Appeal from the Circuit Court of Cook County, the Hon. Howard
Miller, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 1, 1986.
Following a jury trial in the circuit court of Cook County, the defendant, Derrick E. King, was convicted of murder and armed robbery. Sitting without a jury, the trial judge sentenced the defendant to death for his murder conviction. Sentence was stayed (87 Ill.2d R. 609(a)) pending direct review by this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603), and we now affirm the judgment of the circuit court.
The offenses occurred in the evening of December 19, 1979, at a record and candy store named "Pleasures Unlimited," located at 1943 West 79th Street in Chicago. The victim, Dwayne Miller, was employed at the store as a salesclerk; he was shot once in the back of the head, and he died from the wound. There were two cash registers in the store, and the drawers of both were found open and empty of paper money. Various items, including phonograph records and change, were scattered on the floor. The victim was found behind a counter in the store.
On February 23, 1980, the defendant was arrested in connection with the murder and armed robbery. Under questioning, he made several inculpatory statements, culminating in a signed confession to the crimes. Following that, the defendant was charged by information with murder, armed violence, and armed robbery; before trial, the State nol-prossed the armed-violence charge.
The defendant's statements were introduced into evidence at trial, and they supplied the primary evidence of his guilt. Following his arrest, the defendant was first questioned by robbery investigators about an armed robbery that occurred at a Church's Chicken restaurant on December 22, 1979; the restaurant was located across the street from the Pleasures Unlimited store. After that, he was interrogated by Officer Robert Dwyer, a homicide investigator, about the murder in question here. Dwyer told the defendant that bullets fired at the two businesses had been shown to have come from the same gun. Initially, the defendant said that he waited outside Pleasures Unlimited and that another person, Summage, had shot the victim. The defendant also said that a third person, Coleman, was involved too and that Summage and Coleman would try to implicate him, that Summage would say that the defendant had shot the victim. The defendant then was asked whether he had in fact fired the fatal shot, and the defendant admitted that he had. He said that it was an accident, however. He explained that he was walking the victim toward the back of the store, where there was a second cash register, when the victim jerked away and the gun went off.
After the defendant gave that statement, he accompanied police officers to point out to them Coleman's residence. Later that night, Coleman surrendered a gun to police. The defendant identified it as the murder weapon and then agreed to make a formal statement; this final interview began about 2:40 a.m. on February 24.
In the written confession, the defendant explained that he and two other persons, Donald Ray Summage and Michael Coleman, were outside the Pleasures Unlimited store in the evening of December 19, 1979. The defendant and Summage entered the store, intending to obtain money and drugs, which they believed were sold there by the owner, Demetrius Shaw. Inside the store, the defendant asked for Shaw. The youth behind the counter said that he was not in and did not know when he would return. The defendant then told the youth to give him the money in the cash register, and the youth complied, handing over $7. At that point the defendant was holding the youth, trying to move him toward another cash register. The youth jumped, and the defendant shot him once in the back of the head. While giving the statement, the defendant identified a gun, a .38-caliber revolver, as the weapon he had used in the murder and robbery. The defendant also confessed to the armed robbery at the Church's Chicken restaurant on December 22, 1979. On that day, the defendant and Summage entered the restaurant, located at 79th and Damen, across the street from the Pleasures Unlimited store, and Summage raised the gun and announced the holdup. The defendant took about $400. As they left, Summage fired a shot into the woodwork or paneling there. After the statement was typed, the defendant had Officer Dwyer add the sentence, "I did not mean to kill the boy."
The defendant first argues that the trial court erred in denying his motion to suppress his inculpatory statements. The defendant argues that they were the products of coercion inflicted on him by the police. Following an extensive hearing, the trial judge denied the motion, finding that the defendant had given the statements voluntarily.
At the suppression hearing, the defendant presented testimony regarding his condition before and after his arrest. Michael Berry, a friend, testified that the defendant spent the day of his arrest, February 23, 1980, drinking at another person's house. In the evening, Berry, the defendant, and another left, taking a bus. While walking, the defendant was arrested by a police officer who pulled up in a car. According to Berry, the defendant was intoxicated at that time.
Darlene Harland, a cousin of the defendant, visited the defendant in custody on February 24, 1980, the day after he was arrested. She testified that the defendant's eyes were very red, his face was swollen, and an arm was scratched. Harland had seen the defendant only two days before, and at that time he appeared normal. The defendant told her that he had been beaten following his arrest. Harland believed that the defendant looked worse when she saw him than he did in a photograph of a lineup that the defendant had appeared in.
The defendant testified that he spent the day of his arrest drinking at a friend's house. That evening, while walking with two others, he was arrested. A police car pulled up, and the officer ordered the defendant to get in the car. The defendant testified that police officers questioned him about a murder case and hit him on the knees with a baseball bat 20 to 40 times; they also struck him in the chest with the bat and hit him in the head once or twice with a book. According to the defendant, the police told him to cooperate and advised him not to say anything about his mistreatment to the assistant State's Attorney who took his confession. The defendant testified that he confessed to the crimes because of the beatings. He acknowledged that he was informed of his Miranda rights on several occasions.
Also testifying in the defendant's behalf was Leon White, manager of the Church's Chicken restaurant robbed by the defendant. White viewed the defendant in a lineup on February 24, 1980, at about 6 p.m. White said that at that time the defendant looked as though he had been injured: his face was swollen and an eye was bruised. White was shown a photograph taken after the lineup, and he noted that in it the defendant's face did not appear swollen, and he could not determine from it whether an eye was bruised.
The State presented the testimony of a number of police officers who saw the defendant during the period of his arrest and interrogation. According to this evidence, the defendant first was taken to the sixth district police station and then later was transported to area two headquarters, where he was questioned about the murder and robbery at Pleasures Unlimited and also about the robbery at the Church's Chicken restaurant. The various teams of police officers who questioned the defendant said that they informed him of his Miranda rights, and they denied threatening or beating him. The defendant presented in rebuttal Donald Summage, who had been questioned by police in connection with the crimes here. Summage testified that police officers said that they had beaten the defendant and Coleman and threatened him with the same treatment. This was disputed by an officer who arrested Summage.
At the conclusion of the hearing, the trial judge denied the defendant's motion to suppress his statements. The trial judge found that coercion was not used against the defendant and that he had given his statements voluntarily.
The State has the burden of establishing the voluntariness of a defendant's confession, and the applicable standard requires proof by a preponderance of the evidence. (People v. Caballero (1984), 102 Ill.2d 23, 33; People v. Harper (1967), 36 Ill.2d 398, 402; Ill. Rev. Stat. 1979, ch. 38, par. 114-11(d); see Lego v. Twomey (1972), 404 U.S. 477, 489, 30 L.Ed.2d 618, 627, 92 S.Ct. 619, 626.) The trial court's determination will not be reversed on appeal unless it is against the manifest weight of the evidence (People v. Davis (1983), 97 Ill.2d 1, 20; People v. Kincaid (1981), 87 Ill.2d 107, 117-18), and, on review, evidence presented at trial may be considered in addition to the evidence that was presented at the suppression hearing (People v. Stewart (1984), 104 Ill.2d 463, 480; People v. Caballero (1984), 102 Ill.2d 23, 36; People v. La Bostrie (1958), 14 Ill.2d 617, 620-21).
For proof of his mistreatment at the hands of the police, the defendant relies primarily on Leon White, whose testimony the defendant believes is especially reliable: according to the defendant, White, as the manager of a store allegedly robbed by the defendant, would have had no bias in his favor. The defendant argues that White's testimony therefore confirms Harland's and his own regarding his injuries. The defendant believes, too, that the State failed to provide an innocent explanation for the injuries, and he points out several inconsistencies in the testimony of the officers who arrested and interrogated him.
White and Harland did not see the defendant until the afternoon of the day following his arrest, and their accounts of his appearance at that time, even if accurate, do not explain when or how the alleged injuries occurred. More important, however, the photograph taken immediately after the lineup on February 24 tends to undermine their descriptions of the defendant's appearance on that day. Additional photographs introduced into evidence at trial support the court's finding that the defendant's statements were not coerced. One photograph was taken immediately after the defendant's formal confession; the other was an intake photograph taken on February 25, 1980, when the defendant was transferred to the county jail. Harland indicated that she could detect in them some injuries suffered by the defendant, but the State's witnesses disputed that injuries were present. Taken together, these photographs support the trial court's finding on this matter. We conclude that its finding was not against the manifest weight of the evidence.
Next, the defendant argues that one of his witnesses was improperly impeached and that the State presented to the jury, as substantive evidence, details of a confession allegedly made by the defendant to that witness.
Testifying in the defendant's behalf at trial, Timothy Cox denied the truthfulness of testimony that he had given to a grand jury on February 8, 1980, implicating the defendant in the robbery and murder at Pleasures Unlimited. Over the State's objection, Cox was permitted to explain that he had given that testimony because of threats and harassment by the police. On cross-examination, Cox acknowledged that he had spoken with the defendant on December 23, 1979, four days after the murder at Pleasures Unlimited. Asked about specific parts of the earlier testimony, Cox admitted making those statements to the grand jury but denied that they were true. Specifically, Cox denied that the defendant showed him a silver .38-caliber handgun, that the defendant said that he and "Norris" robbed the Church's Chicken restaurant, and that the defendant said that he would hold up every store on 79th Street and shoot if he were not given money. Cox also denied that the defendant told him the following about the murder and armed robbery at Pleasures Unlimited: that the defendant dragged the victim, Dwayne Miller, to a safe at the back of the store, which he knew contained contraband, that the youth resisted and the defendant hit him, that when the victim refused to open the safe, the defendant ordered him to his knees and asked him one more time to open the safe, and that the victim did not respond, so the defendant shot him in the back of the head.
This information also was revealed in the State's presentation of a rebuttal witness at trial, assistant State's Attorney Jacqueline Cox; she is not related to Timothy Cox. Jacqueline Cox testified that she was present at an interview with Timothy Cox on June 4, 1981, a week before the trial. During that interview, another assistant State's Attorney questioned Timothy Cox about his grand jury testimony, and Timothy Cox reaffirmed it. Jacqueline Cox then recounted Timothy Cox' statements on that occasion. At defense counsel's request, the trial judge instructed the jury that the testimony was not evidence that the defendant had made the statements to Cox but rather could be used only as evidence that Timothy Cox had made the statements to the grand jury and later to the assistant State's Attorneys. Essentially, Miss Cox then repeated what Timothy Cox admitted telling the grand jury but now, at the time of trial, said was false.
The defendant argues that the extensive impeachment of Timothy Cox, both through the cross-examination of that witness and in the rebuttal testimony of Jacqueline Cox, was improper and prejudicial. The defendant believes that the jury inevitably gave this evidence substantive effect, despite receiving several cautionary instructions to the contrary, and points to a part of the State's argument in which the impeachment material was used substantively.
The defendant contends that the prior statements presented here were not proper impeachment of Timothy Cox' trial testimony. The defendant believes that Timothy Cox' testimony on direct examination did not damage the State's position at trial and therefore his impeachment was unwarranted and pertained only to collateral matters. We disagree. The testimony was damaging, for it was intended to support the defendant's theory of police coercion in connection with the investigation of this case. Moreover, that Cox admitted making the earlier statements would not preclude the State from introducing them in impeachment. People v. Bradford (1985), 106 Ill.2d 492.
The defendant also argues that this court has forbidden the impeachment of a witness with earlier statements made outside the presence of the defendant and relating a confession of guilt. In support of that contention the defendant quotes People v. Bryant (1983), 94 Ill.2d 514, 522, where the court said:
"[S]tatements made outside the defendant's presence which relate his confession of guilt or innocence are not competent evidence even for impeachment purposes if likely to prejudice the jury. (People v. McKee (1968), 39 Ill.2d 265, 271; People v. Tunstall (1959), 17 Ill.2d 160.)"
The defendant would derive from Bryant, McKee, and Tunstall a general prohibition of the form of impeachment attempted here.
That theory originated in People v. Tunstall (1959), 17 Ill.2d 160, and the broad "rule" announced there has had an uneven course; it has been variously repudiated and revived. (See People v. Bailey (1975), 60 Ill.2d 37, 49-59 (Underwood, J., dissenting).) Thus, in People v. Tate (1964), 30 Ill.2d 400, the court expressly disavowed Tunstall's broad statement, but later, in People v. McKee (1968), 39 Ill.2d 265, Tunstall was cited approvingly and Tate was not mentioned.
The notion that the defendant's absence from the conversation renders it inadmissible has been rejected as a limitation on the substantive use of evidence (People v. Carpenter (1963), 28 Ill.2d 116), and it would appear to be an equally inappropriate limit on the use of statements for impeachment. The real basis for the concern, then, expressed in Bryant and the other cases is the effect that the statements may have on the jury. Emphasis has been placed on the proper instruction of the jury, and Tate explained the results in the earlier cases as resting on the failure to instruct the jury properly. Thus, Bryant would seem to rest not on a per se prohibition of the form of impeachment here, but rather on the desire to avoid the introduction of impeachment material that the jury is likely to misuse.
Here the jury was instructed, both during trial and at the close of trial, on the limited use of impeachment. We would note, too, that under current law Cox' earlier statements, made under oath, would be admissible for substantive ...