Appeal from the Circuit Court of Cook County; the Hon.
Lawrence I. Genesen, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 2, 1983.
Defendant was convicted in a jury trial of murder, attempted armed robbery, two counts of aggravated battery, and armed violence. He was acquitted of attempted murder. His pretrial motion to suppress statements made by him to police officers was denied. After trial, he was sentenced to a term of 30 years' imprisonment for murder, running consecutively to a prior sentence for an unrelated crime; to an extended term of 50 years for armed violence; and to 10 years for attempted armed robbery. The commitment order concluded with the phrase "Sentences to run concurrent." No sentence was imposed on the aggravated battery conviction.
On appeal, defendant contends that: (1) his statement was the product of police deception and, therefore, inadmissible; (2) the jury was improperly instructed on the law of accountability; (3) the conviction for armed violence predicated on the felony of aggravated battery by use of a deadly weapon was the product of improper enhancement; (4) the extended-term sentence was improperly imposed on the armed-violence conviction; and (5) the commitment order is vague and, therefore, the case must be remanded for a more precise sentencing.
For the reasons hereinafter set forth, we reverse the defendant's conviction for armed violence and remand the case for resentencing.
There is no contention that guilt was not established beyond a reasonable doubt and, therefore, the following factual summary is confined to those relevant to the issues addressed.
Defendant and co-defendant, Robert Lowe, were charged by information with armed violence and murder stemming from the shooting death of Edward Kolesiak, with attempted murder, aggravated battery and armed violence based on the wounding of Gerald Erlandson, and with the attempted robbery of Michael Klasnja. The charges were based on an incident occurring on October 21, 1979, when during an unsuccessful robbery of a tavern, several shots were fired, killing Kolesiak and wounding Erlandson, both tavern patrons. The evidence adduced at trial established that both defendants brandished weapons in the tavern, but that the shots had been fired by Lowe.
On October 22, 1979, defendant was arrested and brought to the police station where he was advised of his rights and then interrogated by four officers. The resulting inculpatory statement was the subject of defendant's motion to suppress. At the suppression hearing each participating officer testified. Officer Katalinic testified that he spoke to defendant in the presence of officers Tosello, Hill and DiGiacomo. He knew defendant from a prior criminal case and had a friendly relationship with him. After greeting defendant, Katalinic advised him of his constitutional rights and defendant replied that he understood them. Defendant never indicated that he did not want to speak, nor did he request an attorney.
An issue at the suppression hearing was whether defendant's statement to Katalinic was induced by promises and threats regarding the death penalty. Katalinic denied that he threatened defendant by telling him that if he refused to talk he would be charged with murder or that the State would seek the death penalty in his case. He testified, however, that he told defendant he might be eligible for the death penalty. Precisely, Katalinic stated:
"I said that when a person was involved in a murder while in the commission of a forcible felony, that the death penalty is in order. I didn't refer to * * * shooter or non-shooter. I just said a person, when committing a forcible felony. I didn't break it down to shooter or non-shooter."
Katalinic further advised defendant:
"* * * I said * * * the new law had been written in and while in the commission of a forcible felony someone meets their [sic] death that it could be punishable by death."
Katalinic testified that he knew that the investigation indicated that Lowe, and not defendant, probably was the one who actually fired the fatal shot. He stated that he also knew that under the law, only the "shooter" in a felony murder is eligible for the death penalty. It was after Katalinic discussed the death penalty in the above manner that defendant recounted his involvement in the incident.
Officer Tosello testified that defendant received two sets of Miranda warnings and that defendant never requested an attorney or indicated he wished to cease speaking. Katalinic was the only officer who questioned defendant, the last conversation lasting 45 minutes to an hour and occurring at 7 or 7:30 p.m. Tosello heard Katalinic say "in substance" that "the death penalty was possible for a crime of this nature." He heard Katalinic make no promises to ...