APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Carl B. Donalson was charged with and indicted for the offenses of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 9-1), and of attempt armed robbery in violation of section 8-4 (Ill. Rev. Stat. 1969, ch. 38, par. 8-4). Following a jury trial, defendant was convicted of murder and attempt armed robbery. He was sentenced to a term of 20 to 40 years in the penitentiary for murder and did not receive a sentence for the conviction of attempt armed robbery. Upon appeal, this court reversed the conviction because the defendant was not brought to trial within 120 days. (People v. Donalson (1975), 32 Ill. App.3d 195, 336 N.E.2d 539.) The supreme court reversed this court and remanded the matter for consideration of the other points raised by appellant. People v. Donalson (1976), 64 Ill.2d 536, 356 N.E.2d 776.
On the evening of January 29, 1972, the defendant was arrested by Chicago police officers of the Area 4 robbery unit. He was questioned concerning several robberies and then about a homicide which occurred on January 21, 1972, at a Martin gas station. Defendant made inculpatory statements indicating his participation in the homicide. Subsequently, defendant filed a motion to suppress his confession because it was involuntarily given, due to a denial of his right to counsel and of his right to communicate with his family. In order to properly discuss the issues raised by the defendant, a review of the motion to suppress hearing and of the trial is essential.
The following evidence was heard on the motion to suppress:
Investigator Thomas Sherry
Area 4 Homicide Detective Sherry first saw the defendant at 9 p.m. on January 29, 1972. Defendant was in the custody of Area 4 robbery investigators Gall and Morello, and was under interrogation by them for robberies of some west side gas stations for approximately 1 to 1 1/2 hours. After a lineup, Griffin and Sherry were allowed to question the defendant. It was 10 or 10:30 p.m. He was informed of his rights, he acknowledged that he understood them, and when questioned with regard to a homicide at Roosevelt and Independence, he denied committing the homicide, but admitted committing two other robberies.
While attempting to locate witnesses for a lineup, defendant was left handcuffed in the interrogation room. Upon returning to the station, and after telling defendant there would be a wait for the witnesses, he (the defendant) told them that he was at the Roosevelt and Independence gas station. He was given his Miranda rights again.
Griffin and Sherry then conducted an interview of the defendant at 11:30 p.m. regarding events occurring on January 21, 1972. Donalson said he was employed as a security guard with W.L. Lillard Detective Agency and had been assigned to a grocery store on January 20. He said he left the store around 7 p.m., committed two robberies, returned to the store at 8:30 p.m., turned the gun in to the agency stating he quit his job, checked out at 9:30 p.m., went bowling, and returned home at 1 a.m. on January 21. He further said that he went to the Roosevelt and Independence Martin gas station, ordered $3 worth of gas, the car would only take 45 cents worth, and tendered $10 to the attendant. When the attendant gave him change, he demanded all his money, and the attendant said he would have to kill him to get the money. The gun went off and defendant drove the car away. He removed the empty cartridge from the gun at Keeler and Roosevelt, threw it on the street, and went home.
Mr. Donalson said he would give a statement to the assistant State's Attorney. He was given a meal prior to the assistant State's Attorney's arrival. He made a phone call, supposedly to his wife, but Sherry could not remember if this was before or after the assistant State's Attorney arrived. There were no marks on the defendant's body. Sherry contacted Lillard and the gun Donalson had used was sent to the station around 5 a.m. Sherry did not see the defendant sign the statement taken by the assistant State's Attorney.
The court ruled there was no basis for questioning concerning probable cause for arrest at a hearing on a motion to suppress a confession.
Alonzo Davis, step-father; Marguerite Donalson, sister-in-law; Suzie Davis, mother; Susie Love, friend; Effie Lee Donalson, wife
All of the above described signs of physical abuse on the defendant's body which they had seen when they visited the defendant on the morning of January 30, 1972. They said that the photograph taken of the defendant did not accurately portray his physical condition. His sister-in-law, mother, and wife testified that the defendant said he had been beaten into confessing. His wife testified that she received a call from Carl at 3:15 a.m. on January 30. She also related that he told her every time he asked for a lawyer he was beaten.
Carl Donalson, the defendant
Donalson was arrested on January 29, around 8:15 or 8:30 p.m. He was stopped while driving, showed his driver's license, and he and the car were searched. The defendant was taken to the Maxwell Street police station, but was not informed of his constitutional rights at that time. He was taken to a small room and handcuffed to the wall. Investigator Griffin came into the room around 9 p.m. and asked him about the ownership of the car. Defendant showed him the ownership papers. The defendant was not advised of his constitutional rights and was not told that he could have a lawyer present. Griffin next asked about an alleged murder and informed the defendant that he was being held for the murder of Alexander Jones which occurred at the Martin gas station on the corner of Roosevelt and Independence. Griffin said he would hold him until he got the desired information and further stated that it was he, the defendant, who shot the attendant. The defendant denied the accusation, but Griffin kept repeating the same questions and allegations over a period of 45 minutes. Griffin said that if the defendant did not tell him the truth he would throw him out the window, but there was no physical contact then.
The defendant testified, "I asked Mr. Griffin if I could make a phone call so I could contact my people so that I could get some legal advice and he said I could not make a phone call." Griffin left for about 45 minutes, and upon his return started interrogation again. Griffin told the defendant that if he did not tell him what he wanted he would suffer the consequences. Griffin hit him on the right side of the face with his open hand and again asked the defendant about the gas station. The defendant stood up for fear of being hit again and Griffin kicked him in the groin. He questioned the defendant again and hit him on both sides of the face. He read some things off a paper and told the defendant this was what he was going to confess to. The defendant said he would sign anything. Griffin then hit the defendant with a black object on the legs and told him to read the paper and tell the assistant State's Attorney everything that was on it.
The paper contained everything that Sherry testified to regarding the gas station incident. Griffin again left for about one-half hour to 45 minutes. During this time, Sherry was in the room. He did not beat the defendant. Then Griffin returned and Sherry left. He asked the defendant to sign the confession and the defendant said no. Griffin hit him in the thighs and said an assistant State's Attorney would come and the defendant should tell him what was on the paper, and also told him to sign the paper or there would be more beatings.
The assistant State's Attorney came in, then left, and returned with Griffin and a court reporter. The assistant State's Attorney read the defendant his constitutional rights, asked him if he understood them, and started the questioning.
Regarding this questioning, Mr. Hall, defendant's attorney, adduced the following evidence:
"Q: [D]id the State's Attorney at that time offer to get a lawyer before questioning?
Q: And did you want a lawyer before he ...