APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 5, 1979.
Defendant appeals his conviction upon jury verdict of the offense of murder. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1.) A sentence of 75 to 150 years was imposed to be served consecutively to a sentence of 60 to 100 years as imposed upon conviction for murder at a different time and place. (People v. Jones (1978), 62 Ill. App.3d 443, 379 N.E.2d 301.) Donald Woodruff, a co-defendant, tried separately, was also convicted for this murder and his conviction was affirmed. People v. Woodruff (1978), 62 Ill. App.3d 949, 379 N.E.2d 907.
Upon appeal it is argued that the trial court erred in denying defendant's motion to suppress certain statements and a confession made by him; that the trial court erred in admitting testimony concerning another offense; that the trial court erred in permitting testimony of defendant's statements of the plan between defendant and Woodruff to shoot police officers to escape arrest; that the trial court erred in denying defendant's motion for a change in place of trial; that the trial court erred in denying defense counsel's request made prior to closing argument to examine the jurors concerning their possible media exposure; that the trial court erred in failing to sua sponte make inquiry during voir dire examination of the jurors concerning the specific details of matters which the jurors might have read or heard, and whether the court erred in giving an accountability instruction.
The victim, Richard Ogden, a salesman for a used car business in Champaign, was found shot to death in the inner office of the place of business. It was ascertained that his death was the result of a shotgun wound. Two used Oldsmobile Cutlass automobiles had been taken from the lot. One was subsequently discovered about a block away with a sticker on the window indicating license had been applied for in the name of the defendant, Percy Jones. The victim had signed the document.
On February 17, 1977, defendant was arrested in Peoria, Illinois, while driving a 1973 Buick reported as stolen. When defendant was placed in a van to be transported to the jail a key to a Peoria motel room was found. At the jail defendant without questioning stated that he and Woodruff each had rooms at the motel and indicated that they had chosen the rooms facing across the hall so that each could protect the other if the police called. Defendant also advised that if Woodruff would have been with him, one would have been in the back seat to shoot the officers who might stop them. Defendant accompanied the officers to the motel in an effort to point out the room occupied by Woodruff, but apparently Woodruff could not be found. A search of defendant's room revealed a shotgun under his pillow and six loaded shells hidden in a sock.
The Peoria police had been advised of the fact of the shooting in Champaign and of the attempt to locate Woodruff and Jones. Officers from Champaign arrived later in the evening and after a statement of the admonitions required in Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, given upon several occasions and the taking of a signed waiver, defendant made a statement and confession concerning the shooting to the Champaign police which was recorded and subsequently transcribed.
Defendant, by motion, sought to suppress the statement and confession. No challenge is made concerning the sufficiency of the police admonitions as required by Miranda. Defendant testified concerning the drinking of beer and wine, smoking marijuana and the taking of an animal tranquilizer on February 16, and that on February 17 he drank beer, smoked marijuana and took the tranquilizer called "Tac."
It was contended in the trial court and is argued here that the confession was not taken or obtained under an intelligent and voluntary waiver of defendant's rights because defendant had consumed such amounts of alcohol and drugs that he was unable to make an intelligent, voluntary waiver.
1 The sole testimony concerning such intoxication is that of defendant. Seven police officers and an assistant State's Attorney from Champaign County testified to seeing and speaking with defendant from the time of the arrest at 6 p.m. until about 12:30 a.m., at which time defendant began to make the 1 1/2-hour recorded statement. No witness observed either any confusion in manner of speech suggesting drug or alcohol intoxication, or any difficulty in walking or failure of coordination. Examination of defendant's statement as recorded and transcribed does not disclose any incoherent or confused language. We note that from defendant's own testimony he was able to drive through and around the city of Peoria for a period of two hours prior to his arrest without having any difficulty in driving by reason of intoxication. Defendant's handwriting appearing on the waiver suggests no appearance of intoxication. It was argued in the trial court, and here, that no one asked defendant whether he was intoxicated, or suggested that he be given any test by breathalyzer or otherwise for intoxication. It does not appear how such inquiry or testing is called for in the absence of conduct which suggests the fact of intoxication. As a determination of the credibility of the witnesses, the conclusion of the trial court that defendant's statement was voluntary is not contrary to the manifest weight of the evidence. People v. Moon (1976), 38 Ill. App.3d 854, 350 N.E.2d 179.
Defendant argues that the trial court erred in denying a motion in limine seeking to exclude the testimony of prosecution witnesses, Derrick Smith and Anthony Griffen. The Buick automobile used by the defendant was owned by Smith. He testified that on February 11, in Chicago, Jones came to Smith's car at a parking lot and that while seated in the car defendant produced a shotgun, that there was a struggle during the course of which the gun was discharged making a substantial hole in the floorboard of the car. Ballistic's testimony discloses that pellets and wadding from this shotgun were consistent with the wadding found in the body of the victim. Ballistic's testimony further discloses that the pellets and wadding from this shotgun were consistent with those found in the floor of the Buick.
Griffen substantially corroborated the testimony of Smith concerning the defendant's use of the gun and the taking of the car. In his initial statement to the police, defendant had stated that Smith had threatened him with the shotgun, and that in a struggle he, the defendant, knocked the gun aside just prior to the time of its discharge. This would raise an inference that the gun belonged to Smith.
A number of witnesses for the prosecution testified to seeing defendant in the Buick automobile in the vicinity of the sales lot where the victim was shot. It appears that the arrest by the Peoria police was based upon the identification of the Buick as having been reported to be stolen.
2 The testimony so identifying the gun is probative and relevant to the fact that defendant had possession and control of the weapon prior to the occasion of the shooting of the victim. Such evidence of defendant's possession and control is relevant in the light of the fact that at trial ...