Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 27, 1984.
After a jury trial, defendant was convicted of murder and armed violence and sentenced to a term of 28 years. On appeal, he contends that (1) his statements, as well as evidence obtained as a result thereof, should have been suppressed because they were (a) involuntarily made and (b) the fruit of an illegal arrest; and (2) the trial court erred in failing to require the jury to return a verdict on the lesser-included offense of voluntary manslaughter.
Prior to trial, defendant filed motions alleging that several inculpatory statements made by him were involuntary and therefore should be suppressed. At a hearing on the motion, Linette Willis, defendant's girlfriend, testified that he called her late in the morning on January 21, 1981, told her that he was being held on several traffic warrants, and asked that she bring $750 bond money to the police station where he was being held. She arrived at the station with the money at approximately 5:30 that evening, but after waiting several hours she was informed that defendant was being held for murder and would not be released. She did not see defendant that night, but acknowledged that when he called her his voice sounded normal and he did not complain of being injured or that he was not receiving food.
Defendant testified that he was questioned several times between January 18 and January 20, 1981, concerning the death of Robin Williams. During questioning at his home on the 20th, officers asked if he would submit to a polygraph examination, and he agreed. Later that day, he and Robert Wheatly went to the police station at 51st and Wentworth and were transported, along with Eugene Baker, to 11th and State, where all three were given polygraph examinations. During the examination, he (defendant) did not admit guilt but did state that he owned a .32-caliber pistol. When they returned to 51st and Wentworth between 7 and 9 p.m., he was separated from Wheatly and Baker and placed in an interview room where officers asked him several questions about the gun. They asked permission to search his apartment, and he voluntarily signed a consent to search form. The officers then left to search for the gun, and he was left handcuffed to a ring in the wall. When they returned, the officers continued to question him about the gun and about Williams' death until approximately 8 a.m. on the morning of the 21st. During that time, he was continuously handcuffed, was not allowed to sleep, and was not given any food, although his requests for water or coffee or to use washroom facilities were honored.
At some point during questioning, officers told him that he was being held on outstanding traffic warrants, and he called Willis between 10 and 11 a.m. on the 21st to ask her to bring the necessary bond money. He was taken to the lockup on the morning of the 21st, but was there only one-half hour when an officer brought him back upstairs to participate as an extra in a lineup and then placed him in an interview room. He was questioned periodically throughout the day by various officers, and again was continuously handcuffed and was not given food, although he told the officers he was hungry.
Questioning continued periodically throughout the night and into the morning of January 22. During that time, he was left alone — handcuffed to a ring in the wall — for several hours while officers went to check information he provided. However, when he tried to stretch out on chairs and sleep, an officer came in and removed all but one chair. Officer Johnson spoke to him twice while he was in custody, talked about his (Johnson's) brother-in-law, with whom he (defendant) was acquainted, discussed freebasing cocaine, and stated that he (Johnson) knew that the case was drug related and that if he (defendant) would confess, he would be charged with manslaughter, not murder. Four to 10 hours after the last conversation with Johnson, and based on the latter's promises, he decided to give a statement. He pounded on the door of the interview room and asked to speak to Wheatly. After seeing Wheatly, he made a statement to Officers Doty and Lotito, then two hours later gave a statement to Assistant State's Attorney Franks. Franks did read him his rights, but he did not recall anyone else doing so while he was in custody. During the entire time that he was at the station, he repeatedly told officers that he wanted to leave, that he wanted questioning to cease, and that he wanted to speak to his attorney. He was not allowed to sleep or given any food and was continuously handcuffed. Defendant admitted that he did not request food, but asserted that he did make known to officers that he was hungry. When he requested water or coffee, it was provided.
Detective Lotito testified that defendant, Wheatly and Baker consented to take polygraph examinations and thereafter Baker was allowed to leave, but defendant and Wheatly were not released. During the examination, defendant admitted owning a .32-caliber gun and signed a consent to search. When officers could not find the gun where defendant stated it would be, they returned to the station, placed defendant under arrest, and advised him of his constitutional rights. Defendant was advised at that time that he was also being held on a narcotics bond forfeiture warrant, a paternity warrant, and several traffic warrants. Between midnight and 1 a.m. he (Lotito) went off duty and asked members of the night shift to take defendant to the lockup; he did not know whether they did so. When he returned to the station on the 21st, defendant was brought from the lockup at approximately 5:30 p.m. and placed in an interview room.
Defendant was not questioned continuously and was able to stretch out on four chairs and rest while officers investigated what he told them. At approximately 11 p.m. on the 21st, his partner took two sandwiches to defendant; they had no further contact with him until 6 or 6:30 the following morning, and to the best of his knowledge, no other officers questioned him. At 9 a.m. on the 22d, defendant pounded on the door of the interview room and indicated that he would give a statement if allowed to speak first with Wheatly. When, he, Wheatly, and two other officers entered the room, defendant began crying and made some statements. Wheatly was removed; defendant was again informed of his rights and made an oral statement. A second oral statement was made to Assistant State's Attorney Franks at approximately noon, followed by a written statement at 1:45 p.m. Lotito acknowledged that defendant might have asked to leave; that he was handcuffed to a ring in the wall when alone in the interview room; and that defendant did not leave the interview room from 4:30 p.m. on the 21st until 3 or 4 p.m. on the 22d. He denied that defendant ever indicated that he did not want to answer questions.
Detective Doty testified that when he arrived at the station at 8:30 a.m. on the 21st, he took defendant from an interview room to the lockup and had no further contact with him that day.
Detective Fitzgibbons testified that either he or Lotito signed defendant out of the lockup on the afternoon of January 21. Sometime during that evening, he gave defendant one bologna sandwich and a soft drink. Defendant was cuffed to the wall, but chairs were positioned so that he could sit or lie down and sleep; defendant did the latter. Fitzgibbons acknowledged that the chairs in the interview room are metal, and the ring to which defendant was handcuffed is approximately 18 inches about the seat of the chair.
Detective Johnson testified that he questioned defendant at his apartment on January 18. Thereafter, he worked the day shift and did not speak to defendant again until 9:30 a.m. on the 22d when he made an oral statement. Johnson acknowledged that he had a brother-in-law who was acquainted with defendant, but denied informing defendant of that fact.
Defendant testified in rebuttal that he tried three times to sleep on the chairs in the interview room but each time an officer, whom he could not identify and who had not testified, came in and moved the chairs.
The trial court found that defendant was handcuffed to a wall for many hours and not permitted normal sleeping conditions; that this procedure was employed by officers to induce or harass defendant into confessing; that defendant was not afforded regular and decent food while in custody; that defendant was not permitted to visit with his family and friends as he requested; and that his numerous requests to cease talking to officers were not honored. For these reasons, the trial court found that the oral statement made to the officers was involuntary and ordered that it be suppressed. However, it found that the oral and written statements made to Assistant State's Attorney Franks were severable from the police conduct and voluntarily made. In so ruling, the trial court noted that there was a substantial break in time sufficient for defendant, a person of normal intelligence, to gather his thoughts, and that Franks gave defendant the ...