APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
515 N.E.2d 812, 161 Ill. App. 3d 995, 113 Ill. Dec. 827
Appeal from the Circuit Court of Cook County; the Hon. John J. Crowley, Judge, presiding. 1987.IL.1466
PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN
This case has been remanded to us from the Illinois Supreme Court. Following a joint jury trial, defendant, Jackie Wilson, and his brother, Andrew Wilson, were found guilty of the murders and armed robberies of Chicago police officers William Fahey and Richard O'Brien on February 9, 1982. Defendant was sentenced to natural life imprisonment for the murders and concurrent terms of three years for the two armed robbery convictions. Andrew received concurrent terms of 30 years on his convictions for armed robbery and was sentenced to death for the murders.
On appeal, we held that the trial court committed prejudicial error by expressly refusing -- in contravention of the decision in People v. Zehr (1982), 110 Ill. App. 3d 458, 442 N.E.2d 581, which was filed approximately two months before this trial and brought to the court's attention at the outset of voir dire -- to ask the jurors certain questions tendered by defense counsel concerning whether they understood that defendant had a right not to testify and whether they would hold it against him or draw negative inferences if he failed to do so; and, noting that the appellate decision was subsequently affirmed by the supreme court in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, wherein a majority of the Justices agreed with the appellate court that "each of [the] questions [at issue] goes to the heart of a particular bias or prejudice which would deprive [the] defendant of his right to a fair and impartial jury" (103 Ill. 2d 472, 477, 469 N.E.2d 1062, 1064), we believed, and ruled, that it was necessary to reverse defendant's convictions and remand the case for a new trial. We were not persuaded otherwise by the State's assertions of waiver by defendant or that the voir dire examination conducted by the trial court was in substantial compliance with Zehr or its additional argument that the rule enunciated in Zehr should be given only prospective application. However, the supreme court thereafter allowed the State's petition for leave to appeal and, in a supervisory order, reversed our judgment "applying People v. Zehr (1984), 103 Ill. 2d 472 retroactively" and remanded the case to us for consideration of those of defendant's contentions not addressed in the original appeal. People v. Wilson (1986), 112 Ill. 2d 567 (Simon, J., Dissenting). *fn1
The trial proceedings and evidence introduced thereat are set forth in detail in our original opinion and will be restated only to the extent necessary for an understanding of the issues to be resolved.
In his supplemental brief, defendant urges us to reconsider his contention that the trial court erred in denying his motion to suppress his statement. It is his position that the supreme court's reversal of Andrew's conviction following its determination that Andrew's confession should have been suppressed as involuntarily given (People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571), supports his claim that his statement was, likewise, the involuntary product of physical and mental coercion by the police stemming from their beatings of him and of Andrew and his resultant fear of additional abuse.
After a careful reading of the supreme court's opinion in Andrew's appeal, we conclude that nothing therein warrants retraction of our original holding that the trial court did not err in finding that defendant's statement was voluntary. In ruling that Andrew's statement should have been suppressed, the supreme court made no factual findings regarding how, when or by whom the injuries Andrew undeniably sustained were inflicted but, rather, based its ruling solely on its determination that, as a matter of law, the State failed to meet its burden of proving they did not occur prior to his confession.
Noting at the outset the general rule that the burden on the State is to establish, by a preponderance of the evidence, that a defendant's confession was voluntary (116 Ill. 2d 29, 38, 506 N.E.2d 571, 574), the court went on to state that where it is evident that a defendant suffered injuries while in police custody and the only inquiry is when they were inflicted, the State must then show by clear and convincing evidence that they were not inflicted as a means of procuring a confession, a burden requiring more than mere denials by the State's witnesses that the confession was coerced (116 Ill. 2d 29, 40, 41, 506 N.E.2d 571, 575). The court distinguished the decisions relied upon by the State to support the trial court's ruling, observing that unlike those cases where either there was no medical corroboration of the occurrence of injuries or an adequate explanation for them was provided, it was conceded and/or clearly established by medical evidence that Andrew sustained approximately 15 separate injuries to his head, chest and legs; however, only his facial injuries were explained by the State. The court therefore concluded that the State had not met its burden of showing by clear and convincing evidence the absence of coercion in procuring the confession. 116 Ill. 2d 29, 41, 506 N.E.2d 571, 576.
This ruling in no way conflicts with or departs from the well-settled principle enunciated in People v. La Frana (1954), 4 Ill. 2d 261, 122 N.E.2d 583, and quoted by the Wilson court that "'[where] the only evidence of coercion is the defendant's own testimony, and where this is contradicted by witnesses for the People, then of course the trial court may choose to believe the latter'" (People v. Wilson (1987), 116 Ill. 2d 29, 40, 506 N.E.2d 571, 575). As in the cases distinguished by the supreme court, defendant, unlike Andrew, produced no evidence apart from his own testimony that he incurred physical injuries while in police custody and, in view of the evidence -- which he does not seriously contest -- that he arrived at the police station at approximately 10 a.m. and, after being advised of his rights, made oral statements to the police and to the assistant State's Attorney between 10:15 and 11 a.m., respectively, and gave a written statement at 12:20 p.m. after being provided a lunch, we see no reason to overturn the trial court's determination that the State had met its burden of establishing a preponderance of the evidence that the statement was made voluntarily.
We turn then to defendant's contention that the trial court abused its discretion in refusing to grant his ...