APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant was convicted of murder and attempt armed robbery and sentenced to concurrent prison terms of 50 to 100 years for murder and 5 to 15 years for attempt armed robbery. Defendant appeals presenting the following issues for review: (1) whether defendant was convicted of attempt armed robbery beyond a reasonable doubt; (2) whether defendant was adequately informed of his right to the presence of appointed counsel during interrogation; (3) whether the trial court erred in denying defendant's motion in limine and in allowing defendant's statement to be read to the jury; (4) whether the trial court erred in giving an instruction defining the elements of murder in terms of felony-murder by the commission or attempt of armed robbery; and (5) whether the trial court erred in giving an instruction regarding confessions.
On April 7, 1974, at approximately 8 p.m., Willie Connolly *fn1 was shot and killed at 5100 South State in Chicago, Illinois. Defendant, Terrell Walters, was arrested on April 10, 1974, and charged with murder and armed robbery.
Prior to trial, defendant filed motions to quash his arrest and to suppress evidence and to suppress defendant's statements to police. The following testimony was adduced at the hearing on the motions: Police officer John Kennedy testified that on April 10, 1974, he was investigating a series of robberies and murders. Kennedy and his partner, Francis Kehoe, went to 4947 South Federal to search a laundry room on the 16th floor of that building for a weapon. Officer Kennedy testified that he saw defendant in the elevator and heard a girl refer to defendant as "Turtle." Kennedy was not actively seeking a person named "Turtle," but he knew that a person named "Turtle" was a member of a gang in the area. Kennedy and Kehoe told defendant they were investigating several murders in the area and they wanted to talk to him. Defendant denied any knowledge of the murders but expressed concern and agreed to help police. After Kennedy and Kehoe searched the laundry room to no avail, defendant went with them to their squad car. Defendant was not handcuffed or placed under arrest. As they were walking toward the car, Kennedy saw a group of men which dispersed as the officers approached. One man, Kenneth Ash, remained, and he agreed to accompany the officers to police headquarters at 51st and Wentworth.
Officer Kennedy testified that neither defendant nor Ash was handcuffed, and both sat in the back seat of the car. A pat down search of defendant was made before defendant entered the car. At the station defendant and Ash were placed in separate interview rooms on the second floor. Kennedy had a conversation with defendant, and defendant denied any knowledge of the murders. Defendant offered to speak with Ash and tell him to cooperate, but the officers declined the offer and told defendant he could wait for Ash if he wanted. The officers then had a conversation with Ash in which Ash denied any involvement in the murders but stated that he had knowledge of an incident at 5100 South State. Ash stated that on the day after the murder, defendant told Ash that he and another had killed a man in a "stickup." Ash further stated that defendant showed him a .357 magnum revolver that he kept in his belt. Kennedy then locked the door of the room in which defendant was sitting.
Officer Kennedy testified that after finishing the interview with Ash, the officers told defendant he was under arrest and advised him of his rights. Defendant stated that he understood his rights, and he again denied any knowledge of the murders. The officers brought Ash into the room, and Ash repeated what he had told the officers. Officer Kennedy testified that defendant then stated that he was present at the scene of the murder, and a statement was taken.
On cross-examination Officer Kennedy testified that prior to questioning, defendant was told he was a suspect and was advised of his rights. After the initial conversation, the officers left defendant alone in the room with the door open; defendant was told he could leave, but he indicated he wanted to wait for Ash. After Ash gave a statement, defendant was placed under arrest and handcuffed. Officer Kennedy testified that he did not have a warrant for defendant's arrest and did not observe defendant committing any crime. Kennedy did not see anyone strike, threaten or abuse defendant.
Officer Francis Kehoe testified to substantially the same facts as Officer Kennedy, except that Officer Kehoe testified defendant was not told he was a suspect in the murders and robberies. The court denied the motions to quash the arrest and to suppress the statements.
Defendant also presented a motion in limine seeking to bar the State from introducing at trial those portions of defendant's statements which referred to crimes other than the offenses for which defendant was being tried. The court denied the motion.
The following evidence was adduced at trial: Larry Boswell (16 years old) testified that he had lived at the Robert Taylor Homes at 5100 South State for about 11 years, but that he was not living there at the time of the incident in question. On April 7, 1974, at approximately 8 p.m. he was at 5100 South State and he saw defendant and Vince Herbert. Boswell knew defendant and Herbert from school and around the neighborhood. Boswell made an in-court identification of defendant and stated that defendant was also known as "Turtle." While Boswell was talking to Herbert about a debt due him from Herbert, defendant walked over and stated, "Give him the stick." Boswell saw a person known as "Mr. Cat" coming from the parking lot and going toward the elevators. Herbert then took a gun from his coat and gave it to defendant. Boswell testified that defendant stated something to the effect that he was going to rob the man (Boswell could not remember the exact words). Boswell then saw defendant walk toward the man with the gun in his hand, and Boswell ran to the second floor by way of the stairs. Boswell heard one shot and then went to the sixth floor to see a friend and went home.
Boswell testified that he never went to the police because he was scared and did not want to get involved. The police came to his house on November 28, 1974, and they took him to the station. Boswell testified that he did not know defendant had been arrested.
Officer John Maciejewski testified that on April 7, 1974, at approximately 8 p.m. he was exiting the station at 51st and Wentworth when he heard a loud sound like a gunshot come from a building at 5100 South State. Officer Maciejewski went to the building and when he arrived a man came running, saying that someone had been shot. Officer Maciejewski observed a man lying near the elevator; he checked for vital signs but detected no signs of life. He then called for assistance, and a wagon came and removed the body. Officer Maciejewski testified that a crowd gathered at the scene, and he talked to several people, but no one gave any descriptions of suspects. He did not see Larry Boswell at the scene, and no weapon was recovered.
Betty Hill testified that the deceased, Willie Connolly, was her brother and that his nickname was "Catman."
Officer John Kennedy testified to the facts leading to defendant's arrest. His testimony was substantially the same as that given at the pretrial hearing. Officer Kennedy further testified that defendant gave an oral statement as follows: Defendant and Lacey Herbert went to 5100 South State for the purpose of "sticking up" someone; when they got there, they saw an older man going toward the elevator; Herbert took out a .357 magnum revolver and walked toward the man, while defendant went to the end of the breezeway to see if any police were coming; defendant then heard a shot and saw Herbert running; he and Herbert went to Herbert's apartment at 4947 South Federal, and Herbert put the gun in a dresser drawer in the rear bedroom.
Officer Kennedy testified that after defendant gave an oral statement, a state's attorney was called to the station. Defendant was re-interviewed after the assistant state's attorney, Robin Auld, arrived. A court reporter was then called, and a written statement was taken in question and answer form in the presence of Auld, the court reporter, a youth officer and the officers. Defendant's mother arrived and was present during the second half of the statement. The statement was transcribed by the court reporter, typed and then signed by defendant. The complete statement was read to the jury. In the statement defendant gave information about three other robberies and murders in the area of 5100 South State. Defendant stated that on February 9, 1974, he was with two others, and they went to "stickup" someone; defendant acted as a "lookout" while the other two stopped a man and asked for money; defendant looked in the man's wallet and then gave it back; one of the other two then shot the man with a .32 revolver; defendant then went home. Defendant stated that on another occasion he met Lacey Herbert and Boswell, and they said they were going to "stickup" someone; defendant went along to 5322 South State and stayed in the breezeway while the others went to the elevator and held up a man; defendant was not acting as a "lookout," but if anyone came he would have told Herbert; Herbert shot the man with a .357 magnum revolver. Defendant stated that four days before the incident at 5100 South State, he saw Herbert and Herbert said he wanted to rob someone; defendant walked with Herbert on 51st Street, and then Herbert stopped a man at 5127 South Michigan; defendant was about eight feet away when Herbert shot the man; he and Herbert then went to 4847 South Federal where defendant lived; defendant had the gun for about three hours after the shooting. In reference to the incident at 5100 South State defendant stated that he saw Herbert and Herbert said he was going to "stick up" someone; defendant was going that way so he went with Herbert; defendant saw an old man, Herbert went toward him with his gun, and defendant went toward the front of the building; defendant heard one shot and then ran home; the next day defendant saw Kenneth Ash and told him that Herbert shot the man at 5100 State; defendant had the gun after the shooting, but he did not show it to Ash.
Officer Kennedy further testified that after the statement was taken from defendant, he and three other investigators went to 4947 South Federal to locate Herbert. Herbert was not there, but they recovered a .357 magnum revolver from the dresser drawer in the rear bedroom. Officer Kennedy testified that at the station he put the revolver on a table with four other revolvers, and defendant identified the gun recovered as the one used by Herbert.
On cross-examination Officer Kennedy testified that the other robberies and murders occurred on February 9, 1974, March 22, 1974, and April 6, 1974. Officer Kennedy testified further that the state's attorney arrived three to four hours after defendant was taken into custody, that the court reporter arrived about one hour later, and that the written statement was taken six to seven hours after defendant was taken into custody. Herbert was arrested in November 1974, and that was the first time Kennedy learned that Boswell was present when the incident occurred.
It was stipulated that on April 8, 1974, Dr. Joseph Klapros, pathologist for Cook County Coroner, performed an autopsy on the body of Willis Connolly. Dr. Klapros observed one bullet wound of entry nature in the neck and one of exit nature at the base of the neck and concluded that the cause of death was a gunshot wound to the neck.
It was further stipulated that defendant was 18 years old at the time of trial.
Defendant testified that in April 1974 he lived in the Robert Taylor Homes at 4947 South Federal with his mother and father. He finished the ninth grade in school. Defendant testified that on April 11, 1974, at about 4 or 5 p.m. he was at 4947 South Federal, and he saw four police officers coming toward the building. They asked defendant if he knew anything about the murder, and defendant said he did not. Defendant went with the officers to the 16th floor, and the officers took his wallet, looked at it and then gave it back. The officers took defendant to the police station, put him in a room on the second floor and handcuffed him. Kenneth Ash was not with defendant in the car, but he saw Ash later at the station. The officers asked him about the robberies and murders and when defendant repeatedly denied he had any knowledge, the officers slapped him several times on his head and the side of his face. The officers then repeated the facts of the murders so that defendant could memorize the facts and tell the state's attorney. The officers also told defendant which gun to choose. Defendant testified that the officers told defendant that if he signed the statement he could go home. Defendant never spoke to the state's attorney or his mother alone. Defendant testified that he did not tell anyone that the officers beat him, that he did not talk to the state's attorney before he came in with a court reporter, that Ash came into the interview room but did not say anything, and that he told police where Herbert lived but did not say where the gun was located. Defendant testified that he was not involved in any murders.
Robin Auld testified in rebuttal that on April 11, 1974, he was an assistant state's attorney and was summoned to the station at 51st and Wentworth at approximately 3 a.m. Auld spoke to Officer Kennedy and then interviewed defendant for about 30 minutes. Auld then called a court reporter and took a statement from defendant. Auld testified that in the oral conversation defendant indicated that he did not do the shooting but he had gone along and acted as a "lookout." However, in the written statement defendant attempted to exculpate himself by saying that on all four occasions he happened to be going in the same direction as the robbers. Auld testified that he observed no blood, bruises or cuts on defendant, and defendant never indicated that he was mistreated.
Officer John Kennedy testified in rebuttal that on April 10, 1974, he brought defendant and Ash to the station at the same time. Kennedy testified that no one slapped defendant, and that defendant did not first choose the wrong revolver.
Based upon the foregoing evidence, the jury found defendant guilty of murder and attempt armed robbery. Defendant was sentenced to concurrent prison terms of 50 to 100 years, with a mandatory five-year parole, for murder and 5 to 15 years, ...