APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Michael Glanton, Larry Washington, and Leon Johnson were tried together in a single bench trial for the murders by shooting of Clifford Reynolds and John Wilson on the night of 15 April 1969. (Ill. Rev. Stat. 1967, ch. 38, par. 9-1.) Each defendant was represented by his own separate attorney and pursued separate, though partially overlapping, defenses. All three defendants were convicted. Glanton and Johnson were sentenced to imprisonment for not less than 40 years nor more than 100 years; Washington was sentenced to imprisonment for not less than 50 years nor more than 100 years. From these convictions each defendant took his own separate appeal, which became ready for oral argument at different times and was separately briefed and orally argued by separate appellate counsel. On this court's own motion, the three separate appeals have been consolidated for opinion.
In his appeal, each defendant has assigned as reversible error the denial of his pretrial motion to suppress certain physical evidence, namely, three guns which the State proposed to introduce into evidence as the murder weapons: a .32-caliber revolver, a pump-action shotgun, and a bolt-action shotgun. The grounds for the motion of each defendant were the same: the said physical evidence had been seized: (1) in an illegal warrantless search of a garage to which the police had been led on two occasions: first by one John Edward Payton for the seizure of the revolver, and then by defendant Johnson for the seizure of the two shotguns hidden under floor-boards inside the garage; and (2) that Johnson had led the police to the shotguns as the proximate result of his own illegal warrantless arrest, so that the shotguns were "fruit of the poisonous tree." Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.
At the hearing on the motion, Washington testified that he was arrested without a warrant and that the garage was under his control. Glanton testified that he was arrested without a warrant while doing nothing illegal at the time. Johnson testified that he was arrested without a warrant while doing nothing illegal at the time; that John Edward Payton, who was with the arresting officers and who had directed Johnson to put the shotguns in the garage, directed him to take the police to the guns, whereupon Investigating Officer William Nolan had said that, if Johnson did not do so, he (Nolan) was going to drive at a high rate of speed on the Congress Expressway and throw Johnson out of the speeding car; and that he had then taken the police to the garage and showed them where the shotguns were. For the State, Officer Nolan was the only witness. He testified merely that he had arrested Washington without a warrant, and had been present at the arrests of Glanton and Johnson; that Johnson had then taken him to a garage in which he had found the two shotguns. The court denied the motions of the defendants on the grounds that none of the defendants had established any property interest in the garage (the allegation by Washington of control of the garage was an unsupported conclusion); none had established the absence of probable cause for his arrest so as to demonstrate that the arrest was illegal; Johnson had not testified that Nolan's alleged threat of physical harm had causally coerced him into taking the officers to the garage.
Portions of the trial testimony of Officer Nolan and his partner, Officer Frank Bertucci, and of Chicago Police Youth Officer Ronald Gleeson bear on the arrests of defendants and on the search of the garage and serve to complete the obviously inadequate testimony of Officer Nolan (as to the existence of probable cause for the arrests) at the hearing on the motion to suppress the guns as physical evidence. For convenience, we summarize here those portions of their trial testimony. Bertucci testified that, on the morning of 16 April 1969, he was assigned with his partner, Officer Nolan, to investigate two homicides which had occurred the previous night. He and Nolan went immediately to the scene which was an alley alongside the railroad tracks in the vicinity of South Hamlin and South Avers Avenue in Chicago. *fn1 There he saw the two victims lying dead alongside the railroad tracks. In routine questioning of persons in the area, one Perry Roe told him about a group of neighborhood youths, called the Cermak Deuces, whose leader was John Edward Payton. Further questioning led him to visit defendant Washington, a member of the group, at the latter's place of work about 10:30 a.m. He told Washington that the police had information that he had been involved in a fight between two groups of youths the day before, and he (Bertucci) wanted to question Washington about the matter. Washington agreed to accompany him to the police station which constituted the headquarters of Area 4 Homicide, and did so. Before Bertucci questioned Washington at the police station, he talked to John Edward Payton and one Allen Holmes. Pursuant to these conversations, Bertucci, acting without a warrant, informed Washington that he was under arrest for murder; he also informed Washington of his constitutional rights, but did not question Washington at that time. Washington said nothing except to deny any involvement in the homicides. *fn2 The apparent reason for delaying the interrogation of Washington was that, as Officer Nolan testified, John Edward Payton had told Nolan that one of the three murder weapons could be found on the roof of a garage. Acting on that information, Bertucci and Nolan went with Payton to the garage which the latter pointed out (located at about 2217 South Avers Avenue) and recovered the revolver on the roof. On their return, they were driving along West Cermak Road at about 2 p.m. when they saw a youth officers' car from Area 4 with Chicago Police Youth Officers Gleeson and Sullivan standing talking to Glanton and Johnson. As Youth Officer Gleeson testified, the two youth officers had just then temporarily detained Glanton and Johnson because they were then in the company of a suspected truant. Bertucci and Nolan pulled up, and Bertucci arrested Glanton and Johnson without a warrant. Bertucci testified that he informed Glanton and Johnson that the charge was murder and then informed them of their constitutional rights. Thereupon Johnson asked if he could speak to their "chief," John Edward Payton. When Payton was brought over, he said to Johnson: "I tricked you, man, told them where the guns are." Officer Nolan's version of this conversation was that Payton told Johnson that he (Payton) had "flipped" on everybody, and that Johnson should tell the police everything, including where the guns were, because the police knew most of it already. An objection by Glanton to the admissibility against him of the conversation between Payton and Johnson was sustained. Youth Officer Gleeson testified that he then took Glanton to Area 4 Homicide. Officer Bertucci testified that Johnson then directed Nolan and himself to the same garage which they had previously visited with John Edward Payton and in which Johnson concededly had no property interest; that, without a search warrant, all three entered the garage and Johnson pointed out the two shotguns hidden under floor-boards, and the officer seized the shotguns. Johnson said that he had had the bolt-action shotgun and Glanton had had the pump-action shotgun; the statement as to Glanton was stricken. The officers then returned with Johnson to the police station, where Bertucci readvised Johnson of his constitutional rights and then proceeded to question Johnson.
The foregoing is a complete summary of all the testimony relating to the arrest of each defendant and to the seizure of the three guns. As noted above, this summary includes not only all the testimony given at the hearing on the pretrial motion to suppress the guns, but also the relevant trial testimony of the police officers involved. We shall consider the contention of each defendant that the denial of the motions to suppress constituted reversible error after we have concluded our recital of the facts, which we now resume.
Each defendant was alleged to have made an oral inculpatory statement to the investigating officers. Each moved to suppress his statement. These motions to suppress the oral statements were heard in conjunction with the trial, and each motion was ultimately denied. The statements of Johnson and Washington contained references to one or both of their co-defendants. But, at the trial, when the statement of each was admitted into evidence against him through the testimony of one or more of the police officers to whom the statement had been made, the trial judge meticulously excluded from the statement all such reference to either of the other two co-defendants by sustaining objections thereto on hearsay grounds. In summarizing the statements, however, we will report them as testified to before the objections were made and sustained because one contention on this appeal relates to this matter.
We will now summarize the evidence at the trial exclusive of the testimony as to the arrests of each defendant and the seizure of the guns, which we have already summarized.
After "life and death" witnesses had testified as to each of the two victims, the State called Officer Frank Bertucci as its first principal witness. Bertucci's testimony to the point where he had begun to interrogate Johnson has already been summarized. He then testified as to Johnson's oral statement, made to him and to Officers Nolan and Denson after Johnson had again been advised of his constitutional rights. As already noted, objections to all references in the statement to the other co-defendants were sustained. According to Bertucci, Johnson said that on the night in question he, Glanton, and Washington had taken both victims to the vicinity of the railroad tracks. Washington and the victim Reynolds had a conversation, in which John Edward Payton and Allen Holmes intervened. Finally, Washington pushed Holmes aside and shot Reynolds in the head with the revolver. At that point Johnson turned his head away from the victims and fired the bolt-action shotgun. He then heard Glanton fire the pump-action shotgun, and heard three or four revolver shots. He then fled the scene, and threw his shotgun alongside the garage in which it had been found. Bertucci concluded his testimony as to Johnson's statement by saying that Johnson had refused to make a written statement.
Bertucci then testified as to the oral statement made to him by Washington in the presence of Officers Nolan, Denson, and Mooney. Again, as already noted, objections to all references in the statement to the other co-defendants were sustained. Bertucci said that, at about 3:30 p.m. when he had completed his interrogation of Johnson, he began to interrogate Washington by confronting him with the oral statements of John Edward Payton, Allen Holmes, and Johnson. Thereupon, Washington said that he, Glanton, and Johnson had taken the two victims to the alley. Holmes and John Edward Payton were about a half-block away and Washington called them. Payton talked to Washington about not shooting Reynolds. But at that time, Reynolds reached under his sweater as if going for a gun and Washington shot him with the .32-caliber revolver. Wilson then bent down as if to pick up a brick, and Washington shot him twice.
Later that day, according to Bertucci, Washington was readvised as to his constitutional rights, after which he added the following circumstances to his statement. He said that, prior to the shooting there had been an altercation between the victims, who were members of a rival group known as the Cermak Disciples, and himself and members of his group. After the altercation, he had gone to the garage with Glanton and one Melvin Pugh and had gotten the two shotguns and the .32-caliber revolver. He had given the bolt-action shotgun to Pugh. The three then met Holmes and Johnson, and Pugh gave the bolt-action shotgun to Johnson. Pugh and Holmes then left the group, after which Washington, Glanton, and Johnson located Reynolds and Wilson and the shootings followed. Washington repeated his earlier account of the shootings but added that Johnson and Glanton had also fired their shotguns. Bertucci concluded his direct testimony by saying that Washington had refused to make a written statement and by saying that he had not talked to Glanton and had not observed any force or intimidation used as to any of the defendants. On cross-examination, Bertucci testified that he had not used physical force or any coercion or mental intimidation in obtaining the oral statements of Johnson and Washington.
The next witness for the State was Bertucci's partner, Officer Nolan, who had been with Bertucci throughout the investigation. His testimony as to the course of the investigation during 16 April 1969 and as to the arrests of defendants and the seizure of the three guns has already been summarized. He confirmed Bertucci's testimony that Johnson had been apprised of his constitutional rights before making his oral statement. Nolan's account of Johnson's statement confirmed Bertucci's account except that Nolan's account did not include the statement in Bertucci's account that Johnson had heard Glanton fire his shotgun. He confirmed Bertucci's account of Washington's oral statement and added two details to it: (1) Washington had admitted that, before Reynolds had reached into his sweater, he (Washington) had said: "We are going to kill him anyway." (2) Washington had said that after he had first shot Reynolds in the head, he had then fired two more shots into Reynold's head.
Nolan's testimony also related to Glanton. Nolan stated that either Youth Officer Gleeson or Youth Officer Sullivan or both had been present at Glanton's arrest; that Glanton had made no statement at the time of his arrest; and that Glanton had been taken to Area 4 Homicide. On cross-examination, it was brought out that Nolan had testified at the coroner's inquest, where he had said that Glanton, while in the squad car at the scene of his arrest, had stated to him (Nolan) that he (Glanton) was present at the time and place of the shootings; furthermore, at the coroner's inquest, Nolan had not testified that Miranda warnings had been given to Glanton. On redirect examination of Nolan, it was brought out that, at the preliminary hearing which was subsequent to the coroner's inquest, Nolan had testified that he was not present when Glanton had made any statement at the scene of his arrest. However, Nolan added, Glanton's father had come to Area 4 Homicide after Glanton had been brought there. In Nolan's presence, Glanton's father had asked Glanton whether he had killed Reynolds and Wilson, and Glanton had nodded yes. On re-cross-examination, it was brought out that the police report, which Nolan dictated and in part typed, contained no reference to the above exchange between Glanton and his father.
James Schreier, an Assistant State's Attorney, then testified for the State that he had advised each of the three defendants of his constitutional rights and had ascertained that each understood them. He then asked each whether he wished to make a statement to him (Schreier), but none did.
The next witness for the State was Melvin Pugh, who was aged 14 at the time of the trial. He testified that, at about 6 p.m. on 15 April 1969, he saw the three defendants with John Edward Payton, one Wilmer Tanner, and one Larry Morris at West Cermak Road and South Avers Avenue. The group went to a poolroom at the intersection of Ogden Avenue and South Avers Avenue [which was the next intersection north of Cermak Road on Avers]. At about 9 p.m., Pugh (who was then a member of the Cermak Deuces) was with the group as they went to Cermak Road and South Springfield Avenue, where the group encountered the victims, Reynolds and Wilson. Pugh saw this encounter and also saw John Edward Payton pick up a garbage can as if to throw it. Later that night, Pugh, still with part of the group, saw Washington, Glanton, and John Edward Payton in an alley near West Cermak Road and South Avers Avenue; Payton had a pump-action shotgun. Payton told Johnson to get a gun. Still later, Pugh saw the three defendants leave Cermak Road and South Avers Avenue and walk west through the alley toward South Springfield Avenue; at that time Glanton was carrying a pump-action shotgun and Johnson was carrying a bolt-action shotgun. Payton then told Pugh to go home, which Pugh did; his home was at 2252 South Avers Avenue. He was sitting on the porch of his home with Wilmer Tanner when he next saw five persons walking through a field in the vicinity of Cermak Road and South Avers Avenue; one of the five was Glanton and one was the victim Wilson. After the group had been out of sight for about six minutes, Pugh heard what sounded to him like three shotgun blasts and five revolver shots, sounds with which he was familiar. Pugh then went into his house; the time was about 10:20 or 10:30 p.m.
On cross-examination, Pugh admitted that he had signed a prior written statement dated 24 March 1970 and given voluntarily and in the presence of an older friend of his to the Assistant Public Defender representing Washington. In the statement he said that he had seen the two victims at about 7 p.m. on 15 April 1969 and had not seen them thereafter; that he had never seen the three defendants on that night either in the presence of the victims or with guns; and that he had not heard any shots on that night. In this statement to the Assistant Public Defender, Pugh also said that he had earlier given a written statement to the police in the presence of his mother, signed by him and by his mother. He said that the police had taken him from his school to a police station and had told him that, unless he admitted in a written statement to be signed by him and his mother that he had seen the defendants with guns and with the victims on the night of 15 April 1969, the police would arrest him for murder. He testified that he knew that it was wrong of him and of his mother to sign such a statement for the police, but that he had done so in order to avoid arrest.
On further cross-examination, defense counsel sought to demonstrate Pugh's poor ability to observe by asking him to identify Wilmer Tanner, who was in court; Pugh was unable to do so until Tanner stood up in court and was pointed out.
On redirect-examination, Pugh confirmed that he had read and then signed the written statement given to the Assistant Public Defender under date of 24 March 1970. He also confirmed that he had given a prior written statement to the police under date of 17 April 1969. As to the latter statement, he explained that on the morning of 16 April 1969, the police had picked him up at school and brought him to a police station where his mother was waiting for him. He arrived at the station about noon and gave the statement in the presence of his mother about twenty minutes later. He conceded that the events related in the statement to the police were much fresher in his mind than the events related in his later statement to the Assistant Public Defender. On re-cross examination, he said that, when he gave the statement to the police, both he and his mother had been afraid that he would be charged with murder and that he had given the statement because of that fear; he had not been afraid of the Assistant Public Defender when he gave the statement to him.
The next witness for the State was Chicago Police Youth Officer Ronald Gleeson. He testified that he had initially detained Glanton and Johnson while they were walking along a street in the company of a suspected truant. Shortly thereafter, Officers Bertucci and Nolan arrived on the scene and they arrested Glanton and Johnson. Gleeson then drove Glanton in a squad car to Area 4 Homicide and advised him of his constitutional rights on the way. Gleeson said that Glanton had asked who "fingered" him. At the police station, Gleeson had accompanied Glanton to a washroom where Glanton had admitted that he was present at the shooting. A little later at the station, Glanton had told Gleeson that he Glanton had had a shotgun and had pointed it at Reynolds, turned his head, and fired. Glanton's father had then entered the room with Officer Nolan. Glanton's father asked Glanton "if he did it." Glanton nodded his head and said yes. His father said: "If you had to kill someone, why did you kill one of your own brothers?" Gleeson himself did not make a written report of these statements of Glanton and of Glanton's father, nor had they been incorporated into the single police report dictated by Nolan.
Through the testimony of Burt Neilson (whom the State qualified as a ballistics expert) and of evidence technicians Gunnell and Koludrovic, the State next established the chain of possession of bullets, bullet pieces, and lead pellets which had been removed from the bodies of the victims. Neilson then testified that the bullets had been fired by the .32-caliber revolver which had been found on the roof of the garage, and that ...