Appeal from the Circuit Court of Cook County, the Hon. Richard
L. Samuels, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 30, 1986.
Defendant, Ulece Montgomery, was indicted by a Cook County grand jury for the murders of two elderly women. In a stipulated bench trial he was found guilty as charged. Following a hearing before the trial judge defendant was sentenced to death. He appeals directly to this court, as a matter of right, pursuant to article VI, section 4(b), of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, sec. 4(b)). See also Ill. Rev. Stat. 1983, ch. 38, par. 9-1(i); 87 Ill.2d R. 603.
Defendant raises three issues relating to his conviction: (1) Was there probable cause for the defendant's two arrests? (2) Were defendant's statements after his second arrest the product of the police confronting him with illegally obtained evidence? and (3) Did the trial court rely upon improper impeachment in rejecting defendant's suppression-hearing testimony? In addition, defendant raises five issues with regard to his sentencing: Did the trial court (1) improperly fail to consider, in mitigation, evidence of defendant's "horrendous" youth; (2) improperly fail to consider, in mitigation, evidence that defendant acted under "extreme mental or emotional disturbance"; (3) improperly fail to consider, in mitigation, evidence of defendant's potential for rehabilitation; or (4) give undue weight to double hearsay allegations of earlier sexual assaults by defendant? and (5) Was the trial court's finding that death was the appropriate penalty against the manifest weight of the evidence? Finally, defendant claims that the Illinois death penalty statute is unconstitutional because (1) it gives the State unbridled discretion to determine whether a death penalty hearing will be held, (2) it fails to provide for proportionality review, (3) the sentencing court is not required to make written findings as to the existence of aggravating and mitigating factors, (4) it places the risk of nonpersuasion at sentencing on the defendant, and (5) it requires a finding that death is appropriate whenever aggravation outweighs mitigation.
Late in the evening of April 25, 1981, police from the Robbins police department and the Cook County sheriff's police were called to investigate a double homicide in Robbins. Two elderly women were apparently raped and strangled in their apartments in a two-flat building owned by the two victims. Although the women were not shot or knifed, there nonetheless was blood on the bodies coming from each victim's nose and mouth. There was no sign of forced entry into either apartment.
According to suppression-hearing testimony defendant walked his bicycle up to the scene sometime after the police arrived. Although the testimony was conflicting, apparently defendant asked the police some questions about what was happening. In response to Officer Houlihan's inquiry defendant replied that he lived in the apartment behind the victims' two-flat, in a sort of coachhouse on the same lot as the two-flat. Officer Houlihan testified that defendant had scrapes on his hands and spatters of blood on his pants. Defendant responded to an inquiry about the blood and scrapes by claiming that he had cut himself while attempting to repair his bicycle.
The testimony was conflicting as to what happened next. Officer Houlihan claimed that he asked if defendant would go with him to the police station to answer some questions. Houlihan also testified that he asked if defendant would mind waiting for a while in a squad car while he finished investigating the scene. Defendant testified that he was not asked but, instead, told that he was to accompany the officers to the station, and that he was also told, not asked, to wait in the squad car. Defendant testified that once in the squad car there was no way to get out because the back seat was caged off from the front and the doors had no inside handles. Once at the station, defendant testified, he was locked in an interrogation room. Officer Houlihan testified that defendant was not locked in the room and was free to leave at any time.
During the time defendant spent at the police station on the evening of April 25 and early morning of April 26 defendant signed a written consent form allowing the police to take his fingerprints and palm prints, samples of his head and pubic hair, pubic hair combings, and fingernail scrapings. The police obtained the evidence stated in the consent form and also confiscated defendant's blood-spattered clothing. Defendant was then released.
Two days later, on April 27, 1981, Officer Houlihan received word that defendant's finger and palm prints had been matched to latent prints found on one of the victim's eyeglasses and on an eyeglass case found in that victim's apartment. Armed with this information Officer Houlihan and two other policemen went to defendant's apartment, although they did not have a warrant. The officers testified that they arrested defendant outside his home, although defendant testified that they pushed open the front door, dragged him outside, and then arrested him.
Defendant was then taken to a nearby police station, where he was informed of the fingerprint match. Within 20 minutes of the arrest at his home defendant made the first of three confessions.
Defendant filed several suppression motions, all of which were denied. The trial court ruled that defendant had in fact been arrested on April 25 but found that there was adequate probable cause for the arrest. The court also found that the second arrest, on April 27, was supported by probable cause, and found that the arrest had taken place outside defendant's home, obviating the requirement of a warrant. The court thus found that defendant's fingerprints and confessions were properly obtained and therefore admissible as evidence.
There is sufficient evidence to support the trial court's finding that defendant was arrested on the evening of April 25, 1981. Since this arrest was without a warrant, it was a valid arrest only if it was supported by probable cause. (Beck v. Ohio (1964), 379 U.S. 89, 91, 13 L.Ed.2d 142, 145, 85 S.Ct. 223, 225; People v. Tisler (1984), 103 Ill.2d 226, 236-37.) Probable cause exists when the totality of the facts and circumstances known to the officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (Dunaway v. New York (1979), 442 U.S. 200, 208 n. 9, 60 L.Ed.2d 824, 833 n. 9, 99 S.Ct. 2248, 2254 n. 9; Beck v. Ohio (1964), 379 U.S. 89, 91, 13 L.Ed.2d 142, 145, 85 S.Ct. 223, 225; People v. Tisler (1984), 103 Ill.2d 226, 237.) Whether probable cause is present is governed by common-sense considerations (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L.Ed. 1879, 1890, 69 S.Ct. 1302, 1310; People v. Tisler (1984), 103 Ill.2d 226, 236), and the calculation concerns "[t]he probability of criminal activity, rather than proof beyond a reasonable doubt." People v. Tisler (1984), 103 Ill.2d 226, 236.
In the case at bar, the circumstances, taken as a whole, support the trial court's ruling that there was probable cause for the April 25 arrest. By the time defendant arrived at the crime scene the police had determined that the murderer had not forced entry into either victim's apartment. It was thus likely that the assailant was known to the victims. When defendant appeared, police discovered that he lived on the victims' property, in the unattached rear apartment. He had spatters of blood on his pants, which were consistent with the fact that blood was found on the victims, and his hands were scraped, consistent with the signs of struggle in the victims' apartments. Given these circumstances the police were able to determine that defendant was part of a relatively small class of people who could have had the opportunity to commit the murders, and shortly after the murders defendant's physical appearance was both highly unusual and consistent with his having committed the crimes. Defendant's explanation for his appearance that he had hurt himself fixing his bicycle was not inherently implausible but was insufficient to allay the strong probabilities created by the other facts known to the police.
Since the April 25 arrest was supported by probable cause, defendant's person was subject to a full search incident to this arrest. (United States v. Robinson (1973), 414 U.S. 218, 235, 38 L.Ed.2d 427, 441, 94 S.Ct. 467, 477; People v. Seymour (1981), 84 Ill.2d 24, 33-34.) The taking of fingerprints is a relatively unintrusive part of such a search, and thus we are in agreement with the numerous courts which have held that fingerprints may be taken as part of a search incident to a valid arrest. (See, e.g., United States v. Whitfield (E.D. Pa. 1974), 378 F. Supp. 184, 187; Paulson v. Florida (S.D. Fla. 1973), 360 F. Supp. 156, 161; Floyd v. State (1983), 278 Ark. 342, 344-45, 645 S.W.2d 690, 692; People v. Solomon (1969), 1 Cal.App.3d 907, 910, 82 Cal.Rptr. 215, 217; Brown v. State (Ind. 1982), 442 N.E.2d 1109, 1116; State v. Hunter (Mo. App. 1981), 625 S.W.2d 682, 684.) Therefore defendant's fingerprints were lawfully obtained and properly admitted into evidence.
Since defendant's fingerprints were lawfully obtained, his claim that the second arrest was without probable cause must fail. At the time of the second arrest the police, in addition to the knowledge supporting the first arrest, had properly obtained the knowledge that defendant's fingerprints had been matched to latent prints ...