APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
ON REHEARING, MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 14, 1980.
Following a bench trial, defendant Kenneth Lucas (defendant) was convicted of murder and armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1 and 18-2, respectively) and was sentenced to concurrent terms of 25 years and 15 years, respectively. Defendant appeals.
In his appeal to this court, defendant set forth the issue for review as: "whether the Court erred in denying the appellant's motion to suppress statements and physical evidence." We are actually asked to determine whether the trial court was in error in failing to find that: (1) there was no probable cause for defendant's arrest, (2) the State violated his rights in delaying presentation of defendant to a judge for a probable cause determination, and (3) the search of his home without a warrant was illegal. Defendant maintains that any statements or physical evidence obtained as a consequence of these alleged illegal acts should have been suppressed.
On August 18, 1977, at approximately 4 a.m., the victim, Thomas Eberhart, was shot and killed in the vicinity of 1034 East 76th Street, Chicago. The victim's car was found in a lot at 76th and Langley, which we note is about six blocks from the scene of the shooting.
At a pretrial hearing on his motion to suppress, defendant testified that at 8 p.m. on the aforesaid date, he was in a poolroom with Derrick Fenner *fn1 and Arthur Connelly. Defendant said that he had just come out of the washroom and rejoined his companions when some police officers walked up to them and asked each his name. The three were then arrested, taken to a police station, and placed in separate rooms. Defendant was periodically questioned and at approximately 9 a.m. the following day, he gave an oral statement which was reduced to a signed written document that afternoon. During the period between the making of the oral statement and its reduction to written form, defendant was taken by the police to his home, where property related to the crime was retrieved. Defendant related that he told the police he would give them this property.
The State called Officer Daniel E. Swick, who testified that he investigated the death of the victim. He learned from police reports that more than one male Negro was seen leaving the scene of the shooting. Two male Negroes were seen in and around the victim's car where it was abandoned. A bond slip bearing the name of Derrick Fenner was found at the scene. Swick obtained a photograph of Fenner and went to the poolroom. Initially, the officer and his partner talked with Fenner. While doing so, defendant walked up to them and asked what was going on. When the officer said that they were taking Fenner to the police station in regard to a shooting which had occurred that morning, defendant said that Fenner could not have been involved in any shooting because he had been with defendant all that day as well as the day before. The officers then took both men to the station.
On cross-examination, Swick related that the bond slip bearing Fenner's name, address, date of arrest, charge, and court date was found in some weeds near the car. He further admitted that he did not have any other information to relate Fenner to the crime when he went to the poolroom.
The trial court denied defendant's motion and the case proceeded to trial by stipulation.
Through a series of evidentiary stipulations, the State's evidence showed that the victim was seen alive on the evening of August 17; that at 4 or 5 a.m. on August 18, voices and some gunshots were heard and a black Cadillac-type vehicle containing several male Negroes was seen leaving the scene at a high rate of speed. Shortly thereafter, the car was seen several blocks away in a lot where it was stuck; several young men were walking around it. A bond slip issued to Derrick Fenner was found in the area near the abandoned car; and upon investigation of Fenner in a nearby poolroom, defendant approached the officer and told him that he had been with Fenner during the hours in question. Fenner and defendant were then placed under arrest and given Miranda warnings.
The stipulated evidence further showed that while being held in custody, defendant told one of the officers that he was with Fenner in the early morning hours of August 18, when the victim gave them a ride in his automobile. They stopped to get some beer, at which time defendant and Fenner discussed robbing the victim. Once back in the car, defendant, who was sitting behind the victim, pulled out a gun and put it to the victim's head. The victim said, "you are going to have to kill me" and got out of the car and ran. Defendant fired a shot. The gun was then taken from him by Fenner. He fired several more shots at the victim, who fell down by the curb. Both parties removed some of the victim's property from his body, and Fenner fired another bullet into the victim to "make sure he is dead." Defendant and Fenner then got back into the victim's car and drove to the lot where it got stuck and was abandoned.
The stipulated evidence also showed that after making the above statement, defendant was taken by the police to his home, where the officers recovered the murder weapon. This last stipulation was entered subject to the objection of the defense counsel that the motion to suppress had been overruled.
Further stipulations were entered that an autopsy of the victim's body showed that death was caused by nine bullet wounds to the chest, lung, heart, and aorta; that a ballistics test showed the projectiles removed from the body were fired from the weapon recovered at defendant's home; that articles belonging to the victim were recovered from various locations upon information given by defendant. Defendant's written ...