APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 14, 1977.
Benjamin Smith, hereinafter defendant, was charged by indictment with murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1), and attempted armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 8-4.) Defendant was found guilty of both charges in a jury trial and was sentenced on the murder only to not less than 60 nor more than 100 years in the Illinois State Penitentiary.
On appeal defendant makes the following contentions: (1) certain statements made by the defendant should have been suppressed as being the fruit of his unlawful arrest and detention; (2) the testimony of State witness, Michael Warr, should not have been allowed in evidence because his discovery was also the result of the unlawful arrest and detention of the defendant; (3) defendant's statements should also have been suppressed on the independent ground that he did not knowingly waive his right to remain silent since the State did not establish that he was aware of the possibility of adult certification and he was only fifteen when he was questioned; (4) Michael Warr's testimony was inadmissible as the product of statements made by the defendant without a knowing and intelligent waiver of the defendant's right to remain silent; (5) with the exclusion of defendant's statements and Warr's testimony, or even with the exclusion only of defendant's statements, the evidence is insufficient to establish defendant's guilt beyond a reasonable doubt; (6) defendant's sentence was excessive.
On the evening of January 17, 1973, four boys entered the basement of a church located at 104th and Wentworth Streets in Chicago. They asked John Henderson, a church deacon, for candy and when he refused they left. Later two of the boys returned to the basement and announced a "stick-up." Henderson raised a chair to defend himself and was shot and killed by one of the boys. Another deacon, Joel Anderson, witnessed these events. The defendant and Leslie Gills were arrested and charged with the murder and attempt armed robbery of Henderson. Gills subsequently pled guilty and was sentenced to a minimum of 14 years and a maximum of 14 years and one day in the Illinois State Penitentiary.
Prior to trial defendant moved to quash his arrest and to suppress statements allegedly made by him. At that hearing Investigator Victor Tosello testified that on the day of the shooting he interviewed Joel Anderson. Anderson told him he was a witness to the shooting and gave Tosello a description of the assailants. Two days later, January 19, Tosello learned from Henry Harrell that Harrell's brother Darryl had told him that he had seen the defendant, Leslie Gills, and Cedric Webb run from the church at the time of the shooting. When questioned about this, Darryl denied having said it. Tosello then obtained pictures of these three individuals allegedly seen by Darryl and showed them to Anderson. Anderson picked out pictures of the defendant and Webb, saying that they "resembled" the assailants but he could not be positive. He wanted to see them in person before he stated definitely. At about 1 on the morning of January 20, 1973, Tosello gave a "verbal rundown" of this information to officers on the next watch, including, he believed, Investigator John Yuciatis.
Investigators John Yuciatis and James Davis testified that at about 1 or 1:30 on the morning of January 20, 1973, they were told by other officers that the defendant had been implicated by witnesses in the murder of Deacon Henderson. Davis believed that he had received this information from Tosello. At about 1:30 in the morning they went to the home of Mrs. Margaret Webb with whom defendant apparently resided. Yuciatis told Mrs. Webb that defendant was wanted for questioning concerning a homicide. She got the defendant and the officers then informed him he was a suspect in the murder of Henderson. Davis advised the defendant of his constitutional rights and the defendant said he understood them. They did not tell the defendant he was under arrest, but asked him if he would accompany them to Area 2 headquarters for questioning. Defendant agreed to go. Mrs. Webb was told that she could come along to the station but she did not go there. Defendant was then driven to Area 2. Davis testified that if defendant had tried to leave the car they would have stopped him. At Area 2, located at 9059 Cottage Grove in Chicago, defendant was placed in an interview room and again advised of his constitutional rights by Davis. Defendant again stated that he understood those rights. In response to questioning defendant said he knew nothing about the shooting. Defendant apparently stated that he was 16, though he was actually 15. He was then transported to Area 1 at 51st and Wentworth in Chicago and at about 3 a.m. was placed in a lineup viewed by Anderson. Anderson could not identify the defendant. At the hearing Davis testified that at this point he had no other evidence in his possession that defendant committed the crime. Yuciatis told the defendant he had not been picked out and they would take him back to Area 2 and subsequently bring him home. Defendant was taken back to Area 2 at about 4 a.m. and placed in a room there. Yuciatis testified that at this point Davis told him that he would again ask the defendant if he knew anything before he took him home. He testified that Davis went into the room and asked defendant a few questions. Davis testified that at Area 2 he told the defendant he was going to make up a juvenile arrest report and turn him over to the juvenile authorities free of charges. While Davis was making out the report the defendant volunteered that he had heard that "Mike-Mike and Leslie" were involved in the killing and that they had gotten the gun from Joe Thompson. Davis did not advise defendant of his constitutional rights at this time. He asked defendant if he would stay and identify the people he had named. Davis then relayed this information to Yuciatis. They decided they would keep the defendant there while they brought in these people so he could identify them. Davis, Yuciatis, and other police officers then arrested Joe Thompson, Michael Warr and Leslie Gills and brought them back to the station at about 5 or 5:30 that morning. Yuciatis questioned Michael Warr, who told him that defendant was the shooter in the murder. Yuciatis informed Davis, who told the defendant of the accusation and advised him of his constitutional rights. Yuciatis testified that it was at this time that defendant was placed under arrest. Defendant then made an oral statement to Davis.
Assistant State's Attorney Frank Carey testified that at about 7:30 that morning he advised defendant of his constitutional rights; defendant said he understood those rights, and Carey then took an oral statement from the defendant.
Mrs. Webb testified that the officers told her they were taking the defendant in for questioning and he could return home afterward. She denied that they had told her she could go down too.
Defendant denied having been given his constitutional rights until after he spoke to the Assistant State's Attorney. He stated that he knew his rights but he was not thinking of them because he was not told he was under arrest. After he was placed in the lineup the officers told him that he was in trouble as "the lady" had identified him. He denied having given the names of people involved in the crime. Only after Investigator Yuciatis slapped him about the face a number of times did he say that he "did it."
The trial court denied defendant's motion to quash the arrest and suppressing his statements, specifically finding that the officers had probable cause to make the arrest and the statements were made voluntarily, without physical coercion or brutality. In his motion, and his arguments in support of that motion, defendant did not specifically raise the issue of whether defendant knew that he might be tried as an adult, therefore the trial court did not specifically make a finding on this question. However the judge did find that the officers were aware that the defendant was at least as young as 16, while also finding that defendant was "precocious" and "aware enough to understand everything being done."
At trial Michael Warr testified for the State that on January 17, 1973, while walking with the defendant he was approached by Leslie Gills and Alphonso Bennett. Gills suggested that they steal the purse of a woman who was across the street. The four then followed the woman into the church at 132 West 104th Street. They didn't see her in the church, but then heard a noise in the basement. At defendant's suggestion they investigated the noise and encountered Deacon Henderson. Gills asked for candy, was refused, and the four went outside. Bennett told Warr and the defendant to rob the deacon. When Warr declined Bennett pulled out a gun and threatened to shoot him if he didn't. Warr then agreed, and Bennett gave the gun to the defendant. Warr and the defendant reentered the basement. Defendant pulled out the gun and announced a "stick-up"; Warr started to search Henderson but Henderson pushed his hand away. Leslie Gills then started coming down the stairs to the basement and Henderson started to back away. Gills told the defendant to shoot Henderson. Henderson raised up a chair and the defendant shot him. All four of the youths then fled.
Joel Anderson testified that on January 17, 1973, he was in the basement of the Christian Missionary Baptist Church at 104th and Wentworth in Chicago with Deacon Henderson. Three boys walked in and asked for candy. One of the boys then pointed a gun at Anderson and announced a "stick-up." The men begged them not to shoot, telling them that they had no money. When Deacon Henderson started backing up and ...