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03/16/88 the People of the State of v. Richie Cole Et Al.

March 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICHIE COLE ET AL., DEFENDANTS-APPELLANTS



Before the trial, the court granted defense counsel's motion for a severance because it found that the defendants had antagonistic defenses; however, the cases have been consolidated for appeal.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 635, 168 Ill. App. 3d 172, 118 Ill. Dec. 965 1988.IL.365

Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Urso, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

The defendants, Anselm Holman and Richie Cole, were charged by indictment with murder, rape, residential burglary, robbery, home invasion, and aggravated kidnapping. After being tried by separate juries, each of them was found guilty of all charges except that of aggravated kidnapping. The trial Judge sentenced Holman to concurrent terms of natural life for murder, extended terms of 60 years each for rape and home invasion, and 30 years for residential burglary; Cole was given concurrent terms of 40 years for murder, 30 years each for rape and home invasion, and 15 years for residential burglary. It is from those convictions that defendants appeal.

Prior to the selection of Holman's jury, his counsel tendered certain questions to the court to be asked of prospective jurors during voir dire of the type which our supreme court had approved in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. These questions were intended to establish whether the jurors were able to return a not-guilty verdict, whether they would hold it against the defendant if he did not testify, and their understanding of the concept that the defendant was not required to present any evidence. However, during voir dire the court for the most part did not ask these questions; but prior to individual juror questioning, it admonished the venire as follows:

"The indictment in this case is not to be considered as any evidence or presumption of guilt against the defendant. It is a mere formal charge necessary to place the defendant upon trial. The defendant, under the law, is presumed to be innocent of the charge in the indictment, and this presumption remains with him throughout the trial, until you have been satisfied by the evidence in this case beyond all reasonable doubt as to the guilt of the defendant, and the burden of proving the guilt of the defendant beyond all reasonable doubt is on the State.

The law does not require the defendant to prove his innocence. Does anybody disagree with that proposition of law? If so please raise your hands. Again I see no hands, so I can presume that you do not disagree, that you do agree with that proposition of law."

The defendants filed a pretrial motion to suppress certain evidence and statements and to quash arrest. At the hearing held on that motion Detective Ralph Vucko testified that he had been conducting a homicide investigation involving a 75-year-old victim named Mary Brackenridge, and after doing some preliminary investigation, he learned that a person nicknamed "Main" might have information about the case. Upon locating "Main," Vucko learned that "Main" was a nickname for Anselm Holman. Holman indicated that he was aware of Brackenridge's murder and although he was not placed under arrest at this time, he agreed to accompany Vucko to the police station because he had been at the victim's house on the night in question, May 11, 1984.

Holman then directed Vucko and his partner, Detective Vic Switski, to the residence of Richie Cole, who was his companion on the night of May 11. Cole was not present, so Switski left his business card with Ken Cole, Richie Cole's brother, and asked him to inform Richie that the police wanted to talk with him regarding Brackenridge's death.

Holman then guided the detectives to the residence of Cole's girlfriend, where Switski found Cole and asked him to accompany them to the police station for an interview about Brackenridge's death. Cole agreed to go and was put into the back of the squad car. According to the officers, Cole was not under arrest at this time, and the officers admit that they did not then have sufficient probable cause to arrest Cole; nevertheless, Cole testified that he believed he was required to follow the officers and was under arrest. During the 45-minute ride to Area 4 Headquarters, the officers ordered Holman and Cole not to talk to each other.

Upon arrival at the police station, Cole and Holman were placed in separate interview rooms, the doors to which were closed. Before Cole was interrogated he was given Miranda warnings, and during the half-hour interview he gave a statement wherein he implicated himself and Holman, after which both were placed under arrest for murder. Several hours later Cole gave Assistant State's Attorney Scott Nelson another incriminating statement that was immediately reduced to writing. Present during his final oral statement and the transcription thereof was a youth officer who was not present, however, for his initial statement or for a lineup in which Cole participated. Although there is no evidence in the record that the police contacted Cole's mother, she did arrive at the police station prior to his final statement.

Cole's statements were substantially identical and were as follows. Holman told Cole that he knew where they could get some money. They went there and knocked on the front door, but nobody answered. Holman then told Cole to stay on the front steps and watch for police while he went around to the rear of the building. Several minutes later Holman let Cole in the front door, and they proceeded to the second floor, where they saw the decedent and a young boy, later identified as eight-year-old Ricky Brown, sleeping on a couch. Holman told Cole to put the boy in a closet, which he did. Cole thereafter saw Holman push the decedent onto a bed, pull her undergarments off, and proceed to have sexual intercourse with her. Cole then left the bedroom, closed the door, and stayed in an adjacent room. Several minutes later, Holman came out and asked Cole if he wanted to have sexual intercourse, but he refused. Holman returned to the bedroom and shut the door. The victim was crying, then she became silent, and thereafter Holman left the bedroom. Cole and Holman went on to search the apartment, and when they could find nothing of value, they left.

Holman also gave a statement to Nelson wherein he admitted that he entered through the back door and raped the deceased. He also acknowledged that Cole had complied with his request to put the child in a closet. He confirmed Cole's statement that he had asked Cole if he wanted to have sexual intercourse with the deceased, but Cole declined. The main difference in their statements was Holman's contention that Cole had held Brackenridge's mouth to keep her quiet while the two of them were searching for money. The court denied the defendants' motion to suppress the statements and evidence and to quash the arrest.

Neither Cole's nor Holman's statement was a verbatim transcript of what they had said; instead Assistant State's Attorneys Joseph McNerney and Scott Nelson reduced their statements to written narrative form, and they were then signed by Cole and Holman. McNerney and Nelson were allowed to testify at trial, over objection, that these statements were accurate representations of what the defendants had narrated to them. Cole ...


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