APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, Willie Shorter, was charged by indictment with murder, arson to a building, arson to personal property, and attempt (armed robbery). (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1 (a-2), (a-3), 20-1, 8-4.) A jury found the defendant guilty of all four charges, and judgments were entered on the verdicts. He was sentenced to concurrent terms of 75-90 years, 5-15 years, and 5-15 years. The defendant appeals from those convictions, contending (1) that evidence of a subsequent offense was inadmissible and failure to suppress such evidence constitutes reversible error; (2) that his oral statements to police made in the absence of counsel were inadmissible in the absence of any proof that he had intentionally relinquished or abandoned his right to counsel; (3) that the in-court identifications made by several witnesses were improper as was the introduction of testimony at trial regarding two pretrial lineups since the lineups were conducted in the absence of counsel, and that the "per se exclusionary rule" must be applied where photographs of lineups held in the absence of the defendant's counsel were introduced into evidence in violation of the defendant's right to counsel; (4) that he was denied a fair trial because at the initiation of jury selection he was brought into the courtroom in custody, in full view of the prospective jurors, and there was a "change of guard," one uniformed sheriff changing position with another directly behind the defendant, again seen by the prospective jurors, thus destroying the presumption of innocence; (5) that certain evidence introduced at trial was hearsay and improperly admitted; and (6) that certain remarks made by the prosecution in closing argument were improper, prejudicial and warrant reversal.
The testimony adduced at the hearing on the defendant's pretrial motions and at trial established that on the morning of December 12, 1974, at approximately 9 a.m., a passenger later identified as the defendant was picked up near 76th Street and Vincennes in Chicago by a Yellow cab driven by Michael Lewis. The passenger asked to be driven to 75th Street and Dobson, where he picked up two empty gas cans, stating to Lewis that his car had run out of gas. The cab then proceeded to a gas station at 75th Street and Indiana where the rider filled the cans with gasoline while the cab driver waited. After the gasoline was paid for, the cab driver then took his fare to 69th Street and Wentworth Avenue where the passenger left the cab taking the cans with him, and asked the cab driver to wait. Less than five minutes later the passenger returned to the cab and said, "Hurry, let's get out of here." About a block and a half away, the passenger again left the cab, ran across a parking lot and disappeared.
A currency exchange at 6907 South Wentworth was totally destroyed by fire on the morning of December 12, 1974. The body of Estelle Davenport, the cashier on duty at the currency exchange, was found in the ruins along with two gas cans, an electric capacitator and a battery. The cab driver and two gas station attendants, Randall Turner and Nelson Cook, identified the defendant, Willie Shorter, as the man they had dealt with on the morning of December 12, 1974. Another witness, John Pasdo, saw a man he later identified as Willie Shorter from lineup photographs get out of a Yellow cab near 69th and Wentworth and go around the corner heading south on Wentworth. The man was gone about five minutes when he returned to the cab and was driven away. Immediately thereafter, the witness saw smoke coming from around the corner and ran to the currency exchange to get everyone out of the building. Pasdo, a City of Chicago sewer worker, was at work at the same location the following day, and saw the defendant again. Another witness, Peter Garcia, testified that as he was waiting for a traffic light to change at the corner of 69th and Wentworth at about 9:30 a.m. on December 12, 1974, he saw a man kick out the window of a currency exchange, almost stumble out into the street, and rush off in a taxicab. Seconds later, the currency exchange was on fire. While Garcia was unable to identify the man, he was able to identify the cab as a Yellow cab, number 473. That was the same taxi cab driver Michael Lewis had been assigned the morning of December 12, 1974. However, another witness, Darlene Dotson, testified that on the morning in question she saw a man throw a package through the currency exchange window. The window broke, there was an explosion, and "then the whole place went up." The man ran into the street, where a cab almost hit him. When the cab braked and stopped, the man entered the cab and it pulled away. The witness stated that the man she saw was not the defendant.
Evidence was also introduced regarding the defendant's alleged attempt to commit armed robbery and arson at another currency exchange on December 31, 1974. On that date at about 1 p.m., a man wearing a green army jacket and light colored pants entered a currency exchange at 5950 South State Street threatening to burn down the building if the cashier did not give him "some money." The man carried a brown paper bag containing two Clorox bottles filled with gasoline. When the man began pouring the gasoline on the counter and splashed it into the tray directly in front of the cashier, she pressed a button activating a silent alarm and also pressed a buzzer which locked the front door. When the man heard the buzzing sound, he turned and ran, pulling on the front door. When, according to the cashier, it would not open, "he just went through the window." A police bulletin reported a robbery in progress and described the suspect as a male Negro wearing an army fatigue jacket and light colored pants, possibly injured from going through the glass door of the currency exchange. The defendant was arrested about a block away, bleeding from a face laceration. When questioned by police officers after having been given the Miranda warning at Provident Hospital where he was taken for treatment, the defendant admitted that on December 12, 1974, he had entered the currency exchange on Wentworth Avenue with two cans of gasoline. He stated that he and the cashier were going to rob the currency exchange and that she was going to pay him $500 for his part in the scheme. He told the police that the fire started after he poured gasoline on the floor and the cashier threw lighted matches on the liquid. When asked if he would give a written statement, the defendant responded that he would like to consult with an attorney before doing so.
Later that same afternoon, the defendant was questioned by police officers regarding both the attempted robbery and arson which had occurred that day, and the incident at the currency exchange at 69th and Wentworth in which a woman was killed on December 12. This questioning was again preceded by the giving of Miranda warnings, which the defendant acknowledged he understood. The defendant stated that he had started that fire.
Prior to trial there was a hearing on the defendant's motions to quash his arrest, suppress lineup identification and testimony relating thereto, and suppress oral statements. Following a hearing, the court denied all three motions. In addition, the defendant's pretrial motion in limine to prohibit admission of the testimony of Earnestine Patterson regarding the subsequent offense due to its extremely prejudicial nature was denied. The court concluded that her testimony could be introduced for the limited purpose of showing intent, motive, common scheme and design.
1 The defendant initially contends that it was error to allow the State to introduce evidence of the defendant's alleged attempt to commit armed robbery and arson at another currency exchange subsequent to the offense for which he was being tried. While the general rule is that evidence of crimes other than that for which a defendant is being tried is inadmissible (People v. Romero (1977), 66 Ill.2d 325, 330, 362 N.E.2d 288), evidence which shows motive, intent, identity, absence of mistake, or a common scheme or design is admissible even though it shows the commission of a subsequent offense. People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489.
2 Just prior to Patterson's testimony at trial, the jury was instructed as to the limited purpose of her testimony, and a similar written instruction was given at the close of the case. In the present case, the evidence established that both attempted armed robberies and arsons occurred at currency exchanges where only one employee, a woman, was on duty. Both were in the same general area of the city, within two miles of each other. On each occasion, the perpetrator carried two containers of gasoline into the building, and escaped by kicking out the front door window. In view of the "peculiar and distinctive features" common to the occurrences of both December 12 and December 31, 1974 (People v. Lehman (1955), 5 Ill.2d 337, 343, 125 N.E.2d 506), we agree with the trial court that the similarities in the character of the two crimes and the mode of operation used during the course of both were sufficient to warrant the introduction of evidence of the subsequent offense for the limited purpose of showing common scheme or design, intent or motive. People v. Nelson (1974), 17 Ill. App.3d 224, 227, 308 N.E.2d 122.
The defendant also contends that the two oral statements he made to police should not have been admitted into evidence since he was denied the assistance of counsel at the time they were made. After the defendant's arrest, he was taken to Provident Hospital for treatment of a facial laceration. While at the hospital the defendant was advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and acknowledged that he understood each of his rights. The defendant then admitted his involvement in the fire at the currency exchange at 69th and Wentworth on December 12, 1974. When asked if he would give a written statement, the defendant replied that he would like to consult with an attorney before giving any written statement. The questioning immediately ceased. Later that afternoon when the defendant was taken to the police station, he was again informed of his Miranda rights and following further questioning regarding the December 31, 1974 incident, again stated that he had started the fire on December 12, 1974.
The Illinois Supreme Court in People v. Higgins (1972), 50 Ill.2d 221, 227, 278 N.E.2d 68, articulated a standard by which the State may prove a voluntary waiver by the accused of his constitutional protections:
"An express, formalistic waiver is unnecessary for `[a]ny clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances.' (State v. Kremens 52 N.J. 303, 245 A.2d 313, 317.) As in the present case, `[o]nce the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.' People v. Johnson, 70 Cal.2d 541, 450 P.2d 865, 876."
In the case at bar, there was a hearing on a motion to suppress the oral statements of the defendant. At that hearing, the court determined that the defendant's statements were freely and voluntarily given. That decision should not be overturned unless it is manifestly against the weight of the evidence. (People v. Johnson (1969), 112 Ill. App.2d 148, 155, 251 N.E.2d 393.) In Johnson, the defendant gave an oral inculpatory statement without the presence of counsel after he had been given the Miranda warnings and after he had shown that he was "fully aware of his rights by answering `yes' after each warning." He was asked but refused to make a written statement. The court held that these circumstances demonstrated a "fully effective equivalent" to an express waiver, noting that the defendant's "refusal to make a written statement demonstrated an awareness of his rights and the ability to exercise them. It also indicates that he had this knowledge and ability when he gave his oral statement and that he made a knowing, intelligent waiver of rights at that time."
3 The first statement made by the defendant at the hospital came after his expression of understanding of the rights of which he had just been advised and before his refusal to make a written statement before speaking with an attorney. The parties do not dispute the fact that following the defendant's assertion at the hospital that he would rather speak to an attorney before making a written statement, all questioning ceased. The trial ...