Appeal from the Circuit Court of Montgomery County; the Hon.
Dennis M. Huber, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Roosevelt Pollard, Jr., was convicted, following a jury trial in the circuit court of Montgomery County, of one count of murder and three counts of armed robbery. He was sentenced to 40 years' imprisonment for the murder conviction and three terms of 30 years each for the armed-robbery convictions, with all four terms to run concurrently. On appeal defendant claims that the court erred in admitting into evidence various statements he made to police while in custody and that the court considered an improper aggravating factor in sentencing.
At trial the following evidence was adduced. Four members of the Thao family were returning to their home in Ottawa, Illinois, on December 26, 1983, after having spent Christmas in Fort Smith, Arkansas. David Thao was driving the family's light-blue four-door Buick Opel north on Interstate 55. Also in the front seat was Long, one of David's brothers. Another brother, Aly, was in the back seat with the boys' father, Reverend Xuxu Thao. Sometime around 10 p.m. David noticed a car tailgating the Thao vehicle. This other car bumped the back of the Thao car. David changed lanes to allow the other car to pass, but it did not. David pulled over to the shoulder of the highway and stopped. The other car stopped as well, parking in front of the Thao vehicle. David testified that three or four black men got out of the car. The men robbed the Thaos at gunpoint, taking David's wallet, his father's wallet, a tape player and some cassettes, and several items from Long's pockets. While this was happening, David heard a shot. Aly had been shot in the head behind his right ear and died shortly thereafter from the wound.
David further testified that Long was forced to kneel outside the car and was struck on the head with a gun. David also stated that one of the men pointed a "long gun" at his own neck during the incident. When the men got back into their car to leave, David and Long were able to see the license number and wrote it down. They had noted the license plate as reading YNZ861. David was not able to give a description of the attackers.
Long Thao substantially corroborated the testimony given by David. He stated there were four or five black men who got out of the other car and that they were young and skinny, but he could not describe them further. Long confirmed he was hit on the head with a gun. He stated the men searched his pockets and took, among other things, a check stub and a picture of a girl he knew.
Reverend Thao, the boys' father, testified through an interpreter, the family being originally from Laos. He also substantially corroborated David's testimony. Reverend Thao testified that the men pointed guns at David and Long and also aimed guns at himself and Aly. He stated that Aly was shot by a man with a very small gun, a revolver. Reverend Thao saw four men involved in the attack. He was able to identify Claude Kilbert as being the man who shot Aly, but he did not identify defendant as being involved.
None of the victims identified defendant as participating in the murder and robbery. The State attempted to show defendant's involvement through circumstantial evidence and defendant's statements to police.
Kenneth Wich, Jr., was driving a truck on Interstate 55 on the night of the incident when he noticed a car being driven erratically. The car's headlights were being flashed on and off. The car would change lanes, pass his truck, and then slow down, staying in the vicinity of Wich's vehicle. Wich eventually drove into a weigh station near Litchfield, and the car followed. He described it as a dark-colored Pontiac which looked like a Grand Prix. A black man in the front passenger seat rolled down the window and talked to Wich for a few minutes. Then the car left. Wich stayed at the weigh station 15 to 20 minutes and then resumed his trip. Later, while driving on the interstate, he saw a small car with its emergency flashers on. Two men were outside the vehicle. He then saw the Pontiac he had encountered earlier parked in front of the small car. Wich testified that one of the men appeared to be leaning into the back seat of the small vehicle and that this person had something in his left hand. Wich did not stop, but, being concerned about what he had seen, he attempted unsuccessfully to summon help on his C.B. radio. Later, while still driving his truck on the interstate, he saw the Pontiac pass him at a high rate of speed. He saw three people in the car and was able to see three letters on the license plate: YNZ. Wich learned of the murder of Aly Thao two days later in a newspaper and contacted the police to tell them the events he had observed.
Another truck driver, David Nauman, was also driving north on Interstate 55 on the night of December 26. He saw a small light-blue car along the side of the road and saw two males jump in front of his truck to flag him down. They told him their brother had been shot and killed. Nauman, after an unsuccessful attempt to get help over his C.B. radio, took one of the males to a telephone to call the police.
William Cunningham was working at a gas station in Decatur on this night. At about 11:30 p.m., a car pulled into the station, and three black men got out. One pumped the gas and another paid Cunningham. While these two men were out of the car, the third man, the driver, drove off without them. Subsequently, Eldon Berg, a friend of Cunningham's, drove into the station. Berg took the two stranded men to the Decatur police station. A dispatcher there advised Berg to take the men to the Salvation Army where they could spend the night. Berg did so, but the two men told him they did not want to stay there and asked to go back to the police station. Once at the station, they were "kind of reluctant" to go inside, according to Berg, but eventually did so. Berg identified the two men in court and stated he knew them as Claude Kilbert and Derrick Jones. Kilbert and Jones were held at the police station and questioned about the murder and robbery.
Delbert Taylor, a Decatur police officer, was on patrol on the night these events occurred. He had heard a radio call to watch for a 1975 Pontiac Grand Prix with license number YNZ861. He saw a car matching this description with a black man driving it. Taylor identified defendant as being that man. Defendant pulled up to Taylor's unmarked car and asked for directions to St. Louis. After giving defendant directions, Taylor followed the car in order to view the license plate. Taylor saw the car stop near where another vehicle had become stuck in the snow. This is where defendant was arrested. Taylor looked into the Pontiac and saw a shotgun or rifle between the front seat and the console, a handgun on the front seat, and another handgun on the rear floorboard. He also saw cassette tapes in the car. Police also later found a tape player, a check stub, and a wallet in the car, among other items.
David Thao identified the tape player, the tapes and the wallet found in the Pontiac as belonging to him. Long Thao identified the check stub as belonging to him. In addition, a picture taken from defendant's coat after his arrest was identified by Long as the picture of his friend he had had in his pocket on the night his family was robbed.
Krail Lattig, a forensic scientist from the Illinois Bureau of Scientific Services, testified that the shotgun recovered from the car was loaded and could have been fired.
The State also presented statements made by defendant while in custody showing his involvement with the murder and robbery. Because defendant claims some of these statements should not have been admitted at trial, we include here the circumstances surrounding the making of these statements, elicited at a hearing on the defendant's motion to suppress them prior to trial.
At the hearing on the motion to suppress, the defendant indicated that he was arrested late on December 26, 1983, or early in the morning of December 27, that upon being arrested he was taken first to the Decatur police department, and that the first time he was approached by the police while in custody was on a date he could not recall at 12 or 1 a.m. He thought the name of the policeman involved was "Brown." Initially the officer advised him of his Miranda rights, at which time, he said, he asked to call his attorney. At about 6:30 or 7 a.m. that same day an officer approached him attempting to obtain a statement. The defendant testified that he had told the officer that his name was "Anthony Avery." He denied having been advised of his rights at this time and denied having told anything to Officer "Brown" or "Higgins." The defendant recalled having signed no statement in the name of "Anthony Avery." He stated that he had arrived at the Montgomery County jail in the late afternoon of December 27 or 28. He thought that on December 27 two policeman approached him and greeted him as "Roosevelt Pollard." When confronted with that name, he said, he told them: "I had no rap for them. I told them that I had no talk." He said he was advised of his rights and remained silent. After that date, he said, he was approached again by police to make a statement. Of that time he stated, "I believe when I asked for an attorney at that time they came again." Asked, "At any time during the course of your first couple of days at the Montgomery County Jail, do you recal [sic] signing or stating that you gave up your right to remain silent and then proceeding to discuss anything?" he answered, "No."
At the hearing on the motion to suppress the State presented the following evidence. Robert Pittenger, a detective employed by the city of Decatur, testified that he had interviewed the defendant at about 1 a.m. on December 27, 1983. He read the Miranda rights to the defendant, who signed a waiver-of-rights form. The witness stated that the defendant did not request an attorney and did not refuse to speak with him. The defendant told the witness that he had left St. Louis on December 26, obtaining a ride from a truck driver who dropped him off at a weigh station that was closed. Two black males and a black female picked him up and gave him a ride to a store. There he obtained a ride from a man driving a light-colored Ford Torino who dropped him off near the place where he was arrested. The witness had told the defendant that another suspect had stated that the defendant had done the shooting during the robbery. The defendant denied having done so and denied knowing the other two suspects in custody. He altered his account of what had happened to state that the car was a dark-colored Trans Am. Later in the conversation the defendant admitted that he had gone to Decatur with the other two suspects in a Grand Prix. He told the witness that if he "wanted to know who done the shooting to go look at their hands and the one that done the shooting, their ...