Appeal from the Circuit Court of Cook County; the Hon. Philip
J. Carey, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 10, 1985.
Defendants, Harry Holloway (Holloway) and Judy Jackson (Judy), were found guilty, in a jury trial, of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)), and each was sentenced to 40 years' imprisonment. The victim, Alexander Jackson (Alexander), was Judy's husband. Defendants raise the following issues for review: (1) whether the police possessed probable cause to arrest Holloway at 3 a.m. on July 12, 1979, and whether an inculpatory statement and a gun obtained as a result of that arrest should have been suppressed by the trial court; (2) whether exigent circumstances existed for the police to make a warrantless arrest of Holloway in his home; (3) whether Holloway freely and voluntarily made an inculpatory statement to the police; (4) whether Judy freely and voluntarily made an inculpatory statement to the police; (5) whether Holloway and Judy were proved guilty beyond a reasonable doubt of murder; (6) whether Holloway committed murder or voluntary manslaughter; (7) whether Judy was proved guilty beyond a reasonable doubt of any criminal conduct in regard to the death of Alexander; (8) whether the trial court erred when it refused to allow Holloway's tendered jury instructions on self-defense and voluntary manslaughter; (9) whether the trial court erred when, without any indication that the jury was deadlocked, it gave the Prim instruction; (10) whether the trial court erred in refusing to give Judy's tendered instruction concerning "mere presence"; (11) whether the trial court abused its discretion in sentencing Holloway to 40 years; and (12) whether the trial court abused its discretion in sentencing Judy to 40 years.
On July 11, 1979, June Hampton was employed as a desk clerk at the Ranch Motel, located at 9201 South Stony Island Avenue, in Chicago. Hampton testified that around 11 p.m., a Yellow Cab approached the motel. The passenger, a man (Alexander), registered as Mr. and Mrs. Jackson of 8014 South Champlain, Chicago, and rented room No. 41. He did not seem intoxicated. The man returned to the cab. Hampton and Verzel Squair, a friend who had been sitting in the lobby, noticed another man who was in the driver's seat of the cab and a red-headed woman seated in back. The cab drove toward room No. 41. Ten minutes later, Hampton saw the cab pass the office. Around that time she and Squair heard a man screaming for help. She asked Squair to investigate. Squair saw Alexander, bloody and nude, in the doorway of the room. Squair went back to the lobby to advise Hampton to call the police, which she did. Then Hampton and Squair saw the cab again as it traveled north with the man and the woman who had been observed earlier; the man was driving and the woman was now sitting in the front seat. Squair noticed the cab number on the license plate and the side of the vehicle and informed Hampton. She wrote the number on the back of the registration slip she had prepared for Alexander.
Officers Willie Clay and Jerry Chapman were the first policemen to arrive. Later they were joined by police officers Daniel Swick and JoAnn Ryan. Alexander had three head injuries and two gunshot wounds. Blood was spattered throughout the room, on the walls, in the doorway and on the bed. An open liquor bottle was on the night-stand, a claw hammer was inside the closet, a pair of women's eyeglasses was on the dressing table, and a man's clothing was in the bathroom. The victim's identification was in a wallet in his trousers.
Officer Swick was given the registration card for the room. He telephoned Judy around 2 a.m. on July 12, 1979, informing her that her husband was dead. Swick also telephoned the Yellow Cab Company, which informed him that cab No. 1558 was leased to Harry Holloway, who lived at an address on East 99th Street in Chicago.
Officer Swick arrived at Holloway's residence at about 3 a.m. with Officer Ryan and Officer John Yucaitis. Although police had time to obtain a warrant, none was issued. Swick knocked on the door, identified himself, and asked Holloway whether cab number 1558 belonged to him. Holloway answered in the affirmative. Swick informed Holloway that his cab might have been used in the commission of a crime. No Miranda warnings were given. Holloway allowed the police to enter his home, and later he agreed to come to police headquarters. He was not handcuffed.
When Officer Swick observed the cab parked in front of Holloway's residence, he noticed a blood smear on the door handle on the driver's door. Swick asked Holloway's permission to drive the cab to the police station. Holloway consented and gave Swick the keys.
At the police station, around 3:15 a.m., Officer Swick advised Holloway of his Miranda rights prior to speaking with him. He and Holloway talked for 30 to 45 minutes. Holloway was not handcuffed. Swick did not strike or threaten Holloway nor did he see anyone strike or threaten him. Holloway never indicated that he did not wish to answer questions. He never said he desired to have a lawyer present, and he did not ask to make a telephone call. Swick did not notice any bruises on Holloway. The latter did not complain of mistreatment, and he never asked to be allowed to take medicine or said he had diabetes. Holloway did not have anything to eat or drink and took no medication. No one lied to Holloway about evidence inculpating him.
Officer Swick asked Holloway his whereabouts on the previous evening. Holloway stated that he started driving about 7 p.m. and described his "fares." He drove his last fare to a motel at 94th and Stony Island, then drove around for about 20 minutes and then went home. When asked, Holloway denied that he had been to the Ranch Motel. Swick showed Holloway the front of the registration card with the Jacksons' name and address. Holloway stated that Alexander was his friend but denied taking him to the motel. Then Swick showed him the back of the card on which his cab number was noted. Holloway admitted that he picked up Alexander at 80th and Cottage Grove and drove him to a motel at 94th and Stony Island. Alexander went into the motel but returned to the cab, stating that no air-conditioned rooms were available. Alexander asked Holloway to drive him to the Ranch Motel. Holloway dropped him off in front of the motel and drove away. Holloway denied that he drove into the motel grounds and stated that only two people were in the cab. Swick told Holloway that he had been seen at the motel; Holloway denied that he was there. During this interview, Swick noticed what appeared to be bloodstains on Holloway's shirt. The latter explained that he had been eating barbecue but agreed to remove his clothes so that the nature of the stains could be determined. Swick confiscated Holloway's shirt, T-shirt, pants, shoes and a ring. Swick found currency which appeared to be bloodstained in Holloway's pockets.
Holloway agreed to let Swick search the cab and gave him the keys. Swick recovered from the cab a bag with 22 bullets in it and a pouch containing insurance papers. Swick did not ask Holloway's permission to open either the bag or the pouch and no consent form was signed for the search of the cab. On July 12, 1979, Swick never saw Holloway handcuffed.
Around 6 a.m. on July 12, 1979, Judy was brought to the police station by an officer. Swick interviewed her in the presence of Officer Ryan. Swick offered Judy a drink but she refused. She was not handcuffed and did not say she felt ill. Swick again informed Judy of her husband's death and asked her his whereabouts on the previous evening. Judy said her husband was with her until 7 or 7:30 p.m., when he left to visit his sister on the West Side. Swick asked Judy whether she knew Harry Holloway. She said she had known him for five years. Earlier, on that evening, he had been at her home for dinner and drinks with her and her husband. Swick showed Judy the eyeglasses that had been recovered from the motel. She acknowledged them as her own. He asked her how they came to be in the motel room. Judy said that while she and her husband were jogging the glasses fell off her face; her husband had picked them up and put them in his pocket.
Dennis McGuire, a Chicago police officer, was assigned to the homicide when he reported for work at 8 a.m. on July 12, 1979. He was working with his partner, John Yucaitis. He discussed the case with Officer Swick and he was informed of the results of preliminary interviews. No arrest or search warrants were issued in connection with the case. McGuire had conversations with Holloway around 9:45 a.m., 11:30 a.m., and in the afternoon. At the first interview, Holloway was advised of his Miranda rights. McGuire presented a consent-to-search form to Holloway and explained it. Holloway signed the form. McGuire never saw anyone strike or threaten Holloway, and he had no bruises. Holloway did not say he had diabetes and needed medication or that he wanted to see a physician. He never said he wanted a lawyer. Holloway was not sweating, trembling or exhibiting abnormal physical conditions. McGuire never saw Holloway eat or sleep.
McGuire interviewed Judy three times at about 9:50 a.m., 11:30 a.m., and 12:25 p.m. McGuire introduced himself before their first interview and advised Judy of her Miranda rights, which she said she understood. During their conversations, Judy was not handcuffed. She neither requested an attorney nor asked to use the telephone. She did not say that she felt hungry, thirsty or ill and did not appear to be ill. McGuire was certain that Judy had water but did not recall giving her food. Judy did not say that police officers promised to take her home and she did not say she had been "tricked." No one made misrepresentations to her.
McGuire showed Judy a consent-to-search form and explained it to her. He filled in the empty spaces. After reading the form, Judy signed it at around 10 a.m. McGuire and Yucaitis searched Judy's home at about 10:15 a.m. When they entered the apartment, they observed a crinkled piece of paper on the living room floor. It was a key receipt, dated July 11, 1979, for room No. 41 of the Ranch Motel.
The police officers returned to the station to interview Judy. McGuire asked her whether she had ever been at the Ranch Motel. She said no. McGuire told her about the receipt and she responded, "Then you know about it." Judy said she had a fight with her husband which bloodied her clothing. She put the clothes in a suitcase near her bedroom. She said she was never at the motel; Holloway apparently placed the receipt in her apartment since he had a key.
Later, Judy said she was at the motel with her husband and that Holloway drove them there. Her husband became abusive. When she screamed, Holloway came to the motel room. As she ran out the door, she heard two shots. Holloway drove her home.
Officers McGuire and Yucaitis interviewed Holloway, who was advised of his Miranda rights and who said he understood them. McGuire then told Holloway the story Judy had told them. Holloway said that when he entered the motel room, Alexander attacked him with a hammer. They struggled and Holloway managed to take away the hammer. Then, Alexander produced a gun. After a struggle, it discharged twice. Holloway left and drove Judy home. At noon, McGuire and Yucaitis placed Holloway under arrest and handcuffed him.
At about 12:20 p.m., Officers McGuire and Yucaitis interviewed Judy and presented her with a consent-to-search form, which all three signed. McGuire filled in the form. The officers returned to the Jackson residence to recover the bloody clothing. Inside the suitcase was a bloodstained dress and undergarments and a hand towel. McGuire and Yucaitis proceeded to the Ranch Motel to look for a weapon because Holloway had said he discarded the gun on the motel grounds. The police officers failed to find the gun, and McGuire so informed Chicago police investigator Joseph Griffin.
Investigator Griffin and Investigator Frank Laverty were assigned to the homicide case on July 12, 1979. After speaking to Officers Yucaitis and McGuire, Griffin had a conversation with Holloway at about 2 p.m. During this and later conversations, no one struck or threatened Holloway. There were no bruises on him; he did not appear to be tired; he did not complain of mistreatment; he did not state that he did not wish to answer questions; and he did not say that he wanted to consult a lawyer. Holloway never requested medical treatment or said he had diabetes. He was handcuffed while Griffin was at police headquarters.
After Miranda warnings, Investigator Griffin informed Holloway that no gun was found at the motel. About 10 minutes after police began interviewing him, Holloway volunteered to take police to his home. He signed a consent-to-search form. Holloway told police that he would show them where he had hidden the gun at his residence. The gun was hidden in the rafters of his kitchen. It was a .22-caliber weapon with three spent and three live rounds.
Another interview occurred at 3 p.m. Holloway stated that he picked up the Jacksons. Alexander wanted to go to a motel and Holloway drove them to the Dunes Motel. The couple argued over whether or not they should get a motel room. Alexander went into the Dunes Motel and returned shortly thereafter, stating that the motel had no air-conditioned rooms available. Holloway drove a few blocks north to the Ranch Motel. Alexander entered the office to rent a room. Holloway then drove the Jacksons to room 41. Their argument continued. Holloway remained outside listening to the argument. The motel door opened suddenly and Alexander grabbed Judy to prevent her from leaving. Because Holloway and Judy had been friends for a long time, Holloway tried to defend her. When he entered the motel room, Alexander attacked him with a hammer. Holloway disarmed Alexander but the latter drew a revolver. During the ensuing struggle, Alexander had his finger on the trigger of the gun, which discharged three times. Alexander fell and Holloway fled. He drove Judy home. Thereafter, he drove around for a while and then drove home.
At 3:30 p.m., Investigator Griffin interviewed Judy; she may have been handcuffed. Shortly thereafter, he was informed that assistant State's Attorney Paul Szigetvari was in the police station. Szigetvari was assigned to felony review. Griffin, Lavert, McGuire and Yucaitis spoke briefly with Szigetvari. Szigetvari then joined Griffin in interviewing Judy.
Szigetvari introduced himself as an assistant State's Attorney; he never said he was a public defender. He advised Judy of her Miranda rights before conversing with her. Judy appeared normal; she never indicated that she was hungry, thirsty, ill, needed medication or wanted a physician. She never said she was denied use of the telephone.
Judy stated that she and Holloway were lovers. Three days before Alexander's murder, they decided to kill Alexander by throwing a radio into the tub while he was showering. But when the time came for Judy to do the act, Alexander asked her why she was wearing a glove. She did not proceed with the electrical shock attempt. Another plan was for Judy to scream while she and her husband were engaged in sex, at which point Holloway would come in and hit Alexander with a hammer.
On July 12, 1979, Szigetvari spoke with Judy and then with Holloway on four occasions. Investigator Griffin was also present. Szigetvari advised Holloway of his Miranda rights. After the last of these interviews, Szigetvari asked Holloway whether he was willing to make a written statement, and he answered affirmatively. Szigetvari also took a written statement from Judy. Szigetvari noticed nothing unusual about Holloway's physical condition. Holloway never complained that he required medical attention; he never said he wished to see a doctor or wanted medication; and he never said he asked police for medicine and they refused him. Holloway was not perspiring; he was calm and his speech was articulate. He was not handcuffed; neither was Judy handcuffed, and she made no requests or complaints. She did not appear to be tired.
Janet Lupa, a court reporter, recorded the statements of Holloway and Judy on the evening of July 12, 1979. In her presence, Holloway did not complain of a diabetic condition; he did not mention medical or physical problems. He was not perspiring, shaking or holding his head, and his answers to questions were responsive. Neither he nor Judy was handcuffed, and Judy made no complaints.
James Linn, an assistant State's Attorney assigned to felony review, relieved Szigetvari on July 12, 1979. Linn received from court reporter Lupa the typewritten statements of both defendants. Linn read the statement with Holloway and asked him to sign it. Then Lupa photographed Holloway. The same procedure was followed with Judy.
Holloway's statement was taken at 7:45 p.m. on July 12, 1979, in the presence of Szigetvari, Griffin and Lupa. Holloway and Judy had known each other for three years and were lovers. In March 1979, Judy first began to suggest to Holloway that he kill Alexander. Three days before the murder, Judy and Holloway discussed killing Alexander by dropping a radio in the bathtub while the latter was bathing. Defendants bought extension cords to carry out their plan. The incident was to occur on the evening of July 11, 1979. While Alexander was in the tub, he asked Judy why she wore rubber gloves. Judy decided not to proceed. In a telephone conversation, Judy told Holloway that she had another plan. She asked Holloway to pick her up and also her husband and drive them to a motel, which he did. Judy planned that she would get Alexander to take a shower and that Holloway would enter the room after she screamed, under the pretense that she was being assaulted.
After transporting the Jacksons to their motel room, Holloway parked the cab on the street and walked back to the motel. He had a claw hammer. When he heard screaming, he entered the room. Judy and Alexander were engaged in an act of cunnilingus. Twice Holloway hit Alexander on the head with the hammer. Alexander turned and grabbed Holloway's legs. Alexander had a gun in his hand. A struggle over the gun ensued. Holloway squeezed Alexander's hand and the gun fired. Later, the gun fired another time. Defendants fled. Holloway took the gun with him although it did not belong to him. Defendants went to Judy's apartment, where they engaged in sexual intercourse.
Judy's statement was taken at 8:20 p.m., on July 12, 1979, in the presence of Szigetvari, Griffin and Lupa. Judy and Holloway had been lovers for about a year. Judy disliked her husband. Three days prior to the murder, Judy and Holloway discussed a plan to electrocute her husband but it was not carried out. They decided to have Alexander killed by battery. Holloway drove Judy and her husband to the motel room. After the Jacksons showered, they "tussled." Alexander had a hammer in his hand. Then Judy and Alexander engaged in oral sex. Holloway entered the room and twice hit Alexander with the hammer. Holloway drew a gun from his pocket and told Alexander he would kill him. Judy believed the gun belonged to Holloway. Alexander said, "Don't do this to me." After Judy and Holloway fled the motel, the latter said that Alexander "just won't die." When they arrived at Judy's apartment, they made love. In Holloway's cab there was a yellow case containing Alexander's $10,000 insurance policy.
Lawrence Pajowski, a Chicago policeman, transported Holloway from one police station to another. Holloway did not complain of illness or ...