Appeal from the Circuit Court of McLean County; the Hon.
Luther H. Dearborn, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction at bench trial of the offense of aggravated battery. Ill. Rev. Stat. 1979, ch. 38, par. 12-4.
He argues (1) he was deprived of his right to counsel rendering a showup and an inculpatory statement inadmissible, (2) the statement was also inadmissible due to the failure to inform him of his rights, (3) the statement was inadmissible as the fruit of the unlawful showup, (4) when characterized as a confession, the statement was inadmissible for failure of the State to produce all material witnesses to the statement, (5) the showup was unnecessarily suggestive, rendering both the out-of-court and the in-court identification inadmissible, and (6) he was not proved guilty beyond a reasonable doubt. The imposition of a fine is also appealed on the basis that there was no evidence indicating defendant's ability to pay. We affirm both the conviction and the fine.
On September 4, 1980, defendant was charged by indictment with aggravated battery in that he "made physical contact of an insulting and provoking nature with Daniel Katz, knowing Daniel Katz to be a peace officer of the city of Bloomington, while said officer was engaged in the execution of his official duties, by grabbing said officer in a headlock and throwing him against an automobile * * *." (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(6).) On the same day he was also indicted for resisting arrest. (Ill. Rev. Stat. 1979, ch. 38, par. 31-1.) On motion of the State, two informations which had been previously filed charging the same offenses alleged in the indictments were the subjects of a nolle prosequi.
Prior to trial, defendant filed a motion to suppress a statement made subsequent to his arrest and prior to the giving of any rights in accordance with Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The motion was consolidated with the bench trial. Evidence on both matters was taken on February 5, 1982. At the close of the State's evidence, the court denied the motion to suppress, granted a directed verdict for defendant on the charge of resisting a peace officer, and denied a directed verdict on the aggravated battery charge. The defense presented no evidence. The court found defendant guilty of aggravated battery. On March 3, 1982, defendant was sentenced to 24 months of probation, was fined $200 and assessed $70 in court costs to be paid within the first 12 months of the probationary period.
The State's evidence consisted of the testimony of three Bloomington police officers: Kevin Livingston, Russell Thomas, and Daniel Katz. The officers were all called to assist Officer Kaiser at approximately midnight on July 30, 1980, at the Third Ward Club, in the 400 block of South Main Street in Bloomington. A considerable melee ensued during the course of which defendant's brother Alonzo was arrested. When Katz arrived he was requested to assist in escorting Alonzo to a squad car. The latter sought to escape and Officer Katz testified that as Alonzo began struggling someone jumped Katz from behind with a headlock and stated that Katz "wasn't going to f--- with his brother." As he was grabbed in the headlock Katz was swung around until he went down to the ground. The person grabbing him also rolled on the ground and was more or less on top of Katz while holding Katz to the ground. Katz was asked if he rolled into the squad car, or bumped against it, when he went down to the ground. He replied, "Yes, sir, we were right next to the squad car."
Katz' struggle on the ground lasted approximately 30 seconds during which time he could feel people around and fists flying. He was finally able to break loose of the headlock and grab the individual who had a hold of him by the shirt or arm. As they were getting up, Katz kept hold of the individual, who tried to run. He finally was stopped approximately 20 to 40 feet away by Officer Kaiser. Officer Kaiser asked the individual what his name was, and the subject stated that his name was Tommy Jumper. Katz testified that as he was standing by Kaiser's squad car, he had an opportunity to see the person that he had had a hold of and followed to that point. He identified the defendant, Tommy Jumper, and testified specifically that he saw defendant's face and size. On redirect examination, Katz testified that the only physical difference he knew of between Joe Jumper and Tommy Jumper was that Tommy was taller than Joe. Although Katz did not know exactly who said, "You ain't going to f--- with my brother," he also specifically stated that he did not believe it was possible that Joe Jumper grabbed or touched him in any way. Rather, Katz stated that only one person grabbed him, and that was defendant.
On August 20, 1980, Katz heard over the radio that a person by the name of Tommy Jumper was in custody. Officer Rusk had asked the station to check on a warrant for a Tommy Jumper, and while the station was checking Katz radioed to Rusk and told him there was a warrant outstanding. Katz went to the police station and walked into the booking room where Officer Rusk and Tommy Jumper were. Officer Rusk asked Katz if Katz knew the other person. Katz responded that he was the individual that held Katz down at the Third Ward Club. Katz did not ask Tommy Jumper any questions at that time. However, Katz testified Jumper stated that he, Jumper, "did have a hold of me down there at the Third Ward Club, and that he wouldn't have had to let me go, and that I [Katz] could have gotten away from him if I wanted to." No Miranda warnings had been given to defendant.
Defendant and the State also agree to a stipulation which provided that if Officer Rusk were called to testify he would essentially corroborate the testimony regarding Jumper's statement.
• 1 The right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant. People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161; People v. Giovanetti (1979), 70 Ill. App.3d 275, 387 N.E.2d 1071; People v. Faulkner (1980), 86 Ill. App.3d 136, 407 N.E.2d 126, appeal denied (1980), 81 Ill.2d 603.
The warnings or admonitions required under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, had not been given to the defendant at the time of the remark made by defendant in the presence of Katz and Rusk.
• 2, 3 We find that there was no violation of the rule stated in Miranda in admitting the statement of defendant made by defendant during the booking procedure when Rusk inquired of Katz whether the latter knew defendant. The meaning of "interrogation" for purposes of the Miranda rule has been more specifically defined in Rhode Island v. Innis (1980), 446 U.S. 291, 64 L.Ed.2d 297, 100 S.Ct. 1682. It is apparent that there was no express question directed to defendant, but rather his remark was interjected into the conversation between Rusk and Katz. Upon the evidence it cannot be said that the conversation between the officers was the "functional equivalent of interrogation" — a phrase articulated to mean words or actions by the officers which are reasonably likely to elicit an incriminating or exculpatory response by the defendant.
"`Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." 446 U.S. 291, 300, ...