APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Church, was charged in a 41-count indictment with the murder of Randall May. The cause was tried before a jury simultaneously with the trial of his co-defendant, Billy Joe Coffelt, for which a second jury was present in the same courtoom. Church's jury returned verdicts of guilty on all counts, but judgment was entered only on count I, murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)), and count XXXIV, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2).
The defendant was sentenced to 40 years' imprisonment for murder and 40 years' imprisonment for armed violence, the sentences to be served concurrently. After defendant's motion for a new trial was denied, this appeal of the conviction and the sentences followed. Although we are chary about some of the procedures in this trial, and do not encourage their use, we affirm.
Since the defendant raises evidentiary and factual issues, a review of the facts, as elicited through testimony and evidence, is required.
On August 6, 1979, police, responding to calls of shots being fired in a neighborhood, found the decedent, Randall May, lying on the backporch of the house next to what was later learned to be his residence. He was taken, by ambulance, to a hospital, where he died before he could name his assailants for the police.
Police investigators retraced May's bloody footprints to his apartment; as they did, several pieces of evidence (including a belt, a piece of teeshirt covered with blood, and a beer bottle) were found. Upon entering the house, police officers went into an apartment in which the television was on full volume. The police went into a livingroom-bedroom area of the apartment and found it to be in disarray with blood spattered about. They also found a broken beer bottle and a flashlight lying on the floor in pieces.
As a result of conversations with defendant's babysitter, Hazel Agne, warrants were obtained for the arrest of the defendant as well as that of his co-defendant. Subsequently both were arrested. Defendant's two brothers were also arrested. Several items of evidence were obtained as a result of Coffelt's arrest which linked him to the crime. Defendant was arrested on August 10, 1979, on charges of aiding an escape and concealing and aiding a fugitive in connection with defendant's brother's and Coffelt's escape from a Tennessee prison. The defendant was advised of his Miranda rights at the time of his arrest and also while enroute to the squad car.
The public defender was appointed to represent the defendant. On August 11, 1979, Detective Arnold of the Pontiac Police Department spoke with the public defender by telephone indicating that he wished to speak with the defendant about a murder. The attorney instructed the detective to wait over the weekend until the following Monday.
Detective Arnold made no attempt to speak to defendant but was advised on the day after his conversation with the attorney that the defendant wished to speak to him. The defendant, his brother, in custody as a fugitive, Detective Arnold and Special Agent Lindsey met in an office at the Livingston County jail. Again defendant was advised of his Miranda rights. He stated he understood them and read and signed a waiver form.
Defendant was advised that he had an attorney and was specifically asked if he wanted him called. Defendant replied, "No. I want to give a statement." At no time, however, was defendant apprised of the detective's conversation with his attorney or his instructions that the police not question the defendant.
Church then started to give a verbal account, but the detectives stopped him. They gave him pen and paper and left him alone to write his statement.
In his statement defendant related that he had been invited to a picnic by Carol May, the victim's estranged wife, several days before the murder. Carol had indicated to him that she wanted to talk to him about Randall May, with whom the defendant was acquainted. During the picnic with Carol and some of her friends a discussion occurred about May's parents' attempts to take Carol's child away from her. All present expressed the wish that Randall May die. Carol wanted to collect life insurance proceeds with which she could go to Washington to attend college. The defendant was also told that Randall May had accused him of being a homosexual.
Later in the afternoon, after going to Carol's friends' apartment, more discussion about Randall May's insurance followed. Carol and her friends talked about what they could do with the money. The defendant related that he told them he knew someone who could make Randall's death appear to be an accident.
Defendant went on to state that he then returned home and then to work. Later, he received a call from Randall May inviting him to his apartment. After leaving work Church picked up Coffelt and asked him if he wanted to meet Randall May. Coffelt said he did, so the two drove to May's apartment.
After some conversation at May's apartment Coffelt kicked May in the face, pulled a gun and threatened to kill him. Defendant related that Coffelt took May's motorcycle key from him while defendant looked on from a chair. Defendant then stood up and kicked May once. Coffelt then severely beat May in a brutal and degrading way.
Coffelt then ordered May to put his hands behind his back and told Church to tie them with May's belt. Coffelt, Church stated, devised a plan to burn May in his car. Coffelt then started downstairs with May following, and the defendant behind him holding the belt.
May bolted at the door and defendant began to run to his car. He heard several shots and soon thereafter Coffelt entered the car. They drove to defendant's trailer, where the defendant told his brother what had transpired. The defendant went into the bathroom and washed blood from his hands. At that point the defendant asked his babysitter to lie about the time he had arrived home. He also told her that Coffelt had killed someone and explained about the insurance money. Defendant stated that he did not know that these events were going to occur, but merely intended to introduce Coffelt to May.
Coffelt also gave a statement, but his statement implicated the defendant as the perpetrator of the crime.
A suppression hearing was held at which defendant contended that his statement did not follow a voluntary, intelligent, and knowing waiver of his fifth amendment rights. In denying the motion to suppress, the trial court held that the defendant had initiated the conversation with the police which resulted in his statement. The court noted that the defendant had been admonished of his right to remain silent several times, had remained silent, but had later changed his mind.
The defendants then moved to consolidate their trials. The State objected to consolidation, citing problems which would arise under Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620. Defense counsel suggested that the court could deal with the statements either by a ruling on admissibility or a limiting instruction. The court granted consolidation.
The consolidated cases came on for trial and Coffelt moved to exclude the defendant's statement under the Bruton rule. The State then moved for reconsideration of the consolidation order. Defense counsel argued that he had prepared his case with an eye to the Bruton rule, although in this court he argues that this was not a prime consideration in his objection to severance. He also argued the likelihood that either defendant could be prejudiced if separate trials were ordered and one testified against the other.
The State then suggested a joint trial before two juries. The defense made a weak objection to this procedure and renewed the argument that severance would be prejudicial. However, defense counsel did indicate a preference to a two-jury trial over severance. Although the court expressed reservations, the judge agreed to the procedure because a second judge could not be found so that the cases could be heard separately but simultaneously. The trial court also agreed to the ...