APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of accountability for murder and armed robbery of Theodore Fletcher (Ill. Rev. Stat. 1971, ch. 38, pars. 5-1, 5-2, 5-3, 9-1, 18-2) and sentenced to a term of 20 to 25 years for each offense, the sentences to run concurrently. On appeal he contends that: (1) he was arrested without probable cause, (2) he did not effectively waive his right to counsel during questioning following his arrest, (3) he was not proved guilty of accountability for murder and armed robbery beyond a reasonable doubt, and (4) he cannot be convicted for two offenses derived from the same act.
At noon on September 9, 1972, defendant was arrested and was transported to the Robbins Police Station for questioning concerning the death of Theodore Fletcher. Before his trial commenced, defendant filed a motion to suppress a statement he gave at 8:10 p.m. at the police station. He alleged that his statement was not given voluntarily because he was unduly influenced and coerced into waiving his right to counsel and to remain silent.
The following pertinent evidence was heard on the motion to suppress.
He is an Assistant State's Attorney. On September 9, 1972, he was summoned to the Robbins Police Station in order to interview individuals regarding the death of Theodore Fletcher. He arrived there between 3:15 and 3:30 p.m. and saw defendant at 5 p.m. He advised defendant of his Miranda rights, which defendant indicated he understood. He told defendant that Mae Liza Lee had given a statement implicating him in the events surrounding Fletcher's death. At 7:40 p.m. in the presence of Sergeant Frederick Pennix, Detective Eugene Grant, another police officer, and a court reporter, he began questioning defendant. Again he advised defendant of his rights. Defendant initially indicated that he did not want an attorney with him while making his statement and then became confused about having an attorney during his statement and having an attorney in court. Finally, when he was asked, "Do you want to give a statement with a lawyer?" defendant replied, "Right." Gasperec then stopped his questioning and tried to obtain an assistant public defender for defendant.
Approximately 20 to 30 minutes later, one of the police officers at the station approached him and indicated that defendant wanted to talk to him. Although he had been unable to find an attorney for defendant, he returned at 8:10 p.m. He thereupon resumed the questioning without informing defendant that he had been unable to get him an attorney, but only after again advising defendant of his Miranda rights. He asked defendant whether he wanted a lawyer and defendant replied that he wanted "to tell it the way it was" and that a lawyer would merely confuse him.
He testified that both the 7:40 and the 8:10 p.m. transcripts accurately reflected what was said. He denied ever threatening defendant.
He is a shorthand reporter for the State's Attorney's office and transcribed the exchanges between Gasperec and defendant at the Robbins Police Station. Defendant never complained about physical abuse while at the police station.
Lawrence Moore, Robbins Police Officer
He has been a police officer for 2 1/2 years. On September 9, 1972 he was present at the Robbins Police Station with Gasperec and Police Officers Harris, Pennix and Grant. After the initial questioning of defendant was suspended to permit Gasperec to obtain legal counsel for defendant, defendant asked Moore if he could finish his statement. Moore replied that he did not need to finish his statement since Mae Liza Lee already implicated him in the killing of Theodore Fletcher. When Gasperec got off the phone, Moore denied beating or assaulting defendant, nor did he see anyone coerce or unduly influence defendant.
Sergeant Nathaniel Harris, Robbins Police Officer
He has been a police officer for 1 1/2 years. He substantially corroborated Moore's testimony concerning the absence of any mistreatment of defendant. Neither he nor anyone else told defendant that he did not need an attorney to make his statement after the initial questioning was suspended.
Eugene Grant and Sergeant F. Pennix, Robbins Police Officers
They substantially corroborated the testimony of Assistant State's Attorney Gasperec, Officer ...