Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants Al Davis and Bobby Jean Parker were each convicted of murder, armed robbery and burglary. Davis was sentenced to concurrent terms of 40 years for murder, 30 years for armed robbery and seven years for burglary. Parker was sentenced to concurrent terms of 24 years for murder, 24 years for armed robbery and five years for burglary. Both defendants appeal. Davis contends that: (1) the trial court erred in denying his motion to quash arrest and suppress evidence where he was detained in violation of his fourth amendment rights; (2) his oral and written statements were obtained in violation of his fifth amendment rights; (3) physical evidence obtained with Parker's consent to search their apartment should have been suppressed at trial; (4) the trial court erred in denying Davis' motions for severance and (5) he was denied his right to a fair trial by improper prosecutorial comment during closing argument. Parker contends that: (1) the trial court erred in denying her motion for appointment of separate counsel; (2) the trial court erred in denying her motion to suppress pretrial statements obtained without a valid Miranda waiver and (3) the trial court committed reversible error during the jury selection process when it advised a prospective juror that defendant might not testify at trial.
On January 2, 1981, Frank Collins was found murdered in his apartment-hotel room at 3750 North Broadway in Chicago. The police began an investigation, and late on the evening of January 10 three officers knocked on Davis' open door. Davis invited them in and was questioned about the murder of his neighbor, Collins. Davis was shown a group of black and white photos, two of which he identified as "Nino" and "Bob." He stated that they had robbed Collins previously and suggested they might be involved in the murder. The officers talked to Davis and Parker for approximately 10 minutes.
The police officers then asked Davis to accompany them to Area Six Headquarters to pursue the investigation. He agreed to go with them. When they arrived at the station, Davis was taken to a small interview room and questioned for about 15 minutes. The officers then informed Davis they were going off duty and asked him to wait to talk to the next shift of investigators. He agreed, and the officers notified the first watch and asked them to continue the investigation. Davis spent the night at the station.
At 9:30 the following morning, two other detectives went to talk to Davis. Davis told them he had not been home on the night of the murder and that Nino and Bob had told him they killed Frank Collins. At about 11 a.m., the detectives left to corroborate Davis' story. They told him they were going to talk to his wife and bring back something to eat.
The detectives arrived at Davis' apartment and questioned Parker for 5 or 10 minutes about the events of December 31. They then returned to the Area Six interrogation room and advised Davis of his fifth amendment rights. Davis stated that he understood his rights and indicated he would talk to the detectives. The detectives reviewed with him the discrepancies between his story and Parker's. Davis asked for 5 to 10 minutes to "put his head together." The detectives left the interrogation room and returned after a short time and re-advised Davis of his constitutional rights. Davis then discussed his involvement in the crime, stating that Nino and Bob asked him to help them get into Collins' apartment and promised him a share of the proceeds.
The police officers contacted an assistant State's Attorney who arrived at the station shortly before 4 p.m. He gave Davis his Miranda warnings, and Davis talked to him about the murder. Davis subsequently gave a tape-recorded statement which was later typed. Davis signed each page of the typed statement and signed his name at the end.
Parker arrived at Area Six Headquarters at approximately 6 p.m. on January 11 in response to a phone call from Davis. She was accompanied by her small child and a friend. Parker asked to see Davis, was told she could not and was told to wait in an interview room. Three detectives arrived to talk to her. They told her Davis had implicated himself in the murder and advised her of her Miranda rights. When asked when she knew about the murder, Parker told the officers that Davis, Nino and Bob left her apartment with a pipe to go to Collins' apartment and returned shortly thereafter with a gun, some money and food. She told the officers she also had a microwave oven from Collins' room at her apartment. The officers asked if they could get it and whether she would sign a consent to search her apartment. She agreed and the officers, Parker, her child and her friend proceeded to the apartment. There, the officers had another conversation with her wherein she indicated that she stood in the hallway as a lookout while the three men were in Collins' apartment. She then accompanied the detectives to her friend's apartment on a lower floor and asked her friend to give them the oven. The friend complied, and Parker asked her to take care of her child when she returned to the police station.
Upon her return to the station at about 8 p.m., Parker was re-advised of her rights, which she indicated she understood. She then told the officers that Nino and Bob were made up, that she stood in the victim's apartment while Davis struck the victim several times on his back and head and that Davis went through Collins' pockets for a gun and money while she took other items out of the room. Parker indicated that Davis had forced her to accompany him. Parker was questioned until 1:30 a.m.
At approximately 4 p.m. the following afternoon, Parker was interviewed again after being re-advised of her Miranda rights. She said that she went into Collins' room with Davis and took property from his room back to her apartment. An assistant State's Attorney was contacted and arrived at the station at approximately 10 p.m. He advised Parker of her constitutional rights, and she stated she was in Collins' room with Davis and took property from his dresser. She also stated that Nino and Bob were fictional characters. Parker refused to give a written statement because she did not want to sign anything. The jury found both defendants guilty of murder, armed robbery and burglary.
• 1 Davis' first argument on appeal is that denial of his motion to quash arrest and suppress evidence was manifestly erroneous where his detention was illegal. He maintains that he was taken from his home and held for 14 hours without probable cause before he admitted participation in the murder.
Custodial interrogation on less than probable cause violates the fourth amendment whether or not the detention has the technical trappings of a formal arrest. (Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248.) In further support of his position, Davis relies on those Illinois cases in which the courts have determined that a defendant was in custody despite assertions of the police to the contrary. (See, e.g., People v. McMahon (1980), 83 Ill. App.3d 137, 403 N.E.2d 781; People v. Dowdell (1980), 81 Ill. App.3d 266, 401 N.E.2d 295, cert. denied (1980), 449 U.S. 974, 66 L.Ed.2d 236, 101 S.Ct. 385.) In particular, Davis cites People v. Townes (1981), 94 Ill. App.3d 850, 419 N.E.2d 604.
In Townes, a rape victim gave a vague description of her assailant from which the police compiled a list of possible suspects which included the defendant. The police went to defendant's home and asked him to accompany them to the police station. He went with them and was taken into an interview room. He was read his Miranda rights and interviewed five times over a 12-hour period, with Miranda warnings preceding each interview. Pursuant to his consent, his home and car were searched. He also was placed in a lineup. After his fifth incriminating interview, Townes was formally charged.
The court held that under the Dunaway standard, Townes had been illegally detained. The court found that Townes' detention resembled a traditional arrest and a reasonable person would not have felt he was free to leave. In particular, the court pointed to the consistent administration of Miranda warnings which would indicate to a reasonable person that he was in custody on suspicion of criminal activity. Since the statements given were the product of an illegal detention, the ...