APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant Revonne Monroe was convicted of armed robbery and sentenced to six years' imprisonment. On appeal he contends: (1) the motion to suppress defendant's confession should have been granted because the State failed to produce all material witnesses; (2) defendant was denied a fair trial when the prosecution was permitted to argue to the jury that they need not consider the circumstances of the confession; (3) the prosecutor improperly commented in closing argument on defendant's failure to testify; and (4) defense counsel's failure to tender an instruction to the jury on evaluating the confession constituted actual incompetence of counsel.
We reverse and remand for a new trial.
Prior to trial defendant initially filed an unverified motion to suppress which appears to have been a form motion. Included in its many allegations was the charge that defendant's statement was the result of physical coercion. Subsequently an amended, verified motion to suppress was filed. It did not include any allegation of physical coercion but did retain from the prior motion an allegation that defendant's statement resulted from psychological and mental coercion. This amended motion also added specific allegations as to violations of defendant's rights as a juvenile, including charges that his parents were not present during his interrogation, that a youth officer also was not present, and that defendant was not told he could be tried as an adult.
At the hearing defense counsel referred only to this amended motion. The State called Investigator Kenneth Winkie to testify concerning the circumstances leading up to the confession. He testified that on May 9, 1978, he and Investigator Gary Baranowski went to defendant's home in connection with their investigation of a series of robberies in the vicinity of north side Chicago el stations. Present at the home were the defendant, his brother Kenneth, and an older brother later identified as Wayne. The investigators told them what they were investigating and took defendant and Kenneth to the police station. Wayne also chose to accompany them. Prior to leaving the home the investigators left a note for defendant's parents, telling them where they had gone. They had been told that the parents were not home and could not be contacted.
When the investigators arrived at the station at about 11 p.m. there was no youth officer present. Winkie telephoned youth headquarters to advise them they had juveniles in custody. He was told a youth officer would be coming to the station. Defendant was separated from his brothers and at about 12:30 a.m. was questioned by Baranowski and Winkie. He was advised of his Miranda rights and was also told that he might be tried as an adult. Winkie explained to the defendant that if he were tried as an adult he could be imprisoned and that trial as a juvenile might result in his being sent to the Audy Home. Defendant stated that he understood his rights and wished to answer questions. He then made a statement.
On cross-examination defense counsel elicited from Winkie his awareness of special procedures applicable to police questioning of juveniles under detention. These included requirements that attempts be made to contact the juvenile's parents, that a youth officer be notified when the juvenile was taken into custody, and that the juvenile be turned over to the juvenile officer or if none was available to the desk sergeant. Winkie also conceded that these requirements included the instruction that the better practice was to have a youth officer or parent present during questioning. Winkie testified that he did not ask the defendant if he wished to have Wayne present or if he wanted to wait until one of his parents arrived before answering questions. Wayne was informed of the incident under investigation but did not ask to speak to the defendant.
Winkie did not recall if he ascertained the extent of defendant's education before talking to him. He did know that defendant was one day short of his 17th birthday. The questioning of the defendant took about one-half hour; the youth officer arrived at about 1 a.m., after the questioning was completed. Defendant's mother arrived at about 3 a.m. Neither Winkie nor anyone else to his knowledge used psychological coercion to obtain a statement from the defendant.
Winkie testified that only he and Baranowski were present when defendant made his confession. However he also testified that two officers from the mass transit unit, Officer Radcliff and his partner, were there that evening in connection with the same investigation. There were times when Radcliff interviewed the defendant that evening, but Winkie could not recall whether this occurred before or after defendant confessed.
At the conclusion of Winkie's testimony the State informed the court that Investigator Baranowski was available to testify if the defense so desired but that his testimony would be substantially the same as Winkie's. The defense made no such request, and the State rested. Defense counsel then moved for a directed finding on the ground that the State had failed to produce Officer Radcliff and his partner as material witnesses. This motion was denied.
Defendant presented the testimony of his older brother Wayne, who was 19 at the time of the hearing. Wayne testified that the police had told him and his brothers to come with them to the station without giving a reason. His mother was working at the time but could have been reached at a telephone number she had left with them. However the police did not at that time ask him where his mother was. At about midnight Wayne left the station and returned home.
Defendant's mother testified that on the evening in question she was doing custodial work downtown. She had left with her sons a phone number where she could be reached. She returned home shortly after midnight and was told by Wayne that defendant was at the police station. No message had been left for her at her home. She arrived at the police station at about 12:45 a.m.
The court ruled that although the police had failed to adequately comply with the procedural requirements for questioning juveniles, the defendant had been properly advised of his rights and was shown to have understood them, so that no suppression of his confession was required. After this ruling defense counsel again objected to the failure of the State to produce all material witnesses.
At trial Victor Fishman testified that he was the victim of the robbery. On May 7, 1978, he was walking down an alley to the rear entrance of his home at 6726 North Glenwood in Chicago when a youth came running up from behind and asked for a dime. Fishman gave him one and the individual then went ahead of Fishman, where he was joined by another boy in his late teens. When Fishman arrived at the rear entrance of his home the two came back and demanded his money. One of them brandished a chrome-plated gun. As this was occurring Fishman noticed that two other boys in their teens had appeared behind him. One of the two who first approached Fishman took $65 from him and then all four of them fled. Fishman was unable to identify any of his robbers.
Investigator Baranowski testified to substantially the same facts as Investigator Winkie had at the pretrial hearing, with the following additional facts. Defendant had admitted that he and three other individuals had gone up to the north side of Chicago late in the afternoon of May 7 with the intention of committing a robbery. They walked a short distance from the el station and followed an old man into an alley. Two of the individuals robbed the man while defendant and the fourth individual acted as lookouts. Two guns were used in the robbery; one was a small silver-handled starter pistol. About $60 was taken in the robbery, and the defendant received $15 of it after they fled the scene.
On cross-examination defense counsel adduced substantially the same testimony as he had adduced from Winkie at the hearing concerning the procedure required for questioning juveniles and the extent to which the officers followed them. He also ascertained from Baranowski that the questioning of the defendant by Officer Radcliff and his partner occurred after the defendant had confessed. Baranowski stated that he saw no blood or bruises on the defendant's face that night. Defendant's statement was not transcribed by a court reporter nor did Baranowski reduce it to a complete writing. He did incorporate notes he had taken concerning the statement into a police report but he did not preserve the notes. He indicated that to his knowledge court reporters were available only in homicide cases.
Wayne Monroe testified that on the evening of the questioning he was never asked to call his mother, although he did have her phone number. He noticed nothing unusual about defendant's face at the time they were transported to the station. The police never told him what the defendant was charged with, nor did they tell him he could be with the defendant during questioning.
Defendant's mother testified that she had left a phone number where she could be reached with her sons. However it was only when she arrived home after work that she learned from Wayne that defendant was in custody. She went to the police station, and when she saw the defendant his lip was cut and bleeding on the inside. She reported this to the police and filled out a complaint form concerning it.
Defendant first contends that his confession should have been suppressed because the State failed to produce, at the hearing on his motion to suppress, all witnesses ...