Appeal from the Circuit Court of Winnebago County; the Hon.
John S. Ghent, Jr., Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, Calvin Madison, and Thomas Charles were indicted for the murder and armed robbery of John Hogan, who worked as a gas station attendant in Rockford, Illinois. Following a separate jury trial in the circuit court of Winnebago County, defendant Madison was convicted of both offenses and upon the jury's recommendation the death penalty was imposed. While defendant's direct appeal was pending in this court (43 Ill.2d R. 603), he filed a petition seeking post-conviction relief (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.). After an evidentiary hearing at which counsel was appointed to advise defendant, the petition was denied and defendant appealed. Issues pertaining to the admissibility of defendant's confession and possible adverse pretrial publicity are common to both appeals, which have been consolidated for decision and opinion.
The evidence adduced at trial may be summarized as follows: On January 22, 1970, about 8:20 P.M., a customer drove into a gasoline station owned by the victim's father. The station was located on the northwest corner of Miriam and State in Rockford. When no one appeared to service the vehicle, the customer entered to find the victim in a sitting position on the washroom floor. His head was bloody. The customer informed the victim's father, who lived adjacent to the station, and the police were notified. The victim was hospitalized but died the next morning at 10:00 A.M. from two .22-caliber bullets which had entered the top of his head and penetrated the brain in a downward trajectory. One other bullet had grazed his skull, and there were entrance and exit wounds in the victim's neck where he had also been shot. Approximately $190 was missing from the station register.
Prior to the arrival of the customer, three young women had parked their automobile north of the station and were walking south on Miriam toward State. They walked in the street because of the freshly fallen snow. As they approached the corner of State and Miriam, they heard two noises which sounded like gunshots. Two men were then seen running from the station in a southeasterly direction to the other side of the street. Both men were dressed in dark clothing and large hats described by one woman as resembling those worn by "flamenco dancers." The women proceeded to their friend's house located a short distance from the station and at 8:15 P.M. the police were called.
Officer Philip Thompson arrived at the gas station about 8:30 P.M. Pursuant to the directions of Sergeant Gessner, Thompson and several other officers began to search the area for footprints. Thompson walked south on Howard until he arrived at an intersecting alley about one-half block from the station. He proceeded eastward and midway in the alley perceived one set of footprints and other marks which indicated that a person had fallen. He traced the origin of the footmarks to the south curb of State, which was the area where the three women had last seen the two men running from the gas station. Gessner and two other officers were summoned and the four began to follow the prints. The footsteps had sufficient distance between each impression to suggest that the person who made them had been running. From the alley the prints were followed southward between two houses and across Elm Street (one block south of State). There the police tracked the impressions about one-half block eastward to the southeast corner of Elm and Webster where another set of footprints coming from a northerly direction joined the prints they were tracing. The two sets of footprints took a southerly direction on Webster for one block. Thompson saw no other prints in the freshly fallen snow at this point. His observation was corroborated by Gessner, who further said that it had stopped snowing shortly before his arrival at the gas station.
At the corner of Webster and Chestnut the trail of prints went west for one-half block to an alley. These prints also seemed far apart. From this point the footprints were followed south for two blocks through the alley to Berkley where they were traced a short distance to a driveway of the home owned by defendant's mother. Here, tire marks were also found, suggesting that a car had recently been driven away. Gessner looked about the immediate vicinity and saw no other footprints in the area except for several leading from the street to the driveway. He then talked to defendant's mother.
Both Thompson and Gessner had also discerned two sets of footprints heading northward in the alley between Berkley and Chestnut. Gessner said those prints appeared similar to the ones they were following southward and seemed to take a westerly direction after reaching Chestnut. Their origin was traced to the driveway.
Gessner explained that one set of footprints he followed that evening was distinctive because deep heel-mark impressions in the snow were visible, indicating that part of the heel was cut out. The other set of footprints was less peculiar but seemed to have an arc where the shoes did not touch the snow.
Shortly before midnight Officer Sebastian Aiello and three other policemen arrived at 214 Loomis and proceeded to the second-floor apartment of Michael Hill. Defendant answered the door and told the police that he had been waiting for them. Defendant was placed in a squad car after being handcuffed. Aiello's partner informed defendant of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602) and defendant said that he understood. He was transported to the station where his shoes were taken, a primer residue test was administered and he was placed in a cell.
During this time police had secured a written consent from Hill to search his apartment. There police discovered an expended .22-caliber cartridge in Hill's bedroom. The consent of the occupant of the apartment below was obtained and that apartment was also searched. At this time Marilyn Hobbs, the occupant's daughter, gave police a vase containing a canvas bag, money and a box of .22 shells. A search of the couch revealed a .22 "long" cartridge with its tip cut off. The weapon used in the crime was never discovered, although police searched a parking lot behind this building.
About 3:00 A.M. on January 23, 1970, Officers William Francis and Kenneth Ladwig returned to the police station from the hospital where the victim had been taken. They were "briefed" about the progress of the case. At 4:45 A.M. they went to defendant's cell, awakened him, informed him of the complaint for attempted murder and armed robbery and then took him to the detective bureau. There he was advised of his Miranda rights and he asked what they wanted to talk about. The subsequent conversation lasted about one hour, during which time defendant received coffee and cigarettes.
Defendant initially denied knowledge of the robbery. He then admitted that he was at the gas station but said that he did not shoot the victim. He claimed that he and Charles had walked to the station with the intent to commit a robbery. During this time Charles had given defendant a gun. When they arrived at the station, Charles went into the washroom and defendant confronted the victim, took the money and ordered the victim into the washroom. Defendant refused to say anything further.
Finally, at 6:30 A.M., defendant said that he would give a statement if he could call his father. A telephone was provided and the call made. During the conversation defendant said that he was "in big trouble" because he shot a man during a robbery. At the conclusion of the telephone conversation, defendant told the police that he would give a statement but, on the advice of his father, would not sign it without consulting a public defender.
Defendant was given a written waiver form detailing the Miranda rights, which he read. Officer Francis then read the entire form to defendant before he signed it. The waiver form properly set forth the Miranda warnings, including the admonition that anything that defendant would "say could be used against [him] in court." A paragraph entitled "WAIVER OF RIGHTS" immediately preceded defendant's signature. It stated, in part, "I am willing to make a statement and answer questions. I do not want a lawyer at this time." The notation "0630" was at the top of the page and "0635" appeared under Officer Ladwig's attesting signature. These entries denoted the time.
Office Francis placed a statement form in a typewriter and again read the Miranda rights contained in the introductory paragraph. Defendant would speak and Francis would type and then read what he had transcribed. The process took about 20 minutes to complete. In the statement defendant admitted shooting the victim, being driven to the Loomis address by Michael Hill and giving the money and bullets to Marilyn Hobbs. He claimed he threw the .22-caliber weapon into the parking lot behind Hobb's apartment. Defendant read the statement, said it was true but refused to sign it. The notation "0635" appears on the statement. Further questioning continued at about 7:00 A.M. and defendant said that the prior evening their car would not start and Hill went to get assistance. Testimony of personnel from a nearby ...