upon discovering burglary tools confronted Chandler with the tools and demanded an explanation. Chandler then implicated defendants in a burglary. In upholding the conviction, the court held that even though a "but for" relationship between the illegal seizure of the evidence and the statement by Chandler may ...