APPEAL from the Circuit Court of Cook County; the Hon. VINCENT
BENTIVENGA, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, James Tankson, Sr., was charged with arson and murder. A jury found him guilty of both crimes, and the court sentenced him to seven years for arson and 20 years for murder, the sentences to run concurrently. On appeal defendant contends that the trial court erred in failing to suppress his written statement, that the trial court committed reversible error in refusing to conduct an evidentiary hearing on the admissibility of the written statement, and that he was not proved guilty beyond a reasonable doubt.
On May 29, 1973, at approximately 3:50 a.m., a fire occurred in an apartment building located at 2336 West Monroe Street in Chicago. Leroy Tankson, defendant's son, died in the fire. A few hours later, defendant was arrested and taken to the police station. At 3 p.m. on the same day, defendant gave the inculpatory written statement at issue. After defendant pleaded not guilty to the charges, he was adjudged unfit to stand trial and was admitted to the Department of Mental Health. A psychiatric evaluation later found him competent to stand trial and, on October 11, 1974, a jury found him competent to stand trial.
Prior to trial, defendant filed a motion to quash the arrest and suppress evidence. He argued that his warrantless arrest was made without probable cause and was therefore illegal, and that the statement was obtained as a result of the unlawful arrest.
On October 8, 1976, a hearing on the motion was conducted before Judge Matthew Moran. Officer Franklin Smith of the Chicago Police Department testified that at the scene of the fire a fire marshal pointed out five places on the third floor where fires had been set. The marshal also showed the police gasoline-soaked rags and a plastic container with gasoline residue was found at the scene. Defendant's daughter told Smith that she had seen her father at the apartment on the previous day and that, on several occasions, he had threatened to set the apartment on fire. Two other children of defendant voiced suspicions that the fire had been set by their father. Smith and his partner, L. Walton, went to defendant's place of employment, where they waited for defendant. When defendant arrived at 6:35 a.m., the police officers identified themselves and told him his son had been killed in a fire which may have been caused by arson. They asked him to accompany them to the police station for questioning, and he agreed. They arrived at the station at approximately 7 a.m.
Upon their arrival, defendant was taken to an interrogation room where he was given his Miranda warnings. Defendant was then questioned intermittently about his whereabouts at the time of the fire. He first indicated that he had been at a girlfriend's home. Between 8:30 and 9 a.m., Smith telephoned the woman while another officer went to interview her in person. No further questioning occurred until 11 a.m., at which time the officers informed defendant that his girlfriend said he left her home early in the morning. Defendant then offered another account of his whereabouts. While defendant's alibis were investigated, he was left alone and not questioned. Defendant remained seated in the room without constraints. At 3 p.m., defendant signed the inculpatory statement challenged here.
At the completion of the hearing, Judge Moran concluded that the police did not have probable cause to make the arrest. The matter was continued to afford the State an opportunity to demonstrate that the statement was obtained independently of the unlawful arrest.
On November 29, 1976, having reviewed Officer Smith's testimony and heard arguments of counsel, Judge Moran found that the written statement was voluntary and denied the motion to suppress. Applying the standards established in Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254, to the facts presented, the judge reasoned that the statement was admissible because eight hours had elapsed between the arrest and incriminating statement; the police investigation of defendant's alibis constituted intervening acts of significance; defendant was questioned in a room rather than a cell; and the police conduct was not a flagrant violation of defendant's rights.
Trial began on November 28, 1977, before Judge Vincent Bentivenga. Defense counsel presented an amended motion to suppress urging that Judge Moran had ruled on the voluntariness of the statement but had not considered whether the statement was a fruit of the illegal arrest. After reviewing the transcript of the previous hearing, Judge Bentivenga noted that Judge Moran had examined and applied the standards announced in Brown v. Illinois, and had determined that the statement was separate and severable from the arrest. Judge Bentivenga thus followed the previous ruling on admissibility and denied defendant's motion to suppress.
On November 30, 1977, defense counsel disclosed that on the previous day, the State tendered a memorandum of an oral statement purportedly made by defendant to an assistant State's Attorney at 9 a.m. on the day of his arrest. Its existence was not known to defense counsel or to the prosecution at the time of the earlier suppression hearing. Defense counsel moved to suppress the 9 a.m. statement and to relitigate the admission of the 3 p.m. statement in light of this newly discovered evidence.
At the hearing on the admissibility of the first statement, Assistant State's Attorney Paul Kayman testified that at approximately 9 a.m. he conversed with defendant at the police station. Prior to the oral statement, Kayman advised defendant fully of his Miranda rights. Defendant indicated that he had been treated fairly and had not received any threats or promises.
After hearing Kayman's testimony, the court found that the State had not sufficiently established a break in circumstances between the illegal arrest and oral statement, and granted the motion to suppress the 9 a.m. statement. The court refused, however, to exclude or relitigate the 3 p.m. statement, reasoning that the evidence of the first statement did not affect Judge Moran's earlier ruling. Further, the court refused to transfer the matter back to Judge Moran for reconsideration, observing that both judges had followed the same guidelines set forth in Brown v. Illinois in reaching their decisions.
Defendant contends that Judge Moran in the initial proceeding erred in failing to suppress the written statement allegedly obtained through exploitation of his unlawful arrest.
• 1 The illegality of an arrest will not per se render inadmissible a statement made by an accused subsequent to the arrest. (People v. Fields (1975), 31 Ill. App.3d 458, 334 N.E.2d 752.) Once defendant establishes the illegality of the arrest and its connection with the alleged fruit, the prosecution has the burden of establishing by clear and convincing evidence that the challenged statement was obtained by means sufficiently distinguishable to be purged of the primary taint. (People v. Nash (1979), 78 Ill. App.3d 172, 397 N.E.2d 480; see Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) In Brown v. Illinois, the Supreme Court held that the giving of Miranda warnings, albeit an important factor in determining whether a confession has been obtained by exploitation of an illegal arrest, will not per se break the causal chain between the arrest and subsequent statement and is not the ...