Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 13, 1984.
Juarez Howard, Andre Howard and Michael Sommerville were charged by indictment with murder, armed robbery, burglary, armed violence, home invasion, and conspiracy. Andre Howard entered into a plea bargain with the State and Juarez Howard and Michael Sommerville were tried together. All charges except those for murder and armed robbery were dismissed at various stages of the proceedings.
The first two trials resulted in mistrials. Prior to the third trial, a ruling was made to sever the trials of Sommerville and Juarez Howard. Following a third jury trial, Juarez was found guilty of murder and armed robbery and was sentenced to concurrent terms of 30 years for murder and 15 years for armed robbery. Defendant Howard appeals.
Juarez Howard (hereinafter defendant), Andre Howard, Michael Sommerville, Randall Rhodes, and Thurston "Butch" Rogers planned to rob a drug dealer who Andre knew. Everyone except Andre participated in the robbery. The group was to meet back at Andre's apartment after the robbery.
On October 25, 1979, defendant, Michael, Randy and Butch went to the drug dealer's apartment. Randy was carrying a knife, the rest of the group had handguns. Defendant and Michael entered the apartment and initiated the robbery. When Michael let Randy and Butch into the apartment, the victim, Bert Lee, lunged toward defendant. Defendant, Michael and Butch fired at Lee, striking him several times. Defendant then grabbed a bag of marijuana off the table and the group fled in different directions.
Soon thereafter, the group met back at Andre's apartment and went their separate ways.
Chicago police investigators O'Leary and Seery were assigned to investigate the shooting of Bert Lee on the morning of October 26. They questioned Andre Howard at his apartment. He directed the officers to an apartment where one of the assailants, Randall Rhodes, and two others, James Tate and Michael Hyler, were arrested and taken to the police station for questioning. Andre also gave the officers the telephone number of another of the assailants named "Speedy." Speedy is defendant's nickname.
The investigators determined that Speedy's phone number belonged to Daisy and Adair Sheats of 2409 East 78th Street, Chicago. The Sheats are defendant's aunt and uncle. The officers went to the Sheats' residence and conducted a search of a bedroom in the apartment where two handguns were found. One of the guns proved to have been used in the robbery/murder of Bert Lee.
At approximately 10 p.m. on October 26, O'Leary and Seery arrested defendant as he was walking down the street. He was taken to the police station for questioning. The State's evidence concerning defendant's interrogation revealed the following:
An hour after defendant's arrest, at about 11 p.m. on October 26, defendant gave an oral statement to Investigator O'Leary. The substance of that statement was virtually identical to the earlier summation of facts. At the conclusion of his statement, defendant told O'Leary about his asthmatic condition and O'Leary promised to get defendant's medicine from his family.
Assistant State's Attorney Roy talked with defendant at 2 a.m. on October 27, at which time he gave Roy an oral statement. At the conclusion of the statement, Roy asked defendant if he would give his statement to a court reporter and he said that he would.
A court reporter arrived at the station at 6:15 a.m. on October 27. Written statements were taken from Michael Sommerville, Randall Rhodes, and Andre Howard. At about 1:30 p.m., defendant's written statement was taken. Defendant later signed the statement.
Defendant's version of the interrogation differed from the State's in several respects. Defendant claims that the police withheld his asthma medicine until after he confessed. He also asserts that O'Leary put a paper bag over his head and played Russian roulette with him until he confessed.
At the outset of the trial which is the subject of this appeal, defendant filed motions to quash arrest, suppress statements and suppress evidence. The motion to suppress evidence concerned the guns discovered in a bedroom in the apartment leased by Daisy and Adair Sheats. The State's version of the search as revealed by the evidence is as follows:
Officers O'Leary and Seery went to the Sheats' apartment at 2409 East 78th Street, where they were greeted by Mr. Sheats. The officers identified themselves and informed Mr. Sheats that they were investigating a homicide. The officers asked if Speedy was there and Mr. Sheats replied that he was not but that the officers were welcome to search his bedroom. Officer O'Leary then showed Mr. Sheats a consent-to-search form and asked him to sign it, which he did. Mrs. Sheats was present and signed the form as a witness. The form mistakenly referred to the Sheats' address as 2402, rather than 2409, East 78th Street. The officers entered the bedroom and found two guns under some clothes on the floor. One of the guns had been used in the shooting. The officers also found a jacket which resembled one worn by one of the assailants.
The Sheats testified at the hearing on the motion to suppress and denied that they had consented to the search. According to them, the officers simply asked where Speedy's room was and then proceeded to search it. They denied having signed a consent-to-search form. On cross-examination, however, Mrs. Sheats conceded that she could not remember whether or not she had signed a form. Mr. Sheats made this same concession. Mrs. Sheats also testified that the signatures on the form looked like hers and her husband's. The court denied defendant's motions to suppress and to quash arrest.
At the close of the first trial, the jury began deliberations just before 4 p.m. on Thanksgiving eve. Just before 10 p.m., the trial judge stated that he was not going to allow the trial to extend through Thanksgiving Day if it was not necessary. The judge then expressed his intention to call the jury out and question them about the possibility of reaching a verdict. Both the State and defense counsel objected. The court stated that if any of the jurors said that a verdict was possible, it would sequester the jury for the night and resume deliberations the following day, Thanksgiving. The jury was called out and each juror was asked about the possibility of reaching a verdict if deliberations continued. Eleven jurors replied that a verdict was not possible and the foreman said he was unsure. The court then declared a mistrial.
Following the second trial, the jury began deliberating at 7:30 p.m. The jury was sequestered for the night at 10 p.m. and they resumed deliberations at 9:30 a.m. the next day. At 2 p.m., the foreman sent a note to the judge informing him that the jury could not agree on a verdict. The judge called the jury out, gave them the Prim instruction (see People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601), and ordered them to continue to deliberate. At 9:30 p.m., the court called the jury out and asked them if it was possible that they could reach a verdict. Eight jurors ...