Before trial, counsel for both defendants made motions to sever. Counsel for Christopher indicated that Phillip's attorney had told him that Phillip planned to testify to statements made by Christopher shortly after the crime, and counsel argued that Christopher would have to defend against charges from both his brother and the prosecution. The court denied Christopher's motion on the grounds that he would be presenting an intoxication defense, which would not be inconsistent with Phillip's evidence. The court denied a similar motion by Phillip, but stated that should Phillip take the stand he would sever their cases and proceed with the same jury against Christopher only.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
508 N.E.2d 221, 155 Ill. App. 3d 391, 108 Ill. Dec. 60 1987.IL.315
Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Jr., Judge, presiding.
Rehearing Denied May 19, 1987.
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendants, Phillip and Christopher Lekas, filed this consolidated appeal from their convictions, at a joint trial, of murder, armed robbery, and aggravated arson. Phillip received concurrent sentences of 45 years for murder and 30 years each for armed robbery and aggravated arson. Christopher was given concurrent sentences of 70 years for murder and 30 years each for aggravated arson and armed robbery. We reverse Phillip's conviction for aggravated arson, and affirm his convictions for murder and armed robbery. We reverse Christopher's convictions on all counts and remand his cause for a new trial.
Helen Samp was slain between 11 a.m. and 2 p.m. on August 30, 1982, at the home of her son-in-law, Leo Russell, in the city of Chicago. A fire was set at the house, and approximately $44,000 was taken from Leo's coin collection. At the time of the offenses, Leo was bowling with George Lekas. The police questioned George Lekas at 5 p.m. the next day at the police station, and after a polygraph exam, George admitted that he had received a telephone call at the bowling alley from his brother Phillip, but said that it related to a marijuana contact. At the end of the interview, about 10:30 p.m., George stated that he wanted to tell the police "one more thing." He said that his brothers Christopher and Phillip knew of his bowling date with Russell, that they were in need of money, were constant drug abusers, and had been to Russell's house before. George added that he had heard his two brothers talk about stealing Russell's coin collection. The interrogating officer Detective Cegielski went off duty at about midnight and told officers on the next shift to arrest Christopher and Phillip.
Between 3 and 5 a.m. on September 1, 1982, police officers went to the home of Raymond Lekans, awakened him, and asked to see his sons. The police did not have arrest warrants, nor had they taken their information to any Judge to seek a warrant. Mr. Lekas roused Christopher out of bed. He later testified that his son was "high on something," and that Christopher was unable to walk by himself or hold himself up. Christopher's wife testified that she saw her husband inject a drug known as "PCP" into his arm at about 2:30 in the morning and then fall back to sleep. When Christopher arrived at the front of the house he had to lean against the wall. There was conflicting testimony as to whether the police opened the screen door and pulled Christopher outside, or whether he came onto the porch on his own. Minutes later, Phillip stepped out on the porch and both were then arrested.
Phillip and Christopher were brought to Area Three police headquarters and placed in separate rooms; George also remained in police custody for the rest of the night, and all three were questioned about the Samp homicide at various times on the following day, September 1. That morning George asked to see Detective Cegielski, to whom he admitted that his brothers had told him that they had "ripped off" Leo Russell and killed Mrs. Samp. According to George, Christopher had explained how he and Phillip had committed the crimes. George also told the police that he had seen proceeds from the crime at the Clayton Motel. Detective Cegielski testified that shortly after 9 a.m., he spoke separately, for no more than 15 minutes, with Christopher and Phillip after giving them Miranda warnings. At around noon, the detective went to the Clayton Motel to substantiate what George had told him. A desk clerk identified Phillip and Christopher as having recently been to the motel with George. At 1 p.m., Cegielski returned to the police station, where he again advised Christopher of his rights, and Christopher indicated that he understood. According to Cegielski it was during this conversation that Christopher first implicated himself and his brothers in the crime. At 7 in the evening, following his arrest, Christopher led police to a secluded area on a dirt road near 75th Street and Central Avenue in Chicago and showed them part of the stolen coin collection.
Earlier, at 5:14 p.m., Phillip had given a court-reported statement, which was subsequently introduced at trial, and in which Phillip stated that he knew of Russell's coin collection and had gone to Russell's house with Christopher. Mrs. Samp, the murder victim, invited them in. Once inside, Christopher grabbed her and knocked her to the floor. She screamed, and Phillip got a pillow, which Christopher used to keep her quiet. The dog was barking, but Phillip told Christopher to leave it alone; yet, as he headed downstairs, he saw Christopher twist the dog's neck. Phillip put on surgical gloves and started looking for money in a basement desk. When he found it, he loaded it into a briefcase and sports bag. Christopher came down and helped him for a while and then went back upstairs. Phillip told the police that he heard shuffling and that Christopher returned to tell his brother that he had bound and gagged Mrs. Samp. Phillip then carried one of the bags out to the car and returned to help his brother with the other. Phillip noticed that his glove had ripped, so he lighted a fire in the basement, apparently to destroy fingerprints. Phillip said that he and his brother walked out of the house together and that he got into the driver's seat. The transcript of Phillip's statement shows that he was then asked:
"Q. What did Chris tell you he did with the lady?"
"A. First, he told me to go ahead, then turn right. We were riding down the street and he told me he shot the lady in the head, in the temple."
At 9:06 p.m., eight hours after first implicating himself, and after having taken police to a hiding place for the stolen money, Christopher made a court-reported statement which was also later introduced into evidence at trial. Christopher said that he was with Phillip when the latter phoned their brother George at the bowling alley, who said that Russell had just arrived. When the two reached Russell's home, an old lady unexpectedly answered the door. Phillip told her that he had a briefcase to give to Russell, and Christopher asked to use the bathroom. While Christopher was getting a drink of water, Phillip jumped her and knocked her down. Mrs. Samp screamed, and Phillip put a pillow over her face while Christopher tied her hands, then they both tied her legs. Christopher killed the dog, while Phillip went downstairs. Christopher eventually followed, and Phillip handed him some surgical gloves and a gun, which Christopher concluded must have belonged to Russell. They put the money into the briefcase and sports bag, after which Phillip took the money outside and Christopher went upstairs to "see how the old lady was doing." Phillip came back, and Christopher brought out another "big heavy bag" of money from the basement. However, before he left with the bag, Christopher said, he went to where Mrs. Samp was lying on the floor. The transcript of Christopher's statement reveals the following exchange:
"Q. Did you have a gun, at the time?
A. Yes, I had it in my hand.
Q. What did you do with the gun at that time?
A. I looked at the gun. I said, what am I doing here, and I pointed to my head, and I was going to shoot myself. First, I thought it was a toy. And then I just pointed it down and it went off. I was fucked up and it went off.
Q. Did you shoot the old lady, then?
A. Apparently it went in her head, yes.
Q. Did you see her start ...