Appeal from the Circuit Court of Cook County; the Hon.
Cornelius J. Houtsma, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 16, 1986.
After a jury trial, defendant, Donald Shannon, was convicted of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4), armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), and two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a)). Defendant was sentenced to a term of 8 years on the attempted-murder conviction. No sentence was entered as to the armed-violence conviction nor was a sentence imposed as to the two counts of aggravated battery, since these two counts were held to merge with the attempted-murder charge. Defendant appeals his armed-violence and attempted-murder convictions.
On appeal, defendant argues that (1) any evidence or statements should have been suppressed because the police department's destruction of evidence violated his due process rights, his alleged statement was involuntarily given to the police, there was no probable cause to arrest him, and there was failure to present in a reasonable time; (2) the trial court erred in excluding testimony of a third party's state of mind; (3) the armed-violence statute is unconstitutional; and (4) he was not convicted beyond a reasonable doubt of attempted murder.
Testimony at trial revealed that on August 1, 1983, at approximately 1:45 a.m., John Vohs, the victim, was riding his motorcycle westbound on 142nd Street in Dolton. As he proceeded west, a Cadillac automobile with several occupants approached, traveling in the left lane; Vohs was traveling in the right lane. At or near the intersection of 142nd Street and Cottage Grove Avenue, shots were fired from the Cadillac, striking Vohs twice. Vohs immediately drove himself to the nearest house, where he asked the occupants to call the police because he had been shot. Vohs, by telephone, told the police that he had been shot by an individual in a white-over-brown Cadillac car, that his assailant wore a black T-shirt and had tattoos on his arm, and that the shots were fired from the passenger side of the car. The police immediately put out a search for a car fitting the description.
At approximately 2:10 a.m., Officer Robert Brosnan of the Dolton police department saw a car matching the description of that given by Vohs. The officer stopped the vehicle and ordered the individuals out of the car. A man (later identified as defendant) exited the car from the front passenger seat. Officer Brosnan noticed that defendant was wearing a black T-shirt and had tattoos on both arms. He further noticed that one of defendant's companions, Michael Ivanov, was also wearing a black T-shirt and had tattoos on his arm. Defendant and his companions were taken to the police station and placed under arrest.
Officer John Roe, a member of the Dolton police department, testified that at or about 7:30 a.m. on August 2, 1983, defendant requested to speak with Sergeant Pfotenhauer, one of the officers investigating the shooting of Vohs. When Officer Roe asked him why, defendant replied, "I did the shooting, the others had nothing to do with it." Defendant, however, denied making this statement.
Defendant testified in his own behalf. He admitted that he was in the Cadillac car on the morning in question and that a shooting had occurred. He stated that he was driving the car at the time of the shooting and that Ivanov was the one who fired the shots. Defendant further testified that after the shooting he drove into an alley and exited the car. He informed Ivanov that he "did not want anything to do with the shooting." Ivanov then told defendant and his companion to get back into the car. Defendant entered the car, sitting in the front passenger seat.
Defendant first contends that the trial court's decision regarding his various motions to suppress was manifestly erroneous. His motions to suppress were based on several grounds. He argues that any evidence found or testimony given should have been suppressed because his due process rights were violated when tape recordings of police radio dispatches, which led to his arrest, were destroyed. Testimony at the suppression hearing revealed that the tape recordings contained a description of Vohs' assailants and information regarding the automobile in which they were riding. Further testimony revealed that these tapes were destroyed pursuant to normal procedures of the Dolton police department.
• 1 Before the destruction of evidence will be held to violate a defendant's due process right, it must be proved that the destroyed evidence was material to defendant's case. The United States Supreme Court in California v. Trombetta (1984), 467 U.S. 479, 488-89, 81 L.Ed.2d 413, 422, 104 S.Ct. 2528, 2534, announced the following test in evaluating the materiality of destroyed evidence:
"Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to pay a significant role in the suspect's defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."
• 2 Testimony at the pretrial hearing indicated that the destroyed tapes contained information about the victim's assailants. It did not contain any exculpatory information. Thus, we conclude that the destroyed evidence was not material and, therefore, defendant's due process rights were not violated.
• 3 Defendant next contends that the police did not have probable cause to arrest him. A review of the record indicates that the authorities had sufficient probable cause to arrest defendant. The record shows that a car matching the description of that of the victim's assailants was stopped; that defendant was in the car; and that defendant wore a black T-shirt and there were tattoos on his arm, as described by the victim. Furthermore, after the automobile was stopped, the officer's search of the car revealed an illegal "sap glove" and a spent .32-caliber casing. Thus, we conclude, the arresting officer had knowledge of facts that would lead a reasonable person to believe a crime had occurred and that defendant had committed the crime. People v. Eddmonds (1984), 101 Ill.2d 44, 60, 461 N.E.2d 347, 354.
• 4 Defendant next argues that any statements attributable to him while in custody were involuntary and, therefore, should have been suppressed. The test for determining voluntariness of a statement is whether under the totality of the circumstances the statement was made freely and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. People v. Martin (1984), ...