Appeal from the Circuit Court of Cook County; the Hon. Leonard
R. Grazian, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following simultaneous trials, defendants Robinson and Thomas were convicted by the court and a jury, respectively, of murder and attempted armed robbery and each was sentenced to an extended term of 60 years for murder and a term of 15 years for attempted armed robbery to be served concurrently with the murder sentence. On appeal, Thomas contends that: (1) the trial court erred in denying his motion to suppress a statement made while in police custody; (2) the exclusion of jurors opposed to the death penalty after the denial of his pretrial motion to waive a jury for sentencing denied his (a) sixth amendment right to a representative jury and (b) right to equal protection; (3) the prosecutor's use of peremptory challenges to exclude all black persons from the jury violated his sixth amendment right to a representative jury; (4) he was denied a fair trial by (a) certain objections made by counsel for Robinson which implied that Robinson disputed defendant's version of the occurrence; (b) evidence and argument regarding the victim's wife and children; and (c) testimony that the victim was a police officer; (5) he was improperly sentenced to an extended term for murder; and (6) he was denied a fair sentencing hearing where the prosecutor used his silence as evidence of his guilt of another crime. Robinson joins in Thomas' contention with respect to the impropriety of the extended-term sentence for murder and also contends that the trial court erred in refusing to suppress his statements.
THOMAS' MOTION TO SUPPRESS HIS STATEMENT
Defendant Thomas testified that on September 12, 1981, when the police came to his home they did not show him an arrest warrant or tell him there was one outstanding. They asked him to accompany them to their car which he did. He was not told that he was under arrest or that he could not leave. The officers asked him whether he knew what they wanted to talk to him about, but that is the only conversation they had in the car. He was taken to an interrogation room at the police station where, after being handcuffed to a ring on the wall, he was advised of his rights and questioned. He gave the officers a summary of his knowledge of the Weinschenk stabbing and then had a conversation with an assistant State's Attorney following which he gave a court-reported statement. Defendant stated on cross-examination that when the police came to the house, his sister was downstairs talking to them. They called him downstairs and asked whether he would walk to the car with them. They did not have their guns out nor did they handcuff him, and they agreed that his sister and mother could accompany him. He was not handcuffed nor advised of his rights while in the car.
Officer O'Connor testified that from other officers he learned that the victim said two black males were involved and that approximately six other people had observed two black males in their early twenties in the vicinity of the incident. Articles of clothing, two garment bags, a shoulder bag, and a piece of paper with three telephone numbers on it were found in an alley about 2 1/2 blocks from the stabbing. Further investigation connected those numbers to defendant, who was not at home when O'Connor and another officer went there. They returned later and talked to his sister who told them that she had seen Robinson shortly after their earlier visit and when she told him that the police were looking for her brother, Robinson said, "I don't know why they are looking for Darryl, I stabbed the man." O'Connor testified also that he and the other officer had not entered the building and were still talking to defendant's sister when they were joined by defendant. He agreed to go with them to the station for an interview. While in the car defendant was advised of his Miranda rights, and while he was not told then that he was free to go, neither was he placed under arrest. Defendant's mother and sister went to the second-floor offices at the police station but were not present with him in the interview room. O'Connor did not remember whether defendant was handcuffed during the interview.
Officer Markham testified that defendant was not handcuffed in any manner when he was in the interview room nor was he searched or fingerprinted when he was brought into the station. On cross-examination, he stated that defendant agreed to tour the area with them and to go to the station. He gave defendant his Miranda rights when he got into the car but testified that he was not in custody at that time and was free to leave. There were no conversations in the car with him concerning the Weinschenk homicide, and at the station he was interviewed in a room with a glass window. Markham also said the use of an interview room did not indicate that the defendant was in custody because witnesses are always interviewed in those rooms. He was not handcuffed in that room and he made his statement as soon as he was asked what happened at the loop parking garage.
Tiola Phillips, defendant's mother, testified that it was Linda Parks, defendant's girlfriend, rather than his sister, Denice, who accompanied them to the police station. The officers did not handcuff defendant when they got into the police car but when they got out of the car at the station, his arms were handcuffed behind his back. He and the officers went to a room on the second floor and when the door opened she could see that defendant was sitting in a chair along a wall but she could not tell whether he was handcuffed at that time. The trial court denied the motion to suppress finding that defendant was not in custody when he gave the statement.
ROBINSON'S MOTION TO SUPPRESS HIS STATEMENT
Officer Markham testified that he and his partner, Officer O'Connor, were at the violent crimes office when defendant Robinson came to the station with his attorney. In the presence of his attorney, Robinson was informed of his rights. He declined to make a statement and was placed in a holding room while the police tried to contact the witnesses for a lineup. Robinson's attorney left after learning that lineup arrangements were being made. Markham had no further conversations with Robinson after he was placed in the interview room. On cross-examination, Markham stated that he did ask Robinson certain questions necessary in making out the arrest slip but he did not question him about the crime because Robinson declined to make a statement. He was not present when anyone else questioned Robinson about the crime and to his knowledge, his partner, Officer O'Connor, did not do so.
Officer Robertson testified that when he came on duty he made several telephone calls, but was not able to locate witnesses for Robinson's lineup. He did not speak to Robinson while he was on duty and, as far as he knew, none of the other officers talked to him regarding the Weinschenk homicide.
Officer O'Callaghan testified that, early in the afternoon of September 16, 1981, he brought Robinson to the second floor of the station and, after informing him that he was going to conduct some lineups, told him that he should notify his attorney and also advised him of his rights. Robinson said that he didn't think he had to call his lawyer; that he would cooperate and could probably straighten out the whole matter. Markham again explained Robinson's rights to him and after acknowledging that he understood them, Robinson said that he thought he could put the whole case together. Robinson then gave the following version of events:
"He had some knowledge of the case because he had been sitting in a schoolyard on the west side talking to a friend of his named Darryl and to another guy. While they drank and smoked marijuana, Darryl and his friend talked about going downtown to rob some people and all three of them later rode an `L' toward the loop with Darryl carrying a briefcase with tools and wire for hot-wiring cars. Robinson got off the `L' at some point and the other two individuals continued on their way. Darryl told Robinson about the Weinschenk homicide that night and Robinson thought he could lead Officer O'Callaghan to the other party."
O'Callaghan and Officer Triggs then took Robinson to the alleys in the area of the homicide because Robinson said that he could help them find the murder weapon, the briefcase, and some other evidence. Based on information he said he had received from Thomas, Robinson directed the officers through certain alleys. The second alley was the same alley in which the police had obtained the clothing on the night of the homicide. They found nothing else and returned to the station where lineups were conducted. Robinson then made another statement and later talked to an assistant State's Attorney. On cross-examination, O'Callaghan stated that he went to the lockup to get Robinson for the purpose of holding the lineup, not to obtain a statement from him and that without any questioning by him, Robinson simply began talking to him sometime in the early afternoon and the first lineup was not held until around 5 p.m. O'Callaghan was the only person present during Robinson's initial statement, and although he did not make any contemporaneous notes, he later typed a summation of the conversation in the police report. Robinson never told him that he would like to call his lawyer or have his lawyer present.
Stuart Palmer, an assistant State's Attorney, testified that Robinson initially told him that he didn't want to talk to the State's Attorney's office, stating that "I have already told my story to the detective and I told him the truth and the reason I don't want to talk to the states' attorneys' office is because I have to leave myself a fighting chance." Palmer did not have a chance to say anything to Robinson before he made the above comments, and he left immediately after the comments. He noticed nothing unusual about Robinson, nor did Robinson complain about his treatment.
Robinson testified that he went to the police station on September 14, 1981, accompanied by his attorney, who told Officer Markham that Robinson didn't want to make any statements. After Officer Markham advised him of his Miranda rights in the presence of his attorney, Robinson also said that he did not wish to make a statement. After his attorney left, Markham typed up his report and then went on to ask him some questions, but Robinson answered none concerning the murder. Markham's partner then came into the room, and after making him kneel with his hands behind his back, the two officers called him names, questioned his morals, and asked why he and Darryl killed the man. He told them again that he didn't want to talk to them. This questioning took place about 20 or 30 minutes after he was turned in by his attorney. Later that same night, Markham and two other detectives questioned him for several hours and detectives from a later shift made several unsuccessful attempts to question him about the case, but he again refused to talk when brought up from the lockup for questioning at around 9 a.m. and at 3 p.m. on September 15. Then on September 16, O'Callaghan suggested that he cooperate because Darryl Thomas said that he had killed the man. Robinson was in the room from around 9:30 a.m. on September 16 until about 10 p.m., and during this period O'Callaghan was in and out of the room and eventually told him that there would probably be a lineup and that he would certainly be pointed out. Robinson then testified, "* * * so I bested him, you know, what he wanted to hear, you know, my side of the story." Later, he said that he wanted to call his lawyer, but O'Callaghan continued questioning him and threatening him with a lineup. Robinson stated that he did eventually respond to the questions but he did not tell the truth. He gave the officers information because they were pressuring him and would not let him eat, sleep or call his attorney. A detective tried to bribe him with food by purchasing some chicken for Robinson around 12:30 p.m. on September 16, and attempting to exchange it for information. After he finished the chicken and indicated that he still did not want to talk, the detective said that Robinson had made a fool out of him and demanded that he tell them what he knew. When he asked for his attorney, the detective responded by threatening him with identification in a lineup and subsequent conviction if he didn't help himself by cooperating with the police. After Robinson still did not answer or give any information, the detective read Darryl Thomas' statement. Robinson told him that the statement was not true. Around 7 p.m. on September 16, he gave O'Callaghan information about the murder and robbery. He saw Assistant State's Attorney Palmer around 9:30 that evening in the interrogation room and told him that he didn't want to talk to him. On cross-examination, Robinson stated that Markham brought him up from the lockup for questioning for only a few minutes on the night of his arrest and that he was brought up by other officers for about a half hour at 1 a.m. Robinson stated that O'Callaghan did not say that he could not have the chicken unless he answered his questions and, although he did tell the State's Attorney that he had not slept, he did inform him that he had not been fed. He also stated that he was in a lineup around 4:30 or 5 that evening, or about a half hour after they returned from the alley, and that he was in two other lineups which followed shortly thereafter.
The trial court denied the motion to suppress finding that there was no coercion.
Bridget Weinschenk testified she last saw her husband alive and well on the morning of September 10, 1981, and the next time she saw him was at the funeral parlor.
Kenneth Wallace testified that, on September 10, 1981, he and Darryl Thomas stopped to get Darryl's friend, Wesley, and the three then boarded an "L" train. He later got off the train, but Darryl and Wesley remained on. He identified a piece of the Sun-Times sports section with his telephone number written on it and testified that he wrote his number on the paper and gave it to Darryl as he was getting off the train.
Michael Campbell testified that, on September 10, 1981, at approximately 8:30 p.m., when he took his break from his work at Continental Bank he went to his car at the Gateway parking lot at Monroe and Canal. He observed two black men at the corner of Canal and Monroe who were watching him. He continued on toward his car, which was facing Monroe, and noticed that, as they walked, one of the men kept turning back to look at him. One wore tan slacks and a brown jacket and carried a brown leather bag which kept falling off his shoulder as he turned around. The other wore jeans and a blue shirt.
Dwayne Bradford testified that on September 10, 1981, he parked his car in the basement of the Gateway parking lot. When he went to his car during a work break at 9:40 or 9:45 p.m., he saw two men coming from the parking lot to the elevator. One wore dark pants, and the other had on light pants. One also had a brown shoulder bag. When he left at around 9:55, he noticed the same two men in back of the parking lot.
LaDonna Porter testified that she drove her car to work on September 10, 1981, and as she entered the Gateway parking lot at Monroe and Canal about 10:10 p.m., she saw a car coming down the ramp. The car stopped in such a way that it blocked the entrance and the driver called for help. He then pulled his car over into a parking space and slumped over the wheel. She went to his car and heard him say, "Help me, help me, help me, I've been stabbed by two black guys up in the parking lot."
Thomas Spraggins testified that about 10:15 p.m. on September 10, 1981, he was standing outside the front door of the Cafe Bohemia, one block south of the Gateway garage, when he saw two men running down the sidewalk toward him and away from the parking garage. The taller, darker person was wearing blue jeans, but he didn't have an opportunity to observe his shirt, and the other man wore light beige pants and a leather jacket. One of the men carried a shoulder bag.
Detective Wilcosz testified that on September 10, 1981, he and his partner went to the Gateway garage and, after talking to police investigators there, they cruised the area looking for the offenders and for evidence. On the basis of information received from some men sitting in front of the Cafe Bohemia, they drove into certain alleys and companion ways. In a dead-end alley at 207 South Jefferson, they found a brown shoulder bag, a green clothing bag, and various other items of clothing, including a blue shirt, a pair of blue jeans, and a pair of light trousers. The green clothing bag contained a few pieces of paper, including a portion of a Sun-Times newspaper with a telephone number and a part of a notebook or telephone book with two names and telephone numbers.
Pathologist Tae Ann testified that the cause of death was the two stab wounds to the chest which lacerated the heart and lung and caused massive internal bleeding.
Jeremiah Lynch testified that on September 12, 1981, he introduced himself to Thomas as an assistant State's Attorney at the police station; informed him of his Miranda rights and asked whether he had any questions about them. Thomas said that he had no questions. With Officer O'Connor present, Lynch interviewed Thomas twice following which he gave a court-reported statement which he read, initialed some corrections he wanted on it and then signed it.
Officer O'Callaghan testified that when he told Robinson that he was going to conduct some lineups he asked him if he would like to call his attorney. When Robinson then asked to talk to him he advised him of his Miranda rights. Robinson said he understood them and stated that he still wanted to talk about the case, but "felt that he was being hooked up into it." Robinson said that he would give bits and pieces and some clues as they went along and although he could furnish the whole case, he was going to be very careful and give him only a little bit at a time.
Robinson then told O'Callaghan that he was sitting in a schoolyard on the west side, drinking and "smoking some reefer" with Darryl Thomas and another person. After they began to talk about robbing people, the three of them took the Douglas "L" to the loop but Robinson decided that he didn't want to be involved and got off the "L." He `'went out south and partied all night." O'Callaghan asked him for the location of the party and the name of the people so that he could check out the alibi but Robinson just answered that he could put the case together and said he would show him where to find the murder weapon and some other evidence. O'Callaghan, Officer Triggs, and defendant then drove in a police car to the loop, where Robinson directed them to pull into a dead-end alley off Jefferson between Adams and Jackson. Robinson got out of the car and, after looking into a dumpster, he walked directly to a small staircase and looked under it. Finding nothing, he said that "somebody must have found the stuff" because there should have been some articles of clothing lying around. He then directed them to an alley to look for the knife, but none was found. He said that his information about the killing came from Darryl Thomas and his friend. After they returned to the station, O'Callaghan told Robinson that the police had already talked to Kenneth Wallace, the other person at the schoolyard, and after Robinson was shown parts of Darryl Thomas' statement, he said that he had been lying and now wanted to tell the truth. He then gave another account of the incident, one in which he said Wallace was the one who left the "L" early and that their plan was to steal a car, ride to the north side to pick up and rob some prostitutes, and then go to a disco. Darryl Thomas had the tools to wire a car in his case, and Robinson had a brown ...