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11/18/87 the People of the State of v. William Carr

November 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM CARR, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

523 N.E.2d 393, 168 Ill. App. 3d 669, 119 Ill. Dec. 785 1987.IL.1698

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WHITE delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

This case is before us for a second time. At trial on remand defendant William Carr was found guilty of murder and conspiracy, and the trial court sentenced him to a term of 38 years' imprisonment. Defendant appeals.

Police found the body of Richard Bernoski on October 26, 1978. On the evening of November 12, 1978, police apprehended defendant and Carol Lumpp in a motel room in Chicago and took them to separate interview rooms in the local police station. Defendant and Lumpp both made written statements on November 13, 1978. Defendant and Lumpp moved to suppress the statements prior to their first trials and the trial court denied the motions. On appeal we reversed and remanded because we found that the State had failed to produce all material witnesses connected with the taking of defendant's and Lumpp's statements at hearing on the motions to suppress. (People v. Lumpp (1983), 113 Ill. App. 3d 694, 701, 447 N.E.2d 963.) On remand, Lumpp pleaded guilty to conspiracy, and the State's Attorney decided not to prosecute her for murder. The court sentenced her to an extended term of 10 years for conspiracy. I

At defendant's new trial, the court heard the motion to suppress de novo, and it denied the motion. Defendant contends that the trial court violated our mandate when it reopened hearing on his motion to suppress. In our earlier opinion we stated:

"[We] hold that the prosecution failed to meet its burden of producing all material witnesses connected with the taking of each defendant's statement or explaining their absence. Accordingly, their statements should have been suppressed. For that reason, their convictions must be reversed, and the causes must be remanded for new trials." Lumpp, 113 Ill. App. 3d at 701.

As our supreme court stated, "After a judgment is reversed and the cause is remandedthe inferior tribunal can take only such further proceedings as conform to the judgment of the appellate tribunal." (Roggenbuck v. Breuhaus (1928), 330 Ill. 294, 297, 161 N.E. 780.) When the appellate court decides any issue on its merits the trial court is bound by the appellate court's resolution of the issue. (People v. Webb (1982), 109 Ill. App. 3d 328, 330, 440 N.E.2d 406.) However, the trial court is not precluded from considering issues which the appellate court did not determine on their merits. People v. Feagans (1985), 134 Ill. App. 3d 252, 257, 480 N.E.2d 153 (Feagans II).

In People v. Feagans (1983), 118 Ill. App. 3d 991, 455 N.E.2d 871 (Feagans I), the defendant confessed to a crime and at trial he moved to suppress the confession. One of the police officers who was present when defendant confessed did not testify at the hearing on the motion to suppress. The appellate court found that the officer "was a material witness to defendant's statement. The State should either have had him testify or explained his absence. . . . Defendant's statement . . . should have been suppressed." (Feagans, 118 Ill. App. 3d at 995-96.) The court reversed and remanded the cause for a new trial. (118 Ill. App. 3d at 997.) "Upon remand, the trial court held a de novo hearing on the admissibility of defendant's statement, at which the officer in question was called to testify." (Feagans, 134 Ill. App. 3d at 254.) The appellate court found that in Feagans I it "did not reach the issue of the voluntariness of defendant's statement." (134 Ill. App. 3d at 258.) Since it had reversed the trial court's decision to deny the motion to suppress without reaching the merits of the issue, "no error occurred in rehearing defendant's motion to suppress his statement." 134 Ill. App. 3d at 258.

Similarly, in the initial appeal in the case at bar we reversed and remanded for a new trial because the State failed to present a material witness at the hearing on defendant's motion to suppress. Following Feagans II, we hold that the trial court correctly reopened the hearing on defendant's motion to suppress statements. II

At the hearing on the motion to suppress, Detective Hans Heitmann testified that he went to a motel room on November 12, 1978. Defendant answered the door and Heitmann identified himself as a police officer and told defendant that he was investigating a homicide. Heitmann asked to see some identification of defendant and defendant took from his wallet an ID in the name of Michael Dean. Heitmann asked to look at other identification in defendant's wallet, and he found a driver's license in the name of William Carr. Defendant said his name was Dean, not Carr. Heitmann read defendant his Miranda rights and took him to the police station. He went to the interview room to talk to defendant from time to time until midnight. No one struck defendant in Heitmann's presence, defendant was not handcuffed, and defendant never requested a lawyer.

Investigator Kenneth Spink testified that he and Detective William Savage interviewed defendant at 1:30 a.m. on November 13, 1978. He advised defendant of his Miranda rights, but defendant did not request a lawyer. No one in his presence either struck defendant or threatened to harm him. Defendant was not handcuffed while he was in the interview room. When Spink asked defendant his name, defendant did not answer. Spink told defendant that one of the officers knew William Carr. He opened the door to the interview room and Detective Dave Paul was standing in the doorway. Spink asked Paul if defendant was William Carr and ...


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