APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 18, 1977.
Defendant, Robert Martin, was indicted for murder and two counts each of attempt murder and aggravated battery. A jury found defendant guilty of murder, two counts of attempt murder, and one count of aggravated battery. The circuit court of Cook County entered a sentence of 35 to 50 years for murder and 10 to 20 years on each count of attempt murder, with the terms to run concurrently. No sentence was imposed upon the conviction of aggravated battery. Defendant appeals from all his convictions, raising the following contentions for our considerations: (1) the trial court erred in refusing to suppress defendant's written statements as the fruit of a warrantless arrest made without probable cause; (2) the trial court erred in refusing to suppress defendant's involuntary written statement; (3) defendant was not accountable for the actions of his co-indictee; (4) the trial court erred in failing to give instructions on its own motion as to the lesser included offenses; (5) the conviction for aggravated battery must be vacated; and (6) the sentence of 35 to 50 years was excessive.
We affirm the murder and attempt murder convictions and we vacate the aggravated battery conviction.
The record reveals the following pertinent facts. Robert Martin and Nathson Fields were indicted for a number of offenses which allegedly took place on the evening of October 1, 1971, in Dixmoor, Illinois. Both men were arrested on October 5, and both gave statements to the police. Martin's statement contained the following. Martin and Fields shot at a car which contained members of a rival street gang, but ran from the scene upon emptying their pistols. Two of the car's occupants, Charles Merriweather and Larry Watkins, gave chase. Merriweather caught up with Martin and started hitting him. Fields rescued Martin by striking Merriweather over the head with a pistol, and Martin had the opportunity to reload his pistol. By this time, Watkins reached the scene, carrying either a rock or a brick. Robert Martin shot Watkins in the shoulder. The written statement recited that at this point Martin "turned around and run and Nathson told me to shoot [Watkins] in the head, and, you know, and so I told him no, I couldn't do that because, you know, and so, Nathson got the gun from me and he walked up to the boy and shot him in the head." Merriweather escaped with a gash in his head, but alive. Shortly thereafter, Martin and Fields thought they saw him in the darkness and Fields opened fire. At trial Charles Merriweather testified as to what happened, which was consistent with Martin's statement. George Wood, the innocent bystander who was walking down the street and was mistaken for Merriweather, testified as to the gunshot wounds he received that night. After trial by jury, Martin was found guilty of murdering Larry Watkins, guilty of attempt murder of Charles Merriweather, not guilty of the aggravated battery of Merriweather, and guilty of both aggravated battery and attempt murder of George Wood. Martin was sentenced to concurrent terms of 35 to 50 years for murder, and 10 to 20 years on each count of attempt murder. No sentence was imposed upon the conviction for aggravated battery.
• 1 The first question on appeal is whether the trial court erred in denying Martin's motions to quash the arrest and suppress the statements and other evidence obtained as a result of the arrest. The defense position was that the arrest was unlawful since it was made without probable cause. At the hearing on the motion to quash the arrest, Martin testified that when he was arrested at about 5:30 on the afternoon of October 5, 1971, he was sitting in a car in front of a friend's house in Robbins, Illinois. At that time, he was told by Robbins police officers to get in their car. He was then transported to the Dixmoor police station, where he was questioned. By testifying that he was doing nothing unusual when arrested without a warrant, defendant made a prima facie showing that the police lacked probable cause. The burden of going forward with evidence shifted to the State. (People v. Moncrief (1971), 131 Ill. App.2d 770, 268 N.E.2d 717.) The State, therefore, had the burden of producing evidence sufficient to show that the police had reasonable grounds to believe that Robert Martin had committed an offense. Ill. Rev. Stat. 1973, ch. 38, par. 107-2(c).
The State's primary witness was the Dixmoor police officer who investigated the shootings and caused Robert Martin to be arrested by the Robbins Police Department. Officer Robert Vinson testified to the following facts. He was assigned to the case and began his investigation the morning after the shooting. After speaking with a number of persons who might have knowledge of the identities of the two offenders, Vinson received descriptions from two persons. At the hearing, he related the out-of-court statements of these two unnamed persons. The first person said that she was in the car during the shooting, and she gave general physical descriptions: both offenders were male Negroes age 18 or 19, one had a black hat and was 5 feet nine, and the other wore a light-colored suit and had a tall Afro hairdo. The second person said that he was on the street while shots were being fired at the car and that he recognized the shooters as Robert Martin and Nathson Fields. He also identified photographs of Martin and Fields shown him by Vinson. He recognized the men because he had known them for a long time, and did not want to testify because he was afraid. Nonetheless, he gave the information after Vinson promised that his name would not be revealed. No compensation or other reward was offered. He further testified that based upon the information received from the unnamed male on October 2, Vinson then asked the Robbins police to bring Martin and Fields to Dixmoor for questioning. Three days later, Martin was taken into custody.
On cross-examination, Vinson said that the unnamed male had been an informer in an unknown number of cases, and had been responsible for giving information which led to one prosecution for unlawful use of weapons. The officer's recollection of the precise nature of the information received in the past was sketchy and uncertain. Vinson also testified on cross-examination that he made no efforts to obtain a warrant, and that if the Robbins police had not brought in Martin, he would not have gone for a warrant.
The general rule in such cases was stated by the Illinois Supreme Court in People v. Peak (1963), 29 Ill.2d 343, 348, 194 N.E.2d 322:
"Probable cause for arrest exists when the facts and circumstances within the arresting officer's knowledge, and of which he had reasonable and trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed, and that the person arrested is guilty."
Officer Vinson knew that a number of crimes had been committed. The issue for our consideration is whether the information given to Officer Vinson by the unnamed male informant was so reasonable and trustworthy as to constitute probable cause to arrest Robert Martin.
• 2, 3 An arresting officer may have reasonable grounds for believing a defendant committed a crime, based upon information supplied by another person, an informer. An arrest may be made upon such reasonable grounds without a warrant. At a hearing on a motion challenging the validity of such an arrest, however, the State must prove that the information so received from another was reasonable and trustworthy. The trial judge then has the opportunity to determine whether the information in the police officer's knowledge was trustworthy and whether probable cause existed for the warrantless arrest. (People v. McCray (1965), 33 Ill.2d 66, 210 N.E.2d 161, aff'd, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056.) The primary consideration is whether, when the constitutionality of an arrest is challenged, the prosecution can prove with specificity what the informer said and why the police officer thought the information was credible. Beck v. Ohio (1964), 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223.
The State's principal contention is that Officer Vinson was justified in relying upon "the information supplied by an anonymous citizen-informer who witnessed the shootings and who knew the defendant." It is argued that information received from a citizen-informer is presumed reliable, citing People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, cert. dismissed, 397 U.S. 660, 25 L.Ed.2d 642, 90 S.Ct. 1408, and its progeny. The defendant argues that Officer Vinson's reliance upon the unidentified male informer was unjustified and that this information was insufficient to prove the existence of probable cause. As this court noted in the related case of People v. Fields (1975), 31 Ill. App.3d 458, 468, 334 N.E.2d 752, 761: "The illegality of [Fields'] arrest arose, if at all, from the unwarranted reliance by the police upon the information secured from the undisclosed source as testified by Officer Vinson." The issue thus framed is whether information received from an unidentified source, as related by a police officer at a hearing on a motion to quash an arrest, standing alone, without any showing of reliability, may be considered credible solely because it is from an anonymous eyewitness, and thereby give the police probable cause to arrest.
The citizen-informer rule first appeared in Illinois in People v. Hester. Therein, police officers investigating the rape-murder of a school teacher were told by the school clerk, Mrs. Considine, and another teacher, Miss Fritsch, that defendant had been seen alone in the school's hall on the morning of the crime, and that the murdered teacher had been handling a matter wherein defendant had been accused of sexual misconduct with another student. When the police officers interviewed defendant, they observed bloodstains on his clothing for which defendant gave differing explanations. Defendant was then arrested. The court stated that the police "had a right to rely upon the partly hearsay information which they received from Miss Fritsch and Mrs. Considine, and the usual requirement of prior reliability which must be met when police act upon `tips' from professional informers does not apply to information supplied by ordinary citizens." (39 Ill.2d 489, 514.) Nowhere is it written that the information received from the two named school employees, standing alone, constituted probable cause for Hester's arrest. The best that may be said is that the information received from Mrs. Considine and Miss Fritsch combined with the results of the police interview, i.e., the bloody pants, to give probable cause for defendant's arrest. Viewed in light of the subsequent decision in Adams v. Williams (1972), 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921, it may be said that the information received from the two named employees had sufficient indicia of reliability to justify a forcible stop of the suspect. This interpretation of Hester is warranted in that the Illinois Supreme Court cited People v. Lewis (24 Cal.App.2d 546, 49 Cal.Rptr. 579, as authority for the Hester rule that the police may act upon information supplied by ordinary citizens. In Lewis, it was stated:
"Horace C. Owens, who lived almost directly across from the Friendly Cleaners, was watching television at home when he heard breaking glass and a burglar alarm. He looked across the street and saw a person come out of the Friendly Cleaners, re-enter a few moments later, and come out again carrying clothes. Mr. Owens' son called the police. When Officer Bryant arrived Mr. Owens went to the street and met him. While they were talking, Mr. Owens saw defendant walking along 131st Street, some 50 to 100 feet away. Mr. Owens said `"That's him. I can tell the way he is walking."' The officer then stopped the defendant." (24 Cal.App.2d 546, 547-48, 49 Cal. Rptr. 579, 581.)
When the defendant gave an unsatisfactory explanation of his presence, Officer Bryant arrested him. In determining whether the officer had probable cause, it was written:
"A citizen such as Mr. Owens, who reports a crime committed in his presence, is more than a mere informer. He is an observer of criminal activity who, by calling the police, acts openly in aid of law enforcement. Courts> have not hesitated to find it reasonable for police officers to act upon the reports of such observers. * * * We do not think that in the case at bench the law required Officer Bryant to disbelieve Mr. Owens' report and allow defendant to disappear into the night." (24 Cal.App.2d 546, 550-51, 49 Cal.Rptr. 579, 582-83.)
In subsequent cases, California courts> have pursued the citizen-informer rule. The most recent refinement of the rule was made by the Supreme Court of California in People v. Ramey (1976), 16 Cal.3d 263, ...