APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Leon Dunagan, was charged with the murder of Oscar Tuson Boyd. After a jury trial in the circuit court of Cook County, he was found guilty of that crime and sentenced to a term of not less than 50 and not more than 100 years. The defendant asserts on appeal that (1) the trial court erred in refusing to quash the arrest of the defendant and suppress statements and evidence which were obtained as a result of defendant's alleged illegal arrest; (2) the trial court erred in failing to suppress the statement made by the defendant because his mother was not present; (3) the trial court erred in refusing to grant a new trial and in refusing to order the prosecution to correct erroneous testimony presented by two of the State's witnesses; (4) the photographic identification testified to by Brunson should have been suppressed; (5) the trial court erred in refusing to grant a new trial when after trial a police report was discovered that allegedly cast doubt on the photographic identification made by the State's witness; (6) the trial court erred in refusing to give instructions as to voluntary manslaughter, accomplice testimony, and in failing to provide a limiting instruction on Shaw's testimony; (7) the prosecutor's comments in closing argument regarding defendant's failure to testify constitute reversible error; (8) the court committed reversible error in calling John Shaw as a court's witness; (9) the trial court erred in excluding testimony concerning the identification and destruction of the murder weapon; and (10) the trial court improperly limited cross-examination of Shaw and certain other witnesses.
On December 26, 1971, Richard Brunson had been attending a reunion of his high school graduation class in the Jet Club at 62nd and Prairie Avenue, Chicago, Illinois. At approximately 10 p.m., Brunson left the reunion and walked to where he had parked his 1966 red Volkswagen. Brunson found that his car was not where he had parked it, and he returned to the Jet Club and spoke to Oscar Boyd. Then Brunson and Boyd, along with Mary Williams, Norma Statum and Barbara Abston, entered Boyd's 1970 two-door Cadillac. Oscar Boyd drove and the five headed west on 63rd Street.
At 63rd Street and Wabash Avenue, Richard Brunson saw his red Volkwagen heading south on Wabash toward 63rd Street. Oscar Boyd stopped his car and backed into the intersection of 63rd and Wabash, blocking the path of the Volkwagen. Brunson observed the presence of four teen-aged boys in the Volkwagen. As Boyd's Cadillac came to a halt, Brunson and Boyd alighted, as did the four occupants of the Volkswagen. Richard Brunson testified at the trial that he had seen the face of the driver of the Volkwagen that night and he identified him in court as the defendant, Leon Dunagan.
Brunson and Boyd ran from the Cadillac toward the fleeing youth. Brunson testified that the defendant, driver of the Volkswagen, had a gun in his hand and when Oscar Boyd, the deceased, shouted "Hey," the defendant shot Boyd. As Boyd went down, the defendant continued running and entered the housing project at 6215 South Wabash. The police came and they removed Oscar Boyd to Billings Hospital where he later died.
Police officer Melvin Duncan, after being assigned to the homicide of Oscar Boyd, saw Richard Brunson, Mary Williams, Norma Statum and Barbara Abston at Billings Hospital. After speaking with them, Duncan went to 63rd and Wabash to observe the scene of the offense. Other officers examined Brunson's Volkswagen for fingerprints, but were unable to find them either on the interior or exterior of the car because of the weather conditions. There was testimony that it was very wet the evening of December 26.
There was testimony given that on the evening of December 28, two days following the homicide, Investigators Duncan and Wiley went to a gas station at 63rd and Wabash where they saw a group of people. All of the group fled when the officers approached except Reginald Brown, who accepted the request to enter the squad car and speak with the officers. Brown told them that he had heard who killed Oscar Boyd and he would be willing to give a statement to that effect.
At trial, there was a variation between what Officer Wiley remembered about the conversation with Brown and what Officer Duncan remembered. Duncan testified that he recalled talking with Brown on December 27, and he had no memory of a written transcript being taken of the conversation. Officer Wiley testified that he and Duncan spoke with Brown on December 28, and that a written statement had been taken from Brown. Wiley stated that he had misfiled Brown's statement among his own case materials and had not located it until after the trial had begun.
Officer Wiley testified that after speaking with Reginald Brown, he and Officer Duncan went to 6215 South Wabash, apartment 1002, at approximately 9 p.m. on December 28. This was the home of Leon Dunagan, the defendant. Upon arriving, the officers informed Mrs. Dunagan, Leon's mother, that they wanted to take Leon to their office and talk to him about a shooting. Mrs. Dunagan agreed, and they handcuffed the defendant and left the building. As they left the building, 15 to 20 sniper shots were fired at Dunagan, Officer Wiley and Officer Duncan. The three reached the squad car and proceeded to the police station where Officer Wiley discovered he had been shot. Investigator ancan took the defendant into the building, cuffed him to a bracket, and took Wiley to the hospital.
When Officer Duncan returned to headquarters, he advised the defendant of his constitutional rights, and the defendant told the officer that he would like to speak with his mother before he proceeded. The officer allowed Dunagan to use the telephone, at which time defendant placed two calls. After making the calls, defendant told the officer he had spoken with his mother and he wanted to talk about the shooting.
Officer Duncan testified the defendant stated that on the night of December 26, 1971, he received a car from Michael Harding and picked up John Shaw, James Massey and Dean Montgomery. After driving the car for awhile, they approached the intersection of 63rd and Wabash where a Cadillac backed up in front of the Volkswagen. Someone then jumped out of the Cadillac and the four in the Volkswagen got out of the car and began to run in a northeasterly direction. One of the persons in the Cadillac yelled "Halt," and the defendant became frightened, reached into his pocket, pulled out a pistol, turned and shot one time at the man saying halt. The defendant continued running until he reached the 10th floor at 6215 South Wabash. Defendant told Officer Duncan that he used a .38 automatic pistol and he threw it into the incinerator on the 12th floor of 6215 South Wabash.
Thereafter, Investigator Duncan called assistant State's Attorney Thomas J. Cullinan. When Mr. Cullinan arrived, he again advised defendant of his constitutional rights and asked him if he still wanted to give a statement. The defendant replied that he would give a statement. Cullinan called Claude Cole, a court reporter, who arrived shortly thereafter to take the statement. The defendant gave a statement to Mr. Cullinan in the presence of Investigator Duncan and Mr. Cole. There was some discrepancy in the testimony between what Investigator Duncan recalled about the statement and what Mr. Cole remembered. Officer Duncan testified that the statement was immediately typed by Mr. Cole and read to the defendant. However, Mr. Cole testified that the statement was typed later and was not read to the defendant in his presence. The defendant never signed the statement.
At trial, James Massey, Dean Montgomery and John Shaw testified they had all been with defendant on December 26, 1971, riding around in the red Volkswagen. They also testified that the Cadillac had blocked their path and they all fled toward 6215 South Wabash. All three said they heard a shot, but none testified that he actually saw the defendant use the gun. James Massey testified that upon arriving at the Wabash building on the 10th floor he spoke with the defendant. He asked the defendant whether he had shot the man and the defendant said he thought the decedent was going to shoot him.
On the basis of the evidence, the jury found the defendant guilty of murder. Dunagan was sentenced to imprisonment for not less than 50 years and not more than 100 years.
Defendant's first contention on appeal is that the trial court erred in refusing to quash the arrest of the defendant and suppress statements and evidence obtained as a result of that arrest, which defendant contends was illegal. We reject that argument.
Defendant takes the position that the police officers based their arrest of defendant only on the statements made to them by an informant someone whom they had not seen before nor received any information from prior to December 28, 1971. Defendant cites In re Woods (1974), 20 Ill. App.3d 641, 314 N.E.2d 606, in which the court stated that a general description is insufficient to provide the probable cause which is necessary to justify an arrest unless it is supported by other relevant facts and circumstances known to the arresting officer.
1 Probable cause exists for an arrest when the facts and circumstances that the arresting officer has knowledge of are sufficient to warrant a person of reasonable caution in believing that an offense has been perpetrated and the person arrested has committed the offense. People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356, 358.
Whether probable cause exists in a certain case depends upon the totality of the facts and circumstances that the officer is aware of at the time of the arrest. People v. Glenn (1978), 63 Ill. App.3d 344, 348, 380 N.E.2d 390, 393.
Defendant asserts in the instant case that probable cause for an arrest was lacking and relies on In re Foster (1978), 66 Ill. App.3d 193, 383 N.E.2d 755, to substantiate his position. In Foster, the trial court found that there had been probable cause for the arrest of the defendant, but the appellate court reversed the decision. The appellate court held that the State's only evidence for justifying a finding of probable cause was an unknown informer believed defendant committed the offense and the defendant had been seen running across the street in the evening a week after the crime was committed. The court stated:
"The law in Illinois is clear that an arresting officer may rely upon information supplied by an informer in determining whether probable cause exists `if the reliability of the informant has been previously established or independently corroborated.'" (Foster, 66 Ill. App.3d 193, 197.)
The court did not find the State had established that the informer was reliable, and evidence of the defendant running across the street a week later did not provide the necessary probable cause for arrest.
The Foster case is distinguishable from the instant case. Although there was an unknown informer, Reginald Brown, whom the police did not know nor had they ever obtained information from him previously, this was not the only basis for defendant's arrest. When the officers took the statement from Reginald Brown, they had already spoken with Richard Brunson and Barbara Abston who gave a description of Oscar Boyd's assailant. The officers knew that there had been an automobile theft and a shooting and the persons involved had run to the building at 6215 South Wabash. They also knew the persons involved were in their teens. Brown told the officers that he had heard about a car being stolen, that there was a shooting, and that the offender was in his teens. All of this information was merely a corroboration of what the police had already obtained from Richard Brunson and Barbara Abston. The only information Brown supplied that was not corroborated was the name of the defendant and where he lived. Defendant lived at 6215 South Wabash the same building where the witnesses said the assailant ran after the shooting.
It is clear from the facts in this case that the unknown informer's reliability was independently corroborated by ...