APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendants, Vincent Bell and Donald Hayes, and their co-defendants, Andrew and Lonnie Hampton, Shelby Ruff and Andre Banks, were indicted for the murder of Joseph Adrian Banks (Joseph) and for aggravated kidnapping and armed violence. Shelby Ruff testified at defendants' trial in return for an agreement with the State to drop all charges against him except for the charge of aggravated kidnapping, which was reduced to simple kidnapping. Lonnie Hampton's case was severed from those of the other defendants. After a stipulated bench trial, Lonnie Hampton was found guilty of murder and sentenced to 25 years imprisonment. Andrew Hampton pleaded guilty to a reduced charge of simple kidnapping and was sentenced to 36 months probation. Defendants Vincent Bell and Donald Hayes and the remaining co-defendant Andre Banks were tried by the court. Andre Banks was found guilty of aggravated kidnapping but, at the sentencing hearing, this finding was vacated and a finding of guilty of simple kidnapping was entered. Andre Banks was sentenced to 36 months probation, the first 6 months to be served in the House of Correction.
Defendant Bell was convicted of murder and aggravated kidnapping and sentenced to 25 years. Defendant Hayes was convicted of aggravated kidnapping and sentenced to 4 years. Both defendants appeal.
Bell contends that (1) he was not proved guilty of murder beyond a reasonable doubt where the State presented no evidence linking Bell to the shooting death of Joseph, and (2) he was denied due process of law and his right to present a defense when the trial judge refused to allow evidence to be admitted that a third party had confessed to the murder of Joseph. Both Bell and Hayes contend that (1) their convictions for aggravated kidnapping must be reversed or reduced to simple kidnapping, and (2) defendants' statements made after their arrests were improperly admitted as the product of an unlawful arrest.
On June 8, 1978, the victim Joseph, age 16, left his home for school. He did not return that day nor the next. On June 9, 1978, his mother filed a missing person's report with the Chicago Police Department. Approximately a week prior to his disappearance, Joseph had been told by his 15-year-old retarded cousin that she had been raped a day or so before. She pointed out the alleged rapists to Joseph.
On Monday, June 5, Joseph, his brother Hosea and a friend named "Doff" rounded up the two alleged rapists and a third man who was a friend of the two rapists, beat them up and drove them to the northwest suburbs of Chicago and put them out of the car.
In a statement given to the State's Attorney's office at the time of his arrest, Bell stated that the people who had been beaten up by Joseph and the others were his cousins Lonnie and Andrew Hampton and their friend Donald Hayes. On the night they were beaten, defendants and the Hamptons discussed getting revenge on Joseph, Hosea and Doff. On Thursday, June 8, Bell went to Westinghouse High School with Andre Banks.
Hayes, in his statement made at the time of his arrest, stated that he and Lonnie Hampton also were present, but that they had been told to remain out of sight until Bell and Andrew Banks caught Joseph. Both Bell and Hayes stated that all four defendants went to the high school specifically to find Joseph in order to beat him up. Bell saw someone he believed to be Joseph. Andre Banks accosted the person and took him into an alley. At this point Lonnie Hampton and Hayes joined the group. Lonnie identified Joseph, saying that he was the one who had kicked his brother in the eye. Lonnie then left to telephone his brother Andrew in order to tell him to bring his car so that Joseph could be taken elsewhere to be beaten up.
Shelby Ruff testified at defendants' trial that at 1:30 p.m. on June 8, 1978, he was in an alley at Fulton and Cicero with his cousin, Andrew Hampton, trying to fix the speakers in a car. Andrew's sister called out to Andrew that he had a telephone call. After answering the telephone, Andrew asked Shelby to drive him to Westinghouse High School. Shelby did not know why he was going there and did not ask why.
When they arrived at the high school, Shelby first saw Lonnie Hampton and defendant Bell. He then pulled the car up next to defendant Hayes, who got into the back of the car. Hayes did not say anything to Shelby. Lonnie told him to drive around to the alley behind the high school. Shelby did so and saw Lonnie Hampton, defendant Bell, Andre Banks and a fourth person whom he did not know. Shelby testified that it was not until the "last minute" that anyone told Shelby that the fourth person was Joseph. Bell said in his statement that by this time he had already hit Joseph once and that Lonnie Hampton had hit him two or three times. Hayes stated that Bell and Andre Banks had been hitting Joseph. Joseph then got into the back seat of the car where he remained for a few seconds when defendant Bell told him to get out. Someone told Shelby to open the trunk of his car and he gave the keys to Andrew Hampton, who handed them to someone else who opened the trunk. Bell told Joseph to get into the trunk and Joseph did so. Bell told Shelby to drive to the intersection of Huron Street and Austin Avenue, which he did with defendant Hayes and Andrew Hampton also in the car. To avoid the suspicion of the police, Bell, Lonnie Hampton and Andre Banks took the "El" to the intersection of Austin and Huron and were there when Shelby arrived. Bell told Shelby to pull the car into an alley between Huron and Superior. Andre Banks remained behind at the rendezvous site.
In the alley a woman was putting her car in a garage, so Bell told Shelby to drive the car around to an alley between Huron and Erie. Near that alley was a vacant house which Lonnie Hampton entered to determine its suitability for their purposes. After finding that the house was satisfactory, Lonnie returned to the car. Joseph was then taken out of the trunk of the car and was taken inside the house by Lonnie Hampton and Bell. Hayes remained outside talking to Andrew Hampton for some time. Andrew Hampton left with Shelby Ruff at approximately 2:45 p.m.
Hayes stated that when Andrew and Shelby left, Bell told him to come upstairs and he did. Lonnie and Bell took Joseph to a room on the second floor of the vacant house. In his statement Bell said that he told Lonnie to do whatever he was going to do because it was not his (Bell's) affair. In response Lonnie began hitting Joseph. Bell joined in and Hayes, who had by then come inside, also begin hitting Joseph.
Bell stated, among other things, that during the beating Lonnie kicked Joseph in the throat and that Hayes hit Joseph 10 to 15 times. Bell stated that he, himself, hit Joseph 25 to 30 times with his hand and with an extension cord which was wrapped around his hand. Bell stated that Lonnie also had an extension cord and that Lonnie later began hitting Joseph with a broken broomstick handle. Bell told the police that Hayes used only his hands and feet to strike Joseph.
Hayes stated that when he reached the second floor room, Joseph, who was sitting on the floor at the time, was then pushed over by Lonnie and Bell, who began kicking Joseph. They told Hayes to go find Andre Banks and Hayes left. When he returned after being unable to find Andre Banks, Joseph was once again sitting. There was no blood, but Joseph's lip was now swollen and he had a knot on his right temple by his eye and another one on his left cheek. They told Hayes it was his turn to work over Joseph. After being told to join in the beating, Hayes answered no and said he wanted out. He told Lonnie and Bell that Joseph had had enough, but they pushed Hayes and told him to kick Joseph. He then kicked Joseph once in the leg and refused to strike Joseph again. Lonnie and Bell pushed Hayes on top of Joseph and Hayes then told them he had to go home and he left. As he was leaving, he saw that Lonnie and Bell had pulled Joseph's shirt up and they were whipping him with a white rope.
Bell stated that Hayes left after an hour and a half. Lonnie and Bell then tied up Joseph, using telephone cords which went around his neck, down to his hands and then to his feet. His hands were tied behind him and a coiled telephone cord was tied across his mouth. After having been in the building for one to two hours, Lonnie Hampton and Bell left, sometime between the hours of 4:30 and 5:00 p.m.
Bell stated that during the beating they were trying to find out the whereabouts of the other people involved in the earlier beating of Hayes and the Hampton brothers. Joseph had given them his uncle's name, his brother's nickname "Scony," some telephone numbers and some addresses. Bell recorded this information by writing it on a door with a felt-tip marker. After writing all the names, he then wrote that everyone involved in the earlier beating would die. At some point Joseph said to them, "[Y]ou have done all this here, you might as well go on and kill me." Bell and Lonnie replied that nobody wanted to kill him, they just wanted to get even.
Hayes stated that Lonnie came to him later that evening and said they had "taken care of" Joseph Banks and that Hayes should not talk about it. Lonnie told Hayes that they had beaten up, kicked around and whipped Joseph. Hayes said he never saw Joseph tied up but that Lonnie told him he and Bell ...