APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
511 N.E.2d 1215, 157 Ill. App. 3d 1006, 110 Ill. Dec. 895 1987.IL.951
Appeal from the Circuit Court of Cook County; the Hon. George Marovich, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. MURRAY, J.,* concurs. PRESIDING JUSTICE SULLIVAN, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Following a bench trial, defendant, Melvin Jones, was found guilty of the murder of Geoffrey Mayfield, which occurred in Chicago in January 1982. Defendant was adJudged an habitual criminal and was sentenced to imprisonment for natural life. Defendant contends on appeal that the trial court erred: (1) in denying the defendant's motion to quash his December 10, 1982, arrest; (2) in admitting at the hearing on defendant's motion to quash his arrest the testimony of a police officer that a polygraph test was taken by Deneen Murray, who allegedly implicated defendant in an October 19, 1982, triple murder; and (3) in improperly admitting into evidence at trial a police officer's incriminating hearsay conversation with Geoffrey Mayfield, the deceased. The defendant further contends that (4) the evidence failed to establish his guilt beyond a reasonable doubt; (5) the trial court erred in refusing to grant him a new trial on the ground of newly discovered evidence; (6) he did not waive his right against self-incrimination when he was questioned by police officers on December 10, 1982; (7) the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B-1 et seq.) is unconstitutional; and (8) he was denied the effective assistance of counsel. The facts out of which these contentions arose follow.
Geoffrey Mayfield's body was found at the rear of his Chicago residence on January 28, 1982. An autopsy revealed that Mayfield died as a result of numerous bullet wounds to the head.
The defendant was arrested by Chicago police officers Robert Flood and Dennis McGuire on February 5, 1982, as a suspect in the January 1982 Mayfield murder. The defendant was not then charged with the Mayfield murder. He was charged, however, with the unlawful use of a weapon, arising out of the alleged discovery of a gun in his possession when Flood and McGuire arrested him. Because of his inability to make bond on the weapons charge, the defendant was held in custody for eight months, from February 5, 1982, the date of his arrest, to September 2, 1982, when he was found not guilty and discharged from custody.
On October 19, 1982, three people were shot and killed in an apartment on the south side of Chicago. Officers Flood and McGuire arrested the defendant on December 10, 1982, as a suspect in this triple murder. The defendant was not charged with the triple murder.
McGuire and Flood contend that the defendant orally confessed to the January 1982 Mayfield murder during their interrogation of him while he was in custody as a suspect in the October 19, 1982, triple murder. The alleged confession was not reduced to writing and the defendant denied that he confessed. The defendant was charged with the January 1982 Mayfield murder.
The defendant filed a pretrial motion to quash his December 10, 1982, arrest and suppress evidence. At the hearing on the motion, Officer Flood testified as a State's witness that the defendant was released from custody on September 2, 1982, on a weapons charge which arose out of his arrest of the defendant as a suspect in the January 1982 Geoffrey Mayfield murder. Flood testified that during his investigation of the October 19, 1982, triple murder, a female by the name of Deneen Murray told him that she, the defendant, and two other named males entered the apartment in which the murders later occurred, that she sat in the kitchen with one of the males while the other male and the defendant conversed with one of the occupants of the apartment in an adjoining room. The defendant left the apartment. He returned a few minutes later carrying a duffel bag and re-entered the room adjoining the kitchen. A few moments later she heard gunshots. Murray and the male in the kitchen with her dived to the floor. When the shooting stopped she and the male in the kitchen left the apartment and returned to the car in which she had arrived with the defendant and the two named males. A few moments later the defendant and one of the named males came down the apartment stairs. Murray saw a gun in the opened duffel bag carried by the defendant. The duffel bag was put in the trunk of the car and they drove to her aunt's house several blocks away. They let her out of the car and told her not to tell anyone what had happened or she and her family would be killed. Flood further testified that Deneen Murray escorted and directed him to the apartment in which the three people had been shot to death and that Murray later took a polygraph examination. Flood additionally testified on direct examination at the hearing on defendant's motion to quash his arrest:
"Q. And that apartment that she [Deneen Murray] led you to, was that the same apartment that these three people were found shot to death on October 19, 1982?
Q. Now, after Deneen Murray led you to this apartment did you have occasion to take Deneen Murray to anywhere for the purpose of conducting a polygraph examination?
Q. And where did you take her to?
Q. And did she in fact submit to a polygraph examination dealing with the story that she related to you?
Q. What were the results of that polygraph examination?
[Defense counsel]: Objection.
THE COURT: Polygraph results are not admissible.
[Assistant State's Attorney]: Not the results themselves but I think as far as corroborating what this officer was told in fact to justify his actions thereafter.
THE COURT: Indicate that she did take a polygraph.
[Assistant State's Attorney]: Q. After you completed this investigation, these interviews with Deneen Murray, did you have occasion to inform anyone else of the results of your interviews and your investigation?
THE WITNESS: A. Yes, sir.
Q. And who did you inform of the results?
A. I informed Detectives Lotito, Bosco, Sergeant Holt, my supervisors, and generally the entire Area 2 Violent Crimes Unit.
Q. Did you in fact tell them you were looking for anyone in connection with the shooting deaths . . . which occurred on October 19, 1982?
Q. And who did you tell them you were looking for?
A. Melvin Jones also known as Foo Foo." (Emphasis added.)
Not one of the foregoing statements attributed to Deneen Murray by Officer Flood was recorded in any police report prepared by Flood or any other officer, nor was a polygraph test mentioned or referred to in any police report. There was no police report prepared on the conversations between Flood and Deneen Murray, nor was a police report prepared which stated that Flood had any conversation with Murray or that Murray accompanied Flood to the apartment in which the murders occurred, or that she pointed out the apartment to him.
As stated by our supreme court in People v. Nicholls (1970), 44 Ill. 2d 533, 539, 256 N.E.2d 818:
"We have consistently held that the results of a polygraphic examination cannot properly be introduced as evidence either of guilt or innocence of an accused. [Citations.] If the results of such a test are inadmissible, then it necessarily follows that the mere fact that one was given is likewise inadmissible, for to admit such evidence would only tend to confuse and not enlighten." (Emphasis added.)
In People v. Eickhoff (1984), 129 Ill. App. 3d 99, 102-03, 471 N.E.2d 1066, this court definitively stated:
"[The] language of Yarbrough [ People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493] precludes reference in a criminal trial to the fact that a polygraph examination was offered to, or refused by, a defendant, as well as whether he passed or failed it.
This view finds additional support in the tenor of several Illinois appellate decisions. In People v. Rutledge (1977), 45 Ill. App. 3d 779, 359 N.E.2d 1233, the court considered the rule of People v. Nicholls (1970), 45 Ill. 2d 533, 256 N.E.2d 818, and People v. Zazzetta (1963), 27 Ill. 2d 302, 189 N.E.2d 260, prohibiting the questioning of a defendant as to whether he had been offered a polygraph examination, as equally applicable to the questioning of a defense witness. People v. York (1975), 29 Ill. App. 3d 113, 329 N.E.2d 845, held that the trial court erred in permitting testimony that the complaining witnesses in an aggravated incest case had submitted to polygraph examinations since, though the results of the tests were not admitted, the obvious implication was that had the results been negative, the case would not have been prosecuted." (Emphasis in original.)
In People v. Thomas (1984), 123 Ill. App. 3d 857, 867, 463 N.E.2d 832, the court concluded that the use of polygraph evidence in a criminal trial necessarily interfered with the integrity of the judicial fact-finding process and required reversal regardless of the weight of the other evidence which supported the guilty finding.
In the case at bar the State contends that Deneen Murray furnished Flood the information upon which Flood arrested the defendant. The defendant contends that the trial court erred in admitting into evidence on the hearing of defendant's motion to quash his arrest Flood's testimony that Deneen Murray took a polygraph examination on the veracity of her information. In People v. Haymer (1987), 154 Ill. App. 3d 760, the arresting officer relied on the results of a polygraph examination in arresting the defendant. The trial court sustained the defendant's motion to suppress his inculpatory statement made after his arrest. The State appealed alleging that the trial court erred in ruling that there was no probable cause for the defendant's arrest. This court affirmed, stating:
"The police requested and Haymer agreed to take a polygraph examination. The examination took place at 9 p.m. that same evening. At about 2:30 or 3 a.m. on October 5, the police told Haymer that the polygraph examiner had said he was lying. When he refused to change his story, the police arrested him. The police cannot rely on the results of a polygraph examination in making a probable cause determination. In People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070, the Illinois Supreme Court held that the results of a polygraph examination were not admissible in a trial court to prove either guilt or innocence of a defendant because of serious doubts about the reliability and scientific recognition of such tests and the prejudicial effect upon a jury of hearing such results. People v. Szabo (1983), 94 Ill. 2d 327, 363, 447 N.E.2d 193 (court may not consider results of a polygraph exam in a sentencing hearing); People v. Yarbrough (1982), 93 Ill. 2d 421, 427, 444 N.E.2d 493 (court may not consider results of a polygraph exam in a post-trial motion)." (Emphasis added.) People v. Haymer (1987), 154 Ill. App. 3d 760, 768-69.
In the instant case Officer Flood's testimony of Murray's polygraph examination was to establish probable cause for the defendant's arrest. The results of the polygraph examination were admitted through subterfuge and innuendo when Officer Flood testified that he informed his supervisor and other officers of the results of the test and then immediately thereafter told them that he was looking for the defendant for the triple murder. The only Conclusion to be derived from this testimony was that the test results revealed that Deneen Murray spoke the truth when she told Flood what she had seen and heard, which implicated the defendant in the October 19, 1982, triple murder. Pursuant to the authorities cited, the trial court erred when it admitted Flood's testimony that Deneen Murray had taken a polygraph examination and Officer Flood's testimony which implied that the result of Deneen Murray's polygraph examination was truthful. The defendant is therefore entitled to a new hearing on his motion to quash the arrest.
Upon the trial court's overruling the defendant's motion to quash his arrest, the cause proceeded to trial. The defendant contends that at trial, the court erroneously admitted Officer Kwilos' incriminating hearsay testimony of his conversation with Geoffrey Mayfield in which Mayfield told Kwilos that the defendant was implicated in the December 29, 1981, murder of Charles Brooks. The defendant was not charged with the murder of Charles Brooks.
Officer Roy Kwilos testified that on January 1, 1982, while in a Chicago police station he had a conversation with Geoffrey Mayfield, the person whom the defendant was on trial for allegedly murdering on January 28, 1982. The assistant State's Attorney asked Officer Kwilos:
"Q. And what did Mr. Mayfield tell you at that time concerning the shooting death of Charles Brooks?"
The defendant's attorney objected and the assistant State's Attorney responded:
"Your Honor, we are not offering this for the truth of the matter asserted, simply to explain what the reasons the police officers did the things they did thereafter, in connection with this [the Mayfield murder] case."
First, the defendant correctly contends that the officers' explanation of the reasons they "did the things they did thereafter in connection with this [Mayfield murder] case" was irrelevant and immaterial. An explanation for the officers' conduct was not evidence which would prove the defendant's guilt of the crime for which the defendant was on trial. Second, the defendant correctly contends that Kwilos was not in fact being called upon to explain his subsequent conduct in the defendant's case because Kwilos did not do anything further in the defendant's case, except, according to Kwilos' testimony, unsuccessfully seek to arrest the defendant as a suspect in the Brooks murder, which was also irrelevant and immaterial in the Mayfield murder case on trial. Third, the defense attorney informed the trial Judge and the assistant State's Attorney that "we have no difficulties with . . . what steps the police took after the conversation with Mr. Mayfield." (Emphasis added.) Fourth, the defense attorney persisted in his objection to Kwilos' conversation with Mayfield on the grounds that it was prejudicial, inflammatory and inadmissible hearsay. Thereupon, the assistant State's Attorney took inconsistent and diametrically opposite positions in urging the admissibility of the Kwilos-Mayfield hearsay conversation. The assistant State's Attorney stated:
" I do not offer this evidence to prove any of the truth of the matters asserted therein. It's simply that the police talked to Mr. Mayfield, Mr. Mayfield related certain information to the police concerning the incident involving Charles Brooks, and based upon this the police took certain steps and in fact took people into custody.
Whether or not the information which Mr. Mayfield related is true or not is irrelevant. It does, however, go directly to what we intend to prove is the motive for the defendant here, Melvin ...