Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Saul A. Epton, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
On October 5, 1970, David L. Wilson, the defendant, and Louis Haggans were indicted in the circuit court of Cook County for the murder of Joseph Ellis. Haggans was dismissed from the indictment on the prosecution's motion, and he subsequently became a witness for the State. The indictment was later dismissed, and a new indictment was returned naming only the defendant and charging murder, burglary and robbery. The defendant moved to suppress a statement he had given the police and to suppress certain physical evidence which he alleged had been illegally seized. The motion was denied, and the challenged evidence was introduced in evidence at the defendant's trial. He was convicted after a jury trial and sentenced to concurrent terms of 50 to 100 years for murder, 10 to 20 years for robbery and 10 to 20 years for burglary. The appellate court reversed and remanded for a new trial on the charges of murder and robbery but affirmed the burglary conviction (16 Ill. App.3d 473). We granted the defendant's petition for leave to appeal from the affirmance of the conviction for burglary.
On August 25, 1970, the body of Joseph Ellis, a 69-year-old night watchman at the 12th Street Store in Chicago was found in the basement of the store. An autopsy revealed that he had been beaten and kicked to death. The security bars on the window of the store had been pried apart, and two portable television sets, a pair of green pants from the store's stock and the watchman's .38-caliber revolver were missing.
The record shows that the defendant was taken into custody on the evening of August 25, 1970. He was questioned until approximately 8 a.m., released for a couple of hours and taken into custody again. He was questioned by a series of police officers, and an assistant State's Attorney took a statement from him at 7:30 a.m. on August 28. The defendant testified that he had been threatened and beaten by the police during this prolonged interrogation. The State concedes here that the statement in which the defendant confessed to the crime charged in the indictment should not have been admitted into evidence at the defendant's trial. However, citing Milton v. Wainwright (1972), 407 U.S. 371, 33 L.Ed.2d 1, 92 S.Ct. 2174, the State argues that while the confession was improperly admitted, the error was harmless error because there was overwhelming independent evidence establishing the defendant's guilt of murder and robbery as well as of burglary. (Rule 318(a).) The defendant's position is that evidence the State calls independent was in fact tainted by the illegally obtained evidence and therefore cannot be considered when determining whether there is sufficient untainted evidence to support a conviction. Relatedly, he says, too, that though he testified and judicially admitted the commission of burglary, this testimony was induced by the introduction of illegally obtained evidence.
We have several related questions to examine. We must inquire whether there is evidence which can be considered independent and untainted by the concededly illegal confession. (See Murphy v. Waterfront Commission of New York Harbor (1964), 378 U.S. 52, 79, 12 L.Ed.2d 678, 695, 84 S.Ct. 1594; Wong Sun v. United States (1963), 371 U.S. 471, 487, 9 L.Ed.2d 441, 83 S.Ct. 407; Costello v. United States (1961), 365 U.S. 265, 280, 5 L.Ed.2d 551, 81 S.Ct. 534; Nardone v. United States (1939), 308 U.S. 338, 341, 84 L.Ed. 307, 60 S.Ct. 266; Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182.) The character of this inquiry was described by the Supreme Court as "* * * `whether granting establishment of the primary illegality, the evidence to which instant objection is [being] made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v. United States (1963), 371 U.S. 471, 488.
If an accused establishes the "primary illegality" and shows a connection between the illegality and what are alleged to be the fruits of the illegality, the prosecution will have the burden of establishing by clear and convincing evidence that the challenged evidence has come from an independent source. Harrison v. United States (1968), 392 U.S. 219, 20 L.Ed.2d 1047, 88 S.Ct. 2008; United States v. Wade (1967), 388 U.S. 218, 240, 18 L.Ed.2d 1149, 87 S.Ct. 1926; People v. Martin (1942), 382 Ill. 192.
In Harrison v. United States (1968), 392 U.S. 219, 20 L.Ed.2d 1047, 88 S.Ct. 2008, there were confessions by the defendant which had been illegally procured and admitted into evidence. Thereafter the defendant testified and made certain admissions. The court said that the prosecution had the burden to show that the testimony was independent evidence and that the wrongful use of the illegally obtained confessions did not induce the defendant's testimony. The court held that the burden had not been met by the prosecution.
We must determine whether the defendant's testimony in which he admitted the burglary of the store was evidence from an independent source or was it tainted evidence. That is, was the defendant's admission brought about by the State's use of the illegally gotten confession.
Finally, we must consider whether the evidence of the defendant's guilt on all or any of the charges was so overwhelming that it can be said that the error of wrongfully admitting the defendant's confession and other illegally obtained evidence was harmless error. Milton v. Wainwright (1972), 407 U.S. 371, 33 L.Ed.2d 1, 92 S.Ct. 2174.
At the defendant's trial here, Louis Haggans, who had been indicted with him, testified for the State. He stated that the defendant had sought to borrow a car in the early morning hours of August 25, 1970, and that he had seen the defendant shortly thereafter with Claude and Cleveland Lee in the rear of the 12th Street Store putting merchandise into the Lees' car. He testified that he did not know who had killed the watchman and said that he had not seen the defendant enter the 12th Street Store.
The defendant had implicated Haggans in the confession which was wrongfully taken from him. However, to show that its knowledge of Haggans was not a fruit of the defendant's confession, the prosecution offered testimony of Officer Anthony Finnelly that he had first heard Haggans's name from Jerry Eaton.
James Barking testified that he had purchased a portable television set, which was identified as one of the two sets missing from the 12th Street Store, from the defendant in the early morning of August 25. He further testified that at the same time he tried to purchase a .38-caliber revolver from the defendant but did not buy the gun because the defendant was asking too much for it. He stated that after the sale the defendant went into his (defendant's) house carrying another television set he had and a box and the handgun.
Claude and Cleveland Lee testified that early on August 25, 1970, they had driven the defendant to a vacant lot at 14th Street in the vicinity of the 12th Street Store. (The 12th Street Store is not literally at 12th Street.) They said the defendant took two portable television sets and a box (which it appears contained a pair of pants taken from the store) and placed them in the trunk of their auto. At the defendant's direction they drove about a mile to the defendant's house. There he took the television sets and the box from the car and paid Cleveland Lee $10 for the ride. He then sold one of the television sets to James Barking, an acquaintance who had been standing in the street near the defendant's house, and entered a house, where he said his family lived. The Lees testified that the defendant had a small revolver in his possession.
After the presentation of the State's case, which included, of course, the introduction into evidence of the concededly illegal confession, the defendant took the witness stand. In substance he testified that he had entered the 12th Street Store through a window to steal merchandise. He wanted to use the merchandise to pay Jerry Eaton for narcotics he had gotten from Eaton. Upon entering the store, he said, he found the body of the murdered ...