Appeal from the Circuit Court of Cook County; the Hon. Roger
J. Kiley, Jr., Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 1, 1983.
After a jury trial, defendant was convicted of attempted armed robbery and conspiracy but acquitted of murder. The trial court ruled that the conspiracy conviction merged into the attempt conviction and sentenced defendant to a term of eight years for attempted armed robbery. On appeal, she contends that (1) she was denied a fair trial when the trial court gave an erroneous instruction on an essential element of attempted armed robbery; (2) she was not proved guilty beyond a reasonable doubt; and (3) the trial court erred in finding that she knowingly and intelligently waived her right to remain silent in denying her pretrial motion to suppress statements.
At a hearing on the motion to suppress, Officer Malec testified that he and his partner were patrolling on the evening of September 26, 1980, when they heard gunshots and proceeded to an apartment building at 1028 North Dearborn where Phillip DiMaso flagged them down and said a man had been shot inside. DiMaso had seen a man and woman emerge from the building and proceed south on Dearborn. When defendant was stopped as she walked south on Dearborn, she denied knowing anything about the incident. He (Malec) took her back to the scene and DiMaso identified her as the woman he had seen leaving the building, but defendant again denied any knowledge of what had occurred. He then informed defendant of her rights and placed her in a squad car, but no further questioning took place and defendant made no more statements.
Assistant State's Attorney Patrick O'Brien testified that he spoke to defendant at 7 p.m. on September 28, 1980. He read the Miranda rights to her and, after acknowledging understanding of them, she agreed to be interviewed and was questioned for 25 to 30 minutes. During a second 10-minute interview a short time later, defendant was again informed of her rights and agreed to give a written statement which was taken down, transcribed, and typed by a court reporter. Defendant then looked at and initialed each page, made some corrections, and signed the last page. She did not request a lawyer during any of these interviews, no promises were made to her, and there was no misrepresentation of any evidence. Defendant was not subjected to physical abuse and had been allowed to eat and to see members of her family. She did not look tired nor say that she was tired during these interviews. O'Brien acknowledged that defendant had been in custody approximately 48 hours when the written statement was obtained, and that he never asked her if she could read or how much education she had. He denied telling defendant that she would be better off telling the truth or that she was just a witness but admitted that he did not inform her before taking the statement that she might be charged with murder. She was under arrest at the time of questioning.
Investigator Mahon testified that he questioned defendant at about midnight on September 26 after he informed her of her rights and she acknowledged understanding them. She denied any knowledge of the homicide, and questioning ceased while several potential witnesses were questioned. An hour or two later, he again questioned defendant after informing her of her rights, and she repeated her denial. Each of these interviews lasted a few minutes. A short time later, Detective Porter spoke to defendant and reported to him (Mahon) that she had provided some information. During this time, she was in an 8- by 10-foot interrogation room which contained tables and chairs and had Miranda warnings posted on the walls. She was not handcuffed or chained to the wall but had been informed from the time of the first interview that she was under arrest in connection with a homicide. Defendant was placed in the lockup after these interviews and remained there until 6 p.m. the following evening when he interviewed her for 15 to 20 minutes after once more reading Miranda warnings to her, which she again acknowledged understanding. She agreed to answer questions and provided substantially the same information that she had given Porter during a previous interrogation. Shortly after this interview, her mother and stepfather arrived, and he (Mahon), speaking to them outside defendant's presence, informed them that defendant might be involved in a murder. Defendant's mother spoke to her privately and then told him that defendant wished to tell the truth about the incident. He spoke to defendant again in the presence of her mother and stepfather and, because the information provided in this interview differed from that given earlier, he began looking for Gregory Mitchell, who was arrested in connection with the homicide sometime before 5 p.m. on September 28. He (Mahon) was present during each interview that O'Brien had with defendant and corroborated O'Brien's testimony. Defendant's mother was at the station frequently and brought food to defendant. Neither defendant nor her mother requested an attorney, and no promises were made to either of them, nor were there any misrepresentations of the evidence that the police had. Mahon acknowledged that the written statement was taken approximately 48 hours after the investigation began, and that it was his decision to keep defendant beyond two court calls, explaining that she had not yet been charged in the crime and further investigation was warranted. He denied that either defendant or her mother was told that defendant was only a witness in the case and would be released if she detailed her involvement in the incident. However, he did tell her mother why defendant was being held and stated that it would be better for her if she told the truth. Defendant did not ask to speak to a lawyer, nor did she ask to see her mother. He did not recall asking defendant how much schooling she had, but he did ask her if she could read and was satisfied that she understood her rights.
Detective Mannion testified that he participated in the first two interviews wherein defendant denied having any knowledge regarding the incident, and corroborated Mahon's testimony with regard to the warnings given defendant. Defendant never asked for an attorney or to see her mother and gave no indication that she did not want to answer questions. There were no misrepresentations or promises made in exchange for her cooperation. Defendant did not appear tired during the interviews.
Detective Porter testified that he spoke to defendant alone sometime between 1 and 4 a.m. on September 27 at the request of Mahon and Mannion. He informed her of her rights, and she agreed to answer questions after stating that she understood those rights. In the course of this interview, defendant admitted her involvement in the occurrence and provided some information. He spoke to her for approximately one hour, during which she did not ask to see her mother or consult with an attorney. No promises were made to defendant nor was any evidence misrepresented to her.
Johnnie Mae Allen, defendant's mother, testified that when she spoke to Mahon at approximately 6 p.m. on September 27, he assured her that if defendant told the truth she could go home. She told this to defendant and urged her to tell the truth. At that time, defendant appeared tired and sleepy and stated that she was cold and hungry. She went out to get food for her and returned at approximately 9:30 and remained at the station until 3 a.m. During that time, she was allowed to be with defendant whenever she wished. Mahon spoke to her again between 5 and 6 p.m. the next day and urged her to get defendant to tell the truth so she could go home. She then spoke to defendant and once more begged her to tell the truth. Defendant had attended a special school for slow learners and had completed only eighth grade.
Defendant testified that she was taken into custody, handcuffed, and transported to a police station at approximately 9:30 p.m. on September 26, 1980. At midnight she was taken to another station where police questioned her continuously, did not give her anything to eat or drink, and denied her repeated requests to speak to her mother, stating that no phone call would be allowed until she told the truth. She was not allowed to sleep all night because officers kept waking her up to ask questions. She saw her mother during the evenings of September 27 and 28 and was informed that the police promised to let her go if she told the truth. Two officers also told her she was just a witness. She was placed in the lockup during the day but was never given food and was not able to sleep. Defendant denied that the police informed her of her rights during interviews prior to the taking of her written statement, and insisted that she had asked to speak to her mother and told officers that she did not want to answer questions. She further denied making any admissions to Detective Porter, maintaining that she told the police nothing of her involvement in the incident until after her mother told her of the promises made. She did not tell the police that the two men involved were named Cookbey and Joe, but did give them the names of James Holmes and Charles Mitchell after speaking to her mother.
Porter testified in rebuttal that when interrogated during the early morning hours of September 27, defendant did admit her involvement in the homicide and gave him the names of Cookbey and Joe when asked to identify the other participants. Mahon also testified that defendant repeated this information to him during the early evening of the 27th before speaking to her mother. He again denied that defendant was ever told she was merely a witness.
The trial court found that defendant's initial statements to the arresting officer denying knowledge of the incident were made while in custody but before she was informed of her rights and ordered that they be suppressed. It further found, based on the totality of the circumstances, that all other statements made by defendant were voluntarily made after she knowingly waived her rights, and denied her motion to suppress as to them.
At trial, Daniel Sapp testified that he lived in the rear garden apartment at 1028 North Dearborn. At 9 p.m. on September 26, 1980, he was at home playing cards with four other men when the doorbell rang and he pressed the buzzer to open the outer door for his caller. When he opened the apartment door, defendant stepped in and asked if William Duncan had arrived yet. When informed that Duncan was expected but had not arrived, defendant stayed five minutes and left, stating that she would return later. Approximately one hour later, defendant returned and was again admitted through the front entrance, but left immediately after being informed that Duncan still had not arrived. The doorbell rang moments later, and he pressed the buzzer to let Duncan enter. Within two minutes, he (Sapp) heard four or five shots. He stayed in his apartment until police and the building manager, Phillip DiMaso, knocked on the door and asked him to step into the hallway where he saw Duncan sprawled on the floor between the two front doors. Defendant had been to a game with Duncan two days before the shooting, and he noticed nothing unusual about her on the two occasions she came to the apartment on the night in question.
Phillip DiMaso testified that he owns and manages the apartment building where the shooting occurred. It is a four-story, eight-unit building with a single front entrance consisting of a foyer and two doors. The outer door is not locked, but the inner door has an automatic lock which is activated by pressing a buzzer from inside the apartments. Immediately inside the front entrance is a stairway to the upper floors. There are also rear entrances on each of the four floors. He had just arrived with a friend on the night in question and was parking his van in a lot immediately south of the apartment building when he heard three or four shots. He jumped out of his car and ran toward the front of the building where he saw a black man throw something under a vehicle parked in front of the building. A second black man and defendant, whom he had seen in the building on prior occasions, were walking south on Dearborn. The man turned ...