Appeal from the Circuit Court of Cook County; the Hon. Fred G.
Suria, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
Defendant, James Reginald Turner, appeals from a conviction of murder and a 40-year sentence to the Department of Corrections. Defendant was indicted with a co-defendant, Eleanor Peterson, for the murder of her husband, Roy Peterson, by means of beating, strangling, and scalding him. The events which resulted in the indictment took place over a 24-hour period. The victim (Roy Peterson) died in the early hours of August 12, 1983, at the Petersons' apartment in Chicago. After a joint jury trial of both defendant Turner and co-defendant Peterson, both were found guilty of murder. The two defendants filed separate notices of appeals which have not been consolidated. The following facts are relevant to Turner's appeal.
At approximately 7 a.m. on August 12, 1982, Eleanor Peterson called paramedics to her home. The paramedic found Roy Peterson's body on the bathroom floor. Because of extensive burns and bruises on the body and skin in the full bathtub, the paramedic called the Chicago police department. One of the police investigators, Detective Joseph Strotter, testified at the trial. He stated that Mrs. Peterson first told police that her husband had gone out for the evening and had been involved in a fight, after which he came home and took a bath. She found him on the bathroom floor the next morning. After police informed Mrs. Peterson that a neighbor heard someone leave her apartment early in the morning, she told Detective Strotter that two other men had been in her apartment that night. Mrs. Peterson said that one of the men was Turner and that he had helped her put Roy Peterson into the bath, made sure he stayed there, and then helped take him out. After Mrs. Peterson and Turner decided that Roy was dead, Turner left the apartment. After hearing this, detectives went to Turner's residence.
Mrs. Peterson was questioned at area one headquarters, which contains two courtrooms. There is no evidence as to whether any judges were available at this time. No effort was made to obtain an arrest warrant before police, including Detective Strotter, went to the Turner home. Turner lived on the second floor of a two-flat building. At the time of the arrest, only he and his mother were home. Detective Strotter testified that he and another detective, both in plain clothes, rang the doorbell which was answered by defendant's mother, Mrs. Turner. They identified themselves as police officers and showed identification to her. They told Mrs. Turner they would like to talk to her son and take him to the station for questioning. Mrs. Turner then turned around and walked up the stairs with the detectives following. At the door to the Turner residence, Mrs. Turner said her son was sleeping and she would get him up. She went to a back bedroom, and defendant came to the front door. The detectives told him what they wanted and Turner agreed to go to the station. The detectives then accompanied Turner to the bedroom so he could dress. Detective Strotter stated that this is customary procedure so as to prevent a suspect from obtaining a weapon. Turner was not handcuffed, no police weapons were displayed, and no one told the detectives that they could not enter the residence. The detectives then took Turner to the station. They gave him his Miranda rights in the police car.
Defendant and Mrs. Turner dispute Detective Strotter's account of these events. Mrs. Turner testified that she was outside when two men, who she knew were detectives without being told, walked up to her and asked if defendant lived there and if he was home. She replied yes and went inside and up the stairs with the men following. The police walked into the apartment and back to defendant's bedroom, opened the door without knocking, and went into the room. Mrs. Turner stated that no weapons were used and no identification was shown. She also testified that she doesn't remember whether the men said they were police officers. Mrs. Turner also noted that the detectives never asked permission to enter and that they were polite. Defendant's testimony corroborated his mother's recital of these events.
The next day, August 13, after receiving the pathologist's report, Detective Strotter again interviewed defendant who was still in custody. The detective told Turner that one of the causes of the victim's death was strangulation. Turner then began to cry and said that he had put a towel around the victim's neck while he was in the tub. Defendant stated that he pulled the towel tight but not tightly enough to kill Roy Peterson.
Prior to trial, defendant Turner made a motion for severance pursuant to section 114-8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, sec. 114-8). The motion was denied.
Turner asserts five alleged errors that compel reversal of his conviction. They are: (1) a failure of the trial court to grant a motion for severance which prevented Turner from receiving a fair trial where his defense was antagonistic to the defense of his co-defendant, Peterson; (2) the failure of the trial court to quash his arrest and to suppress evidence; (3) the insufficiency of the evidence that defendant's acts caused the death of the victim; (4) the improper instruction to the jury as to lesser-included offenses; and (5) the error of the trial court when an unauthorized communication with a juror was revealed. In a sequential discussion of these alleged errors, this court will supplement the analyses with additional facts.
• 1, 2 Defendant's motion for severance is based on the argument that his co-defendant's (Peterson's) statement implicating him was incriminating and antagonistic to his defense at trial. He contends that he should be granted a severance because his trial strategy would include the argument that the victim's death was caused by a cerebral hemorrhage inflicted 24 hours before death, while he was only in the apartment for the last eight to 10 hours of the victim's life. The trial court denied the motion to sever stating that defendant Turner could still argue this defense to the jury. Two expert witnesses testified conflictingly at trial as to the cause of death. Both agreed that Roy Peterson had received a blow causing a blood clot in the brain at least 24 hours before his death. Dr. Edmund Donoghue, who performed the autopsy, stated that the death was caused by beating, strangulation, and scalding. The other doctor, Dr. Michael Kaufman, believed the blood clot killed Roy Peterson.
As a general rule, defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill.2d 182, 429 N.E.2d 461.) A defendant who believes he will suffer prejudice as a result of the joinder of his case with that of a co-defendant may request severance by pretrial motion. (Ill. Rev. Stat. 1981, ch. 38, par. 114-8.) The motion must demonstrate how defendant is going to be prejudiced by proceeding with a joint trial. Mere apprehension of prejudice is not sufficient. (People v. Molstad (1984), 101 Ill.2d 128, 461 N.E.2d 398.) In ruling on the motion for severance, the trial judge must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings. The trial court's decision will not be reversed absent an abuse of discretion. (People v. Canaday (1971), 49 Ill.2d 416, 275 N.E.2d 356.) Recently, the court in People v. Daugherty (1984), 102 Ill.2d 533, 468 N.E.2d 969, delineated two situations in which severance motions are usually granted: where a co-defendant makes hearsay admissions that implicate the defendant, and where each defendant protests his innocence and condemns the other. In the application of these standards to this case, we cannot hold that the trial judge abused his discretion in denying defendant Turner's motion for severance.
First, this court notes that Turner, in his motion for severance, does not state how he would be injured by the statements of his co-defendant nor did he make a request that his statements regarding Roy Peterson's death be redacted. Furthermore, co-defendant Peterson made a motion to sever because of Turner's statements implicating her. The trial judge stated that he would grant the Peterson motion unless the State agreed to redact Turner's statement that Peterson stood behind him in the bathroom while he strangled the victim. The State agreed to redact this statement, and the trial judge denied Peterson's motion to sever. Additionally, Peterson testified at trial and was available for cross-examination. Also, both defendants maintained at trial that the death occurred from a hemorrhage inflicted by unknown persons and that defendant's actions were either unintentional or of no medical significance to the victim's death. Furthermore, their respective attorneys cooperated at trial, retaining a single medical expert and adopting each other's post-trial motions.
This is not a case of prejudice where defenses are so antagonistic that a severance is imperative to assure a fair trial because each defendant is protesting his innocence and condemning the other, or an actual and substantial hostility exists between the defendants regarding their defense strategies. (See People v. Daugherty (1984), 102 Ill.2d 533, 468 N.E.2d 969.) For the above reasons, defendant's claim that the trial court improperly denied his motion for severance is without merit.
• 3 In defendant's second and most compelling argument, he alleges that his arrest was without probable cause and that the trial court erred in overruling his motion to quash his arrest and to suppress the evidence that was the fruit of the unlawful arrest. The fourth amendment of the United States Constitution, as applied to State actions through the fourteenth amendment, inhibits warrantless arrests and seizures with some exceptions.
In this case, the State contends that probable cause to arrest defendant existed prior to his arrest and that entry into his home was consensual. The trial judge, in denying defendant's motion to quash and suppress, held that there was consensual entry into Turner's home. The judge further ruled that if he were wrong, exigent ...