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People v. Delk





APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.


Defendants, Henry Delk, Lawrence Payne, Arthur Scott, and Leotis Hych, were charged by indictment with an attempt armed robbery. All four defendants were convicted in a single jury trial. Thereafter Scott was sentenced to a term of imprisonment of 1 to 3 years, Delk to a term of 2 to 6 years, Payne to a term of 4 to 12 years, and Hych to a term of 6 to 18 years. Hych's sentence was made to run consecutively to a term of 4 to 12 years which had been imposed previously because of his conviction of an unrelated armed robbery. All four defendants have appealed.

The circumstances of the instant offense were as follows. On December 17, 1973, at approximately 7:40 p.m., a Negro male knocked on the door of a tavern known as "Hall's Cottage," in East St. Louis, Illinois. Mary L. Sisk, who was then working tending bar pressed a button to electrically unlock the door. The man entered. Immediately after he entered, and before the door was able to close, four other Negro males entered behind him. The first man who entered walked to one end of the bar and then walked behind it. The other four men stood in the vicinity of the door. The first man, who was later identified as Gregory Johnson, said something like "I reckon you all understand what this is." At that point one of the customers, James Detloff, an off-duty policeman, drew his gun and exchanged shots with Johnson. As a result, Johnson was killed and Detloff was wounded in his right arm. Either during the shooting or immediately thereafter, the other four Negro males ran out the door and away from the tavern. It was subsequently discovered that the other four Negro males, defendants herein, ran a mile or more to the home of an acquaintance, Charles Davis. They arrived there "hot, sweaty, and coughing." They were admitted to the Davis home, where Charles Davis, his mother (Mattie Davis), his father (Joseph Davis), and his sister (Essie Lee Wells) were then present. Delk and Hych explained that they had just attempted to rob a tavern and that in the attempt a friend had been killed. Delk and Hych each displayed pistols. Payne stated that he had dropped his pistol during their run from the tavern to the Davis home. Hych stated that he was going to return to the tavern to shoot the man who had shot Johnson. Eventually, however, Hych, Delk, Scott, and Payne left the Davis home together in a cab. Delk and Hych went to Delk's home at 916 Trendley; Scott and Payne went to Scott's home at 916-A Trendley.

Immediately after the attempted robbery occurred, the East St. Louis police were called by someone in the tavern. Several policemen arrived shortly thereafter. Near Hall's Cottage, the police discovered a 1972 Buick Electra which was later found to be a stolen vehicle. The car was brown and white; one of its doors was open. In the car the police found three hats, a gun holster, a coat, and several other items. The police also found another hat lying on the ground somewhere in the vicinity of Hall's Cottage. A search of Johnson's clothing produced a set of keys which fit the Buick Electra.

Acting on information from the Centreville Police Department that Delk had been seen in the Buick Electra sometime prior to the instant offense, the police went to Delk's home approximately four hours after the incident. Delk's mother, Idella Delk, answered the door and told the policemen that her son was not at home and that he had left earlier with four other men in a white and brown car. The policemen then left, but a half hour later they returned to the home. Idella Delk allowed the policemen to enter the home and told them her son was present. They arrested Delk whereupon he turned to Hych, who was also present in the house, and stated, "He was with me." Thereafter Hych told the police that Scott and Payne had also been with them and that Scott and Payne could be found at Scott's home. The policemen then went to Scott's home and arrested Scott and Payne. Hych also informed the police that the hat they found on the ground near Hall's Cottage belonged to Charles Davis. Acting on ths information, the police also arrested Charles Davis. However, because of their subsequent investigation, no charge was brought against Charles Davis.

Shortly after the arrests each defendant made a statement concerning the attempted robbery of Hall's Cottage. Each statement was put in writing by the police and signed by the defendant who had made it.

Defendants filed pretrial motions to suppress the statements. After a lengthy hearing the statements were found to be voluntary, and the motions to suppress were denied.

Several witnesses testified at trial, including the four members of the Davis family, several policemen who had participated in the arrests and investigation, James Detloff, Mary Sisk, and two other people who had been present during the attempted robbery. None of the defendants testified at the trial. The statements of the defendants, as well as various other items of evidence, were admitted at trial. Each defendant was represented by a separate attorney throughout the proceedings before the trial court.

In this appeal defendants assert that prejudicial error occurred in the trial court in a number of respects. Defendants first contend that the indictment charging them with attempt armed robbery is fatally defective in that it fails to allege that defendants performed an act amounting to a substantial step toward the commission of an armed robbery. The indictment states in relevant part:

"That on the 17th day of December, 1973, in said County, Henry Delk, Arthur Scott, Lawrence Payne, and Leotis Hych committed the offense of Attempt in that they did with the intent to commit the offense of armed robbery of Mary Sisk in violation of Section 18-2 of Chapter 38, Illinois Revised Statutes, did perform a substantial step toward the commission of that offense in that they did knowingly enter a building of Mary L. Sisk, being a tavern located at 3001 Broadview, East St. Louis, Illinois armed with a deadly weapon, a gun, in violation of Paragraph 8-4 Chapter 38, Illinois Revised Statutes."

• 1 A person commits an attempt when, with intent to commit a specific offiense, he does any act which constitutes a substantial step toward the commission of the offense. (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a).) The crux of defendants' argument is that entering a tavern while armed with a deadly weapon, albeit with intent to commit a robbery therein, is nothing more than mere preparation which does not amount to a substantial step toward the commission of the offense. This contention lacks merit.

The only other matters which defendants might logically have been charged with in the indictment are the announcement of the intended robbery and display of a weapon or the failure of the attempt. As to the latter, it is no longer the law in Illinois that failure to complete the intended offense is necessary for conviction of attempt; and, therefore, failure need not be charged. (Ill. Ann. Stat., ch. 38, § 8-4, Committee Comments, at 511-12 (Smith-Hurd 1972); People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645.) As to the former, it is not essential that the indictment state that defendants displayed a weapon or that they announced the holdup.

"It was not necessary to state that the defendant pointed a pistol at the victim and stated that this was a holdup. This degree of particularity is not required in the formal charge. Rather, this degree of specificity may be obtained through a bill of particulars under section 111-6 of the Code (Ill. Rev. Stat. 1971, ch. 38, par. 111-6)." People v. Nunn, 29 Ill. App.3d 399, 402, 331 N.E.2d 8, 11.

No doubt if the indictment had charged defendants with the announcement of a holdup and the display of a weapon, the indictment would have been sufficient. The announcing of the robbery and display of the weapon would, of course, have been the ultimate acts immediately preceding that which would have rendered the robbery complete. But charging such acts was not necessary, for "[i]n order to constitute an attempt, it is not requisite that the act of the defendant is necessarily the last deed immediately preceding that which would render the substantive crime complete." People v. Paluch, 78 Ill. App.2d 356, 358, 222 N.E.2d 508, 509.) Particularly relevant on this point is the following comment from the Model Penal Code:

"It is clear, of course, that while the `last proximate act' is sufficient to constitute an attempt it is not necessary to a finding of attempt. No jurisdiction operating within the framework of Anglo-American law requires that the last proximate act occur before an attempt can be charged. * * * The fact that further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial." Model Penal Code art. 5, Comments, at 39 and 47 (Tent. Draft No. 10 1960).

• 2 Entering the tavern while armed with a gun amounted to a substantial step toward the commission of an armed robbery. The indictment, having charged that conduct and the requisite intent, was sufficient to inform defendants of the nature of the accusation brought against them.

Defendants next contend that the trial court erred in denying the motion of each defendant to suppress the statement he had made to the police and in holding each statement voluntary. Defendants' contention is in three parts. First, the State failed to produce all material witnesses on the voluntariness issue. Second, the court erred in refusing to hear the testimony of attorney Hillebrand concerning an out-of-court statement allegedly made to him by the desk sergeant of the East St. Louis Police Department prior to the arrests of the defendants. And third, the evidence presented at the suppression hearing failed to establish that the statements had been voluntarily made.

Initially we note that the statement of Scott amounts to nothing more than an admission of mere presence at or near the tavern when the armed robbery attempt took place. Scott, in his statement, said that he accompanied the others in order to "see some girls." Nowhere in the statement does he admit knowledge that a robbery was planned or willingness on his part to participate in a robbery.

Delk's statement similarly admits presence at or near the scene of the crime. It is more inculpatory than the statement of Scott, however, in that it shows awareness of, at least, Johnson's plan to rob the tavern. Delk, in his statement, said that they were "riding around" when Johnson parked the car near the tavern. They all got out of the car and Johnson "told us he was going to rob the place." To a certain extent the statement is exculpatory, however, in that it seems to indicate Delk had not formed an intention to rob the tavern, since "[w]e thought he was playing" and since "[w]hile we were walking over to the tavern he [Johnson] asked us did we want some beer, and we told him yes."

Hych's statement is inculpatory in that it shows that he had knowledge that a robbery was planned ("I don't know for sure but I think they had planned the robbery") and that he was present near the tavern when the robbery occurred. Unlike Delk's statement, Hych's statement contains no indication that Hych considered the plan as anything other than serious. Like Delk's statement, Hych's statement does not indicate that he had formed an intent to actively participate in a robbery. ("When we got into the tavern Greg [Johnson] started going in his jacket like he was looking for some money. Greg walked back to the door where I was, and I asked him what he was going to do, and he said he was going to stick ...

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