APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
523 N.E.2d 80, 168 Ill. App. 3d 904, 119 Ill. Dec. 612 1988.IL.499
Appeal from the Circuit Court of Cook County; the Hon. Lawrence Passarella, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant, Marvin Hoskins, appeals from his convictions for murder and unlawful restraint after a jury trial. He is presently serving concurrent sentences of 60 years for murder and three years for unlawful restraint. Numerous errors alleged in this appeal are based on the following facts.
On January 4, 1983, defendant was arrested and charged with aggravated battery in the beating and shooting of Linda Chappell. Defendant retained Stanley L. Hill as counsel and was subsequently released on bond. As a result of her injuries, Chappell died on January 19, 1983. Defendant was rearrested and charged with various counts of murder, felony murder, feticide, aggravated kidnapping, unlawful restraint, and armed violence. Defendant's first trial was declared a mistrial because of jury deadlock. Prior to his second trial, the State nol-prossed all of the charges except for intentional murder, strong probability murder, unlawful restraint, and felony murder based on aggravated kidnapping. After the State nol-prossed the aggravated kidnapping count, it was permitted to amend the felony murder count to insert unlawful restraint as the underlying felony. Defendant objected to this amendment.
The record discloses that defendant, his "common-law" wife, Jeanne Claudette Brown (hereinafter referred to as defendant's wife), and the victim, Linda Chappell, attended a party in the early morning of January 4, 1983, at which there occurred excessive use of alcohol and drugs. Chappell, who was approximately seven months pregnant and had previously dated defendant, was physically abused at the party. Defendant, his wife, and Larry Sole left the party. Chappell was forced to go with them and was placed in the trunk of a car. Around 7 a.m. the police found Chappell lying on a sidewalk across the street from a vacant building. She was bruised and had been shot several times.
The police officer who found Chappell testified that she was able to indicate her name and partial address, and that she was shot in the nearby vacant building by defendant. She later told hospital personnel that she had been shot by two separate guns. Defendant alleges that Sole was the instigator and actual shooter and that he (defendant) went along because of his own fear of Sole and of what Sole might do to Chappell. Defendant was arrested later on January 4 and formally charged with aggravated assault. He retained Hill as counsel and was released on bond. After Chappell died on January 19, defendant was rearrested and later confessed to participating in the murder.
A hearing was held on defendant's motion to suppress statements made after his second arrest. Detectives Thomas Brankin and John Smith, Assistant State's Attorney Al Petrocelli, attorney Hill, and defendant testified at the hearing. Petrocelli stated that he received a call around 8:30 p.m. on January 21 asking him to go to Area 3 Headquarters to aid in the investigation of Chappell's murder. He met Detectives Brankin and Smith there and attempted to interrogate defendant's wife, who had been arrested earlier that afternoon. When she refused to cooperate, the three men left Area 3 and went to District 7, where defendant was locked up. After advising defendant of his Miranda rights, Petrocelli, Brankin, and Smith interviewed him for 10 to 15 minutes in the processing room, which is a little room immediately outside the cells within the lockup area. Defendant responded with indefinite answers and the three men moved approximately 10 feet to 15 feet away to a desk situated at the end of a hallway in a direct line with defendant's cell. Petrocelli testified that it was approximately five minutes, at the most, before defendant called them back and subsequently confessed.
Thereafter, defendant was taken to Area 3, where he gave a written and signed statement. The detectives' testimony was similar in most respects. Both officers said that they had never received any message from the desk sergeant not to question defendant, and they both testified that defendant's formal statement was taken in the Area 3 interrogation room at the same time that his wife was still being held in one of the side rooms, but that defendant did not see his wife. Detective Smith testified that he may have told defendant that his wife was in custody but he didn't recall defendant's inquiring about his children or if defendant gave any reason for confessing.
Defendant testified that he was a drug addict and showed his "track marks" to the court. He said that when he was arrested in his home on January 19, he went into the bathroom and shot up with a mixture of cocaine and heroin before being taken to Area 3 Headquarters. Later that day, he spoke with his attorney, Hill, by telephone and was advised to make no statements, after which Brankin and Smith tried to interrogate him. Defendant claimed that he was beaten by an officer twice -- in the early mornings of January 20 and 21. Defendant called his attorney on January 20 and told him about the beating. Hill visited him in the District 7 lockup that evening. Defendant also claimed that he was suffering from severe drug withdrawal when Petrocelli, Brankin, and Smith came to see him on the evening of January 21. The investigators testified that defendant showed no signs of illness. Defendant admitted giving some "round about answers" to their questioning. He also stated that Detective Smith told him that his wife was locked up. When they left the processing room, defendant said that he could hear the men talking at the desk about calling the child welfare department to take his four young children who were home alone. He then called his wife's mother from a phone in the lockup area and was told that his wife had been arrested and the children were alone. He then called the officers back and claims that the detectives told him that if he would talk, his wife would be released to take care of the children. He then gave a statement. Defendant also testified that when he was taken to the Area 3 interrogation room, he saw his wife crying in the corridor.
Attorney Hill testified that when he talked to defendant by telephone on January 19, he told Sergeant Engler, the desk sergeant, that defendant was not to be interrogated and that the sergeant said that he would relay the message. Hill further stated that he told the officer whom defendant had pointed out as the man who beat him to stop beating and interrogating his client. Hill also reiterated these instructions to the desk sergeant.
The trial court found that Hill's visits to defendant and his admonitions to refrain from questioning him had occurred but that defendant's testimony was unbelievable. The court further stated that the police had no duty to scrupulously honor defendant's sixth amendment rights after the victim died and, in consideration of the totality of the circumstances, the State had met its burden of ...