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People v. Robinson





APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN J. COVEY, Judge, presiding.


Rehearing denied September 24, 1980.

Following a jury trial in the Circuit Court of Peoria County (on a change of venue to Rock Island County), the defendant Michael Robinson was convicted of one count of murder and one count of armed robbery. He was sentenced to concurrent terms of 60 years for murder and 20 years for armed robbery.

Robinson was charged along with Billy Gulliford and James Hines with the July 23, 1977, murder and armed robbery of Bradley University professor Dominic Volturno. The trial of Robinson was severed from that of his companions. The sequence of events surrounding the murder and armed robbery of Volturno were set forth in detail in People v. Gulliford (1980), 86 Ill. App.3d 237, 407 N.E.2d 1094, and will only be repeated here where relevant to the issues raised by this defendant.

Robinson has raised five issues on appeal which he has phrased as follows:

"I. Whether the trial court should have suppressed the defendant's statement and barred its use at trial since the State did not produce all material witnesses to its taking.

II. Whether the court also should have suppressed the defendant's confession given the total circumstances surrounding its taking (as related by the witnesses who did testify) — circumstances which included, as independently significant facts, A) the police's failure to honor defendant's right to cut off questioning, B) The state's failure to show defendant's free and intelligent waiver of counsel and C) Defense counsel's failure to effectively represent the defendant.

III. Whether the trial court erred in summarily appointing new counsel prior to trial without giving the defendant an opportunity to waive whatever conflict of interest his first attorney may have had, especially where defendant indicated a desire to keep that attorney.

IV. Whether the trial court abused its discretion in denying the defendant's motion to participate as co-counsel in the examination of witnesses.

V. Whether the trial court's refusal to instruct the jury on the lesser included offense of attempt armed robbery was reversible error where there was evidence presented in the case that defendant did not actually take any property from the victim."

• 1 Defendant's first argument is that the trial court erred in failing to suppress the statement that he gave to the police while in custody because the State failed to produce all material witnesses connected with the taking of the statement or to explain their absence. The rule is well established that the State must produce all material witnesses, that is, all witnesses whose testimony is material to the issue of the voluntariness of the challenged statement. (People v. Armstrong (1972), 51 Ill.2d 471, 282 N.E.2d 712; People v. Sims (1961), 21 Ill.2d 425, 173 N.E.2d 494). This rule is a safeguard against the use of improperly induced or coerced confessions by the State. (People v. Smith (1974), 56 Ill.2d 328, 307 N.E.2d 353.) Alternatively, the State could explain the failure of such a witness to testify.

The challenged confession in this case was made by the defendant to Peoria police officer Robert Crady. Officer Crady testified concerning the confession at length at the hearing on the motion to suppress. Also present was Crady's secretary, Joyce Tucker, who witnessed the written confession along with Crady. Officer Charles Cannon had been present during the interrogation of the defendant and had reviewed the evidence in the case for the defendant prior to the confession, but was not present when the defendant confessed. Officer Cannon also testified, but Joyce Tucker did not. It is the failure of the State to either call Joyce Tucker to testify or explain her absence that the defendant argues justifies a suppression of defendant's confession.

Initially, the State argues that the defendant waived this issue on appeal by failing to specifically voice his objection to the failure of the State to call Joyce Tucker in compliance with the material witness rule. We agree with portions of the State's argument and conclude that the defendant has waived the issue on appeal. The Code of Criminal Procedure of 1963 provides that "[o]bjection to the failure of the state to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court." (Ill. Rev. Stat. 1977, ch. 38, par. 114-11(d).) There was no evidence presented to show that the defendant's confession was coerced or involuntary. Upon the close of the State's evidence at the hearing on defendant's motion to suppress the confession, the defendant generally objected that "[t]he state has failed to sustain its burden in that it has not presented all people who were present at the taking of the alleged admission." Defense counsel did not indicate who the missing material witness was, he did not argue further on his objection and he failed to persist for a ruling. The motion to suppress merely alleged the legal conclusion that "any statement or confession or test elicited from him were [sic] the direct result of either physical and/or mental coercion and were [sic], therefore, involuntary."

• 2, 3 Although defendant's motion to suppress was in writing, it did not state facts sufficient to show wherein the confession was involuntary. (Ill. Rev. Stat. 1977, ch. 38, par. 114-11(b).) No further evidence, even defendant's own testimony, is supportive of defendant's theory that his confession was coerced or improperly induced. Defendant renewed his objection to the admission of the confession at trial, but again, the basis for the objection was neither the involuntariness of the confession nor the failure to call a material witness. The defendant simply argued that his Miranda rights had been violated. We have recently held that a defendant must raise the issue of the voluntariness of a confession either in a motion to suppress or at trial or he waives any objection to the State's failure to call a material witness. (People v. Hills (1979), 71 Ill. App.3d 461, 389 N.E.2d 873.) We believe that the defendant has not properly preserved his alleged error with sufficient specificity for review by this court. The defendant's written post-trial motion alleges that reversible error occurred in admitting defendant's confession, but again the alleged error does not specify the legal basis he now argues on appeal. The failure to state the facts upon which the alleged coerced or improperly induced confession is based creates a difficult task for the State in determining who were the material witnesses on the question of the involuntariness of the confession. (In re Lamb (1975), 61 Ill.2d 383, 336 N.E.2d 753). The failure to establish sufficient facts to support a charge that the confession was somehow involuntary also makes review of the trial court's refusal to suppress the defendant's confession because of a violation of ...

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