APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
KAPLAN, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 6, 1979.
Defendant was found guilty after a jury trial of murder, attempt murder, aggravated battery and armed robbery. (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1, 8-4, 12-4 and 18-2.) Defendant was sentenced to concurrent prison terms of 100 to 300 years for murder, 25 to 100 years for attempt murder, and 10 to 40 years for armed robbery. Defendant appeals presenting the following issues for review: (1) whether the trial court erred in denying defendant's motion to quash his arrest and to suppress evidence; (2) whether the State was collaterally estopped from attempting to prove defendant's guilt on the theory of accountability because in a civil forfeiture proceeding the State did not present sufficient evidence to prove defendant's automobile had been used in commission of the offense; (3) whether the trial court erred in giving a jury instruction regarding accountability; (4) whether the trial court erred in giving a jury instruction regarding admissions; (5) whether the prosecution's closing argument improperly referred to defendant's failure to testify; and (6) whether defendant was proved guilty beyond a reasonable doubt of murder, armed robbery and attempt murder.
We affirm in part and reverse in part.
On March 19, 1975, a robbery took place at 123 North Wacker Drive during which Bernard DiMeo was shot, and Thomas Dolce was shot and killed. Defendant, Larry Fulton, was arrested on April 17, 1975, and charged with murder, attempt murder, aggravated battery and armed robbery. Prior to trial defendant filed motions to quash his arrest, to suppress evidence, and to suppress a statement. The following testimony was adduced at the preliminary hearing on the motions.
Defendant testified that on April 17, 1975, at approximately 10:30 p.m., he was driving his 1968 green and black Cutlass in the area of 90th and Ellis in Chicago when two officers in plain clothes and driving an unmarked car stopped him. Defendant testified that he had pulled the car over and was about to get out and go to a friend's house when the police shined a light on him, pulled up behind him and told him to get out of the car. Defendant had committed no traffic violations, and the officers did not have a warrant. The officers flashed a badge but did not identify themselves. They told defendant he was under arrest, handcuffed him and took him to the police station at 91st and Cottage Grove. Defendant was then transferred to the station at 51st and Wentworth where he was fingerprinted and placed in a lineup.
Officer Francis Kehoe testified that he and his partner, John Kennedy, were investigating a robbery and shooting which had occurred on March 19, 1975, at the Gunthorp-Warren Corporation at 123 North Wacker Drive in Chicago. On April 16, 1975, the officers were working in plain clothes, in an unmarked car, and had under surveillance a house at 8917 South Greenwood, which was the home of Donald Howard. The officers had information that Howard, an employee of Gunthorp-Warren, was seen talking to two of the suspects involved in the incident, that a green and black 1968 Cutlass was used as the getaway vehicle, that Howard had access to a 1968 Cutlass through his girl friend, and that the owner of the Cutlass was named Larry.
Officer Kehoe testified that at approximately 11 p.m. he and his partner observed a 1968 green and black Cutlass driving north about one block from Howard's home. They followed the car for a few blocks and then the driver stopped the automobile and got out. The officers approached the driver, whom Officer Kehoe identified in court as defendant. They identified themselves and asked defendant's name. Defendant replied and stated that he owned the car and was going to his girl friend's house, but he would not say exactly where she lived. The officers told defendant they were investigating a murder in which a car matching that of defendant's was used. Defendant denied any knowledge but agreed to accompany the officers to the police station. Officer Kehoe stated that they did not have their guns drawn, that he read defendant his rights and defendant stated that he understood and that defendant sat in the back seat of the squad car but was not handcuffed. When they arrived at Area Two Headquarters at 91st and Cottage Grove, they went to the interview room and Officer Kennedy again advised defendant of his rights, and defendant stated that he understood. Defendant first denied any involvement in the crime, but he then gave an oral statement. Defendant was transferred to Area One Headquarters where Officer Kennedy took a written statement from defendant in which defendant stated that he drove his car but did not know anything about the crime. Officer Kehoe testified that defendant was not charged with murder after he gave the statement, but rather defendant was considered as a witness. While at Area One the officers initiated a name check on defendant and learned that there was an outstanding bond forfeiture warrant on defendant. Defendant was then arrested and placed in a lineup. After the lineup, defendant was charged with murder.
Officer Kehoe testified that defendant was first approached on the street approximately 11 miles from the scene of the crime. The officers did not see any traffic violations, did not know who was in the car and were not looking specifically for defendant, and they did not have a license plate number or registration for the vehicle. Defendant's car was left on the street and was later towed by police.
Officer Kennedy's testimony was substantially the same as that of Officer Kehoe.
The court denied defendant's motions to quash the arrest and to suppress evidence. The court held that given all the knowledge acquired during their investigation and given the description of the car and the proximity of the car to the address, the police acted reasonably in approaching defendant and making initial inquiries. The court found that a question existed as to when the arrest occurred but that probable cause for arrest did exist.
The following testimony was adduced at trial: Bernard DiMeo testified that he was employed at Gunthorp-Warren at 123 North Wacker Drive for approximately 23 years. On March 19, 1975, he started work at noon. Shortly after noon he left the building and went to the Hartford Plaza Bank to cash some checks for his fellow employees. DiMeo was in the habit for the past two years of cashing paychecks for employees on pay day, which was Wednesday. As DiMeo left the building on March 19, 1975, he met Thomas Dolce, and Dolce accompanied him to the bank. DiMeo cashed the checks and put the money, approximately $5500 in coin and currency, in a blue envelope. DiMeo and Dolce went back to 123 Wacker, got on an elevator and went to the second floor. As DiMeo stepped off the elevator a person, whom he identified in court as defendant, confronted him with a small pistol, put his hand on DiMeo's chest and said, "I'll take that." Defendant grabbed the envelope, and as he did, DiMeo's right arm came up and hit defendant's hand which held the gun. DiMeo testified that defendant then started firing the gun and wounded DiMeo's right forearm. At this time Dolce, who was in the hallway, stated, "What's happening?" and defendant turned and fired five shots at Dolce. DiMeo then "ducked," and he heard footsteps going down the stairs. DiMeo testified that defendant was about arm's length away from him when defendant shot DiMeo and also when he shot Dolce. There had been another person in the hallway at the time, standing by the stairwell. The hallway had fluorescent lighting. DiMeo testified that the entire incident took "seconds, maybe minutes. Three or four minutes. * * * Maybe three minutes elapsed." DiMeo glanced at defendant's face two or three times when first confronted, trying to determine whether it was someone he knew. DiMeo glanced at defendant again when he grabbed the envelope and when he fired the shots at Dolce. DiMeo had testified at a hearing on May 2, 1975, that the incident took 15 seconds, and he observed defendant for a couple of seconds. DiMeo testified at trial that he saw defendant's trial attorney at that hearing but did not recall being questioned by him.
DiMeo testified at trial that on April 17, 1975, he viewed a lineup in which five men participated, and he identified defendant. DiMeo testified that at the time of the lineup he did not know that someone was under arrest. DiMeo had testified previously in a civil proceeding on December 24, 1975, that at the time of the lineup he knew someone had been arrested. DiMeo never gave a clothing description of defendant to the police and did not recall what defendant was wearing and whether defendant was clean-shaven at the time of the lineup. DiMeo knew Donald Howard from work and had cashed checks for Howard on one or two occasions.
James Mendenhall testified that on March 19, 1975, he was employed at Gunthorp-Warren as a freight elevator operator. At approximately 12:15 p.m. he was waiting on the first floor for a truck to be unloaded. Mendenhall heard a door open and saw two men coming in a hurry through the hallway. One man had a gun and told Mendenhall to stand back. The men went through the hallway to the loading dock and out to an alley. Mendenhall testified that it was too dark in the hallway to be able to recognize the men. All Mendenhall saw was the gun. Mendenhall also testified that he saw Donald Howard standing near a pay telephone in the vicinity of the loading dock.
Charles Davis testified that on March 19, 1975, he was employed as a car-hiker for Fran-Ran Parking which was approximately one block from 123 North Wacker. At approximately 12:15 p.m. he was near the intersection of Franklin and Randolph Streets, and he observed a 1968 Oldsmobile Cutlass, with a green body and a black vinyl top, come southbound on Franklin and park in a no-parking zone near Randolph Street. There was one person in the car. A few minutes later, two men came running from South Franklin and one beckoned for the Oldsmobile by waving his arms and saying, "Let's go man." The car crossed Randolph Street, stopped and the two men got in the back seat. The car then sped away on Randolph. Davis did not observe the license plate and could not identify the individuals running.
Officer Bernard McInerney testified that on March 19, 1975, at approximately 12:15 or 12:30 p.m., he was called to 123 North Wacker. When he arrived, he spoke to some people in front of the building and sent a message over his radio in regards to a car that left the scene. McInerney then went to the second floor of the building and observed a man lying on the floor in the hallway and observed DiMeo in an office.
Officer Milton Valda testified that on March 19, 1975, at approximately 12:30 p.m. he was called to 123 North Wacker. When he arrived, he observed someone being put in an ambulance, but he could not see who it was. Valda then went to the second floor where he saw DiMeo, who seemed to be in a state of shock. Valda talked DiMeo into going to the hospital. Valda took DiMeo to Henrotin Hospital, and while there he observed Dolce in the emergency room. Valda then removed Dolce from the hospital to Cook County Morgue.
It was stipulated that Dr. Yuksel Konacki, coroner's physician at Cook County Morgue, performed an autopsy on the body of Thomas Dolce and observed two bullet wounds of entry nature, one on upper left abdomen and one on the right chest. Dr. Konacki concluded that the cause of death was bullet wounds. Dr. Konacki removed two bullets from the body and turned them over to the Chicago Police Department crime lab.
It was further stipulated that two bullet fragments were removed from the second floor hallway at 123 North Wacker and turned over to the crime lab. Sargeant Donald Smith, a firearms examiner, examined the bullets and fragments and found them to be .22 caliber. Smith determined that the two bullets and one ...