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People v. Nolan

OPINION FILED APRIL 11, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

MICHAEL NOLAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WAYNE W. OLSON, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

The State appeals from an order of the trial court granting defendant's motions to suppress a statement and certain physical evidence unlawfully seized by the Chicago police. The issue on appeal is whether the trial court's findings of fact and conclusions of law were manifestly erroneous.

The relevant facts established at the lengthy hearing on the motions are that on November 21, 1974, the slain body of Julie Oswald was found near Bogan High School in Chicago. Defendant, Julie's boyfriend, was arrested and subsequently indicted for her murder.

Chicago police investigator Thomas Quinn testified that on November 21, 1974, he was assigned to Area Three Homicide. Quinn and his partner, Investigator John Solecki, were assigned to investigate the Oswald homicide. At the location where the body was found, Quinn obtained a description of a man seen leaving the scene from Mrs. May Karavides, an elderly woman who spoke English through an interpreter, and from other police officers at the scene. That description was of a male white, approximately five feet 10 inches tall, thin build, long blond hair, dark clothing, carrying a dark object, dark pants, and shoes.

At 7 p.m. that evening, Quinn saw defendant at Holy Cross Hospital with decedent's mother and sister. Quinn was informed by another police officer that defendant was decedent's boyfriend. Quinn then spoke with defendant for approximately 30 to 45 minutes. He asked if defendant had seen decedent earlier that day. Defendant replied that he had last seen her that morning, as she boarded a bus at 79th Street and Pulaski to go to work. Quinn did not inform defendant that he was a suspect in the murder, nor did he or anyone else then advise defendant of his rights. According to Quinn, defendant was free to leave the room at this time. Following their conversation, Quinn asked defendant to accompany his partner and him back to Area Three. Quinn informed defendant he was the last person to see decedent alive and asked him to cooperate in the investigation. Defendant said he was glad to help.

Quinn and Solecki then drove defendant to Area Three. Defendant rode in the back of the car, alone. He was not handcuffed. When they arrived at Area Three, they informed defendant that because he was the last person to see decedent alive, he could become a prime suspect in the murder. Solecki then informed defendant of his rights.

Quinn testified that defendant was questioned in an interview room at the police station beginning at approximately 7:30 p.m. At this time defendant was still free to leave. At 9 p.m., however, some conflicts developed in defendant's story as to his whereabouts at the time of the murder. At the hospital, defendant had told Quinn and Solecki that he had met decedent while shopping alone in a bookstore at Ford City, and that he had never gone farther west than Karlov Street. Defendant's second story was that he was with decedent and one Vince Navarro in a bookstore at 79th and Pulaski. Later, he said that he had gone further west than the east side of Karlov Street. Defendant was placed under arrest at 9 p.m.

At approximately 10:30 p.m., Quinn took defendant to Area One homicide for a lineup. The lineup was to be held at Area One because there was no one-way mirror in the lineup room at Area Three, and because the witnesses who were to view the lineup were an elderly woman and two very young girls. Defendant was not handcuffed during the ride to Area One. The five-man lineup was viewed by Mrs. Karavides and by Gail and Cheryl Mitchell. No identification was made.

After the lineup, defendant was taken to the 8th Police District, the area in which the homicide occurred. There defendant was fingerprinted, processed, and photographed. Defendant was handcuffed during the ride from Area One to the 8th District because, in Quinn's words, defendant was then under arrest for "investigation of murder."

During one of the car trips, Quinn testified that defendant asked to speak to a friend of his, a priest. Quinn told him it would be all right, but that the priest was probably in bed by that time. Defendant did not at any time ask for an attorney.

Quinn testified that by 1:30 a.m., the police had contacted Vince Navarro who denied having been with defendant that morning. Defendant was confronted with Navarro's denial. He then indicated he would tell still another story.

Elizabeth Nolan, defendant's mother, testified next that she saw police cars outside of the Oswald home at 5:15 p.m. on November 21, 1974, as she returned from a shopping trip. She sent defendant there to find out what was happening. Between 6:15 and 6:30 p.m., her son and his friend Michael Cusane returned. Defendant was crying and screaming that someone had killed his girl friend. He then returned to the Oswald's because he said the police wanted to talk to him.

Mrs. Nolan testified that at approximately 7 p.m., four police officers in civilian clothes knocked at her back door. One man showed an identification card and said they were police officers. At the same time, four more police officers knocked at the front door and were admitted. Mrs. Nolan testified that the last four left when they discovered the first four officers were in the house. Mr. Nolan was also present. No search warrant was shown to Mrs. Nolan. She told the officers that she had not seen defendant leave the house that morning, but that she first saw him shortly after 1 p.m., when he returned home to change clothes. When he came in he was wearing dark pants, a dark blue corduroy jacket, and black shoes. One police officer asked to see the clothes and she said "yes." Mrs. Nolan took the officers into defendant's room and retrieved the clothing for them. She could not remember which shirt her son had worn that morning, but found none missing from the closet. One of the police officers accompanied her into the bathroom where she dumped out a clothes hamper. None of defendant's shirts were in the hamper. When they left, the police ook the slacks, shoes, and jacket, as well as a light blue denim jacket and some sweatshirts.

Mrs. Nolan asked the police to take her to the police station with them so that she could see her son. One of the officers gave a business card with an address and telephone number to Mr. Nolan so that he would know where his wife was. The officer assured Mr. Nolan that his wife would be escorted home. Mrs. Nolan arrived at Area Three about 8:15 p.m. She did not see her son for five hours. While she waited she spoke with Investigator Rochowicz. Rochowicz asked Mrs. Nolan if her son used drugs or alcohol and if he had ever been to a psychiatrist. He told her, "I think you have a sick son on your hands." He told her that her son had been involved in a quarrel in a restaurant and that there was a witness who had given this information to the police. He also told her that an elderly woman in a wheelchair who did not speak English, had seen her son throw the body over a fence. Mrs. Nolan asked repeatedly to see her son. Each time she was told she could not. Rochowicz suggested that she go home, but she insisted on remaining until she saw her son. Finally, she was allowed to see him shortly after 1 a.m. on November 22. Just before she entered the room where her son was being held, she asked Rochowicz what she could say to her son. "He said, `Everything what I told you and what you saw you can tell your son now.'" When she entered the room where defendant was being held, he yelled, "Ma, go. Get me a lawyer," three times. She responded, "You will listen to me now. I want to hear from you, and I got a lot to tell you. Now, tell me where you was mitt [sic] Julie, where you left her." He told her he had met Julie in Barnaby's, but there had been no quarrel. He had had only one beer. Then she said, "Look, there is a eye-witness, an elderly lady saw you throwing her body over the fence." He replied that the police had lied to her. She responded, "The police cannot lie. They stated to me they have two witnesses and one eye-witness, and once in your life, tell me the truth. Are you on dope? And maybe you're sick and I don't know." He denied that. She then said, "Maybe you don't know what you're doing when you were out or drink all over, like Mr. Rockowitz [sic] explained me, and take dope. You don't know what can happen." She repeated this line of questioning a second and a third time. Finally, her son said, "Ma, go home, ask Mr. Bogden. You believe them." He told her that Mr. Bogden had seen Julie and him near a public library. She said, "What are you doing in the library? Since when you go library?" He said that he and Julie had said good-bye in front of the library, and then she got on a bus to go to work. He went into the library to use the bathroom. Then Mrs. Nolan got up and said, "Only God can help you." She then walked out of the room.

Mrs. Nolan testified that she looked at her son's hands during the conversation because he was sketching out his whereabouts with his hands on the table. She saw that they were smeared with what appeared to be ink, but she saw no cuts on his hands. When she turned away from her son, Rochowicz was standing in the doorway. She then had the following conversation with him:

"He asked me, `What did you son told you?' I said, `My son was lying to me, and you have two witnesses and an eye-witness. You here me from a lawyer.' He said, `Do you have a lawyer?' I said, `No. Do you have one in the house?' He said, `No. They're also very expensive.' I say, `Oh, my God.' He said then, `Don't worry about that, he will get Public Defender.' I say, `What are those?' He said, `They're appointed from the State, and that's all you can do. Go home now.'"

Mrs. Nolan then went home.

Assistant state's attorney James Klein testified that he arrived at Area Three at approximately 2 a.m. on November 22, 1974. He advised defendant of his rights. A court reporter did not arrive until approximately 3 a.m. Defendant was again advised of his rights. Defendant made no statement to Klein that he was being coerced or tricked into making a statement by the police, or that he wanted a lawyer.

Defendant testified that he arrived at the Oswald residence at 6:15 that night and spoke with decedent's sister and Officer Rochowicz. He was told that Julie had been killed. He told the police he wanted to go home to tell his mother, but Rochowicz told him not to leave because he was the last person seen with decedent and he would have to go for a lineup and questioning. Defendant left the Oswald's anyway, with Michael Cusane, and went home. He told his parents what had happened and that he had to go back to the Oswald's because the police wanted to question him. He returned to the Oswald's and accompanied Mrs. Oswald to Holy Cross Hospital. He had been at home less than five minutes.

At the hospital, some plainclothes police officers pulled him into a corridor and told him to sit down. Then they took him to an interview room. Investigator Solecki asked him if he knew about murder, manslaughter, and involuntary manslaughter. Defendant replied that he knew about murder, but did not know about voluntary and involuntary manslaughter. Solecki told defendant he had to go down to Area Three Homicide with them. Defendant said he wanted to stay at the hospital with Mrs. Oswald, but Solecki told him he could not stay there. He was at the hospital a total of less than 15 minutes.

Defendant left the hospital with Solecki, Quinn, and one other police officer. As he walked out of the hospital, there were "two police officers on the side of me, one in front, and a bunch in back." They paused for a moment before a man with a camera. He was taken to Area Three in an unmarked police car. Defendant was handcuffed behind his back at this time. At Area Three he was placed in a room. His handcuffs were removed. Then he was questioned by Solecki, Quinn, Officer Kunz, and various other police officers, numbering 15 in all. He was never told that he was being charged with anything. Solecki told him that he "did the crime" and that there were three eyewitnesses. He was questioned until 8:30 or 8:45, when he asked for an attorney because he didn't want to talk anymore. The police officers then called him a "jackoff," said that he was the boyfriend, and that he was guilty. Solecki grabbed him, threw him against the wall, and began to curse him. He called defendant an "asshole" and accused him of lying because his jugular veins and the veins on his forehead were coming out. At this point, defendant again asked for an attorney. He was told, "No ...


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