APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of one count of murder and four counts of attempt armed robbery. He was sentenced to terms of imprisonment of from 30 to 60 years for the murder conviction and seven to 20 years for each attempt armed robbery conviction, all sentences to run concurrently.
Defendant raises four contentions on appeal:
(1) The court erred in finding an inculpatory statement made by him admissible in light of his intoxication at the time he gave the statement and certain acts of the police which discouraged him from seeking the advice of counsel;
(2) The State failed to prove him guilty beyond a reasonable doubt of knowingly and willingly participating in the attempt armed robbery which led to the murder;
(3) It was error to convict him of five offenses arising from a single course of conduct;
(4) The sentences which the court imposed were excessive.
As a result of a police investigation, defendant and three other men were arrested for their participation in an attempt armed robbery of a bar and an adjoining restaurant on the south side of Chicago on July 14, 1971. During the course of the attempt armed robbery a patron of the restaurant was shot to death.
Prior to trial defendant moved to suppress a signed statement which he gave on the night of his arrest. At the hearing on this motion Chicago police officers Rutherford Wilson and Robert Tyson were called by the State. They testified that shortly after the crime, acting on information supplied to them by an informant, they obtained a warrant for defendant's arrest. They visited defendant's mother at her home and requested her assistance in securing the surrender of her son. They told her that in view of the outstanding warrant, it might be dangerous for defendant to remain on the street. She agreed to assist them.
Early in the evening of July 22, 1971, they returned to defendant's mother's house. Defendant arrived shortly thereafter. They allowed him to say good-bye to a woman they believed to be his wife or girlfriend, his baby and several other women who they understood to be his sisters. Defendant's mother and a friend of the family accompanied them when they transported defendant to the police station. On the way they stopped at a hamburger stand to allow defendant's mother to purchase some food for her son. They informed defendant of his rights as they were driving to the station.
At the station they interrogated defendant for approximately one hour. Defendant responded in the affirmative when they inquired if he desired to make a statement, and consequently they called for a State's attorney. Initially, defendant refused to talk to the State's attorney. However, he almost immediately changed his mind and was advised of his rights. He gave an oral statement detailing his knowledge of the crime and, in response to questions put to him by the State's attorney, repeated the statement in the presence of a court reporter. Defendant refused to allow the court reporter to take his picture.
Officer Tyson testified that it was his belief that defendant may have had some drinks prior to coming to his mother's house on the evening of July 22. Both officers agreed, however, that neither defendant's speech nor his mannerisms indicated he was intoxicated. Defendant did not consume any liquor in their presence. They did not sit at the kitchen table and drink with defendant's family when they came to arrest him. They were at the house for approximately 15 minutes. They did not allow defendant to leave their presence. They did not tell either defendant or his mother that he would be better off without an attorney. The subject of securing an attorney for defendant was never mentioned. Defendant did not vomit at the police station.
Brent Carlson, an assistant State's attorney, testified for the State that during the early morning hours of July 23, 1971, he was called to the police station at 91st Street and Cottage Grove Avenue to take a statement from defendant. At first defendant was uncooperative, but when Carlson started to leave, defendant called him back. Carlson advised him of his rights. He thoroughly explained to defendant his right to counsel. Defendant stated that he understood his rights and gave an oral statement. He was advised of his rights a second time and in response to questioning again gave the statement. This time it was recorded by a court reporter. After the statement was typed, defendant signed it and initialed each page. Defendant's clothes appeared to be unruffled. There was nothing unusual about his eyes, his manner of speaking or the smell of his breath. During the course of the interrogation Carlson sat across a table from defendant, approximately four to six feet away. Defendant never complained of being intoxicated.
Carlson's testimony was substantially corroborated by that of the court reporter.
Defendant testified in support of his motion. In addition, he called his mother, Curtis Allen, John Washington and Sarah Burley, who were friends of his family, and Patricia Smith, who was his girlfriend. Basically it was their testimony that defendant had been drinking all evening on July 22, 1971. Washington, who was sent to look for defendant while the police waited at defendant's mother's house, found him in a bar. When defendant arrived at his mother's house, he began drinking vodka and beer with Officers Wilson and Tyson. The officers allowed defendant to go to a bedroom alone with Patricia Smith, where they had intercourse. Smith testified that defendant's performance was unaffected by the amount he had to drink. Defendant's mother and Curtis Allen accompanied defendant when the police transported him to the station. At defendant's request they stopped at a liquor store where they purchased a quantity of whiskey and beer. When they arrived at the police station, defendant and his mother continued to drink. Defendant vomitted due to having consumed so much liquor on an empty stomach.
Defendant testified that when he first arrived at the station, police officers threatened to hit him "upside the head" with telephone books. He was again threatened when the State's attorney arrived. He was struck several times during the course of the night. Defendant testified that he could not remember being admonished as to his ...