APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
MAROVICH, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
During the course of an attempted armed robbery Patricia Thomas was shot and killed. Defendant Steven Miller was subsequently charged with murder and attempt armed robbery. Following a trial by jury he was found guilty of both offenses and sentenced to concurrent prison terms of 40 to 120 years for murder and 6 to 18 years for attempt armed robbery.
On appeal defendant raises the following contentions: (1) evidence of his confession and identification in a lineup should have been suppressed as the products of an illegal arrest; (2) that evidence should also have been suppressed because it was obtained in violation of his fifth amendment rights; (3) the trial court erred in allowing evidence of defendant's initial arrest which suggested he had committed a separate offense; (4) defendant was prejudiced by improper comments made by the State in final argument to the jury.
Defendant filed pretrial motions to quash his arrest and suppress evidence, to suppress statements, and to suppress certain identification testimony. We summarize the evidence adduced at the hearing on those motions to the extent it relates to the contentions on appeal. Police Sergeant John Kennedy testified that on October 23, 1977, at about 9 p.m. from his squad car he observed a man, subsequently identified as the defendant, walking in a sunken walkway adjacent to a DePaul University women's dormitory. It was possible to look into the ground floor rooms from that walkway. Kennedy knew that there had been a number of incidents of "peeping toms" at this building. He also knew that two weeks earlier a male intruder had been discovered in one of the dormitory rooms. As Kennedy watched the defendant suddenly appeared to duck down. Kennedy approached in his car and again spotted the defendant; this time defendant was up against a dormitory window with his hands at the window. The defendant was wearing dark clothes and gloves although Kennedy testified the weather was not suited for gloves. As Kennedy emerged from his car defendant turned and saw him; he appeared startled and nervous. Defendant turned and began walking in the opposite direction from which he had just come. Kennedy called him over and observed a large bulge in his pants, appearing to Kennedy to be an erection. When asked what he was doing defendant stated he was going to an address which was in the opposite direction from the way in which he had been walking. Kennedy asked about this discrepancy but the defendant could not explain it. He was then advised of his constitutional rights, placed in a squad car Kennedy had summoned, and driven to the 18th District police station.
Kennedy remained behind and entered the dormitory, where he found no evidence of a forced entry to the window at which he had seen the defendant. No one was in that room. He also located the girl who had previously seen an intruder and determined that she would be unable to identify that person.
Kennedy returned to the 18th District station where he obtained from defendant his name, address, and age. He called the Area 6 Homicide headquarters to see if defendant's description and the activities he observed matched any pattern of behavior in this area. He also attempted to verify defendant's identity through juvenile records but those could only be obtained in person through a youth officer and there were none at the 18th District. This check could also be made at the Area 6 location.
Sergeant Kennedy testified that defendant was not charged with a crime; he planned to release him once he had verified the information. When he spoke to the defendant he was very cooperative. He said he knew that the area was a bad one. When Kennedy told him he wanted to take him to Area 6 in connection with his investigation of crimes in the area defendant said he was more than willing to go along, that he knew there were a lot of things happening there. Defendant's only concern was getting a ride back home. Kennedy assured him he would be given one, and two other officers then took defendant to Area 6.
At Area 6 two officers, Paul Roppel and John Philbin, spoke to the defendant. Roppel testified that defendant was advised of his rights and said he understood them. However, Philbin testified that defendant was not advised of his rights at that time. Defendant was asked if he had knowledge of any robberies or shootings in the area of the Fullerton "el". To Roppel's astonishment defendant said he did have knowledge of the shooting of a girl who had been with two other girls in that area. Roppel and Philbin got the file on the case of Patricia Thomas and returned to question defendant, accompanied by Investigators Thomas O'Connor and Richard Hansen. Defendant told them he had been told by his brother, Glen, that Glen and two of Glen's friends were involved in the robbery and shooting. According to Officer Roppel defendant agreed to cooperate in the investigation. He was not under arrest and was free to leave. Defendant told the officers that his brother and the others were "probably up on the north side doing stick-ups." He stated they would probably not be home until morning. When asked he agreed to help the police locate them. He was told that under the circumstances his mother would not be informed of his location. Defendant stated that he understood, indicating he was aware of the possibility Glen could be alerted.
Defendant was left alone to sleep until about 4 a.m. He was then questioned further and he described the neighborhood where he said his brother and the others could be found. At about 5 a.m. Officer Roppel and Philbin took him to the Area 1 police station, which was located in the neighborhood defendant had described. From there the police drove to the vicinity of defendant's apartment building. Defendant directed them to several places where he said the individuals' car might be located. No one was found during this search, which lasted two to three hours. At about 7:30 or 8 a.m. they decided to go to defendant's residence, where they found Glen and took him to Area 1. Defendant's mother was present at the apartment but was not told that defendant was with the police.
At the station, according to Officer O'Connor, defendant was still considered a witness and was totally cooperative with the police. O'Connor and Roppel confronted Glen with the accusation defendant had made. Glen told them the defendant was the one who "goes up to the north side and rips off." They then told defendant of this statement and he said, "They didn't do it, I shot her."
Defendant was immediately advised of his rights and arrested. Between 10:30 and 11 a.m., after having been transported back to Area 6, defendant was again advised of his rights and then made a full confession to Youth Officer Frank Giunta and O'Connor. Assistant State's Attorney Edward Nemetz interviewed him at about 4 p.m. that day. Nemetz testified that he advised defendant of his rights and then obtained an oral statement from him. He asked defendant about the period of time he had been with the police. Defendant told him he had been pretending to be a witness, that he had stayed with the police because he wanted to and that he was not told he could not leave. After defendant spoke to his mother and aunt he declined to make a written statement.
It was stipulated at the hearing that defendant had a substantial juvenile record.
After hearing argument on the motions the trial court held that probable cause had existed for the initial arrest, that subsequently defendant voluntarily went to Area 6 and was not in custody when his first incriminatory statement was elicited so that no Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602) were required to be given prior to this statement. The court also noted that because of this decision it did not have to determine whether defendant was given his ...