APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of two counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) in a jury trial and sentenced to a minimum of 30 years and a maximum of 90 years for each count to run concurrently. Defendant appeals.
Defendant raises six issues on appeal: (1) whether the court erred in failing to suppress his confession; (2) whether the State's use of its peremptory jury challenges violated defendant's State constitutional right to an impartial jury; (3) whether defendant was denied the right to confront the witnesses against him; (4) whether the court erred in refusing two of defendant's tendered jury instructions; (5) whether the trial court erroneously denied the jury's request for trial transcripts; and (6) whether defendant was proved guilty beyond a reasonable doubt.
Wendell Dixon (defendant) and John Coleman were tried by separate juries during a joint trial for the murders of Barry Beckwith and Warren Jones. Only Dixon is involved in the instant appeal.
The following pertinent facts were adduced at trial. On Friday, April 30, 1976, the bodies of Beckwith and Jones were discovered in an alley at 8641 South Exchange in Chicago, Illinois. Both died of gunshot wounds. One of the bodies was found inside a 1973 Monte Carlo automobile, and the other was found outside of the car. A fired bullet was found lying on the ground next to the car. Four sets of fingerprints and another bullet were removed from the car's interior. On May 1, 1976, a person washing his car found a gun located underneath a car parked down from his own. Later that day Investigator McCabe picked up the gun. A firearms expert testified that the bullet removed from the ground and a bullet removed from one of the victims were fired from the recovered gun. A fingerprint expert testified that one of the impressions taken from the car belonged to Coleman but that none of the impressions belonged to defendant.
Investigator John McCabe testified that on Saturday, May 1, 1976, he went to the home of John Coleman and took him down to the station for questioning. McCabe also went to defendant's home, but he was not there at the time. Defendant's family testified that at approximately 6 p.m. that evening defendant, accompanied by his parents and older brother, went to the station. The State's witnesses testified that defendant was questioned by police officers for short periods of time at least five times during the evening of May 1, 1976. Both Investigators Russo and McCabe and Assistant State's Attorney Haddad testified that they read defendant his Miranda rights. Defendant was not handcuffed at any time. Defendant denied his involvement in the crime in all but the final interview. Investigator McCabe testified that at approximately 9:30 that evening he had a conversation with Coleman after which McCabe, another investigator, Coleman and Coleman's father left the police station and retrieved a gun, later identified as the murder weapon, from an individual who had found it in the alley under a car. After retrieving the weapon McCabe and Haddad, who again informed defendant of his Miranda rights, interviewed defendant. At this time defendant stated that he did in fact shoot Beckwith and Jones; that he and Coleman and another individual named Nixon put up some money to make a marijuana purchase; that there was an attempt or supposed robbery of Beckwith and as a result defendant got neither the marijuana nor his money back. Nixon, Coleman and defendant decided that they were either getting their money or the marijuana, or they would kill Beckwith and Jones. At the time of the murder defendant, Coleman, Beckwith and Jones were in Beckwith's car. They went into an alley at the rear of the 8600 block on Escanaba and argued, and defendant shot Beckwith in the back of the head and then shot Jones as Jones tried to get out of the car. Defendant gave the gun back to Coleman, who hid it underneath a car. McCabe further testified that defendant refused to make a written statement at that time.
William Haddad testified that during the evening of May 1, 1976, and early morning of May 2, 1976, he first spoke with Coleman. After concluding his second conversation with Coleman before a court reporter at 1:45 a.m. on May 2, 1976, he spoke with defendant whose family was with him in the interview room. Haddad advised defendant of his Miranda rights and asked defendant if he wished to speak to him about the homicides. Defendant, responding that he did, asked his family to leave the room. Haddad then brought McCabe into the room. Haddad's testimony and that of McCabe as to defendant's confession corroborated each other. Haddad also testified that he wrote a memorandum with regard to defendant's statement which he later gave to his secretary.
In his defense defendant testified that on Friday, April 30, 1976, he attended classes at Fenger High School until 1 p.m., at which time he went to baseball practice. He practiced with his high school team until 5:30 and then left for home where he arrived at 6:30 p.m. After eating dinner he went to a park where he met his girlfriend and other friends. After 30 minutes he went to his girlfriend's house and stayed there until some time after 10 p.m. Around 11:30 p.m. defendant, his girlfriend, several of his friends, including John Coleman, went to a party where they stayed for two hours. Defendant and his friends then left looking for another party which they never found. Defendant testified he arrived home at approximately 3:30 a.m. on Saturday, May 1, 1976.
Defendant also testified to the events which occurred when he was questioned at the police station Saturday evening. In particular he testified that when he spoke with Haddad and McCabe that McCabe asked his parents to leave the room. After they left Haddad advised defendant of his rights. McCabe then asked defendant if he wished to make a statement, but defendant refused. Defendant testified that McCabe also told him that Coleman had made a statement and that they had the pistol. Defendant denied ever making the statement testified to by Haddad and McCabe. Defendant further testified that McCabe told him to just nod his head and say yes and they would let him go. Defendant then nodded his head and McCabe and Haddad left the room. Defendant further testified that he had been questioned about 7 times by the police while at the station and had denied any knowledge about the murder about 15 times. Defendant admitted to having known Beckwith for about 11 years but denied knowing Jones. Defendant testified that he was handcuffed to a wall while at the police station.
Defendant's mother, father and brother testified in defendant's behalf. None offered testimony to corroborate his alibi. Their testimony was limited to events which occurred on May 1, 1976, and May 2, 1976. They testified that on Saturday, May 1, 1976, they arrived at the police station at approximately 6 p.m. Defendant was interviewed at least seven times during the evening and repeatedly denied involvement in the crime during those times when they remained with him when questioned. They testified further that defendant was handcuffed to the wall when questioned. Defendant's father left the station at approximately 1:30 Sunday morning but his mother and brother remained. At about 2:30 a.m. Haddad told the family to leave the interview room. Defendant was still handcuffed. Haddad and McCabe again interviewed defendant. When they came out of the room McCabe stated that defendant had given them a statement but did not tell the family the contents of the statement. Defendant's mother and brother left the station around 4 a.m. Prior to trial defendant made a motion to suppress the alleged confession he made to McCabe and Haddad. Defendant also moved for a mistrial, contending that the State had improperly used its peremptory challenges to exclude black persons from the jury. Both motions were denied. The jury returned a guilty verdict upon which judgment was entered. Defendant appeals.
Defendant first contends that his confession was coerced and therefore was improperly admitted into evidence. The test to determine whether a confession is voluntary is whether the accused's will was overborne at the time he confessed, for if such is the case the confession cannot be deemed the product of a rational intellect and a free will. (People v. Kincaid (1981), 87 Ill.2d 107, 429 N.E.2d 508.) In making its decision the trial court is not required to be convinced beyond a reasonable doubt that the confession was voluntary. (People v. Medina (1978), 71 Ill.2d 254, 375 N.E.2d 78.) If a trial court finds that a confession is voluntary and has applied the proper legal standard, on review inquiry is limited to whether that finding is against the manifest weight of the evidence. (People v. Kincaid (1981), 87 Ill.2d 107, 117-18, 429 N.E.2d 508, 512; People v. Brownell (1980), 79 Ill.2d 508, 521, 404 N.E.2d 181, 188, cert. dismissed (1980), 449 U.S. 811, 66 L.Ed.2d 14, 101 S.Ct. 59.) That is, an opposite conclusion must be clearly evident. (Ritter v. Hatteberg (1957), 14 Ill. App.2d 548, 145 N.E.2d 119.) Defendant has not challenged the legal standard applied by the trial court, but rather asserts that the totality of the following circumstances surrounding defendant's confession demonstrates its involuntariness: defendant's youthful age; the duration of his interrogation; the lateness of his confession; police requests of defendant's brother, mother and girlfriend to talk defendant into telling what he knew; the absence of family members during police interrogation; and finally the handcuffing of defendant during questioning.
The uncontradicted evidence showed that defendant was 18 years old and was of normal intelligence. Although as defendant asserts he was in custody for at least seven hours prior to his confession, he was not continuously interrogated during that time. He was questioned intermittently for brief periods. Significantly, a 4-5 hour break occurred immediately prior to his confession during which no questioning occurred at all by police. Furthermore, while Sergeant Russo did admit to asking defendant's brother if he "would go over and talk to [defendant] to find out what happened" and to telling defendant "that his mother and brother could talk with him, and he could say anything he wanted to with them," defendant never "confessed" to any member of his family. Additionally, defendant never testified that any of his family members asked him to tell what he knew, but only described his conversation with them as "just talk[ing] casually." The uncontradicted evidence also showed that defendant was not kept in isolation during custody but had access to his family members and girlfriend at all times, except for three or four questioning periods. Furthermore, defendant had been informed of his rights by Haddad.
• 1 Additionally, certain contradicted evidence was before the trial court. While defendant's witnesses testified that defendant had been handcuffed and that his confession occurred at approximately 3 a.m., the State's witnesses testified that defendant had not been handcuffed and that his confession occurred at approximately 1 a.m. Furthermore, while defendant's brother testified that Russo requested him to talk to defendant at approximately 10 p.m., Russo testified the request was made at 8 p.m. Finally, defendant denied making any confession as recounted by the State's witnesses, but testified to merely nodding his head to McCabe's alleged statement, "* * * just shake your head and we'll let you go." When we consider as we must all of the evidence surrounding the making of defendant's confession (People v. Kincaid (1981), 87 Ill.2d 107, 429 N.E.2d 508), including the contradicted evidence, best resolved by the trial court (People v. Medina (1978), 71 Ill.2d 254, 375 N.E.2d 78), which is in the best position to determine the credibility of the witnesses and the weight to be accorded their testimony ...