Appeal from the Circuit Court of Cook County; the Hon. Sophia
Hall, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 22, 1986.
Defendant Reginald Stachelek was indicted for murder. After a jury trial, defendant was convicted of murder and was sentenced to a term of 35 years. On appeal, defendant contends that the trial court erred in denying his motion to quash his arrest because it was made without probable cause, erred in not suppressing his statements as being involuntary and the product of an illegal arrest, erred in admitting bloodstained clothes as evidence, and erred in refusing to instruct the jury on the defense of withdrawal. He further contends that he was denied effective assistance of counsel.
On January 25, 1983, at 2:30 a.m., James Garcia was found with multiple stab wounds on Western Avenue in Chicago. He later died of the wounds. Police officers on routine patrol saw two men running from the scene. They caught and arrested Victor Lopez. At 3:30 a.m., Officers Leuser and others were assigned to the case. At 4 a.m., they interviewed Lopez and discovered where the stabbing had occurred and that several other people were involved. Between 4:45 and 5 a.m., a female identifying herself as Reginald Stachelek's sister telephoned the police station and requested information about her brother's arrest in connection with the stabbing on Western Avenue. The officer told her that no one by that name was in custody. The officer then told Leuser about the telephone call and he in turn informed Officers West, Lahm and Dorich.
The officers proceeded to the apartment building where the stabbing took place and canvassed the building for witnesses. Officer West testified that an interview with a tenant, Rosa Montes, revealed that shortly after 2 a.m., Montes heard someone banging on her door shouting "Call the police. They are going to kill us." Montes opened the door and saw a stranger clutching his chest and yelling. Behind him were three or four persons including one she recognized as a neighborhood resident known as "Nervous" or "Nervy." The lights suddenly went off and Montes slammed her door. She ran to the window and saw four people, including Nervy, run from the building. Officer West testified further that Montes described Nervy as a black African, 17 or 18 years old, 5 feet 6 or 7 inches tall, with straight, black hair. Montes also told the officers where Nervy lived.
At approximately 6 a.m., Officers West, Lahm and Dorich went to Nervy's apartment. Hassan Khan opened the door, and the officers identified themselves and stated that they were investigating the knifing. The police then saw a man walk up behind Hassan Khan. The officers recognized Nooir (Nervy) Khan from Montes' description. When asked his name, the man responded "Nervy Khan." The officers entered the apartment and placed Nervy under arrest.
Officer West heard a noise from the rear of the apartment, but Nervy stated that no one else was present. Fearing for his safety, West went to investigate the noise. The other officers accompanied Hassan and Nervy to the rear of the apartment. There they found defendant arising from a bed. He identified himself as Reginald Stachelek. West noticed that defendant's trousers and shoes were stained with blood.
Defendant, who was 15 years old, was taken to the police station shortly before 7 a.m. He waited in an interview room until approximately 8:30 a.m., when a youth officer arrived. West informed defendant of his Miranda rights, and that a juvenile could be tried as an adult. Defendant acknowledged that he understood, but still wished to make a statement. Defendant stated that he, Nervy, Victor Lopez, John Martinez and John Aquino beat Garcia as punishment for Garcia's expressing the desire to become a member of a different gang. Defendant subsequently warned Garcia that Aquino and Martinez were going to do something worse to him. Garcia began beating on the door of an apartment, and Martinez pulled out a knife and stabbed Garcia repeatedly. Defendant ran down the stairs. Garcia also ran into the street, chased by Aquino and Lopez.
At approximately 1 p.m. that day, West and the youth officer spoke with defendant, first reminding him of his Miranda rights. The officers told defendant that the other participants in the stabbing had told different stories. Defendant made no statement.
At 3:30 p.m. on the same day, police officers and an assistant State's Attorney again spoke with defendant, first reading him his Miranda rights. Defendant repeated the same statement he had given at 8:30 a.m. Defendant was again reminded that the other participants in the crime had given different accounts. Defendant then changed his statement, and also made a written statement at 4:30 p.m., before which his Miranda rights were repeated. In his statement, defendant repeated substantially the same facts told earlier but stated that he, not Martinez, had stabbed Garcia 10 to 15 times.
Subsequently, the court conducted a hearing on defendant's motion to quash his arrest and to suppress both his statement and his bloodstained clothing. At the hearing, the officers stated that defendant was advised of his Miranda rights before each statement was taken, and that defendant indicated that he understood those rights and wished to speak to the officers. The State's witnesses also testified that defendant was not beaten or mistreated at any time, that defendant did not appear to be under the influence of alcohol or drugs, and that defendant did not ask to make a telephone call. Defendant's written statement included an acknowledgement that he had been treated well, that he had been given cigarettes and food, and that he was not under the influence of drugs or alcohol.
Defendant testified at the hearing that at the time of his arrest an officer stomped on his foot and slapped him. He did not report this injury to the doctor who examined him at the police station. At the 8:30 a.m. interview he had told the police that he had feared for his safety, and they assured him that if he gave information about the crime his identity would be protected. Despite these promises, defendant was taken in a squad car to point out the homes of the others involved in the crime, and Martinez and Aquino were brought back to the police station in the same car with defendant. Defendant also stated that the police refused his requests to make telephone calls from the Khan residence and the station.
Rosa Montes testified for defendant at the hearing. She stated that she only saw one man when she opened her door on the night in question, and that she did not remember telling the officers three or four men were present. She remembered generally describing Nervy to the police, but not specifically telling them Nervy was 17 or 18 years old, had a stocky build and medium black complexion.
Assistant State's Attorney Gordon Greenberg testified that he visited Rosa Montes on February 17, 1983, at 11 a.m. At that time, Montes told Greenberg that her ...