Appeal from the Circuit Court of Cook County; the Hon.
Theodore M. Swain, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ Following a jury trial defendant Douglas Lee Rhodes was found guilty of attempted murder and unlawful use of weapons and sentenced to concurrent terms of 10 years and five years on the respective convictions. Three issues are raised on appeal: (1) whether the court erred in denying Rhodes' motion to suppress confessions; (2) whether the court erred in instructing the jury; and (3) whether the State established Rhodes' guilt beyond a reasonable doubt. We affirm.
On August 10, 1980, police officers Fred Wheat and Everett Johnson were on special assignment investigating stolen automobiles. At approximately 10:30 p.m. they had parked their unmarked car at the end of an alley in the area of 6734 South Eberhart and were proceeding on foot toward several vehicles parked in the alley when they came upon defendant Rhodes. The evidence pertaining to the nature of the ensuing confrontation is in conflict and will be discussed in detail below. In any event, Rhodes eventually was handcuffed and given Miranda warnings following which he made the first of three inculpatory statements. Rhodes was then transported to the police station and again advised of his Miranda rights. In the presence of Officers Wheat and Johnson and two other officers he made a second inculpatory statement. Rhodes' third inculpatory statement occurred before an assistant State's Attorney and two police officers not previously involved. This statement also was preceded by a repetition of the Miranda warnings. After his conversation with the assistant State's Attorneys, Rhodes was taken to Jackson Park Hospital for treatment of injuries incurred at the time of his arrest. A photograph of him was taken at the time of his admission. He was transferred on August 11 to Cook County Hospital and underwent diagnostic tests for tuberculosis. The tests proved negative on August 13. Rhodes was discharged from the hospital on August 18.
Rhodes was charged with one count of unlawful use of weapons and one count of attempted murder. Prior to trial he filed a motion to suppress any evidence of the alleged confessions on the grounds that (1) due to his physical and physiological condition, he was incapable of understanding the full meaning of the Miranda rights, and (2) the statements sought to be suppressed were obtained as a result of physical, psychological and mental coercion and were, therefore, involuntary.
The following testimony was adduced at the hearing on the motion to suppress. Officer Fred Wheat testified that on the evening of August 10, 1980, he was working in plain clothes with his partner, Officer Everett Johnson. At approximately 10:30 p.m. he was walking in the alley near 6734 South Eberhart when he first saw the individual later identified as defendant Rhodes about four feet away, coming from between two trucks. Rhodes spoke and pointed a sawed-off shotgun at Wheat. Wheat announced that they were police officers whereupon Rhodes stated that he was going to kill them. Wheat grabbed for the shotgun and a violent struggle ensued, lasting from two to five minutes, during which Johnson hit Rhodes in the face with his gun and Wheat "kneed" Rhodes several times. Wheat and Johnson finally prevailed and succeeded in handcuffing Rhodes while he was on the ground. Rhodes had continued struggling on the ground until he was handcuffed. After Rhodes was handcuffed, Officer Johnson read him the Miranda warnings and Rhodes then made an inculpatory statement. By that time other officers were arriving at the scene in response to the officers' radio calls for assistance. Wheat testified that he did not strike Rhodes and did not observe anyone else strike Rhodes after he was handcuffed. Wheat testified that Rhodes' nose was bleeding when he was put into the squadrol for transport to the police station. At the police station, in the presence of Officers Johnson and Roden, Officer Gilmore read Rhodes his Miranda rights and Rhodes indicated that he understood them. Rhodes at that time made the second inculpatory statement. At no time did Rhodes complain of injuries or of having been beaten or request to be taken to a hospital. Rhodes did not indicate reluctance to answer questions nor did he ask to consult a lawyer. He was able and cooperative in answering questions. Wheat stated that he saw Rhodes immediately before and after his interview with the assistant State's Attorney and that he appeared to be in the same physical condition at both times.
Officer Everett Johnson's testimony regarding the events of August 10, 1980, corroborated that of Officer Wheat. In addition, Officer Johnson stated that he hit Rhodes more than once during the struggle over the shotgun. Johnson further stated that Rhodes was able to walk under his own power to the squadrol and that the only injury he observed at that time was that Rhodes' nose was bleeding. At the police station, after being advised by Officer Gilmore of his Miranda rights, Rhodes said that he understood and then answered clearly the questions asked by Gilmore. Johnson stated that he observed Rhodes enter an inner office with a State's Attorney and two investigators and that Rhodes' physical condition was the same when he exited that office. Johnson stated that at no time after Rhodes was handcuffed did he or anyone else strike Rhodes. At no time did Rhodes complain of injury or ask to be taken to a hospital, nor did he indicate that he did not want to answer questions put to him by police or ask to consult a lawyer.
Officer Edward L. Gilmore testified that on August 8, 1980, when he and his partner, Officer Victor Roden, arrived at the alley near 6734 South Eberhart, he observed Officer Johnson reading the Miranda warnings to Rhodes who was on the ground being handcuffed. Officer Gilmore stated that he next saw Rhodes at the police station. Rhodes' clothes were disarranged and he noticed dried blood around Rhodes' nose but saw no fresh cuts. Gilmore read Rhodes the Miranda warnings in the presence of Officers Wheat, Johnson and Roden. Rhodes indicated that he understood the warnings and gave clear, cogent responses to the questions he was asked. Rhodes did not request a lawyer and did not complain of injuries or ask for medical care. Officer Gilmore testified that he did not strike Rhodes and did not see anyone else strike Rhodes either at the scene of the arrest or in the police station.
Officer Victor Roden testified to the same occurrences. When he arrived at the scene of the arrest, Officer Wheat was handcuffing Rhodes, who was on the ground, and Officer Johnson was reading Rhodes his Miranda rights. Roden observed that Rhodes' nose was bleeding but that the blood had dried when he saw Rhodes at the police station. At the police station Rhodes acknowledged the second reading of his Miranda rights and readily answered questions. At no time did Officer Roden see anyone strike Rhodes. Nor did he hear Rhodes complain of having been beaten by the police or request to be taken to a hospital.
Officers Guiney and Gahan testified that, upon their arrival at the scene of the arrest, they saw Rhodes being put into the squadrol to be transported to the police station. Neither of them saw anyone strike Rhodes.
Officer Joseph Theilmann testified that he drove the squadrol on the evening in question and transported Rhodes from the alley at 6734 South Eberhart to the Third District Station. He did not see anyone strike Rhodes. Rhodes did not complain of being beaten and was able to walk without assistance. On cross-examination Theilmann stated that if it appears that a person is in need of hospitalization, he takes him to the hospital, regardless of whether he so requests.
Assistant State's Attorney William Rehling testified that he interviewed Rhodes at about 12:15 a.m. on August 11, 1980, with Detective David Oravetz and Detective James Minogue present. Rehling noticed that Rhodes' clothes were blood-stained and disheveled but he observed no sign of injury. Upon inquiry, Rhodes stated that he was all right and that his clothes were disarranged when the police officers were struggling to get his gun away from him. Rehling gave Rhodes the Miranda warnings and Rhodes indicated that he understood and would waive those rights. He did not ask to consult a lawyer and answered all questions willingly and clearly. He did not complain of having been beaten or of any injuries and did not ask to be taken to a hospital. Rehling did not strike Rhodes, nor did he observe anyone else strike him.
The testimony of Officers Minogue and Oravetz was substantially the same as that of the assistant State's Attorney. Neither of them saw anyone strike Rhodes nor did either of them observe signs of Rhodes having been beaten. Rhodes did not complain of having been beaten or ask to be taken to a hospital or to consult with a lawyer.
Defendant Douglas Rhodes testified that he was only a few inches away from Officer Wheat when he first saw him on August 10, 1980. He stated that he relinquished the gun without a fight or struggle and that he was beaten, kicked and dragged up and down the alley by Officers Wheat and Johnson; no other officers were present. He said he was afraid of the police officers and made the statements to them under threats of further beating. Rhodes stated that, at the police station, Officer Wheat struck him in the face and that he was thrown on the floor and kicked. With respect to his interview by the assistant State's Attorney, Rhodes said that he was forced to sign statements under threats of further beating. He stated that his nose was broken and bleeding and that no one offered him any treatment for it. He was in pain throughout the time he was in the police station but did not mention it because he had been told to be quiet.
Howard Jones testified that on the evening of August 10, 1980, he was 30 to 50 feet from two police officers and a man he later identified as Rhodes when he saw one of the officers kick Rhodes, who was on the ground rolling from side to side with his hands and arms covering his face. He did not see Rhodes struggle or fight back and stated that the police were not trying to handcuff Rhodes at the time of the kicking. As other officers arrived Jones approached the scene and was within five to 10 feet of Rhodes when he was taken away.
Larry Pappas, M.D., an intern in internal medicine at Cook County Hospital, testified that when Rhodes came into his care he was suffering from a broken nose, swelling around the right eye, soft tissue swelling and abrasions on his back and blood in the urine. He stated that Rhodes' facial injuries were consistent with the types of blows described by Officers Wheat and Johnson and that internal bleeding is consistent with repeated kicking or beating but found that the back injuries were not consistent with having been struck with a hand or kicked with knees or feet.
The court found that: (1) there was no improper beating of Rhodes; (2) Rhodes' injuries were not of sufficient severity to warrant a conclusion that he was capable of making a voluntary statement; and (3) the police did not use force so excessive as to put Rhodes in fear of further abuse. The court concluded, therefore, that Rhodes' ...