Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a simultaneous trial, defendants Heard and Clay were convicted by separate juries of murder, attempted armed robbery, and conspiracy to commit armed robbery. After a finding by the trial court that the convictions for attempted armed robbery merged with the convictions for murder, Heard was sentenced to concurrent terms of 40 years for murder and 15 years for conspiracy; and Clay was sentenced to concurrent terms of 80 years for murder and 30 years for conspiracy. On appeal, Heard contends that (1) the trial court erred in denying his motion for substitution of judge without a hearing; (2) his inculpatory statement should have been suppressed because it was given during an involuntary detainment, in violation of Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248; (3) he was denied a fair trial by improper prosecutorial remarks during closing argument; and (4) his sentences are excessive. Defendant Clay's sole contention on appeal is that his sentences are excessive.
The charges arose from the fatal shooting of 10-year-old Laura Bruce on December 3, 1980, and as there is no contention that guilt was not established, we will set forth only the testimony relevant to the issues presented.
Prior to trial, counsel for defendant Heard made an oral motion for a substitution of judge, which was denied. He also made a pretrial motion to suppress all statements on the basis that they were coerced. At the hearing thereon, Heard testified that he was asleep at about 6 or 7 a.m. on December 7, 1980, when three police officers came to his home, knocked on his door, and after being allowed inside by his mother, told him to get dressed and come with them to the police station. They did not tell him that he was under arrest, nor did he believe that he was. He did not accompany them voluntarily, but only because he "didn't want to make any trouble." Once at the police station, he was placed in a small room and handcuffed; he was given coffee, but nothing to eat. Several officers whose names he did not know talked to him, but he told them that he had no information about the shooting of Laura Bruce and that he wanted to see an attorney; however, they continued to question him and accused him of lying. At about 6 p.m. that evening, he told Officer Keane that he knew nothing about the crime, but he agreed to go with Keane to help him locate certain people. After about an hour they returned, and he was put back into the same room — which was then locked — and he remained there for the balance of the night. He was never told that he was under arrest nor was he ever advised of his constitutional rights. Neither was he told that he was free to leave, and he did not do so because he was handcuffed. On at least two occasions, the police threatened him by telling him that he "better tell the truth." He stated that he gave a statement to an assistant State's Attorney only because he was told he "had to talk" and, although he signed the statement and initialed each page, he was never given the opportunity to read it. In the statement, he admitted that he had not been threatened; that he had been advised of his constitutional rights; and that he was given food, coffee, and cigarettes.
Officer Stachula testified that about noon on December 7, shortly after Heard was brought to the station, he spoke to him in the interview room. He advised him of his Miranda rights and questioned him about the homicide, but Heard denied being involved therein. He then informed Heard that the investigation and accounts of other witnesses contradicted his denial. He never specifically told Heard that he was free to leave, but neither was Heard handcuffed or placed under arrest.
Detective Keane testified that when he first saw Heard, at about 4:30 p.m. on December 7, he was neither handcuffed nor otherwise restrained. He advised Heard of his rights, told him that he was investigating the December 3 homicide of Laura Bruce, and questioned him about his involvement therein. When Heard said he needed time to think about it, Keane advised him to knock on the door if he needed anything and left, locking the door behind him. At 6 p.m., after receiving the Miranda warnings, Heard made a statement concerning his participation in the crime and agreed to go with Keane to locate the other offenders. When they returned to the station about three hours later, Heard, who was then under arrest, was put back into the interview room for the remainder of the night.
Assistant State's Attorney Dorfman testified that he spoke to Heard at 11:20 a.m. and again at 8:20 p.m. on December 8 and advised him of his rights prior to each conversation. Shortly after 9 p.m., Heard gave a court reporter statement in which he gave essentially the same information as he had in the two earlier interviews that day. Prior to making the court reporter statement, Heard told Dorfman that he had not been mistreated by the police. The motion to suppress was denied.
After the juries were selected, Heard made a separate motion to quash his arrest and suppress evidence. At the hearing thereon, Heard testified that when the police came to his home, they told him to get up and come with them. He objected, but one of the officers followed him into the bathroom while he dressed. Once at the police station, he asked several times why he was being held, but he was "just told to sit there." He was never informed that he was free to leave, and although the police had told him he was not under arrest, he thought he was. On cross-examination, he admitted testifying at the prior hearing that he did not think he was under arrest when he left the apartment with the police, and that the police said he was not under arrest.
Eunice Heard, defendant's mother, testified that when the police knocked on her door at about 6 or 7 a.m., she opened it slightly and three officers pushed their way in. At their request, she awakened her son and, as one accompanied him to the bathroom, the other searched her washing machine. The police never produced a search warrant nor did they tell defendant he was not required to go with them.
Sergeant O'Connor testified that on the basis of information that a witness had seen a car similar to defendant's at the scene of the crime and that defendant was known to frequent that area, he and two other officers went to Heard's apartment at about 10 a.m. on December 7. They knocked on the door, and when Heard's mother opened it they stated who they were and asked her to awaken him. When she did, they identified themselves and told him that a vehicle similar to the one he owned, which was parked in front of Heard's building, had been seen leaving the location of a murder on December 3. He then asked Heard if he would come to the police station to answer some questions. Heard got up, went to another room to dress, and then voluntarily accompanied them to Area 6 headquarters, where he was taken to an interview room which was left unlocked. He was not handcuffed nor placed under arrest at that time. The motion to quash the arrest and suppress evidence was denied.
At trial, Detective Keane testified that he separately interviewed defendants Clay and Heard on the evening of December 7, 1980, and that after being advised of their constitutional rights, both voluntarily made statements concerning the crime — with each stating in substance that in late November 1980, Clay met with Gregory Johnson (Johnson) and Joseph Carter (Carter) at Clay's apartment building at 810 West Bradley and discussed robbing someone. During the conversation, Christine Bruce — the victim's mother, who was Clay's landlady — passed by and a discussion was held concerning when and how she collected the rent for the 40-unit building. On December 1, the men were joined by Heard in Clay's apartment again to discuss whom they might rob. Clay suggested that Mrs. Bruce would be an "easy mark" because she and her family lived alone in the apartment directly below his. On December 3, Johnson, Carter, and an unidentified third man went to Heard's apartment to tell him that they were going ahead with the planned robbery of Mrs. Bruce. At that time, Johnson was carrying a sawed-off shotgun. The group drove in two cars to Clay's apartment building, where Clay allowed them to enter through the buzzer security system. Heard said that he remained in his car while the others went inside, but after waiting for about 1 1/2 hours, he went up the back stairway to find out how long the others expected to be. He then returned to his car, and about 10 minutes later upon hearing a shot, he quickly drove away. Clay, however, said that Heard was in the apartment prior to the shooting. Clay also stated that they had all agreed that Johnson and Carter would go downstairs to the landlady's apartment to commit the robbery; that Heard and the unidentified man would stand at her back door as lookouts; that Clay, who could be identified by the landlady, would remain in his apartment; and that the five men would split the robbery proceeds equally.
The testimony of Christine Bruce and her husband, William Hallars, disclosed the following: Mrs. Bruce was the building manager for the apartment complex, and she collected rents totaling as much as $7,500 to $8,000 between the first and fifth of each month. On December 3, 1980, their daughters, Laura, 10, and Serena, 9, arrived home from school at about 3:15 p.m. Laura was sitting on a chair in the living room, waiting for her sister to get dressed to go outside to play, when there was a knock on the door. Mrs. Bruce opened the door and saw two men she did not recognize. She twice asked them what they wanted, but they did not respond. When she noticed that one had a shotgun, she began screaming. Hallars got up from the couch, but before he could shut the door the man fired the gun. Hallars told his wife to go to the kitchen and call the police, but as she and Serena entered the kitchen she noticed the back door opening and two shadows outside. She screamed again, whereupon Hallars entered the room, threw himself against the door, and locked it. He then called the police and reported that his daughter had been shot. Officer Calabrese testified that when he entered the apartment, he saw Laura lying on the floor in the living room with shotgun wounds in her chest and neck.
Officer Grogman testified that in his search for witnesses to the shooting, he spoke to Clay who told him that he had been in his apartment when he heard a gunshot, and when he ran to the stairwell to investigate, he saw two men running from the front door of the apartment below. He gave a description of the men which was later determined to be false. Also present in Clay's apartment was a woman named Delores Whittaker, who told Grogman that she had seen two men in the rear of the apartment below, and about a week later she identified a police photograph of Heard as one of those men. Grogman spoke to Clay again on December 5, and on the basis of the information he received from him, a decision was made to question Heard about the crime.
A deputy medical examiner testified that Laura Bruce died of a massive ...