Appeal from the Circuit Court of Cook County; the Hon.
Cornelius J. Houtsma, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 6, 1987.
Defendant was found guilty in a bench trial of murder, armed robbery, and home invasion. He was sentenced to 45 years for murder and 30 years each for armed robbery and home invasion.
Defendant appeals alleging that: (1) defendant was not proved guilty of murder beyond a reasonable doubt where it was not shown that the blows to the victim's head were a contributory cause of death and that arteriosclerosis was not an independent, superseding cause of death; (2) defendant's sixth amendment right to counsel was violated because defendant made admissions after judicial proceedings began, without a lawyer present, and without a valid waiver; (3) defendant's fifth amendment right to counsel was violated where police officers initiated a conversation with defendant after defendant had invoked his fifth amendment right to counsel; (4) defendant was not proved guilty of home invasion where defendant entered the victim's home with the belief that no one was present; and (5) the mittimus must be amended or modified where it states defendant was convicted of armed violence and defendant was convicted of home invasion.
Prior to trial, Tackett filed several motions in order to suppress his confession. In support of these motions, defendant alleged that: (1) he did not voluntarily and knowingly waive his rights before making his oral and written statements because he was in a drugged and intoxicated state; (2) he had been indicted, and waiver under Miranda was not sufficient to waive his sixth amendment right to counsel; and (3) defendant was told prior to making his written statement that he did not need an attorney.
At the hearing on the motions, Phillip Root and Patrick McCoy, two Longmont, Colorado, police officers, testified that on April 23, 1982, at 2:30 a.m., after receiving information from a confidential informant and contacting the Tinley Park police department, they approached defendant on the street outside his apartment. They told defendant that they wanted to talk with him at the police station about burglaries in the area. He agreed to come down to the police station.
At the station, the officers spoke to Tackett in the booking room. Tackett was told that they knew his real name was not Michael Young but Donald Tackett. The officers told defendant that they had an arrest warrant for defendant from Illinois charging defendant with homicide. Although defendant was also under indictment for murder in Illinois, the Colorado police officers were not aware of this. Officer McCoy read defendant his Miranda rights and asked defendant if he understood them and if he wished to talk with them. Defendant responded "yes" to both questions.
Defendant spoke for approximately 10 to 15 minutes regarding the events in Illinois. Officer Root then took defendant's fingerprints and photograph, and defendant made a phone call. Defendant was taken to the dayroom of the lockup area, and Officer Root told defendant that he would be taken to Boulder county jail and that defendant should tell the jailers that he had not eaten. He further told defendant that defendant would be held overnight at Boulder, that there would be an arraignment the following morning, and that defendant could speak to an attorney at Boulder if he wished to. Defendant responded something equivalent to "I probably should" or "I might be needing one." Officer Root told defendant that he did not think defendant needed an attorney at this time but defendant could have one if he wished to do so. Subsequent to this conversation, Officer McCoy read the Miranda warnings to defendant and defendant signed a statement acknowledging that he understood his rights and wished to waive them. Defendant then wrote a written statement which defendant now contends should have been excluded. It took defendant approximately 5 to 10 minutes to write the statement. The trial court found that defendant's statements were voluntary and there was no constitutional violation under the fifth, sixth, or fourteen amendments.
On December 3, 1981, Adelene Maletich repeatedly tried to reach Harvey Bailek by telephone at his home. Upon receiving no answer, Maletich went to Bailek's home. After Maletich found the window of the side door to the house was broken and the door was unlocked, she telephoned the police. Officer Phillip Valois, of the Tinley Park police department, entered Bailek's house with two other officers. The officers found Bailek's upstairs bedroom in disarray. In the bedroom there were bloodstains on the wall and carpeting. Bailek was found lying face down in a pool of blood with his hands tied behind his back in a bathroom adjacent to his bedroom. Bailek was not conscious, and his breathing was erratic and loud. He was taken to a hospital. Bailek's 1968 Plymouth Valiant was not in the garage but was later found in a field across from a restaurant several miles from Bailek's home.
Alan Kulovitz, an evidence technician with the Cook County sheriff's police department processed the crime scene. He determined that the gun-cabinet compartment in Bailek's bedroom had been pried open and there was a car jack in the corner of that bedroom. There was a bloodstain on the carpet and blood spatters on the wall. The blood spatters were of medium velocity appearing in a cast-off pattern, indicating some type of bludgeoning. Kulovitz stated that this particular pattern indicated that a minimum of three blows were administered to the victim.
Officer Donald J. Shanto questioned Donald Dickover at the Tinley Park police station on December 5, 1981. After lengthy questioning, Dickover gave a written statement to an assistant State's Attorney. Officer Shanto then obtained a search warrant for defendant and defendant's apartment, which defendant shared with Donald Dickover. Upon execution of the search warrant, the officers found a pair of bloodstained jeans in the laundry hamper, along with a brown glove.
Donald Dickover testified that on December 3, 1981, he and defendant drove to Harvey Bailek's home at 17021 Odell Avenue. Dickover and defendant were both wearing brown gloves. They brought with them a glass cutter, a metal bar approximately 10 inches long, tape, and string. While Dickover acted as a "lookout," defendant broke the window with his hand. Both Dickover and defendant put tape on the inner door, cut the glass and broke the glass. Defendant reached inside the door and unlocked it. Then, defendant and Dickover entered Bailek's home.
Dickover and defendant went upstairs and entered Bailek's bedroom. They saw a figure lying on the bed. Dickover panicked and said, "knock him out." Defendant went over to the bed and struck Bailek with the metal bar he brought with him. Bailek awoke and said something equivalent to, "You punks, what are you doing in my house?" Bailek got up and was defending himself against defendant's blows. Defendant struck Bailek on the head three times with the metal pipe, and Bailek fell to the floor near the front of the closet.
Dickover and defendant tied Bailek's hands behind his back and dragged him into the bathroom. Dickover broke the glass in the gun cabinet and took the guns. Defendant opened the lower compartment of the cabinet with a crowbar defendant had taken from the garage. From the compartment they took a handgun, ammunition, and some coins.
They placed all the items into Bailek's car, which Tackett then drove. Dickover drove the car they arrived in. Near Gibbons' Restaurant, Bailek's car stalled so they abandoned the car, transferring the items to the other car. They took all the items to the basement of their apartment. Dickover was taken into custody on December 5. In the early morning of December 6, in a written statement, Dickover implicated defendant. Dickover stated he pleaded guilty before Judge Samuels to charges arising out of this incident and received a 45-year sentence. Dickover stated he had retained counsel to seek a reduction of his sentence through clemency. He believed his testimony would not hurt in getting such a reduction.
Dr. Danilo Soriano testified that he examined Harvey Bailek upon his admittance to the hospital on December 3, 1981, and he continued to care for him during his hospital stay. When Bailek was admitted, he was comatose and he had some bruises on his head and paralysis on the left ...