APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
John Creach and Thomas Ruppert, the defendants, were charged with the murder and armed robbery of Delores Irion. Following their joint trial before a jury, defendant Creach was found guilty of murder and armed robbery and defendant Ruppert was found guilty of armed robbery. Creach was sentenced to 35 to 70 years on each charge, to run concurrently, and Ruppert was sentenced to 4 to 12 years for armed robbery. On appeal the following issues are raised: (1) both defendants contend they were arrested illegally and without probable cause; (2) both defendants contend statements they made should have been suppressed because they were not fully warned of their rights; (3) defendant Ruppert advances two additional reasons for suppression of his statements: (a) the police made no attempt to notify his parents of his arrest, and (b) he did not knowingly and intelligently waive his rights; (4) both defendants contend the trial court erred in failing to suppress evidence obtained as a result of what they assert were illegal arrests; (5) defendant Creach contends the trial court also erred by allowing into evidence statements made by defendant Ruppert which implicated Creach where Ruppert did not testify and thus was not available to Creach for cross-examination; (6) both defendants assert that their guilt was not established beyond a reasonable doubt, although on two distinct grounds: (a) Creach argues his sanity was not proven, and (b) Ruppert argues that his accountability for the acts of Creach was not proven; (7) finally, defendant Ruppert contends the trial court erred in refusing to give his tendered instructions on compulsion, accountability, and accessories after the fact.
We reverse and remand for a new trial.
The body of Delores Irion was found lying near the CTA tracks in Evanston at about 7 a.m. on September 25, 1973. Detective Carlos Mitchem of the Evanston Police Department spoke that day to Dolly Moore, defendant Creach's mother, who lived at 5717 North Magnolia Street in Chicago. She told Mitchem that her son had been living with the victim in the victim's apartment for the last four weeks. During that time he had driven the victim's car, and had been driving the victim to and from work. Mrs. Moore had spoken to her son in Ohio by telephone. He told her that he was there with a friend named Tom, and that he had last seen Irion alive when he left for Ohio in her 1966 Cadillac. The police investigation had already revealed that the automobile was missing. Detective Mitchem related this conversation to Detective Douglas Glanz of the Evanston Police Department on the evening of September 25. The next morning at about 8 a.m. Glanz and his partner, Detective John Birkenheier, went to Creach's residence. They spoke to Mrs. Moore, who related what she had told Detective Mitchem, also stating that she had told Creach to come home and he said he would do so right away. The officers told Mrs. Moore that when the defendants returned, they intended to take them to the Evanston police station for questioning. Mrs. Moore asked if she could accompany them and they agreed to let her do so. Mrs. Moore showed them a photograph of Creach. Earlier Detective Mitchem had described Ruppert to Glanz as a short youth with fair hair.
At about 9:30 a.m. on September 26 the officers observed Creach and Ruppert approaching Creach's home on foot. The officers got out of their unmarked squad car, approached the defendants, identified themselves as police officers, and told them they were going to return them to Evanston for questioning. They also frisked the defendants for weapons. Defendants were ultimately transported to the Evanston station and questioned. The statements obtained from them constituted the major evidence used against them at trial.
The State contends that defendants were not arrested at the time of their encounter with the police at the Magnolia Street location. By statute in Illinois "[a]n arrest is made by an actual restraint of the person or by his submission to custody." (Ill. Rev. Stat. 1975, ch. 38, par. 107-5(a).) Because the existence of restraint or of a custodial situation is not always unambiguously clear, the courts> of this State have found it necessary to elaborate some of the elements of an arrest. A common listing of elements includes: (1) authority to arrest; (2) assertion of that authority with intention to effect an arrest; and (3) restraint of the person to be arrested. (People v. Mirbelle (1934), 276 Ill. App. 533; People v. Howlett (1971), 1 Ill. App.3d 906, 274 N.E.2d 885; People v. Robbins (1977), 54 Ill. App.3d 298, 369 N.E.2d 577.) Our supreme court has recently focussed on two elements involving the perceptions of the parties in determining whether a police encounter constituted an arrest: the intent of the officer and whether a reasonable innocent man in the defendant's situation would have considered himself under arrest. (People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870.) In Wipfler the defendant's mother relayed a police request to talk to him about some burglaries. Defendant went to the police station after school. He was asked to come into a sergeant's office where, with the door closed, he was questioned by two police officers. The supreme court, applying the second of the two tests set out above, found that defendant went to the police station voluntarily, knowing that the police had wanted to reach him and knew where he was but had not attempted to take him into custody. At the station he was not searched, booked or fingerprinted. Under these circumstances the court concluded: "A reasonable, innocent man * * * would have been cognizant that this did not amount to arrest, in light of the total lack of compulsion by the police either in obtaining or retaining his presence at the station." (Emphasis added.) (68 Ill.2d 158, 167, 368 N.E.2d 870, 873.) The court stated that because of their determination of this factor the intent of the police did not have to be established. The court did, however, note that "the manner in which defendant's presence was obtained, and the information the police had about defendant prior to interrogation, lends [sic] credence to the testimony of [the officer] that defendant was not, in [the officer's] mind, under arrest at the time and that he could have left without police permission because there was `nothing to hold him for.'" (Emphasis added.) 68 Ill.2d 158, 167, 368 N.E.2d 870, 873.
1 It is clear from this summary that the relevant perceptions of the police pertain to whether coercion exists and whether defendant is in custody or is free to leave. This focus comports with the statutory definition of an arrest we have cited. In this cause the testimony of the arresting officers was they did not intend to "arrest" the defendants, but did intend to take them into custody for questioning. They also testified that defendants would not have been free to leave. It is evident the distinction made by the officers was not a legal one: their intention to take the defendants into custody constituted the essence of an arrest. Therefore the testimony of these officers establishes their intent to arrest the defendants within the meaning of the term as construed by Illinois courts>. The second facet of this test, the perception of an innocent man in the defendant's position, also establishes that there was an arrest. Defendants were approached by two officers, informed that they were to be transported to the police station for questioning, and then were searched for weapons. They were then transported in a police car to the police station and separately questioned. This is not analogous to the situation in Wipfler where a defendant received a police request to come to the station for questioning and voluntarily acquiesced on his own. Defendants were given no choice in the matter. Under these circumstances we conclude defendants were arrested when the police took them into custody on Magnolia Street.
Because we have determined that defendants were arrested at this initial police encounter, the issue becomes whether the officers had probable cause to make these arrests. The arresting officers, Douglas Glanz and John Birkenheier, testified at the motion to suppress hearing. Our review of that testimony indicates that the officers had the following information at the time of the arrests: Delores Irion was found dead at about 7 a.m. in Evanston on September 25, 1973. It had rained the night before but the victim's clothes were dry, suggesting she had been killed some time after midnight. The victim's automobile, a 1966 Cadillac, was missing. Defendant Creach was the victim's boyfriend and had been living off and on with her for four weeks. He had been driving her car, taking her to work on occasion. Creach's mother had talked to him by telephone in Ohio. He told her he had the victim's 1966 Cadillac and had last seen her alive at about 1:30 on the morning of September 25, when he had left for Ohio in her car. He was in Ohio with a friend named Tom. When Creach was informed by his mother of Delores Irion's death he told her he would drive back to Chicago right away. The officers were shown a picture of Creach by his mother, but the only description they had of Tom was that he was a short youth with fair hair.
2 This information was manifestly insufficient to establish probable cause. The officers knew that defendant Creach had seen the victim at about 1:30 a.m. on the night she was killed and subsequently had driven to Ohio in her car, but they also knew he was her boyfriend, had been living with her, and had been driving her car in the past. They also knew that when informed of the murder he voluntarily returned to Illinois. At most the police had reason to question Creach concerning his activities, but mere suspicion is insufficient to establish probable cause. (People v. Jones (1959), 16 Ill.2d 569, 158 N.E.2d 773; In re Brewer (1974), 24 Ill. App.3d 330, 320 N.E.2d 340.) And the police knew much less concerning defendant Ruppert. They knew only that he had been in Ohio with Creach. Certainly this information would not warrant a man of reasonable caution in the belief that the defendants had robbed and murdered Delores Irion. Brinegar v. United States (1949), 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302; People v. Riszowski (1974), 22 Ill. App.3d 741, 318 N.E.2d 10.
At the motion to suppress hearing the trial judge initially concluded that there was probable cause to arrest the defendants. However defendants then filed a motion to reconsider and in denying this motion the judge indicated his belief that the police acted properly despite a lack of probable cause:
"At this point there is a serious question as to whether or not there was probable cause for arrest. There is, however, no question that the persons last seeing the victim alive were the two defendants.
There is also argument, and reasonable men can differ as to whether or not there was what I might refer to as a chargeable arrest. And by that I mean whether or not were ready to charge either or both defendants with the crime of murder at that point.
There is in the law a provision as cited by defense, and although I believe it does not go as far as the facts in this case went, whereby a fellow citizen may be removed from whatever location to the police station for the purpose of making inquiry about the facts and circumstances of any crime that was in fact, that the police knew in fact to have been committed. In this case there was no question that a crime had in fact been committed. The victim's body had been recovered, and the police had already made an examination of the scene where the body was located.
Therefore, in summation on the question of the right of the Evanston police to detain or take into custody or arrest, as you will, the defendants in this case I believe that they have the authority under those exigent circumstances to do that which they did.
There is further argument or may be further argument although the boys were patted down prior to their being taken by police vehicle to first the scene where they suggested the vehicle had been left, and then on to Evanston to the Evanston Police Department. Whether that constituted an arrest is debatable. Some may argue that they were merely asking, requesting the defendants to proceed with them for the purpose of further interrogation since they were the last persons to see the victim alive. They also had possession of a substantial item of property belonging to that victim.
Be that as it may, however, I have found that there is in my judgment an in custody deliverance of both defendants from the homse [sic] at 5717 North Magnolia to the Evanston Police Department.
It seems to me that what the Courts> are trying to do, and as usual the facts don't fit into prior cases, each case being and rightly so considered separate and apart on its own factual situation, that under these circumstances the police officer acted as we would have them act. It was not certain that either or both of the boys were involved in the homicide of the victim at that point. It was known that they were the last parties to have seen the victim alive, that they did have an item of her property, and that they had proceeded out of state at approximately the same time that the police believed that the victim's life had been taken.
I believe what they did was they were investigating the commission of a crime, that they did have the power to seek the fruits of the crime, and as here I believe that their actions and conduct were open and sincere. If we are to find a better alternative I could not suggest it. I don't believe that there was appropriate evidence for appropriate evidence for a warrant to issue because it still was not clear that these boys were in any way related to the crime. They did have items in their possession which may very well lead the police to the determination of someone who may have been involved in the crime. So they may be very serious suspects and at the same time material witnesses.
In my judgment I am concluding that the police officers acted reasonably and that because of the exigent circumstances they had the right, that the City of Evanston police did have the right to act as they did within the city limits of Chicago which is in fact an adjacent municipality, and therefore part of the same police district." (Emphasis added.)
Of course we have determined that defendants were arrested at this point, and the absence of probable cause renders those arrests illegal.
The State asserts on appeal that other information, adduced at trial as having been obtained by other members of the Evanston police department, was within the knowledge of the Officers Glanz and Birkenheier at the time they arrested the defendants and provided them with probable cause. That additional information was that the victim had been shot with a .25-caliber automatic pistol, a box for a .25-caliber pistol was found in the victim's apartment, and the apartment had been locked with a key when the police reached it. We do not find that this evidence, even when coupled with the knowledge of Officers Glanz and Birkenheier that defendant Creach had lived with the victim, provided them with probable cause. There was, of course, no indication that the victim's pistol, if she in fact owned one, was the weapon used to kill her. Nor was there any reason to suspect that the gun had been taken from the apartment by anyone other than the victim. Furthermore, the ordinary presumption that for purposes of probable cause the knowledge of one officer is imputed to the others involved in the cause (People v. Peak (1963), 29 Ill.2d 343, 194 N.E.2d 322), does not apply here, for at the motion to suppress hearing Officer Glanz was specifically asked whether the knowledge he had described at that hearing was all the information on the case that he possessed concerning the involvement of defendant Creach, and he stated that it was. And the only testimony concerning communication with other officers about the case prior to the arrests was that of Glanz, who had spoken to Detective Mitchem and received from him some of the information he related at the hearing. There was no evidence that the additional information cited by the State was communicated to the officers.
Because we have determined that the arrests of the defendants were illegal for lack of probable cause, we need not determine the defendants' contention that the Evanston police lacked authority to arrest them in Chicago.
3 When a defendant has been arrested without probable cause, statements by the defendant and other evidence obtained as a result of that arrest are inadmissible at trial unless the State can establish the existence of intervening circumstances which dissipated the taint of the illegal arrest. (People v. Williams (1977), 53 Ill. App.3d 266, 368 N.E.2d 679; Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254; Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) Defendants assert that their statements and other evidence used against them at trial should have been suppressed on this ground and, as independent bases, because of alleged violations of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and, as to defendant Ruppert, because he did not intelligently and voluntarily waive his rights. In order to properly evaluate these claims it is necessary to review the sequence of events following the arrest of the defendants.
Defendants were arrested at about 9:45 a.m. Earlier, when the police had spoken to Mrs. Moore and informed her of their intention to take defendants into custody, she asked to accompany them, and the police agreed. Accordingly she got into the police car with the defendants and the two officers. In the car Mrs. Moore asked defendant Creach where the car was, and he said it was at Broadway and Belmont. Officer Glanz asked what the best way to get there was and Ruppert gave directions. When they reached that location and found the Cadillac there, Officer Birkenheier asked who had the keys to the car and Creach handed them to him. Defendants were then transported to the Evanston police station, arriving there at about 11:30 a.m. Creach was taken into one "interview room" with Officer Glanz, and Ruppert was taken into another with Officer Birkenheier. It was at this point that the defendants were advised for the first time of their Miranda rights. Officer Glanz testified that he fully advised Creach of his rights and that Creach stated he understood them. Officer Birkenheier, utilizing a form, informed Ruppert of all his rights under Miranda, except that in advising him of his right to an attorney he failed to specifically advise him that he had a right to the presence of an attorney during questioning. Ruppert also stated that he understood his rights, according to Birkenheier's testimony.
After Creach was advised of his rights, he told Officer Glanz that on September 25, 1973, at about 1:30 in the morning, he and Ruppert decided to go to Ohio in the victim's Cadillac. They went to her apartment and she gave them permission to use the car as well as $50 for the trip. She also gave Creach the title and registration documents for the car so he could sell it for her there. Creach intended to find work in Ohio. During the questioning Officer Glanz observed blood spots on Creach's jacket and he asked him to remove the jacket. Creach told Glanz that he was wearing the same clothes as he had on when he left for Ohio. Subsequently at trial the jacket was admitted into evidence.
At this point Detective Kirkham arrived and told Officer Glanz that Ruppert was cooperating and that they were going to recover the gun. Glanz told Creach of this, but he persisted in his version of what had taken place, showing Glanz the title and registration papers he said Irion had given him. However, when the gun was recovered and brought to the station at about 2:30 p.m., Glanz showed it to Creach and Creach began crying, saying "I killed her, I killed her. She would not let me use her car to go to Ohio." Creach then related a different version of what had occurred. He and Ruppert went to the victim's apartment to get her Cadillac for the Ohio trip, but she refused. Creach argued with her and attempted to remove a gun from a night stand where he knew she kept it. She saw him, managed to take it from him, but then he recovered it. They decided to take a ride in the car, something Creach said they often did when they argued. Irion did not want Ruppert to go along but Creach insisted that he be allowed to come. Irion drove them to the location between the railroad tracks where they had parked many times before. She stopped the car and she and Creach began to argue again. In the course of the argument Irion grabbed Creach's neck and began choking him. His throat was very tender from prior throat operations and he became enraged. He took out a pocket knife and slashed Irion's throat. She got out of the car and he followed her, stabbing her several times in the back. She walked away but Creach again approached and she began to choke him again. He stabbed her several times in the front part of her body and she fell to the ground. She called to him that she loved him and he told her that he would take her to the hospital. As he bent over her she again began to choke him. Creach pulled out his gun and fired it until it would not fire anymore. He jumped back in the car and drove with Ruppert to Ohio. They did not discover the purse in the car until they had left the scene, and Creach threw the purse into a river in Ohio. Creach explained a bandage on his finger, stating that he had cut himself while stabbing Irion. Glanz received from Creach $45, which had been taken from Irion's purse, and a small pocket knife. Creach told Glanz that this was not the knife he had used to stab Irion; he had dropped that knife near the stabbing location. The currency, the small pocket knife, and the title and registration papers were all introduced into evidence at trial.
After making this statement Creach asked to speak to his mother, who was at the station. Glanz brought her in and she said to Creach "Did you kill her?" He responded "She should have never touched my neck." Creach's mother called a lawyer and after he arrived Creach declined to give a written statement. This was at about 3 p.m.
Later that evening Glanz brought Creach fresh clothes so his clothes could be inventoried. While changing, Creach rubbed a small wound on his shin, commenting that he thought one of the bullets had ricocheted and hit him in the leg. Glanz asked if he meant off her head and Creach responded "no, off of one of the railroad tracks."
The questioning of Ruppert also began at about 11:30 a.m., after Officer Birkenheier had read him his rights from the preprinted form, which Ruppert then signed. Ruppert stated that he went with Creach to Delores Irion's apartment. Ruppert stayed outside and Creach went up to the apartment, returned, and went up again. Ruppert and Creach then got into Irion's Cadillac and went to Ohio. They bought a tire and gasoline on the way.
Between 12:15 and 12:30 p.m. Officer Hennegan came in to question Ruppert, and Officer Birkenheier left. Hennegan advised Ruppert of all his Miranda rights and Ruppert stated that he understood them. Hennegan asked Ruppert how they had gotten the victim's car. Ruppert first stated that she had voluntarily loaned Creach and him the car and currency for the trip to Ohio. Hennegan told Ruppert he did not believe him, to which Ruppert responded "Danny did it." He then related that at 11 p.m. on September 24 he went to the area of Delores Irion's home with Creach. She had a 1966 Cadillac parked in Creach's garage at 5717 N. Magnolia in Chicago. Ruppert waited in that car while Creach went to Irion's apartment. A short time later Creach returned and said he tried to steal money from Irion but she had caught him and he had to return it. Creach went back to the apartment and returned with a .25-caliber automatic pistol he said he had taken from Irion. At that time they parked Irion's car in an alley. Ruppert stayed with the car and Creach went to the apartment for a third time, returning with Irion. Ruppert and Creach told her they needed a ride and she agreed to take them. The three entered the car, Irion at the wheel, Creach beside her and Ruppert in back. They directed her to an area in Evanston. When they reached the vicinity of South Boulevard and Chicago in Evanston Creach told Irion to drive up a CTA right-of-way. She refused and drove past the location. Creach told her to drive there or he would kill her. She drove four blocks north to the northern entrance of the right-of-way and then drove onto it, stopping the car some distance into the road. Creach produced a pocket knife, reached over and cut the victim on the throat. She got out, as did Creach and Ruppert. She held her throat asking for a rag. Ruppert found one in the car, handed it to her and she held it to her throat. She asked to be taken to a hospital and Creach and Ruppert agreed. They all got into the car, this time with Creach at the wheel, Irion beside him and Ruppert again in the back. Creach reached over and put his arm around Irion's shoulders and stabbed her in the back. All three exited the car and Irion asked for help, saying she wanted to be taken to the hospital. Creach and Ruppert agreed. Irion got in behind the wheel and Ruppert got in beside her. But Creach walked to the driver's side and began firing a pistol through the open window in Irion's direction. As he began to fire Ruppert got out on the passenger's side and Irion followed him out and began to run down the right-of-way. Creach pursued and caught up with her a short distance from the car. There was a short struggle, Creach fired another shot, and Irion fell to the ground. Creach and Ruppert got back in the car and drove from the area. (On cross-examination Hennegan recalled that Ruppert told him that before they got in the car at this point Creach told him to get in.) The victim's purse was in the back seat and from it they took a Master Charge credit card and $140, which they divided evenly. They bought gasoline with the credit card on the way to Hamilton, Ohio, where they stayed overnight. The next day they returned to Chicago, parking the car near the CTA tracks at Belmont where they secreted the pistol, a box of .25-caliber ammunition, and a man's wristwatch in the support beam of the tracks. They then took the elevated train to Creach's home.
Hennegan asked Ruppert if he would take him to where these items were hidden, and Ruppert agreed to do so. On the way Hennegan asked Ruppert why he had taken the victim onto the CTA right-of-way. Ruppert stated that he intended to rob her at that location. Hennegan also asked about Ruppert's activities in Ohio. He said they had spoken to two of Creach's relatives, Delbert Smith and Albert Smith. Creach had showed Delbert Smith the .25-caliber automatic. Creach told Albert Smith that he had hit a woman the night before, but later said he was only kidding. In Ohio they had used Irion's credit card in an attempt to purchase stereo equipment and jewelry but a department store manager took the card from them. After this conversation Ruppert led the police to the location of the hidden items and they were recovered. At trial Irion's former boyfriend, Sander Hollabeck, identified the gun and the wristwatch as items he had bought and had last seen in the victim's apartment in September 1973. Those items and the box of ammunition were admitted into evidence at trial.
Ruppert was returned to the station where Hennegan informed Assistant State's Attorney, John Divane, of the developments. Divane testified at the motion to suppress that at this time, about 3 p.m., he spoke to Ruppert, advising him of his Miranda rights, which Ruppert said he understood. Ruppert then made an oral statement to Divane. That statement was not introduced at trial, but Divane did state during the suppression hearing that it was substantially the same as a statement subsequently taken from the defendant and transcribed by a court reporter in the presence of Officer Hennegan. At trial that written statement was introduced into evidence. It was taken at about 3:15 p.m. Divane again advised Ruppert of his Miranda rights before he took this second statement, and then a third time as he began to take the statement, except that the third warning did not include the advice that his statement could be used against him. Ruppert then gave a statement which was substantially the same as that he gave to Officer Hennegan, with the following additions. Delores Irion's home was at 5709 Magnolia. They intended to take her car without her permission. When Irion came out of the apartment with Creach she told Ruppert to get out of the car and he did so. Creach told Irion Ruppert was coming, and told Ruppert to get in. Ruppert first refused but Creach kept telling him to get in and he ultimately did so. Creach told Irion he wanted her to drive him some place. She did not want to but then got in and started driving. After Ruppert gave Irion the rag for her throat, Creach "made us all get back in the car." And after Creach first stabbed Irion and all three got out of the car, Ruppert told Creach he should take her to the hospital because she was bleeding badly, but Creach refused. During the trip to Ohio Creach kept the gun on the front seat. When they bought gasoline with the credit card, Ruppert signed for it. In Hamilton, Ohio, Creach told Ruppert to "put a rock on the purse." He did so and gave it to Creach, who threw it into a lake. Creach took half the money in Irion's purse and gave the other half to Ruppert. In the written statement Ruppert identified a gun as the one recovered from the elevated tracks and used before that by Creach to kill Irion.
After Ruppert gave this statement Hennegan asked Ruppert if he had any of the money left that was taken from Irion. He said he had $24 left, and gave it to Hennegan. This ...