Appeal from the Circuit Court of Cook County; the Hon. Christy
Berkos, Judge, presiding.
JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Michael Allen was found guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2), and unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3). The jury also found defendant Richard Harp guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2), unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3), and unlawful use of a weapon (Ill. Rev. Stat. 1983, ch. 38, par. 24-1). The court sentenced Allen to 10 years and Harp to 20 years in the Illinois Department of Corrections. Both defendants appeal, contending that: (1) the trial court improperly denied the defendants' motion to suppress Harp's confession; (2) the trial court's statements during voir dire prejudiced the jury; (3) the trial court erred in admitting Harp's confession into evidence because it inculpated his co-defendant Allen, who did not have an opportunity to cross-examine the declarant; and (4) statements made during the prosecutor's rebuttal closing argument prejudiced the jury. For the following reasons, we affirm.
The testimony at trial established that on December 31, 1982, Alexis Manhart flagged down a police squad car at the corner of Briar and Broadway streets on the near north side of Chicago. After explaining to the police officers that she had been robbed at knife point inside a van, she entered the squad car and the police retraced the van's path. When they reached Belmont Avenue, the police parked and took down Manhart's statement. Immediately thereafter, Manhart observed the defendant's van proceeding west on Belmont. The van was subsequently apprehended, and Manhart identified its two occupants as her assailants.
Sergeant Gary Baronowski of the Chicago police department testified at trial that, while defendants Harp and Allen were being arrested and handcuffed, he looked into the van and found a Visa credit card, a small bracelet, and some papers which belonged to Manhart. He also discovered two knives which Manhart later identified as those used by the defendants during the robbery.
The van was then driven to the station house for an inventory search. Several other personal items belonging to the victim were recovered. No beer cans, whiskey bottles or traces of drugs were found in the van.
Baronowski and the other arresting officer, Lieutenant Michael Powers, both testified that at the time of the arrest, the defendants did not appear drunk or "high" on drugs. Moreover, the defendants did not smell of alcohol, stagger or slur their speech, or indicate that they were unable to comprehend instructions given to them.
Detective Thomas Keane testified that following the arrest, he advised the defendants of their Miranda rights and proceeded to interview them. Harp indicated that he understood his constitutional rights and then gave two different statements relating to his involvement in the crime. Harp initially stated that he had had too much to drink on the night in question and was asleep in the back of the van when he awoke to overhear a conversation between Manhart and Allen concerning the price of a sexual act. After Harp was shown several items belonging to Manhart found in the back of the van, however, he admitted "that he hadn't told the truth." He stated that he held a knife on Manhart, but denied taking any money from her. When asked if Allen had taken money, Harp replied that he did not want to say anything about Allen which would put him in prison.
Keane also corroborated the testimony of Baronowski and Powers concerning the physical condition of the defendants. He stated that he did not notice anything unusual about the defendants' appearance or behavior. According to Keane, the defendants had no trouble moving, talking, walking, or responding to questions.
At the pretrial hearing on the motion to suppress Harp's confession, Harp testified that he was too intoxicated from alcohol and drugs to have voluntarily waived the Miranda warnings given before making his confession. The trial court rejected this testimony, finding it to be lacking in credibility. Even though the State failed to put on any witnesses, the court summarily denied defendant's motion to suppress.
Defendants initially argue that the trial court improperly denied their motion to suppress Harp's confession. The basis for this argument is that the State failed to call all material witnesses to prove the voluntariness of Harp's confession by a preponderance of the evidence. The relevant statutory provision provides:
"The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court." Ill. Rev. Stat. 1983, ch. 38, par. 114-11(d).
• 1 The Illinois Supreme Court in People v. Kincaid (1981), 87 Ill.2d 107, 429 N.E.2d 508, interpreted this provision stating that it is the State's burden to establish that a confession was "knowingly, intelligently and voluntarily made." (87 Ill.2d 107, 116, 429 N.E.2d 509.) It is, however, within the sound discretion of the trial court to reverse the order of proof requiring the defendants to present evidence before the State. (People v. Smith (1966), 71 Ill. App.2d 446, 219 N.E.2d 82, cert. denied (1967), 386 U.S. 910, 17 L.Ed.2d 784, 87 S.Ct. 859; People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675.) Thus, the State may meet its burden of proof after the defense has presented evidence on the issue of voluntariness.
Defendants rely on People v. Peck (1974), 18 Ill. App.3d 112, 309 N.E.2d 346, for the proposition that the State must make an affirmative showing that a confession was voluntary and not simply impeach the credibility of the defendant's witnesses to sustain its burden of proof. Peck reversed the trial court's admission of the defendant's confession because the prosecutor failed to present any witnesses to show that defendant's confession was voluntary and not the product of police coercion. The court stated that "[i]t was improper for the trial court to disregard defendant's uncontroverted testimony. [Citation.] The trial court's finding that defendant's testimony was unworthy of belief was * * * nevertheless collateral to the main issue of whether defendant's confession was the result of police coercion." 18 Ill. App.3d 112, 116, 309 N.E.2d 346.
Defendants' reliance on Peck is misplaced. In contrast to Peck, the State, in the case before us, called all material witnesses at trial to prove the voluntariness of Harp's confession.
• 2 In the instant case, the State met its burden of proof at trial as in People v. McClure (1976), 43 Ill. App.3d 1059, 358 N.E.2d 23, where the court stated:
"[T]he trial court committed error in denying defendant's motion to suppress his statements after defendant testified without contradiction at the [pretrial] hearing that the statements were obtained without the police officers having advised him of his constitutional rights. However, the testimony adduced at trial clearly demonstrates that defendant had been given his warnings prior to the taking of any statements. * * * The error committed by the trial court in denying the motion to suppress the statements at the time of the hearing was cured by the convincing trial testimony that defendant had been given timely advice of his constitutional rights." 43 Ill. App.3d 1059, 1061-62, 358 N.E.2d 23.
Similarly, in the case before us, the trial court erred when it summarily denied the defendant's motion to suppress Harp's confession. At trial, however, the State presented the "convincing testimony" of the arresting officers, Baronowski and Powers, which was corroborated by Detective Keane. As in McClure, this evidence cured the trial court's error at the pretrial hearing, and the State met its burden ...