APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Leon Poliquin (defendant) was found guilty of conspiracy to commit armed robbery and the felony murder of John Stojanov. Defendant was sentenced to 15 to 30 years. He appeals. Frank Rayna, a co-defendant, was tried separately and found guilty of attempt armed robbery and murder.
Officer Frank Topfenbaum testified that on March 29, 1974, at 7:32 a.m., he received a call regarding a man shot at the Penguin Laundromat. At the laundromat, he saw defendant and defendant's wife, Patricia Poliquin, behind a counter. Defendant pointed toward the back and said, "`He's there, he's back there.'" The officer testified the office door "appeared to be kicked in" and he saw the decedent on the floor. He stated the "office appeared to be ransacked" and "[t]here were various letters and money bags laying on the floor, and a cash box * * *."
Officer Topfenbaum also testified defendant told him he had received a phone call from Patricia that decedent was shot. Defendant said he went to the laundromat and kicked the door down to see if decedent was all right. Patricia told him the assailant was a tall white male who announced a robbery. Decedent told her to call the police. The decedent and assailant had an altercation in the back. Patricia hid in the bathroom during the shooting. Topfenbaum found four bullet holes in the door and saw a loaded gun on the floor under the table.
Officer Nicholas Schuler testified he saw the office ransacked and the decedent and the gun on the floor. The decedent had approximately $696 in his wallet.
Officer Schuler testified he interviewed Patricia at 8:30 or 8:35 a.m. Defendant was also present. Patricia told Schuler she had arrived there at 7 a.m. At 7:30 she heard decedent arguing with someone and someone called to her, "Come over here I will blow your brains out." She saw a white man, about 6 feet tall and 200 pounds, with a gun. The man ordered them toward the back of the store. Decedent opened the office door and turned on the light as instructed by the man. The man stood in the doorway of the office. Then decedent turned around, turned off the lights, and tried to close the door. Patricia heard a shot, hid in the bathroom, heard more shots, and then heard nothing. She called defendant and said decedent was shot. Defendant told her to call the police and he would come over.
Officer Schuler also testified defendant told him he received a call from Patricia at 7:25 a.m. She said decedent had been shot. Defendant went there and told Patricia to call the police. He went to the back and found the office door locked. He kicked in the door. At that time police arrived.
Investigator Edward Adorjan testified that on March 29 he went to the Poliquin residence and had a conversation with them. Then Patricia voluntarily went for a polygraph test at 11th and State. Defendant and Adorjan waited in the lobby. Defendant told the officer, "I know that she is going to fail * * * I know that she is going to fail because we know what happened." Defendant said he would rather tell what happened to Sergeant John DiMaggio.
Sergeant DiMaggio testified that on March 29 he went to the Poliquin home. Defendant and Patricia left with Officer Adorjan so Patricia could take the polygraph tests. DiMaggio did not leave with them. Later he had a conversation with defendant and Patricia. Defendant asked if DiMaggio believed defendant was the murderer. DiMaggio told him he "did believe that he committed the murder." He read defendant the Miranda warnings.
DiMaggio testified defendant "stated immediately that his nephew Frank Rayna was the one that perpetrated the crime and killed the man in the laundromat." Defendant said that on March 28 Rayna visited him and showed him a .357 Magnum pistol. Defendant told him Rayna said, "I'm busted, and I need a score. I have to make money." Rayna stated defendant responded, "I know a place in the area that you could hit, but specifically a laundromat where my wife works and it's an easy score. An old man who'll give you the money right away." Defendant continued that he and Rayna went out together and defendant pointed out the laundromat to Rayna. It was less than a block from defendant's house.
Rayna slept at the Poliquin residence. Defendant awakened him around 6 a.m. Rayna left, but returned because the door was locked at the laundromat. Rayna and Patricia left a little after that.
The defendant also said that shortly thereafter Rayna returned and left the gun at defendant's house. Rayna told defendant he was in trouble because he "shot the man and the man was reaching for a gun or something * * *." Defendant hid the gun in the bedroom closet. Defendant then went to the laundromat because Patricia had called. Defendant wanted to help decedent and in so doing broke down the door. Defendant also told Patricia to call the police. Rayna also told defendant there was no mention of money preceding the robbery. Defendant was charged seven to ten days after these events. Defendant asked DiMaggio "not to fault his wife for telling lies to the police because he told her to lie to police to protect the nephew * * *."
DiMaggio testified Patricia also gave him a statement. He said, "Her statement * * * was in complete agreement with [defendant's] statement * * *." She said she had told the officers the truth about the murder when she was previously questioned but she omitted to tell them the perpetrator was her nephew and she had given a fictitious description to protect her nephew.
DiMaggio also testified defendant told him the weapon was in his house. DiMaggio went with defendant and another officer to defendant's house. Defendant gave the police a .357 Magnum pistol and six shell casings. DiMaggio testified defendant allowed two officers to spend the night at his house for the purpose of arresting Rayna if Rayna should return.
Phillip DiMarzio, assistant State's Attorney, saw defendant and Patricia at 8 p.m. on March 29, 1974. He advised them of their Miranda rights and asked them if they understood these rights. He stated, "Both Mr. Poliquin and his wife indicated that they did wish to answer questions and give up their rights under the Miranda ruling." Defendant told the attorney the same story he had told DiMaggio. Defendant also stated he told Rayna there was a lot of money in the back of the laundromat. Defendant also said he examined Rayna's gun and twirled it on his finger. He said when Rayna returned from this first trip to the laundromat, the laundromat had been closed. Defendant told DiMarzio he told Rayna to wait until it opened.
DiMarzio said defendant's written statement was typed, and defendant signed the statement. He also said he told defendant when he was signing the statement if he wanted to read the statement again to take as much time as he needed. He also "asked him to make any corrections in the statement that he thought should be made, as far as accuracy." Defendant "made one correction in it * * * a letter or word that had been left out." At one point defendant said to DiMarzio, "There's no way that I can be charged in this case, is there?" DiMarzio told him he "could make no promises at all in that regard."
Officer Ernest Warner, a firearms examiner, tested the gun found in defendant's house. In his opinion, the expended cartridges recovered from the scene and the body of deceased were fired from that gun.
Frank Rayna, 18 years old at the time of the occurrence, testified that on March 28, 1974, he called defendant and told him he bought a gun. Defendant asked if Rayna wanted to bring it over because he would like to see it. At defendant's home, he and Rayna went into the bedroom where Rayna showed defendant the gun. Rayna testified defendant "played with" the gun. Defendant asked him "how I was for money." Rayna said he "didn't have too much." Defendant "said he knew how I could make some money." Rayna testified, "He told me that we could do a stickup at the laundromat, but that he couldn't go in because he knew the owner there."
Defendant and Rayna walked to the store. Defendant pointed out the laundromat and said "there was a guy there who had a lot of money" and who "had been robbed several times before." He continued, "More or less, he was an easy hit."
When they returned, "Leon [defendant] started going into details on how to do the robbery." Defendant said Rayna was to "go in and announce it's a robbery, hold the gun out of eyeshot from the street * * *, take him to the back * * *, get the money and leave." Rayna stated Patricia told him that the "money was kept in this box, and to be careful * * *, the owner had a gun." Patricia "penciled out on a piece of paper, more or less, the layout on where the money was kept on this desk."
Rayna also testified he took LSD on March 28. He spent the night at the Poliquin home. Defendant awakened him at 6 a.m. At the laundromat, Rayna saw the owner and found the door locked. He returned to the Poliquin residence. Defendant said to wait until Patricia went to work.
Rayna testified Patricia left around 7 a.m., and Rayna left for the laundromat 5 to 10 minutes later. He saw a policeman at the laundromat and waited. When the officer left, Rayna went in, "pulled the gun out of [his] pocket," and announced "a stick up." Decedent told him to get out because he was going to call the police. Decedent told Patricia to call the police. Rayna told her to "freeze." Rayna stated he told decedent to "open up the office, and he said he couldn't find the keys." Decedent "started looking around for these keys and Patty saw them over on the counter, picked them up, and handed them to him." At the back near the office Rayna told Patricia to turn on the lights "and at the same time the owner of the store was opening the door of the office." Patricia was "still messing with those light switches * * * and made one step towards us and he produced a pistol." Decedent pointed the gun at Rayna. Rayna testified he "yelled something at him, and then firing started, and I slammed the door and fired some more, and ran." Rayna didn't know if decedent fired a shot.
Rayna took a route back to defendant's house that defendant had selected the night before. Rayna told defendant he had no money and decedent had "pulled a gun" on him. Defendant said to "just get upstairs and get in the house." Defendant left for the laundromat and returned 45 minutes later. Rayna had put the gun in a drawer, but defendant put the gun in a closet. He then left to go to the police station with Patricia. Defendant told Rayna "to keep my mouth shut and don't call and tell anybody about this * * *." Rayna saw defendant and Patricia again at 12 o'clock that day. Defendant gave him money for a cab, and he left.
On March 30 at 12 a.m., Rayna went back to the Poliquin residence and was arrested. He made a written statement and was charged with attempt armed robbery and murder. He was convicted.
On cross-examination he testified he had just lost his job. He did not tell defendant he needed to score. Rayna stated he made a deal with the State. At his own trial he stood mute on stipulated facts in return for a sentence of 14 years rather than 20. The agreement also included testimony against defendant.
Defendant testified that on March 28, 1974, Rayna called him, said he bought a gun, and wanted to talk to defendant. Later Rayna went to the Poliquin residence and carried the gun in a shoulder holster. He said he borrowed $75 to buy it and he needed it to make some money because he was broke. Defendant told him he could not give him the money he needed. Rayna told defendant there was a tavern or liquor store he wanted to rob. Defendant refused to rob it with him. Rayna said it would be "nothing" and defendant replied the owners or bartenders are armed and there would be police inside. Defendant testified he made it clear to Rayna he "wasn't going to commit any robberies with him." Defendant said, "If you're going to rob something, pick something easy * * * such as a grocery store or laundrymat [sic] * * *."
Defendant testified he took the dog for a walk and Rayna went with him. When they approached the laundromat, Rayna asked him, "[I]s that * * * the type you were talking about?" Defendant answered, "Yes." Rayna said he would rather hit a tavern. Defendant told him, "whatever you do, I don't want nothing to do with it. I don't want to know anything about it, you know, just nothing." He also said he did not want Rayna "doing anything" in the area because he lived there.
Defendant testified Rayna wanted to spend the night and asked defendant to call him at 6 a.m. He did not say why he wanted to be awakened at 6 a.m. and defendant "did not ask." At 6 o'clock Rayna told defendant he was going to rob a laundromat. Defendant testified, "I told him if you are going to do it, do it now or do it early." Patricia, he stated, was going to work there a little later and he "didn't want her involved." ...