Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendants, William Carr and Carol Lumpp, were charged by information with murder and conspiracy. Lumpp waived her right to trial by jury, and after a bench trial, was found guilty of the offenses charged and sentenced to a term of imprisonment of 25 years. Carr was tried simultaneously by a jury and was also found guilty of both offenses. He was sentenced to a 40-year term of imprisonment.
Each defendant admitted a role in the October 26, 1978, shooting death of Richard Bernoski in separate written statements which were received into evidence at trial. Each argues on appeal that the trial court erred in denying his motion to suppress his statement because the State failed to prove it voluntary and because the statement was the fruit of an illegal arrest. Both motions raised these two issues.
Each defendant argues that the prosecution failed to prove his statement was voluntary because it failed to produce all material witnesses connected with the taking of the statement or to explain their absence at the hearing on his motion to suppress statements. Carr argues that the State failed to produce or explain the absence of four material witnesses: Assistant State's Attorney Julia Nowicki and Chicago police officers Spinks, Savage and McCabe. Lumpp makes the same argument as to Spinks and Spinks' partner.
When the voluntary nature of a statement is brought into question by a motion to suppress, the burden of proving that it is voluntary is assumed by the State. (Ill. Rev. Stat. 1979, ch. 38, par. 114-11(d); People v. Armstrong (1972), 51 Ill.2d 471, 475-76, 282 N.E.2d 712.) The State discharges this burden by producing all material witnesses connected with the taking of the statement or by explaining their absence. In re Lamb (1975), 61 Ill.2d 383, 389, 336 N.E.2d 753, cert. denied (1976), 425 U.S. 938, 48 L.Ed.2d 180, 96 S.Ct. 1672; People v. Armstrong (1972), 51 Ill.2d 471, 475-76.
If the State fails to call a material witness, the defendant must object in the trial court or the matter is waived for purposes of appeal. (People v. Clay (1981), 98 Ill. App.3d 534, 541, 424 N.E.2d 814; see Ill. Rev. Stat. 1979, ch. 38, par. 114-11(d).) Thus, since Carr did not object to the failure of the prosecution to call Officer McCabe as a witness at the hearing on his motion, he may have waived any requirement that the prosecution produce McCabe. Carr, however, did object at the hearing on his motion to the failure of the prosecution to produce Assistant State's Attorney Nowicki, who took his written statement. Although the State correctly points out that Carr did not testify at the hearing that Nowicki coerced him in any way or that she was present during acts of coercion, Carr did testify that she ignored his request to call his attorney. The State responds to this by referring to Nowicki's trial testimony that Carr never asked her if he could call an attorney.
Notwithstanding any error in the failure to produce McCabe or Nowicki, we believe that the trial court erred in failing to suppress the written statement of each defendant, because Officer Spinks was a material witness connected with the taking of both statements, and his absence was not adequately explained.
Evidence at the hearings on the motions shows that Chicago police officer Hans Heitmann and two other officers located Carr and Lumpp in a room at the Acres Motel in Chicago during the evening hours of November 12, 1978. From there, defendants were taken to Area Six Homicide Headquarters. According to Heitmann, they arrived there shortly after 9 p.m. Lumpp and Carr were placed in separate interview rooms.
The prosecution produced the testimony of two witnesses to establish voluntariness at each defendants' hearing: Heitmann and Chicago police officer Lawrence Flood. Assistant State's Attorney Nowicki also testified in rebuttal at Lumpp's hearing. These witnesses, however, did not testify as to the period of time between when Heitmann went off duty at approximately 12 a.m. on November 13, 1978, and when Officer Flood first saw each defendant at approximately 9:30 a.m. on that date. Lumpp made her written statement at approximately 6:15 p.m. on that date, and Carr made his written statement at approximately 8 p.m. on that date.
At the hearing on his motion, Carr gave the following testimony as to the time not accounted for by the prosecution witnesses. At approximately 10:15 p.m. on November 12, 1978, certain officers left the room he was in. Before doing so, an officer handcuffed him to the wall and to the chair in which he was sitting. No one entered the room until 1:30 a.m. on November 13. At that time, Officers Spinks and Savage entered the room. Spinks told Carr that the police knew that he knew something about Bernoski's death. Spinks accused Carr of being an enforcer for one Colini, and told Carr that if he did not cooperate with him, "he would let Detective Dave Paul in on [him]." At this time, Spinks opened the door and Carr saw Paul. According to Carr, he had had a heated argument with Paul the previous September, and Paul had told Carr to stay away from a certain woman and threatened him with physical violence and jail if he did not. Carr also asked Spinks if he could call his attorney, and, in response, Spinks became angry and told Carr that he had better start cooperating. Carr's conversation with Spinks lasted approximately an hour, and he was handcuffed during the conversation. Although Officer Savage left the room on a couple of occasions, Spinks remained in the room during the entire conversation. Spinks and Savage left Carr's room at approximately 2:30 a.m., and it was not until approximately 10:30 a.m. that another police officer entered Carr's room. During that time he was handcuffed.
At the hearing on her motion, Lumpp gave the following testimony as to the time not accounted for by the prosecution. Approximately one-half hour after she last saw Officer Heitmann, a police officer named Spinks entered the room with his partner, whom Lumpp was unable to name. Spinks and his partner left the room, returned with some coffee for Lumpp, and questioned her. When Lumpp asked them if she could call her attorney, Spinks refused her request, shouting, "Quit the bullshit, quit beating around the bush." Lumpp began to cry. She persisted in her request for an attorney, and Spinks told her that if she cooperated, she would "get a pass." She understood this to mean she would not be charged. Lumpp spoke with Spinks three or four times over an eight-hour period. She continued to ask for her attorney, and he continued to tell her that if she cooperated with the police and told all that she knew, she would not be charged with murder. Spinks also told her that she would be his number one witness, that she would receive protective custody, and that he would help her get a "fresh start." Lumpp also testified that: at this time her face was noticeably swollen from a toothache; that she asked to use the washroom; that Spinks at first denied this request but later relented; and that when she complained of stomach pains, he brought her coffee and continued the questioning. Lumpp last saw Spinks at approximately 8 a.m. At this time, he said that she would be his number one witness and that she would be released after she retold her story to another investigator.
The State argues that Officers Spinks and Savage *fn1 were not material witnesses to the defendants' statements. As to Carr, the State notes that Carr testified that Officers Spinks and Savage only spoke to him from 1:30 a.m. until 2:30 a.m. on November 13, and that Carr made his statement much later that day. Thus, according to the State, their alleged threats did not play a part in procuring Carr's confession. We observe, however, that Carr testified that Spinks not only threatened to let another police officer "in on me," but also Spinks denied his request for his attorney. *fn2 As to Lumpp, the State argues that Spinks and Savage did not play a significant role in procuring her statement, because she only made her statement because she feared Carr would incriminate her. Lumpp testified at the hearing on her motion that she spoke to Spinks three or four times over an eight-hour period which ended at approximately 8 a.m. on November 13. She testified that during that time, Spinks shouted at her, refused her requests for an attorney, and told her that if she cooperated with the police she would not be charged with murder.
• 1 Clearly, Officer Spinks was a material witness to the statement of each defendant. A witness may be material even though he was not present when the statement involved was made. (People v. Armstrong (1972), 51 Ill.2d 471, 476.) Further, the determination of whether a statement is voluntarily given depends upon the totality of the circumstances. (In re Lamb (1975), 61 Ill.2d 383, 388; People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731.) Although Spinks was not present when the written statements of defendants were taken, his questioning of each defendant was a significant part of the totality of circumstances leading to each statement, and he should have been produced at the hearings ...