APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In a jury trial defendant was found guilty of murder and sentenced to a term of not less than fifteen, nor more than thirty years.
Defendant contends: (1) he did not knowingly and intelligently waive his right to counsel when he made an oral statement to a police officer because he was not made aware of the fact that he was to be charged with murder; (2) the State failed to comply with Ill. Rev. Stat. 1971, ch. 37, par. 703-2, which requires the police to make a reasonable effort to contact the juvenile's parents or to have a youth officer present during questioning; and (3) that he was not proved guilty beyond a reasonable doubt.
On December 30, 1970, at approximately 5:00 P.M., Ernest Bradley, Jr., a cab driver, was proceeding southbound on Greenwood Avenue when Keith Williams fired a shotgun blast into Bradley's cab causing the cab driver's death.
At a hearing held on defendant's motion to suppress statements and identifications, John Yucaitis, a police officer, testified as a witness for the State: On January 4, 1971, he arrested Joe Thomas and defendant and transported them to Area 2, Homicide headquarters, where they were placed in separate rooms. He advised defendant of his rights and "informed him of the allegations against him." Then, he left the defendant alone. When he returned, he again advised defendant of his rights and after defendant responded that he fully understood his rights, defendant gave an oral statement to Yucaitis stating that he and Joe Thomas, while walking down the street, met Keith Williams and Larry Jones. Williams had a shotgun and when asked what they were going to do, Williams replied, "Rob someone." Defendant and Thomas went to the end of the street to act as lookouts and when Williams' attempt to stop a cab failed, Williams fired his shotgun into the windshield of the cab and two more shots into the driver's side of the cab. When the shots were fired, defendant and Thomas left, went around the block and met up again with Williams and Jones at the latter's house. After taking the oral statement, Officer Yucaitis asked defendant whether he would relate the same information to an assistant State's attorney and defendant said he would. Patrick McNally, the assistant State's attorney, came to the station and, after reading defendant his rights and ascertaining that defendant fully understood them, took a statement from the defendant in the presence of a court reporter, a youth officer, and the defendant's father. No promises were made by McNally to the defendant. On cross-examination, Yucaitis stated that during the first conversation he told defendant that "we were informed he was implicated with a shooting but according to the witnesses he was not the one with the gun."
Patrick McNally, an assistant State's Attorney, testified, as a witness for the State, that on January 4, 1971, he received a call from Officer Yucaitis, asking him to come to the station to take statements from two youths. At the station he informed the defendant of his rights in the presence of defendant's father and, when he asked defendant if he understood the rights, defendant answered affirmatively. Defendant told McNally that he was 16 years old and that on December 30, 1970, he was with Joe Thomas when they saw Keith Williams and Larry Jones. Williams had a shotgun and when asked what they were going to do, Williams replied that "they figured to stick up some guy." They all saw a cab coming southbound on Greenwood and Williams said, "I am going to get this cab." Williams then asked him and Thomas to look out for police and defendant stated, "We looked for the police, and we said no, there was no police coming." Defendant then stated that Williams went into the middle of the street, pointed the shotgun, and fired into the cab.
Defendant, 16 years of age at the time of the occurrence, testified that on January 4, 1971, he was arrested at Joe Thomas' house and taken to a police station. He was asked to give a statement and a police officer showed him some papers with "all our names on it and said, we all was wanted for murder."
Defendant's motion to suppress his statements and his identifications were denied.
During the State's case in chief, Tyrone Robinson and Nathaniel Nelson each testified that on December 30, 1970, they were walking down Greenwood Avenue and saw defendant, who both had known previously, walking towards them. Robinson stated that defendant stopped in a gangway where Keith Williams, Larry Jones, and Joe Thomas were standing. As Nelson and he passed the gangway, he heard someone say, "Let's get this cab." He did not see the speaker and he did not recognize the voice. Defendant then went into the street and attempted to flag down the cab, but it did not stop. Williams, who had moved to the curb, began firing a shotgun at the cab. Nelson testified that, as he and Robinson approached the gangway, defendant walked across Greenwood Avenue and Keith Williams then came out of the gangway with a rifle in his hands. When he and Robinson were at the entrance of the gangway, he heard defendant say, "Let's get this cab." Joe Thomas and Larry Jones were inside the gangway. Defendant tried to flag down the cab, but the cab did not stop.
Assistant State's Attorney McNally then testified about the statement taken from defendant, concerning which he testified at the suppression hearing.
Defendant first contends he did not knowingly and intelligently waive his right to counsel at the time of his oral statement to Officer Yucaitis because he was not made aware of the fact that he was to be charged with murder. He refers us to Schenk v. Ellsworth, 293 F. Supp. 26 (D. Page 486 Mont. 1968), where the defendant was not advised as to the reason for his detention and questioning, and the court held that he thereby did not knowingly and intelligently waive his right to counsel. There, the county attorney told defendant he wanted to talk to him "in connection with the shooting incident of his wife." In the case at bar, defendant argues that once in custody and, for all purposes charged with a crime, it is mandatory that he be told of the crime he is suspected of having committed before a statement may be taken.
• 1 We are of the opinion that defendant here had such knowledge before he gave his oral statement to Officer Yucaitis. The record discloses that on three occasions, all prior to his giving the oral statement, he was informed of his suspected involvement in the cab ...