Appeal from the Circuit Court of Peoria County; the Hon.
Stephen J. Covey, Judge, presiding.
JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:
A jury convicted defendant of felony murder, two counts of aggravated battery, and robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(3), 18-1, 12-4(a), 12-4(b)(10).) The trial court vacated the aggravated battery and robbery convictions and sentenced defendant to 30 years' imprisonment on the murder conviction. Defendant appeals, arguing that the trial court erred in ruling on his motion to suppress, he was not proved guilty beyond a reasonable doubt, and the trial court erred in instructing the jury. We affirm.
Defendant made four statements to the police. Initially, he made oral and written exculpatory statements to the police prior to being advised of his constitutional rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Subsequently, defendant waived his Miranda rights and made an inculpatory oral statement followed by a similar written statement. Defendant filed a motion to suppress his statements, alleging he was arrested without probable cause, his statements were involuntary, the waiver of his rights was involuntary, and the inculpatory statements and all other evidence in the case was the fruit of an initial illegality and should be suppressed.
The following evidence was presented at the hearing on the suppression motion. On June 2, 1984, 76-year-old Paul Micono was injured during the robbery of his business. He died on June 28. On that day, Dale Whitledge, an investigator for the Peoria police department, and three other police officers were assigned to the investigation. Whitledge canvassed the area around Micono's business and home without turning up any leads. At approximately 5 p.m., Whitledge returned to the station to investigate a fight involving juveniles. One of the juveniles stated that he had seen defendant take three milkshakes. After confirming this information by talking to the other juveniles, Whitledge arrested defendant.
As he was filling out referral forms on the theft, an officer asked Whitledge why he was processing juvenile arrests. Whitledge responded that he was supposed to be working on the instant case. Whitledge testified that he was upset. Therefore, he looked at defendant and asked if defendant knew anything about the Micono matter. He then told defendant that he would drop the theft charge if defendant could tell him who had killed Micono. Defendant stated that Mike and Dave had robbed Micono. Whitledge and defendant went into an office, where defendant stated that a man named Dave told defendant that he and Mike had robbed Micono, using the proceeds to buy a truck. Defendant identified Michael Thomas' picture. Defendant was not under arrest for the Micono robbery or a suspect in it. Before the police took him home, defendant gave a written statement which paralleled his oral statement. The theft charge was dropped.
Approximately two hours later at about 10:15 p.m., defendant returned to the station with Whitledge, who advised defendant of his Miranda rights. Thomas had implicated defendant in the robbery-murder. At first defendant maintained his original statement was true. Inspector Sammy Hoskins told defendant that Thomas stated that defendant had kicked Micono and taken his money. Defendant then admitted his involvement in the incident.
Whitledge further testified that defendant said that he had been at his girlfriend's house and left with his girlfriend's brother, Butch. They were riding bicycles when Thomas and Sutton approached them in the alley behind Micono's business. Thomas asked defendant to help rob Micono, explaining that Sutton could not enter because Micono would recognize him as a customer. Defendant entered, asked for a tool, and kicked Micono in the leg. Micono dropped his cane and, in falling, pulled a dolly on top of himself. Defendant then asked Micono for his money and took a money roll out of Micono's front pocket. Thomas gave defendant $20, but defendant only kept $5. Subsequently, defendant gave a written statement to the same effect as the oral statement.
The police contacted Ralph (Butch) DeWitt, who indicated that defendant admitted robbing Micono. The police also retrieved receipts from the tool rental shop. One had Sutton's palm print on it. Prior to Micono's death, only one officer was assigned to the case. After Micono's death, Whitledge, Hoskins, and Charles Cannon were assigned to the case.
Whitledge stated that he did not threaten, physically or mentally harass, or promise defendant anything other than release on the milkshake-theft charge. Defendant was allowed to drink, smoke, and use the restroom. He appeared coherent. Defendant was under arrest at 8:15 p.m. when he made the first statement. He had not been arrested pursuant to a warrant, and the police had not observed him engaging in illegal conduct. Prior to defendant's initial statement, the police did not have any leads in the Micono investigation. One of the juveniles involved in the fight over possession of defendant's radio told Whitledge that defendant and two friends had ordered milkshakes. Defendant took the milkshakes without paying for them and ran. One of defendant's friends took his radio. Later, defendant's friends encountered two other juveniles, who tried to take the radio from them. The other juveniles substantiated this information. None had previously given the police any information on crimes. Based upon this information, Whitledge arrested defendant, who was at the police station seeking the return of his radio.
Hoskins testified that he interviewed Sutton based upon defendant's initial statement. He advised Sutton of his Miranda rights. Sutton implicated defendant.
Cannon testified that he interviewed two witnesses who indicated that Sutton and Thomas had made admissions about the robbery. On June 28, 1984, Cannon talked to Thomas, who waived his Miranda rights and implicated defendant, himself, and Sutton. On cross-examination, Cannon admitted that he had obtained the two witnesses' names from Sutton and Thomas. He did not know of Sutton or Thomas until after defendant's initial statements.
The trial judge found that probable cause existed for the arrest. Therefore, no fourth amendment violation occurred. However, he found that defendant was in custody and subject to custodial interrogation. The judge noted that the initial statements were voluntary and the only coercion present was that inherent in a custodial situation. The court held the initial exculpatory statements were inadmissible as being in violation of Miranda. Although the judge noted that the initial statements led to Thomas and Sutton, whose statements implicated defendant and led to his inculpatory statement and other information, he found Thomas' and Sutton's statements were an independent source, the police had intensified their investigation, and Sutton's palm print had been found at the scene. Defendant had been released after making the initial statements. Therefore, the subsequent evidence and inculpatory statements were sufficiently attenuated from the inadmissible initial statements and need not be suppressed.
Defendant argues that although his unwarned witness statements were properly suppressed, the trial court erred in failing to suppress all subsequent evidence and defendant's subsequent oral and written confessions. Defendant argues both fourth and fifth amendment violations occurred. He maintains that all the information would not have developed but for the statement which led to Thomas. Therefore, all the evidence is fruit of a poisonous tree and should be suppressed. Defendant relies principally upon suppression cases involving fourth amendment violations. In the alternative, defendant argues that derivative evidence from the Miranda violation should have been suppressed.
The State argues that defendant was not subject to custodial interrogation prior to his exculpatory statements. Therefore, the trial court erred in suppressing them and derivative evidence concepts do not apply. In the alternative, the State, relying upon Oregon v. Elstad (1985), 470 U.S. 298, 84 L.Ed.2d 222, 105 S.Ct. 1285, argues the ...