Appeal from the Circuit court of Kankakee County, the Hon.
John F. Michela, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1984.
In an indictment returned in the circuit court of Kankakee County, defendant, Robin Wayne Owens, and Anthony Hite were charged with one count each of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), and theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)). Following a jury trial defendant was found guilty of murder and armed robbery. In a death penalty hearing requested by the People, the jury found that one or more of the factors set forth in section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) existed and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (87 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).
Anthony Hite, the co-defendant, pleaded guilty to a reduced charge of robbery and testified for the People. He stated that intending to rob her, he and defendant went to the house of Arfrazia Hodges, a woman they both knew. They were admitted into the house by Lacey Felix, a friend of Arfrazia Hodges. Felix left shortly thereafter and defendant, Anthony Hite and Arfrazia Hodges watched television for a while. At some point, while Ms. Hodges was in the bedroom, defendant entered the bedroom and told her to "give up the money." He then struck her in the face with his fist. She responded, "You ain't got to do this, all you had to do was ask for it." She then told him that the money was under the dresser. He found the money and asked her where the rest of it was. She then took more money from her bra and gave it to defendant. Defendant then went from the bedroom into the kitchen, and returned to the bedroom with a hammer and knife. He struck her in the head several times with the hammer. Ms. Hodges died as the result of the blows to the head.
Defendant's confessions contain a similar account of the occurrence except that defendant stated that after he demanded the money, the victim grabbed a knife which was lying on the dresser in the bedroom. Defendant then grabbed a hammer, which was also lying on the dresser, and struck her in the head with it two or three times.
Defendant contends first that the circuit court erred in denying his pretrial motions to suppress his confessions. Defendant stated in the motions and contends here that the confessions were obtained in violation of his fifth amendment right to remain silent and his sixth amendment right to counsel. He points out that at the time of his arrest a formal complaint had been issued charging defendant with murder in Will County, and asserts that assuming, arguendo, that the circuit court was correct in holding there was no violation of his fifth amendment rights, the confessions were the product of a violation of his sixth amendment right to counsel.
The testimony shows that on December 19, 1980, Kankakee police officers arrested defendant based upon information from the Joliet police department that a warrant had been issued in Will County for his arrest on a charge of murder. Citing Spano v. New York (1959), 360 U.S. 315, 3 L.Ed.2d 1265, 79 S.Ct. 1202, defendant argues that the right to counsel when being questioned in the course of an investigation into an unsolved crime differs from the right which attaches while in custody upon a formal charge. Relying on Massiah v. United States (1964), 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199, he argues that adversarial proceedings commence at the point at which judicial criminal proceedings are initiated by way of a formal charge, that once such adversarial judicial proceedings have commenced against an individual, government efforts to elicit incriminating information violate his sixth amendment right to counsel.
The testimony at the hearing on defendant's motions to suppress his confessions shows that, after refusing to talk to Kankakee police officers for a period of several days, he was interviewed by officers from the Joliet police department. Following his conversations with the Joliet police officers, defendant confessed to a murder in Joliet and thereafter to the murder of Arfrazia Hodges. He was convicted of the murder of George Kallai in Joliet, and a death sentence was imposed. This court affirmed the judgment and sentence. (See People v. Owens (1984), 102 Ill.2d 88.) The same confessions which were admitted into evidence here were admitted in the trial in Will County and the testimony of the police officers in both cases was substantially the same. The issues raised and argued by defendant here were considered and decided by this court in docket No. 56453 (102 Ill.2d 88, 101-07). In People v. Williams (1975), 59 Ill.2d 557, a statement made by defendant was relevant to two separate charges, one for a burglary and robbery, and the other for burglary and armed robbery. A motion to suppress the statement was sustained. The State did not appeal from the order of suppression and dismissed the indictment. In the case of the second indictment, defendant moved to suppress the same statement but the motion was denied and the defendant was convicted. This court held that the ruling in the first case "determined the question which was common to the prosecutions under both indictments, and the State was precluded from litigating the question a second time." 59 Ill.2d 557, 563.
In People v. Hopkins (1978), 52 Ill.2d 1, defendant was charged with two separate instances, one of attempted rape and one of robbery and attempted rape. A knife had been obtained as the result of a search of the defendant upon his arrest, and, in the first trial involving one of the charges, the validity of the arrest and search had been contested and upheld. In the trial on the second charge the circuit court denied the motion to suppress solely on the ground that defendant had already had a hearing on the motion. This court affirmed the holding of the circuit court on the ground that collateral estoppel applied.
There is no contention made here that there is any change of circumstances or any additional evidence which distinguishes this case from the earlier case. The question of the admissibility of the confessions was fully litigated in both cases and the holding of the circuit court of Will County has been affirmed. Under the circumstances, the doctrine of collateral estoppel is applicable and we need not further consider defendant's contentions with regard to the admissibility of the statements and the denial of defendant's various motions to suppress them.
Next, defendant contends that his sentence must be vacated because it was imposed by a jury which was selected in violation of the principles established in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The court in Witherspoon held that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction and said:
"Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." (391 U.S. 510, 516 n. 9, 20 L.Ed.2d 776, 781-82 n. 9, 88 S.Ct. 1770, 1774 n. 9.)
Defendant contends that, in violation of the standard set forth in Witherspoon, one juror was improperly excused during voir dire. The following colloquy, in pertinent part, occurred:
"Q. The State is requesting that the jury consider the death penalty in this particular case. Do you belong to any organizations, church group, or any society that has taken a position on the death penalty?
A. No I do not belong to any organization that has a position on the death penalty but my own belief is that it is not, one wrong, two wrongs don't make a right.
Q. Are you for any reason whether it is ethical, or religious, for any reason opposed to the imposition of the death penalty on a person convicted of the crime of murder?
A. According to my own beliefs I don't think that the death penalty is, I don't think that it is a fair act, another act of violence.
Q. Are your feelings against the death penalty such that regardless of the evidence in this case you could not vote for a verdict sentencing this defendant to death?
A. No they are not, not if, not if, if the evidence weighs him guilty then if this, if the evidence weighs him guilty with a shadow of a doubt then he is guilty if in my mind if the evidence —
Q. Okay, that is whether he is guilty or not guilty. Right?
Q. Do you feel so strongly against the death penalty that regardless of what the evidence shows that you would not vote for a verdict ...