Appeal from the Circuit Court of Cook County; the Hon. Fred J.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 4, 1982.
Following a jury trial, Daniel Underwood (defendant) was found guilty of aggravated battery and attempt murder. He was sentenced to a term of 10 to 30 years in prison. He now appeals.
On appeal, defendant argues that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to prove beyond a reasonable doubt that defendant was legally responsible for his partner's acts; (3) the jury was improperly instructed as to the legal definition of accountability; (4) the trial court should have clarified the jury instruction defining responsibility; (5) the trial court erred in permitting the prosecutor to misstate the law regarding accountability during closing argument; (6) the trial judge gave an improper response to a juror's question during deliberations; (7) the trial court deprived defendant of his right to a fair trial by permitting a juror to remain on the jury after she said she could no longer be fair; (8) the sentence he received for his conviction of attempt murder was excessive; and (9) he was denied his right to a speedy trial because there was a 75-month delay between his arrest and trial.
In the early morning hours of Sunday, April 8, 1973, Curtis Bolton was working at a Clark gas station located at the intersection of Chicago and Kedzie avenues. Bolton noticed two suspicious looking characters in an alley behind the station. Suspecting that he was about to be robbed, Bolton called the police. Chicago police officers Drink and Kanzler promptly responded to the call. When they arrived, defendant and Barney Lonzo entered a building near the gas station. The two officers followed them into the building and ordered them to come down from the first landing. Lonzo leaned over a railing and shot Officer Kanzler with a .45-caliber pistol. Officer Drink called for further police assistance.
Officers Cool, Guido, Colonna and Ferrell responded to Drink's call for help. Defendant and Lonzo entered an apartment in the building through the front door and ran through to the back porch. As Officer Ferrell arrived at the back of the building, he was shot in the face.
Defendant and Lonzo fled into another apartment in the building, in which a family named Young resided. Defendant was found sitting in the bedroom of the apartment. Officer Drink testified that as he approached defendant, defendant positioned himself in a karate stance. The two fought for several minutes until defendant was subdued by another officer, Officer Broderick. Broderick punched and shoved defendant, using his hands, feet, body and handcuffs to control defendant. He claims he did not strike defendant after he was handcuffed.
Defendant was arrested and taken to the 11th District lockup. Approximately one hour after his arrest, defendant was given his Miranda warnings and the questioning began. All of the officers present agreed that defendant did not request a lawyer. They all testified that he was lucid and coherent during the Miranda warnings and questioning and that he did not complain of any pain. According to the officers, defendant confessed that he and Lonzo had planned to rob the gas station.
Defendant gave a more detailed account of the arrest and the events that followed. He testified that the officers patted him down in the hallway of the apartment and then handcuffed his hands behind his back. Once he was handcuffed, Officer Drink turned him around and kneed him in the groin. As defendant bent over from the blow, Drink pushed him to the floor and jumped on top of him. Sitting on his chest, Drink struck him twice in the face with a blackjack.
The officers lifted defendant from the floor and carried him into a bedroom of the apartment, where he was beaten and kicked by a number of officers. One of the apartment dwellers claimed that there was blood all over the floor and the furniture. Defendant claims he was carried out through the front door of the apartment, kicked down the stairs to the ground floor and carried out and put into a squadrol. When he arrived at the police station, he was confronted by three or four officers who kicked him several times. He then was taken inside where he again was beaten.
Defendant stated that he could only vaguely remember plain clothes officers trying to question him. He testified that one officer whacked him across the face with a nightstick. He claims he said nothing to the officers except that he had not done anything. He claims that he requested a lawyer and a phone call, neither which was afforded him.
Defendant made a motion to suppress his post-arrest statement. The trial court denied the motion. Defendant appeals.
First, defendant argues that the trial court erred in denying his motion to suppress. He claims that because the police continued to interrogate him after he had requested a lawyer and because he was beaten to confess, his confession should not have been admitted at trial. The State, on the other hand, maintains that defendant did not request a lawyer after he was given his Miranda rights and that the police did not use force to elicit a confession and that his confession, therefore, was properly admitted at trial. The question of the admissibility of this particular evidence is of vital importance. The statement defendant allegedly made to the police was that he and Lonzo planned to rob a gas station on the morning the shootings took place. The evidence is crucial to the State's theory that defendant should be held accountable for Lonzo's acts. The trial court found that there was sufficient evidence that defendant had been advised of his rights, that he had not requested a lawyer and that his confession had not been elicited by force.
It is well established that police officials may not continue to question an accused person who has requested an attorney. (Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L.Ed.2d 694, 723, 86 S.Ct. 1602, 1628; see Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321.) No statement obtained in violation of this rule may be allowed into evidence as part of the prosecutor's case. Two police officers who questioned defendant at the police station after his arrest, testified that defendant was given his Miranda rights before any ...