APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant was charged by indictment with the murder of Robert William Lange and the armed robbery of William Mitchell (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3), 18-2). Prior to trial, defendant filed a motion to suppress a confession allegedly coerced by the police. Following a hearing, the trial judge denied defendant's motion. Trial was held before a jury, and defendant was found guilty of both charges. The trial judge sentenced defendant to 25-75 years for murder and 4-12 years for armed robbery, the sentences to run concurrently. On appeal, defendant contends (1) the trial judge erred in excluding the testimony of a defense witness, (2) the trial judge did not afford him the opportunity to elect sentencing under the law in effect at the time of the crimes.
We affirm defendant's conviction and remand this cause for resentencing.
Motion to Suppress Hearing
At the hearing on the motion to suppress, Chicago police officer Daniel McCarthy testified that defendant served as a police informant from March 11, 1975, until March 19, 1975, the date of his arrest for the instant offense. On March 17, 1975, McCarthy first learned of defendant's involvement in a murder on April 15, 1972, after conversing with defendant's brother-in-law, Edward Yancy.
In the late evening of March 19, 1975, McCarthy and his partners, Officers Schuttler and Kulekowskis, went to the 50th on the Lake Motel for a prearranged meeting with defendant. Thereafter, defendant was taken to the 21st District Tactical Unit, led to a room on the second floor, and informed that he was under arrest for the investigation of a homicide. McCarthy advised defendant of his rights and afterwards defendant said "Do you think I did it?" A short time later, defendant repeated his question and McCarthy told him they had a statement implicating him as one of the participants in a homicide. Defendant then stated "I can beat this in court so I'll tell you what went down." McCarthy again read defendant his constitutional rights and defendant related that he wished to talk about the homicide.
McCarthy testified that defendant made several requests of him during their conversation. Defendant asked that he not be placed in the same jail cell as his brother-in-law, that he not be sent to Stateville Penitentiary, that he be given permission to leave the State once he was eligible for parole, and that he not be put in a prison cell near an uncle who was a guard at the County Jail. McCarthy explained to defendant that he would relate these requests to the appropriate authorities.
McCarthy stated that he never promised defendant a light sentence if he confessed nor threatened him with a heavy sentence if he did not make a statement. McCarthy also never told defendant that defendant's sister had signed a written statement implicating him. After McCarthy's conversation with defendant, he was transported to Area I Homicide and placed under arrest.
During cross-examination, McCarthy explained more fully the circumstances surrounding the meeting he and his partners had with defendant at the motel. McCarthy had obtained the motel room for defendant after the latter told police that he had information pertaining to a narcotics deal. Defendant had requested $500 in cash, a woman and an unmarked car. The police agreed to meet him at the motel on the evening of the 19th ostensibly to finalize the arrangements.
McCarthy testified that defendant was placed under arrest only after they were at the police station. He was neither handcuffed nor searched. The police did not threaten defendant physically or verbally nor inform him of the facts and circumstances of the murder. McCarthy further stated that he informed the assistant State's Attorney of defendant's requests and his responses to those requests.
Officer James Kulekowskis substantially corroborated McCarthy's testimony and also stated that he observed no marks on defendant's forehead at the time of defendant's arrest. Officer John Schuttler corroborated McCarthy and Kulekowskis' testimony regarding defendant's remark that he could "beat this in court," and the substance of defendant's requests. Schuttler heard no threats nor promises made to defendant and noticed no bruises on his forehead.
William Maki, an assistant State's Attorney, testified that he was assigned to the Felony Review Unit on March 20, 1975. Initially he spoke to defendant alone. Maki read defendant his rights and in the presence of a court reporter and Homicide Investigator Joseph Deloughery, Maki took a statement from him. Maki did not notice anything unusual about his appearance. After being shown a photograph of defendant reflecting a dark mark on his forehead, Maki agreed that the dark mark was present on the night he took defendant's statement.
Investigator Deloughery testified that he was present at defendant's initial interview with Officers McCarthy, Kulekowskis and Schuttler. Deloughery advised defendant of his rights and asked him why he wished to confess to a murder that was three years old. Defendant responded that his conscience had been bothering him. Deloughery stated that he was also present during the taking of the statement by the assistant State's Attorney and did not recall anything unusual about defendant's appearance.
During cross-examination, Deloughery was shown a photograph of defendant bearing a dark mark on his forehead. After seeing the photograph, Deloughery acknowledged that there could have been a mark on defendant's forehead that evening. Deloughery stated that no one in his presence ever struck defendant and explained that he took a second statement because defendant had insinuated that promises had been made to him by police.
Defendant testified in his own behalf. He stated that at approximately 10:30 p.m. on March 18, 1975, he was in a room at the 50th on the Lake Motel when he noticed lights shining in his window from the direction of the parking lot. He looked outside and noticed an unmarked police car. He then heard a knock on the door and assumed it was the police so he opened it. He recognized Officers McCarthy and Kulekowskis who came in and asked him about the murder. They subsequently produced a statement they had taken from Yancy implicating defendant in the murder. One of the officers also told defendant that they had another statement to the same effect from defendant's sister. Neither officer apprised defendant of his constitutional rights. Kulekowskis searched defendant and both officers searched his room. During the course of the questioning, McCarthy sat by the door of the motel room, holding a pair of handcuffs in one hand and repeatedly hitting the handcuffs against the palm of his other hand. Defendant perceived this as a threatening gesture.
Defendant then heard another knock on the door and another officer, armed with a gun, entered and said it was time to leave. The officers handcuffed defendant and took him to the police station. At the station, one of the officers pointed to several pictures of black men hanging on the wall and stated to the effect that these were dead men. The police further told defendant that a man was murdered on Blackstone Avenue, that another person ...