APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, who was charged by information with the offenses of murder and armed violence, was convicted of murder and sentenced to 20 years imprisonment. Defendant later filed a post-conviction petition alleging that she suffered a denial of constitutional rights at her trial. The trial court denied this petition, which was filed under section 72 of the Civil Practice Act rather than the Post-Conviction Hearing Act. Both appeals are consolidated for our review.
Defendant contends that (1) she was not proved guilty of murder beyond a reasonable doubt; (2) the trial court erred in not suppressing her post-arrest statements; (3) the trial court improperly admitted certain evidence in violation of Supreme Court Rule 412(a)(ii); and (iv) the trial court incorrectly allowed the State to question defendant about, and comment on defendant's failure to tell the police, before she was arrested and received her Miranda warnings, that she killed the deceased in self-defense. *fn1
On August 10, 1978, Eliza Williams was shot three times and killed in her home. Her friend, Gwendolyn Ferguson, was charged with murder and armed violence. The relevant testimony at the suppression hearing and the trial follows.
I. Hearing to Suppress Defendant's Pretrial Statements
Sergeant Timothy Tidmarsh stated that at approximately 10 p.m. on August 14, 1978, he responded to a call of a woman who wished to turn herself in to the police. He proceeded to a restaurant on South Halsted Street where he met defendant. In response to his questions, she said that she had called the police and was wanted for the murder of Eliza Williams. Tidmarsh read her the Miranda rights and asked if she wished to make a statement. She replied that she did not. At about this time, Officers Maxwell and Van Shaik arrived at the restaurant and took defendant into custody.
Officer Maxwell testified that when he arrived at the restaurant, he saw Tidmarsh speaking to defendant. He further testified that he remained at the restaurant for 5 to 10 minutes and then transported defendant to the Fifth District station. It took 5 to 10 minutes to make the trip. After his arrival, he wrote an arrest report. He remained at Fifth District for 15 minutes and then transported defendant to Area Two Homicide. This trip took approximately 15 minutes. His testimony indicated that approximately 50 minutes elapsed between his arrival at the restaurant with Van Shaik and their arrival at Area Two Homicide. Maxwell stated that he could not recall if defendant appeared to have been drinking that night but admitted that he had typed up an arrest report indicating that she had.
Investigator Dennis Banahan stated that at approximately 11 p.m. on August 14 he was in Area Two Homicide in an interview room with defendant. He spoke to the arresting officers Maxwell and Van Shaik, who advised him that defendant had said she was wanted for the murder of Eliza Williams but that she had then stated that "she didn't want to make any further statement there." Before speaking to defendant, Banahan telephoned Sergeant Tidmarsh, who told him that defendant did not want to make a statement in the restaurant.
Banahan further testified that he advised defendant that he was an investigator with the homicide section. He gave her the Miranda rights and explained them to her. Defendant said that she understood. He stated that she appeared sober and that the arresting officers did not tell him that she had been drinking. After asking her if she wanted to tell him about the murder of Eliza Williams and receiving an affirmative reply, he interviewed her for 15 to 25 minutes. During this time she gave an oral statement. He then left the room, returned with an Assistant State's Attorney, and asked defendant if she would give a written statement. She refused to do so, stating that she thought it would be better to speak to a lawyer before giving a written statement. Banahan admitted that even after she requested counsel, he continued to question her concerning her oral statement.
After hearing the testimony and argument, the trial court held that the statements made to Tidmarsh in the restaurant were admissible because they were not the result of custodial interrogation. The court further ruled that the admissibility of the answers defendant gave to Banahan's questions after she told Tidmarsh that she did not wish to make a statement depended on the "persistence of the questioning, perhaps use of subterfuge." The court held:
"From all I can gather from the testimony as I heard it here, the defendant very readily answered the questions of Officer Banahan as to the oral statement, and there appeared to be no coercive methods used at all. Accordingly, the motion to suppress the statement will be denied."
Additionally, the court stated that since the State had agreed not to use statements given after defendant expressed her desire to obtain a lawyer, no order would be entered concerning those statements.
Michael Williams, the victim's brother, testified that at 3:35 p.m. on August 10, he and his sister, Gail Campbell, went to visit Eliza Williams at her home on South Wallace Street where Eliza, defendant, and their respective children lived. No one answered the doorbell and the doors were locked. Michael then opened up the screen door through a slit in the screen and he and Gail entered the house. They went to Eliza's bedroom and found her lying on the bed. He thought that she was asleep and called out her name. Receiving no response, he shook her arm and then noticed that there was blood on his hand. He told Gail to call the police. While she was calling the police, he looked under Eliza's mattress for a gun that he knew she kept there. He also was aware that she kept an automatic gun in a dresser drawer. Finding no gun under the mattress, he looked under her bed and found it. He picked it up with a plastic bag, opened the chamber and noticed three empty cartridges. He then replaced the gun under the bed.
Michael and Gail then checked the house to see if anyone was there. They saw no one, but did find some coins lying on the floor near the back door. The police arrived approximately 10 to 15 minutes later.
Michael further testified that on August 14, defendant telephoned him and asked to speak to Eliza. When he told her that Eliza had been badly hurt, she replied that she was going to "catch the next bus and come over there."
Defendant's attorneys objected to this testimony, contending that the State had failed to include this oral statement in its answer to discovery and that the conversation was prejudicial to the defense theory of self-defense. Defense counsel moved for a mistrial. In denying this motion, the trial court held that the State was not required to furnish every oral statement made by defendant and, furthermore, that the defense objection was untimely because it was made after the witness had answered.
Michael concluded his testimony by stating that defendant and Eliza had lived together for 10 years and at the South Wallace premises for two years.
Gail Campbell, Eliza's sister, testified to substantially the same circumstances as Michael. Additionally, she stated that on August 9 she saw Eliza with defendant's medical eligibility card. Eliza told her that she would be returning the card to defendant the next day. On August 10, after Eliza's death, Gail examined Eliza's purse but was unable to locate the card.
Officer Edward Barkowski testified that when he arrived on the scene, he observed Eliza lying on the bed with bloodstains on her right side. He also saw a gun underneath the bed. When he inspected the body of the deceased, he saw apparent gunshot wounds in the right side of the jaw, the right outer arm, and the right side of her chest. Further, he observed hair curlers, cosmetic jars, several pins, a wallet, coins, a hairpin, and a utility bill on the bed.
Investigator Dennis Banahan testified that at approximately 4:10 p.m. on August 10, he and Investigator Thomas McKenna were assigned to the fatal shooting of Eliza Williams. When they arrived at the South Wallace address where the incident had occurred, they examined the scene and spoke to Eliza's brother and sister. Banahan observed Eliza lying across the bed in the rear bedroom and noted two apparent gunshot wounds, one to the right cheek and the other through the right arm. He also noticed coins on the bed next to the victim and at the back door. He further testified that Michael had found, in addition to the gun under the bed, a .25-caliber automatic in a drawer on the right side of the dresser in the bedroom. It contained three live rounds in the magazine and one live round chambered.
Banahan further testified that on August 14, Michael informed him that defendant planned to come to the victim's home. After receiving this information, he went to the South Wallace address. Defendant was not present because she had left to go to the store. While Banahan was waiting for her to return, his office informed him by telephone that a woman had turned herself in for the murder of Eliza Williams. He then proceeded to the Area Two Homicide office, arriving there about 11 p.m., and saw defendant with the arresting officers, Maxwell and Van Shaik. After interviewing the officers, he went into a room, introduced himself, and advised defendant of her constitutional rights. She agreed to answer questions.
According to Banahan, defendant initially stated that she had been having an ongoing argument with Eliza concerning sharing expenses for the house on South Wallace Street; that when she went to the South Wallace home she had not been there for three weeks; that she returned there to pick up from Eliza a medical eligibility card which she needed to obtain her public aid check; that after obtaining the check, she returned to the house and she and Eliza began to argue about sharing of expenses; that the argument turned into a physical altercation and Eliza reached under the ...