Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Calvin R. Stone, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1982.
The circuit court of Peoria County acquitted defendant, Gary Willingham, of two counts of murder but convicted him of attempt (armed robbery) and sentenced him to a determinate term of 15 years in the Department of Corrections. The appellate court reversed the judgment of conviction, holding that the evidence corroborating defendant's confession to attempted armed robbery was insufficient to support his conviction of that offense. (92 Ill. App.3d 1101.) The issues on appeal are: (1) Was defendant's confession sufficiently corroborated to sustain defendant's conviction of attempted armed robbery? (2) Were defendant's statements to the police fruits of an illegal arrest? and (3) Did defendant's sentence constitute an abuse of discretion by the trial court?
Defendant testified to the following events at trial (a previous trial ended in a mistrial). On the evening of June 4, 1979, Glenn Patton visited defendant at his apartment, which he shared with Mary Jamison. Patton informed defendant that he, along with David Thomas, was going to steal drugs from Gregory Sargent in retaliation for Sargent's sexual advances toward Betty Balestri. Defendant told Patton he wanted no part of such a plan. Patton and defendant then left the apartment and drove in separate cars to the home of a friend, Tracy Lorenz, left there after a short visit, then drove separately to the apartment of David Thomas. Defendant drove a gold Camaro he borrowed from Mary Jamison. According to defendant, Patton and Thomas discussed stealing drugs from Sargent. Defendant stated, as he had done earlier in his apartment, that he was unwilling to participate in the scheme and left Thomas' apartment alone, driving the gold Camaro. He testified that he went to see Sargent, a friend, in an attempt to resolve the Balestri situation. On his way from the parking lot to Sargent's apartment, he passed William Lininger. Defendant stated that he was in Sargent's living room discussing the matter when a knock sounded at the door. He heard a "bump" and a shot and subsequently discovered Sargent lying in the hall. He added that he became scared, ran downstairs and out of the building, where he encountered Patton and Thomas in the parking lot, whereupon the three of them left in Patton's car. According to defendant, Patton stated that Thomas had shot Sargent. Thomas said it was an accident, and the two of them convinced defendant to dispose of the .32-caliber gun with which Sargent was shot.
William Lininger testified that in the late evening of June 4, 1979, he saw a gold or rust-colored Firebird or Camaro enter the parking lot of the Green Briar Apartments, where he and Sargent resided. Lininger then went outside and passed a black male walking from the parking lot to the apartment building, and they exchanged pleasantries about the weather. Subsequently, he observed two black males, one of whom he testified was the same man he saw earlier, exit the building, look up at some windows, and re-enter the building. A short time later, Lininger heard a "pop noise" and saw two black males, whom he could not recognize, running from the building. Lininger then entered the building, at which time he observed a van pull into the parking lot. A young white male left the van and went into the building. Shortly thereafter, this same man ran outside, talked to the driver of the van, then came back inside and told Lininger that Sargent had been hurt. At that point, Lininger saw the victim lying in the hallway and he called the police.
One of the responding officers found a .32-caliber casing and a safety mechanism near the victim. A search of the Camaro automobile revealed only, after a license plate check, that its owner was Mary Jamison. Another officer who arrived at the scene was told by the victim, Sargent, that he opened his apartment door and was shot by two men wearing stockings over their heads. The officers discovered various drugs at the scene, but found no prints of defendant.
On June 5, 1979, Lininger disclosed to police essentially the same information he subsequently related at trial. On the morning of June 9, police visited Mary Jamison at her apartment. She told them defendant left in her gold Camaro on the evening of June 4, and that he had not returned it until early the next morning. She further stated that she discovered a nylon stocking, knotted at the top, when the car was returned. Jamison also said that defendant owned a gun that looked like the .25 automatic in a picture shown to her by the police. Officer Haskins, one of the policemen who visited Jamison, testified at the suppression hearing that when the police were at the Jamison apartment she told them defendant might have placed the gun in his waistband on Monday, June 4.
At approximately 12:45 p.m., following the visit with Jamison, police effected a warrantless arrest of defendant outside his apartment. Shortly thereafter, a consent search of the gold Camaro revealed a nylon stocking and a pair of men's pants with blood on the right pocket. At a lineup later that afternoon, Lininger was unable to identify defendant as the man he saw on the night of the offense. Later that evening, after being given his Miranda warnings, defendant agreed to speak to the officers. He first denied any involvement, but then stated that he was visiting Sargent on the night of June 4 when the victim answered his door and a "bump" and shot followed, whereupon he panicked and ran to the home of Tracy Lorenz.
On June 10, 1979, upon further interrogation, defendant offered the following confession. He stated that Patton, Thomas and he planned to rob Sargent of cocaine in retribution for Sargent's sexual advances toward Balestri. Defendant was to knock on the door and when the victim opened it, defendant would be knocked down by his companions, who would then rob the victim using an unloaded gun. Defendant stated he had disposed of the gun in a nylon stocking. The gun was ultimately discovered by the police with defendant's assistance. At trial, defendant attributed the confession to his being tired and his belief that the police would not otherwise "leave [him] alone."
We note that the State, in the appellate court, argued that defendant had waived the question of whether the confession was corroborated because of the defendant's failure to include it in his motion for a new trial. The appellate court ruled against the State on the issue under authority of Supreme Court Rule 615(a) (73 Ill.2d R. 615(a)). However, the State has not raised the waiver issue in its petition for leave to appeal or in its briefs before this court. Accordingly, we will discuss the merits of the corroboration of defendant's confession.
The State argues that the independent evidence corroborated defendant's confession, thereby demonstrating its truthfulness. It further maintains that the corpus delicti can be established, and the confession rendered trustworthy, even in the absence of independent evidence that a crime occurred. We disagree. A careful reading of the cases reveals that in order to establish the corpus delicti and the necessary trustworthiness to corroborate a confession, there must be some evidence, exclusive of the confession, tending to show that a crime did occur. It is axiomatic that, in order for a conviction based on a confession to be sustained, the confession must be corroborated. (E.g., People v. Holmes (1977), 67 Ill.2d 236, 240, citing People v. Norcutt (1970), 44 Ill.2d 256, 263; People v. Melquist (1962), 26 Ill.2d 22, 28.) The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession "may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past." Smith v. United States (1954), 348 U.S. 147, 153, 99 L.Ed. 192, 199, 75 S.Ct. 194, 197. Accord, People v. O'Neil (1960), 18 Ill.2d 461, 464.
In this State, the corroboration requirement is satisfied by proof of the corpus delicti. The corpus delicti is not required to be proved beyond a reasonable doubt exclusively by evidence independent of the confession, nor must it be established by evidence other than that which tends to connect the defendant with the crime. (People v. Perfecto (1962), 26 Ill.2d 228, 229; People v. O'Neil (1960), 18 Ill.2d 461, 463; People v. Lueder (1954), 3 Ill.2d 487, 488.) Although various criteria have been set forth for what is necessary to establish the corpus delicti, we believe the most precise explanation was given in People v. Perfecto (1962), 26 Ill.2d 228, 229, where this court stated:
"`The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. (People v. Borrelli, 392 Ill. 481.) The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. People v. Brown, 379 Ill. 262.' People v. Gavurnik, 2 Ill.2d 190, at 194." (Emphasis added.)
Thus, in establishing the corpus delicti, there must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt ...