APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. COOPER, Judge, presiding.
MR. PRESIDING JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The respondent, Donald Lamb, then age 16, was found delinquent within the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702-2) and committed to the Department of Corrections, Juvenile Division. The court's declaration of delinquency was based upon a finding that on April 22, 1972, Lamb committed the offense of murder in violation of section 9-1(a)(2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9-1(a)(2)). The respondent's contentions are that his oral and written confessions were improperly admitted and the evidence did not establish his guilt under the theory of accountability.
Charlene Ruffin, the wife of the deceased Benny Ruffin, last saw her husband on April 22, 1972, at about 6 P.M. going around the corner of 21st Street and Trumbull in Chicago about a block from her home. The next time she saw him was around 11:15 that night when someone brought him to her back door. He "had blood all over" and told her that three boys tried to rob him. He did not know their names, but he recognized one of them from around the area. One of the boys later arrested with the respondent was Robert Bruce, who lived across the street from the deceased, who died on April 23, due to hemorrhaging from a stab wound of the neck.
Emma Atkins was visting a friend at 1919 South Trumbull. At about 11:30 P.M., she was on her way out of the house and saw men scuffling on the ground. One was on top of the other, choking him. As she and her friend stood on the porch looking at them, one of the men got up and ran through the alley saying, "Please don't shoot me." Mrs. Atkins heard a shot but did not see who fired it. When the two men were scuffling another man was standing over them. She could not identify any of the parties involved and stated the whole incident lasted about a total of 5 minutes.
Lamb was arrested on May 25, 1972, at 8 P.M. by Officers Soil and Blackley and taken to Area Four Homicide. On May 26, at 9:45 P.M., a statement was taken by Assistant State's Attorney John Gervasi in the presence of the respondent's mother and several police officers. The respondent later initialed each page and signed the last page. In the statement the respondent said the following:
He met Robert Bruce and Patrick Thatch at the corner of 21st and Trumbull, and he showed them a "blank" gun. Bruce thought it was a real one and asked him if he was afraid to stick someone up. When he told Bruce he was not, they went north on Trumbull "for the purpose of trying to find someone to stick up, or rob." They saw a man staggering in an alley near 1916 South Trumbull and intended to rob him. Thatch acted as a lookout; Bruce walked up to the man and Lamb "was not far behind." Bruce asked the man for a quarter, and when the man said he did not have one, Bruce knocked him down and jumped on him. The man was screaming and hollering, and when Bruce got up off the man, the respondent saw a knife in Bruce's hand. As the man was getting up holding his neck with both hands, the respondent pulled the gun out and aimed it at him. The man said, "Please don't shoot," and the respondent fired the gun in the air. Bruce had run away when the man got up off the ground. The respondent saw two older ladies on a porch, and he then ran away.
The respondent first contends that the statement should not have been admitted because he had been illegally arrested. This argument puts before us an issue that is recurring with increasing frequency: What is the test to be applied to verbal evidence following an illegal arrest? See, e.g., People v. Brown, 56 Ill.2d 312, 307 N.E.2d 356; In re Interest of Tucker, 20 Ill. App.3d 377, 314 N.E.2d 276; People v. Brown, 15 Ill. App.3d 606, 304 N.E.2d 662 (abstract opinion); People v. Browder, 13 Ill. App.3d 198, 300 N.E.2d 511 (abstract opinion).
• 1 The first reason for rejecting the respondent's argument arises from his failure to advance in the trial court an illegal arrest as ground for suppressing his statement. In his motion to suppress, the respondent alleged as grounds that he had not been given the Miranda warnings and that the statements "were the direct or indirect result of either physical or mental coercion and were therefore involuntary." At no time was it ever suggested to the trial court that the respondent sought to suppress his confessions on the ground that he had been illegally arrested. We judge, therefore, that the issue has been waived. People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432; People v. Harris, 105 Ill. App.2d 305, 245 N.E.2d 80.
Waiver aside, we judge that the respondent's position is untenable. No Illinois case has been cited by the respondent, nor do we believe one exists, which holds what the respondent urges. And in People v. McFarland, 386 Ill. 122, 129, 53 N.E.2d 884, the court said expressly: "The fact that a prisoner is under illegal arrest does not of itself make a confession incompetent. People v. Klyczek, 307 Ill. 150."
The case most often cited in support of arguments similar to that of the respondent here is Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407. In that case federal narcotics agents made, the majority held, an illegal invasion of the defendant's home and arrested him in his bedroom where he was told that an informer had accused him of selling narcotics. He denied this but told the agents the name of a man who did sell narcotics and where he could be found. He also told them that he and the man he named had used heroin the night before. The Supreme Court held that his statement in the bedroom should not have been admitted.
Long before Wong Sun, our supreme court decided People v. DeLuca (1931), 343 Ill. 269, 271, 175 N.E. 370. In that case the police illegally searched the defendant and seized four hen pheasants, the possession of which constituted a violation of the game laws. An officer testified that at the time of the search the defendant admitted that he killed the birds. The court said: "[B]ut this admission was in connection with the unlawful search, and if the evidence obtained by the unlawful search should have been suppressed, the admission, which grew out of the search and was developed by it and was a part of it, should not have been considered." (Emphasis added.) It clearly appears in De Luca that the admission of the confession would have the practical effect of admitting the physical evidence illegally seized.
We do not believe that Wong Sun is authority for the sweeping rule that an illegal arrest, per se, renders any subsequent statement inadmissible. First, the government made a concession, damaging to its position, that the defendant's declarations in the bedroom were "to be excluded if they [were] held to be `fruits' of the agents' unlawful action." (371 U.S. at 484.) Second, the Court held only that "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in [that case was] no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." (371 U.S. at 485.) And last, the Court expressly avoided taking the position urged on us in this case: "We need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' [Citation.]" (371 U.S. at 487-488.)
In People v. Brown, 56 Ill.2d 312, 317, 307 N.E.2d 356, the defendant was concededly arrested illegally and, after receiving Miranda warnings, made a confession. The supreme court, in discussing Wong Sun, held that the Miranda warnings "served to break the causal connection between the illegal arrest and the giving of the statements," thus impliedly rejecting the "but for" argument advanced here. In the case before us, Miranda warnings were given before any statement was made.
This court recently discussed Wong Sun and its impact on the exclusionary rule in People v. Pettis, 12 Ill. App.3d 123, 298 N.E.2d 372. In that case, the defendant was arrested for burglary, and a police photograph taken. Before trial he was identified from his picture by a robbery victim who subsequently identified him in person. At the trial for burglary the trial court held that his arrest was illegal. Based on that ruling the trial court conducting the robbery trial suppressed the photograph and subsequent identification, adopting the defendant's reasoning that but for the illegal arrest for the first ...