APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM J. GLEASON, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant Robert McKinley was indicted, along with Frank Kostrzeski and Robert Tobel, for criminal damage to property exceeding $150. They were jointly tried in a bench trial, and all were found guilty. Defendant McKinley was sentenced to imprisonment for a term of one year to one year and one day. McKinley prosecutes this appeal on three grounds: (1) that the court erred in refusing to suppress the pretrial identification of the defendant; (2) that the court erred in refusing to suppress defendant's post-arrest statement and (3) that the State failed to prove him guilty beyond a reasonable doubt.
Evidence at trial indicated the following events took place. Joseph M. Skalas owned a house under construction at 918 Three Oaks Road in McHenry County. Between 6:30 and 7 p.m. on the evening of August 4, 1973, Joseph M. Skalas and his brother, Wayne, drove out to the house to see how the construction was progressing. When they arrived at the house, they both saw a man standing outside the house and throwing something into a wheelbarrow. Neither brother could identify what this first individual threw into the wheelbarrow. This first individual immediately left the premises.
After the Skalas brothers arrived at the property, they immediately got out of the car and ran toward the house. As Joseph Skalas went into the house, a second person ran past him. Wayne Skalas ran outside the house and attempted to tackle this second person as he ran away from the house. He was not successful; the person made his way through a barbed wire fence and Wayne Skalas decided not to pursue him any further.
Joseph Skalas proceeded into the house and noticed that copper tubing had been ripped out of a wall, several toilet and plumbing fixtures were damaged, and a window had been damaged. While he was in the house he heard someone on the second floor of the building. He stood by the ladder leading to the second floor and shouted for the person to come down. The stairway in the house was not built yet. From the outside of the house, Wayne Skalas was yelling at the person on the second floor not to jump. This third individual, on the second floor, then proceeded to another side of the house and jumped out the window. Joseph Skalas saw the person descend to the ground from the window where he stood. He then went upstairs and observed more damage to the second floor.
Joseph Skalas went 50 to 60 feet from the house into a wooded area where his brother and the person who jumped from the window were located. At trial, Joseph Skalas identified Robert D. Tobel as the man who jumped from the second floor. Wayne Skalas also identified Robert D. Tobel as the man on the second floor.
Neither of the Skalas brothers saw any destruction of the property take place, nor did they hear anything that sounded like the breaking of plumbing fixtures, or copper tubing being ripped out of the walls during the time they were at the house that evening. However, testimony at trial did indicate that the house was in good repair when construction workers went home at 5:30 p.m. that day. Joseph Skalas stated that he paid $2,000 to repair the damage at the house.
Mrs. Lloyd Schmidt's property is located at 7314 South Rawson Bridge Road, Cary, Illinois, and borders the back end of Joseph Skalas' house under construction. The two houses are about 200 feet apart, although the view of the Skalas property from the Schmidts' is somewhat obstructed. Mrs. Schmidt testified that she was home on the day in question, working in her back yard. She did not see the workmen leave the Skalas' house that day, but assumed they left around 5:30 p.m. since she did not hear any more noise after that time. Between 6:15 and 6:30 p.m., she heard loud banging, swearing, and carrying on, but assumed a partition in the house was being torn down by workmen. She testified the swearing and banging noises were continuous until 6:50 p.m. when Mr. Skalas came over to have her call the police. The Skalas brothers testified, however, that they heard nothing unusual upon arriving at the house.
Before Mr. Skalas arrived to ask her to call the police, Mrs. Schmidt observed a boy in a white T-shirt and dark hair running toward her property but then going off in another direction. She then saw another boy running along the back of the Skalas' property. At trial she identified this person as defendant Tobel and stated that she had gone over to the woods where Wayne Skalas was, in order to give Tobel first aid. On cross-examination, Mrs. Schmidt stated that she saw no one enter or leave the Skalas house on the day in question.
Deputy Charles A. Terrill and Deputy Merrill Donovan responded to Mrs. Schmidt's phone call to the McHenry County sheriff's department. Deputy Terrill located the injured party in the woods west of Skalas' house and made an in-court identification of defendant Tobel as the injured party he had seen on August 4, 1973. After a brief conversation with Wayne Skalas, Terrill found out that Tobel and two others had been in the house when the Skalas brothers drove up and that Tobel had jumped out of the second story window. Deputy Terrill then asked Tobel to identify himself, and he did. At this time Deputy Terrill claimed that he had not been informed of any damage to the house, so he did not read Tobel his rights, but instead asked him what he was doing at the house. Tobel said that he was a carpenter, looking around the house to see how it was constructed. Deputy Terrill then asked Tobel who he was with and Tobel responded, saying McKinley and Kostrzeski.
After questioning Tobel as to who he was with, Deputy Terrill learned of the damage in the house from Joseph Skalas. Deputy Terrill helped Tobel into the rescue ambulance and at the same time advised him that he was under arrest and read him the Miranda warnings. Deputy Terrill radioed the names of McKinley and Kostrzeski and McKinley's address to other units in the area. He then proceeded with the Skalas brothers in the squad car to McKinley's residence.
Sergeant John Hansen was in the area and received Deputy Terrill's message. He received a short description of McKinley and proceeded to 908 Three Oaks Road where McKinley's farm was. Sergeant Hansen saw a person resembling the description he had received and asked him his name. McKinley identified himself; and Hansen informed him he was under arrest, handcuffed him, and placed him in the squad car. Hansen testified that he advised McKinley of his rights; and defense counsel, Mr. Downs, objected to that conclusion. In response to the question of what he meant by "advised him of his rights" Hansen stated:
"I advised him of his right to remain silent; that anything he said could be used against him in a court of law; that he had a right to have an attorney present, before any questioning; that he could stop answering any questions at any time he desired to. He was asked if he understood them, at that time, and he stated he did understand."
After this testimony the State's Attorney, Mr. Kilduff, sought to introduce a statement that McKinley allegedly made to Sergeant Hansen while on the way to Mrs. Schmidt's residence. The statement was introduced over ...