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:
Rehearing denied January 3, 1979.
Following a jury trial the defendant was found guilty of the murder and armed robbery of Tennis Draper, aggravated battery and attempt (murder) of Samuel Pugh, Terry Howes and James Carrellas and attempt (armed robbery) of Samuel Pugh. He received a sentence of 30 to 60 years for murder and 6 to 18 years on each of all of the other offenses. The sentences are to run concurrently.
The defendant raises the following issues on appeal: (1) whether the trial court erred in denying his motion to suppress statements solely on the basis that the defendant denied having made any statement; (2) whether the trial court violated the defendant's fourteenth amendment right to due process and sixth amendment right to counsel when it denied his motion for a continuance, thereby denying the associate of the defendant's attorney of record time to prepare for trial and denying the defendant counsel of his choice; and (3) whether comments made by the prosecution during closing argument regarding the defendant's failure to present rebuttal testimony denied the defendant a fair trial.
The State presented testimony that on July 19, 1975, at approximately 7:30 p.m. the defendant, along with Reginald Smith and Robert Jones, entered a butcher shop located at 9401 South Ashland. Sam Pugh, Tennis Draper and Jimmy Carrellas, the three shop owners, as well as two employees, Margaret Bradford and Terry Howes, were present in the store at the time. The defendant and Jones produced weapons and the defendant said, "This is a hold-up." The defendant searched the store but was unable to find any cash. Draper and Pugh tried to talk the three men out of the robbery and offered to give them everything in the shop. At this point Draper offered to write out a check. Smith initially refused the check, saying "we want cash," but finally told him to make it out to him in the amount of $500.
After Smith took the check the three assailants conferred with each other. Jones then walked up to Draper and shot him in the face. Jones then shot Pugh in the face. Pugh fell to the floor and was shot two more times. Terry Howes was shot in the neck and was permanently paralyzed from the neck down. Jimmy Carrellas was shot twice in the forearm and once in the chest.
Pugh testified that four or five days later in the hospital he was shown photographs from which he identified the defendant. He further testified that when the defendant was in the store on the day of the shooting, he was wearing a cap with a big top on it. He had never seen the defendant before that day. Margaret Bradford identified the defendant in court as one of the three men who had been in the store that night. She further testified that on July 20, the day after the incident, she viewed a lineup at which she identified the defendant.
Over the defendant's objection Officer Dennis McGuire testified that in the county jail the defendant told him that he did not shoot anyone. The defendant said he had gone to the scene with Jones and the co-defendant Smith because Draper owed Smith $500. The defendant said that Jones went crazy and shot Draper. At that time, the defendant and Smith started to leave the store.
The defendant did not testify nor did he present any alibi witnesses. In his opening statement T. Lee Boyd, counsel for the defendant, stated to the jury that he did not know what the evidence was going to show "because Mr. Arnold Wilson was not there. I'm saying to you that Mr. Arnold Wilson did not commit these crimes. I'm saying to you that Mr. Arnold Wilson is not involved in this incident."
On September 17, 1975, the defendant filed a motion for a severance on the ground that his co-defendant, Reginald Smith, had given a statement to police officers which inculpated the defendant. The motion was filed by T. Lee Boyd, Jr., who had appeared on behalf of the defendant on that date and who had appeared for the defendant at the arraignment. Boyd was an associate of R. Eugene Pincham, who was the defendant's attorney of record. On October 3, 1975, Boyd again appeared on the defendant's behalf, and again on October 15, 1975, December 3, 1975, and March 2, 1976. Two other associates of Pincham's also appeared for the defendant on November 5, 1975, February 24, 1976, and February 25, 1976. Pincham himself appeared on the defendant's behalf only twice.
The trial court denied the defendant's motion for a severance on the ground that the defendant was being tried by a jury whereas Smith had requested a bench trial. Since the jury in the defendant's case would be removed when the statement concerning the defendant was used during Smith's trial, the judge ruled that there was no need to grant a severance.
On March 2, 1976, Boyd appeared for the defendant and requested a continuance because Pincham was on trial. The trial judge initially denied the motion because the co-defendants Smith and Wilson were being tried jointly and Smith's term ran on March 5. Boyd objected but agreed to act as the defendant's attorney at trial. He requested a continuance in order to prepare for trial. The judge continued the case until March 4, 1976. On that day, Boyd again argued for a severance because of antagonistic defenses. He stated that it was the defendant's position that he was not present at the time of the incident. It had come to his attention that Smith, the co-defendant, intended to use the defense of compulsion and show that it was the defendant Wilson who coerced Smith into the commission of the offenses.
On March 8, 1976, a hearing was had on the defendant's motion to suppress the statement he had allegedly made to the police. The defendant testified that he was arrested at home on July 20, 1975. He stated he was interrogated by police officers while he was in the county jail and at no time was he given his constitutional rights. He testified that he was put in a lineup with five other persons and was viewed by somebody. He refused to say anything to the police officers without the advice of counsel. He testified he knew he had a right to a lawyer and was aware of his constitutional rights. He stated that he "used the fifth amendment when I talked to the police. The police were questioning me and I was refusing to discuss the incident with them." The defendant testified that he had never made an oral statement of any kind to a Chicago police officer regarding the incident which took place on July 19, 1975.
Chicago Police Officer Dennis McGuire testified that he arrested the defendant at his home on July 20, 1975. He advised the defendant of his Miranda rights after his arrest and that the defendant refused to make a statement at that time. However, on July 23, 1975, McGuire received a message from a Captain Harris at county jail that the defendant wanted to talk with a homicide investigator. McGuire went to county jail and spoke with Director Winston Moore before speaking with the defendant. McGuire told the defendant that he had the same rights as before. The defendant replied that he knew those rights, that he had talked to his attorney and "now he wanted to talk to us." McGuire stated on cross-examination that he did not advise the defendant of his rights at any time on July 23, 1975. He also stated that he did tell him he had the right to see an attorney, although that fact was not reflected in the police report. McGuire ...