APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Robert Fultz (hereinafter defendant) was indicted for the murder of one Pablo Garcia on the night of 30 September 1970. (Ill. Rev. Stat. 1969, ch. 38, par. 9-1.) On 7 December 1970, defendant filed a motion for the setting of preconviction bond. The said motion also contained allegations which the parties have mutually treated as constituting a motion to suppress a confession allegedly made by defendant to police officers on the night of 1 October 1970, and to suppress any in-court identification of him as Garcia's assailant by one Michael Ritche. After defendant had waived a jury trial, the trial court announced that the motion to suppress would be heard in conjunction with the trial. At that time defense counsel did not object to this procedure. When, as noted hereafter, the trial was first recessed for a hearing on the motion to suppress the oral statement, defense counsel, on cross-examination of the first State's witness at the hearing (Officer Foster), broadened the basis for the motion to suppress by additionally contending that the statement and any in-court identification by Michael Ritche were tainted fruits of the allegedly illegal arrest of defendant. Ultimately the motion to suppress was denied and defendant was found guilty of murder. After the denial of written post-trial motions in arrest of judgment and for a new trial, defendant was sentenced to a term of not less than 35 and not more than 75 years in the Illinois State Penitentiary. Defendant then filed this appeal.
In order to understand the several issues raised by defendant on this appeal, it is necessary to summarize in detail the sequential developments and testimony from the beginning of the bench trial.
The first trial witness for the State was an investigating officer (Officer O'Boyle) who merely testified that he arrived at 1166 North Milwaukee Avenue in Chicago (the address of the Lewis Hotel) at 9:30 a.m. on 1 October 1970. He observed the body of the victim on a stairwell between the third and fourth floors of the Hotel; rigor mortis had set in. He remained with the body until it was removed about 1:30 p.m.
The parties then stipulated that the victim's wife, if called, would testify that the victim was alive and in good health on 29 September 1970 and was dead on 1 October 1970.
Police Investigator Foster then testified that, in the company of Investigators Thomas, Acosta, and Padar, he arrested defendant and one Lorraine Hayden at about 9:30 p.m. on 1 October 1970, and promptly advised defendant of his constitutional rights. Defendant replied that he had nothing to say except that he understood his rights. At about 10 p.m., defendant was taken to a police station. At about 11:30 p.m., the witness was in a room at the station with defendant and Investigators Griffin, Broderson, and Padar. At that time the witness heard Investigator Griffin say something to defendant, after which defendant made an oral statement. Defense counsel objected to any testimony by Foster as to the statement because there had been no hearing on the pretrial motion to suppress the statement. The trial court responded that the motion to suppress was to be heard in conjunction with the trial testimony; that, when there was some objection to the trial testimony relative to its suppression, the trial would be recessed for a hearing on the motion; and that such a point had now been reached.
Officer Foster continued to testify as the State's first witness on the hearing to suppress the statement. The grounds alleged for the motion to suppress the statement (as finally fully articulated in the post-trial motions) were as follows: that defendant had not made the statement: that proper Miranda warnings had not been given; that repeated prior requests for an attorney to be present had been ignored and the police questioning had continued; and that the statement had been made involuntarily and under duress. Officer Foster stated that he heard Officer Griffin advise defendant as to his constitutional rights; with respect to defendant's right to an attorney, Griffin had said defendant had such a right if he decided to waive his right to be silent. Foster then testified that he heard defendant give, in substance, the following oral statement: I (defendant) was in bed in a room with my girl friend Lorraine; there was a knock on the door and Maria Fischer entered the room with the victim and a young boy; I got out of bed and hit the victim in the face with my fist; Maria Fischer then hit the victim in the head with a frying pan, and the victim fell; I then shot the victim twice in the head; I do not wish to say anything further without consulting anyone. Foster stated that, at the time defendant made his statement, Investigators Griffin, Broderson, and Padar were also present. Defense counsel did not object to Officer Foster's recital of the substance of defendant's oral statement.
In response to further questions by the prosecutor, Foster added that defendant had also said that, after the victim had fallen, he (defendant) had taken some money from the victim's pocket and given it to Lorraine.
On cross-examination, Foster admitted that his arrest of defendant was a warrantless arrest and that his fellow officers had informed him of the facts of this case when he arrived to make the arrest on orders from Officer Griffin. This line of questioning on cross-examination initiated defense counsel's additional contention that the arrest of defendant had been made without probable cause and was therefore illegal, so that the statement (as well as any in-court identification by Ritche, who was the young boy to whom defendant had referred in his statement) should be suppressed as a fruit of the alleged illegal arrest. This additional ground for suppression is important in that it served to make relevant a great deal of subsequent testimony at the hearing which would otherwise have been irrelevant.
On further cross-examination, Officer Foster was asked again about Officer Griffin's Miranda warnings to defendant just prior to defendant's statement; Foster's testimony this time reflected the giving of unobjectionable Miranda warnings.
The next State's witness at the hearing was Investigator Griffin, who appears to have been in charge of the whole investigation. He testified that he went to the Lewis Hotel at about 9:30 a.m. on 1 October 1970 to investigate a possible homicide; that he observed a body on the stairwell of the Hotel between the third and fourth floors; that he called investigators from the Crime Laboratory, who arrived about 20 minutes later; that he then proceeded to the fifth floor of the hotel, and looked into a service closet adjacent to room 522; that in the closet he found a large box containing a piece of blood-stained carpeting, pieces of glass, a frying pan, a radio, the victim's personal identification papers, broken bottles, and a bedspread, sheets and shorts, all of which were blood-soaked. Officer Griffin then testified that he consulted a hotel employee to find out which hotel rooms had carpeting like the blood-stained piece which he had found in the box. Defense counsel then objected on hearsay grounds to any testimony by Officer Griffin as to what the hotel employee had told him. The trial court overruled the objection on the ground that the hearsay testimony, unobjectionable as such in a hearing on a motion to suppress, was relevant to the issue of probable cause for arrest, which defense counsel had raised in cross-examining Officer Foster. Officer Griffin then testified that the hotel employee directed him to room 523; and in that room he observed the same type of carpeting, with a portion cut out of it which matched the blood-stained piece of carpeting which he had found in the box. Officer Griffin testified that he ascertained that the room was rented to a Mr. and Mrs. James Belles and that he found in the room identification papers, letters, and other objects indicating that a James Belles and a Maria Fischer had used the room.
Officer Griffin was thus led to James Belles, whom he questioned later that day. Defense counsel objected on hearsay grounds to any testimony by Griffin as to what Belles had told him, but the trial court overruled the objection on the ground that the hearsay was relevant to the issue of probable cause for the warrantless arrest of defendant. Griffin then testified that Belles had explained that Maria Fischer had been his girl friend up to a few days before, but that he had not seen her since 26 September 1970. Belles then gave Griffin the names of "Fred" and "Lorraine" and the address of the building in which they lived (1068 North Milwaukee Avenue in Chicago). Belles also reported that Lorraine was associated with one Robert Fultz.
Griffin thereupon sent investigators to that building, who found and questioned one Fred Hall, age 20, in his apartment. Defense counsel objected on hearsay grounds to any testimony by Griffin as to what Hall had told the investigators, but the trial court overruled the objection on the ground that the hearsay was relevant to the issue of probable cause for defendant's arrest. Griffin then testified that Hall told the officers that Lorraine Hayden was his mother; that she was about 40 years old; that she had a younger boyfriend named Robert Fultz; that she and Fultz had an apartment in the building; that she and Fultz had entered Hall's apartment at about 7 a.m. that day (1 October 1970) and she had given Hall a .22-caliber revolver to take care of; and that defendant had then directed Hall not to say anything about the gun to his (Hall's) wife.
The officers took the revolver and sent it to the Police Crime Laboratory. While Griffin did not know whether any report had been made by the Crime Laboratory as to the gun (in fact, no such report was introduced by the State, nor was any check made for fingerprints on the gun), he stated that he knew that the bullets which were removed from the victim's body were .22-caliber bullets.
When Griffin admitted that he knew nothing of Hall's reputation for veracity (and the State successfully objected to defense counsel's attempt on cross-examination to learn what, if anything, Griffin knew about Belles' reputation for veracity), Griffin stated that he had been led to arrest defendant as a suspect for the homicide owing to Belles' description of defendant as a younger associate of Lorraine Hayden; and owing to Hall's report of the same association and of their delivery to Hall of a .22-caliber revolver on their visit to Hall's apartment at 7 a.m. on the same day (coupled with his (Griffin's) knowledge that the bullets which had killed the victim were .22-caliber bullets); and finally owing to a description of the participants in the incident which had been given to him in writing at the police station earlier that same evening by Michael Ritche, the State's only eye-witness to the incident.
For convenience, a portion of Michael Ritche's testimony, on direct examination at the hearing on the motion to suppress any in-court identification of defendant by him, may be anticipated at this point. He was 13 years old. At about 10 p.m. on 30 September 1970, he had been in the Subway Lounge (a bar located at Division Street and Ashland Avenue in Chicago), looking for his mother. A woman in the bar told him that his mother was at the Lewis Hotel with a man named Fred. Maria Fischer then telephoned the Hotel in an effort to locate the mother; Maria told Michael that his mother was not at the Hotel, but that he could stay with her at the Hotel for the night. On the way to the Hotel, Maria and Michael stopped at a restaurant where Maria encountered the victim and asked him whether he wanted to come up to her room at the Hotel. Thereupon, Maria, Michael, and the victim went to Maria's room at the Hotel, which was room 523. When they entered the room, a "colored" woman about 40 years old and a younger dark "colored" man, neither of whom was known to Michael, were already in the room. This was Michael's description of the man who, as he later testified, had shot the victim.
Again for convenience, it may be explained here how the police had been led to Michael. After the incident in room 523, which Michael witnessed, was all over, Maria Fischer told Michael not to tell anyone about it and then they all left, and Michael went to his own home, which he reached about 1 a.m. on 1 October 1970. During that day, Michael told a friend, one Johnny Valek, about the incident. Johnny in turn told his (Johnny's) father, who was a police officer. The father must have informed the police investigating this case, because later that same day, police officers came to the Valek home where Michael still was, discussed the incident with Michael, and then took him to the police station where Investigator Griffin was. At about 8 or 8:30 p.m., Michael gave Griffin a written statement about the incident which contained Michael's description of the male assailant.
Officer Griffin then testified to a post-arrest identification of defendant and Lorraine Hayden, made by Ritche in the police station after defendant and Lorraine had been brought to the station about 10 p.m. on 1 October 1970. It is this identification which defendant alleges was so improperly suggestive as to taint any in-court identification of defendant by Ritche, so that any such in-court identification must be suppressed. Since defendant presented an alibi defense, together with his own denial of any involvement whatsoever in the incident, the issue of identification is very important. Officer Griffin testified that Ritche told him that he (Ritche) had just emerged from a washroom in the police station when he saw defendant and Lorraine Hayden coming up a flight of stairs in the station. They were accompanied by police officers and their hands were handcuffed behind their backs. Ritche immediately and spontaneously identified them to a police officer who was accompanying him (Ritche) as the "colored" man and woman who had been in room 523 when he arrived with Maria Fischer and the victim. Officer Griffin then testified that, owing to this chance identification by Ritche, no lineup or showup identification procedure had been arranged.
Griffin then testified as to the statement allegedly made by defendant. Defendant had been questioned by Griffin and another police officer from the time of his arrival at the police station at about 10 p.m. Defendant had refused to talk to an Assistant State's Attorney, but about 11:30 p.m. he agreed to make an oral statement to Investigators Griffin and Foster. Griffin thereupon gave adequate Miranda warnings to defendant, who said that he understood his rights. According to Griffin, defendant said that he and Lorraine Hayden were in bed together in room 523, having sexual intercourse, when Maria Fischer and a little kid and "a trick" came into the room; that he jumped off the bed and hit "the trick" in the face and knocked him down; that Maria hit the victim across the nose with a frying pan, which broke; that Maria took a scissors and cut the victim about the face and was trying to cut his jugular vein; that the victim fell on the floor and defendant took a .22-caliber revolver and shot the victim in the head twice; that he took money from the victim and gave it to Lorraine, and Maria wanted $9 extra because the victim was her "trick." Griffin added that he had in no way harassed or intimidated defendant. Defense counsel did not object to Griffin's recital of the substance of defendant's oral statement.
All of the foregoing testimony of Griffin was given by him as the State's second witness in the hearing on the motion to suppress. For the convenience of a State trial witness (Dr. Shalgos, a pathologist in the coroner's office), the hearing on the motion was then recessed, and the trial resumed. Dr. Shalgos testified that, on 1 October 1970, he had examined the body of Pablo Garcia. There were cuts on the head, face, neck, and chest. There were bruises over both eyelids, and there was evidence of a blow on the back of the head. There was a bullet wound in the left temple area and another bullet wound over the right eyebrow. Death was unquestionably related to the two bullet wounds, because the bullets had lacerated the brain. On cross-examination, Dr. Shalgos stated that, if a person having the number of cuts and stabs and the degree of bleeding which Pablo Garcia had suffered were then not to have any medical treatment, he would die, even without the bullet wounds which Garcia also suffered; nevertheless, it was Dr. Shalgos' opinion that in fact Pablo Garcia had died from the bullet wounds. After Dr. Shalgos' testimony, the trial was again recessed and the hearing on the motion to suppress was resumed with the cross-examination of Officer Griffin.
Defense counsel first questioned Griffin about some of the circumstances attendant upon defendant's oral statement. Griffin stated that he had asked defendant whether defendant wanted to give a statement to an Assistant State's Attorney; defendant said he did not. Then Griffin asked defendant whether defendant wanted to tell Foster and himself what had happened; defendant said he did. Griffin then asked defendant whether defendant had been given his constitutional rights, and Griffin himself then recited those rights to defendant again. Defendant then told the story to the substance of which Griffin had testified on direct examination.
Defense counsel then shifted to the matter of defendant's arrest, and questioned Griffin as to probable cause for that warrantless arrest. Griffin testified that, after he had obtained Ritche's written statement, he had ordered the arrest of defendant and Lorraine Hayden by Officers Foster, Padar, Acosta, and Thomas. The bases for his order were: 1) Belles' information as to Lorraine's association with one Robert Fultz; 2) Hall's information as to the association between his mother Lorraine and Robert Fultz; 3) Hall's report as to their visit to his apartment at 7 a.m. on 1 October 1970 and what they had said and done on that occasion, plus his (Griffin's) knowledge that the bullets taken from the victim's body were .22-caliber bullets; 4) Hall's description of defendant; 5) the information in Ritche's written statement as to the incident in room 523 and Ritche's description therein of the male assailant as a dark "colored" man about 25 years old. Griffin conceded that he knew nothing about Hall's reputation for veracity, and defense counsel's effort to establish the same lack of knowledge as to Belles' reputation for veracity was successfully objected to by the State. Defense counsel made the point that the descriptions which Griffin had of the male assailant and of Robert Fultz were equally applicable to Belles, in whose hotel room the incident had occurred, and to Hall, in whose possession a .22-caliber revolver had been found and who was also associated with Lorraine Hayden. The inference which counsel appears to wish to draw is that, where the description which the police have fits each of three possible suspects, the warrantless arrest of any one of those three must be deemed an arrest without probable cause.
The third witness called by the State in the hearing on the motion to suppress was Michael Ritche. Defense counsel objected to any testimony by Ritche because his is the crucial in-court identification, the suppression of which defendant also seeks in the motion being heard. The trial court overruled the objection because Ritche's testimony as to his station-house identification of defendant and of Lorraine Hayden was relevant to the motion to suppress any in-court identification of defendant by him, and because his written statement to Officer Griffin was relevant to the issue of probable cause for Griffin to order the arrest of defendant.
On direct examination, Ritche began with the explanation, set out above for reasons of convenience, of how he came to enter room 523 of the Lewis Hotel with Maria Fischer and the victim at about 10:30 p.m. on 30 September 1970, and to see that defendant (whom he then pointed out at the hearing) and a black woman were already in the room. Ritche then testified that defendant began to hit the victim with his fists until the victim was knocked out. Maria Fischer hit the victim on the back of the head with a pan. Maria then took a scissors and began to cut the victim's throat. The witness turned his head away. Next he heard a gunshot but he did not see who fired the shot. Maria said there was only one bullet left in the gun. Then he saw defendant and Maria take money from the victim, and then they carried him out of the room into the hallway. When they returned, they cut off a piece of bloody carpeting and put it in a box in the closet. Maria told the witness that he had better not tell anyone about what had happened. Then they all left the room, and he was allowed to go to ...