APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 10, 1978.
Defendant Homer Hanrahan and his son, co-defendant Michael Hanrahan, were charged with conspiracy, murder, aggravated kidnapping, and aggravated battery of Marian Hanrahan, their respective wife and mother. In a joint jury trial, Homer Hanrahan was found guilty and sentenced to concurrent terms of 50 to 100 years for murder, 20 to 40 years for aggravated kidnapping, and 3 to 10 years for aggravated battery. Michael was found guilty of aggravated kidnapping and aggravated battery. He was sentenced to serve concurrent terms of 10 to 25 years for aggravated kidnapping and 3 to 10 years for aggravated battery.
On appeal, defendants argue that the trial court erred (1) in refusing to suppress certain statements made by defendants; (2) in refusing to grant defendant Homer Hanrahan's motion for severance; (3) in refusing to give the jury an instruction on involuntary manslaughter; and (4) in denying defendants' motion to remove the prosecutor from the case since he participated in its investigation. Defendant Michael Hanrahan also argues (5) that the jury's verdict of not guilty of murder but guilty of aggravated kidnapping is legally inconsistent.
At approximately midnight on November 22, 1974, Mary Ellen Hanrahan, age 16, went to the Niles Police Station to express worry about her mother, Marian Hanrahan. She related that when she arrived home at 9:30 p.m. on November 20, she was met at the door by her father, defendant Homer Hanrahan. She indicated that it was unusual for him to be there since divorce proceedings were pending between him and her mother and further, because he was no longer living at the home. She noticed blood on his arm and chest which he explained was the result of a fight between the deceased and her brother, defendant Michael, but that everything was now settled.
Defendant Homer instructed her to go upstairs to her room, which she did. Once there, however, she listened at an air vent that led to the basement. She stated that she heard the deceased scream and that she heard her mother moan, "It hurts, it hurts."
A short time later, Mary Ellen heard her uncle, Gerry Wallenberg, bringing her brother Steve home from a birthday party. Defendant Michael opened the door for them. Mary Ellen stated that Michael was wearing only his undershorts and that they too, had blood on them. When Mary Ellen inquired what was wrong, defendant Michael told her that the deceased threatened him and that he hit her in the face. He further informed her that she could not see her because defendant Homer was in the basement talking to her. Thereafter Mary Ellen returned to her room and fell asleep.
The next morning, at approximately 7 a.m., Mary Ellen was awakened by the sound of her brother, defendant Michael Hanrahan, leaving for school. A short time later, defendant Homer Hanrahan came into her room to tell her to get ready for school. When Mary Ellen asked to see the deceased, defendant assured her that everything was all right and that her mother was still sleeping. Mary Ellen then left for school and when she returned, at approximately 2:15 p.m., she found a note from her father, stating that he and the deceased went on a trip and would return in a few days. Because it was unlike the deceased to leave without saying goodbye and because it was unusual for defendant Homer to spend the night at the house, Mary Ellen went to the police station later that night and related the above facts.
Following this conversation, the police officers accompanied Mary Ellen to her home. In the basement they discovered blood and observed that the floor had been freshly mopped. They also found a blood-stained mattress pad on Marian Hanrahan's bed and noticed that the sheets and covers were missing. Mary Ellen checked her mother's closet and found that none of her clothes were missing.
Later that day, police officers went to the fraternity house where defendant Michael Hanrahan was living. They arrested him for battery to his mother and read him his Miranda rights. He was then taken to the Niles Police Station.
At the station, defendant Michael made several statements, after first having been read his rights on each occasion. One of the statements, which was introduced as evidence during trial and is part of this appeal, was given to Officer Giovannelli. The substance of the statement was that on November 20, 1974, defendant Michael heard his father and the deceased arguing in the basement. When he heard a loud crash, he ran downstairs and saw his father, defendant Homer Hanrahan, standing over the deceased with blood on him and saying "Oh my God, what have I done?" Defendant Michael stated further that at approximately 11:30 a.m. the next day, he helped his father place the deceased in the trunk of the car and that he heard her moan.
Before Officer Giovannelli was allowed to testify concerning this statement, the State objected on the ground that the statement only incriminated defendant Homer Hanrahan. However, defendant Homer stated that he did not object to the statement as long as the jury was instructed not to consider it against him. Accordingly, the court overruled the State's objection and admonished the jury to consider the statement only against defendant Michael.
Sometime during the evening of November 22, 1974, the day defendant Michael was arrested, police officers went to the home of Roberta Stiles. Miss Stiles was purportedly the girlfriend of defendant Homer Hanrahan. The officers knocked on the door and were admitted by Miss Stiles. Once inside, the officers observed defendant Homer's brown Chevrolet parked in the garage. The officer telephoned assistant State's Attorney Pappas, who advised the officers to open the trunk to determine whether the victim was still inside. The trunk was opened and the victim was found inside, dead.
Once arrested, defendant Homer was taken to the Niles Police Station where he was questioned by Mr. Pappas. He was also questioned by assistant State's Attorney Gino DiVito, who had previously questioned defendant Michael. During the questioning ...