APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
523 N.E.2d 1119, 169 Ill. App. 3d 915, 120 Ill. Dec. 208 1988.IL.652
Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.
JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Defendant, Kenneth Fisher, and his cousin, Johnny McGhee, were jointly indicted for murder, armed robbery, robbery, attempted rape and unlawful restraint. A defense motion for severance was granted. After an extensive hearing, the trial court granted defendant's motion to suppress a written confession, but denied his motion to suppress certain oral statements. Prior to trial, the State nol-prossed the unlawful restraint charge. At defendant's jury trial, the court directed a verdict in favor of the defendant on the charges of armed robbery, robbery, murder predicated on armed robbery, and murder predicated on robbery. The jury returned a verdict of guilty of murder and attempted rape. After denying defendant's motion for a new trial, the court sentenced defendant to 60 years for murder and 15 years for attempted rape, the sentences to run concurrently. McGhee was tried separately and is not involved in this appeal. *fn1
On May 27, 1984, at about 8:30 a.m., some boys discovered the body of the victim, Thelma Fisher. Clues found at the scene led police to Troy Fisher, the victim's father, and Shirley Forrester, who is the mother of defendant Kenneth Fisher and the aunt of the victim. The victim was the cousin of the defendant. Both parents, Troy Fisher and Shirley Forrester, told the police that the last time they saw the victim was the night before. She was in the company of defendant Fisher, Johnny McGhee and Marilyn Green. Defendant's mother told the police that her son was in custody at the 13th District police station on an unrelated theft charge.
The first police contact with the defendant was made at 1 p.m. at the 13th District station, approximately 4 1/2 hours after the victim's body was discovered. They saw defendant in the lock-up. He was not wearing a shirt, his pants were full of blood from the knees down, his gym shoes had blood on the tongue area, top and sides. Defendant was read his rights and agreed to answer questions. He said he was with the victim, a girlfriend and McGhee the previous night. He was then transferred to Area 4 Headquarters.
As detectives inventoried defendant's clothing, they noticed a plastic bag of marijuana protruding from his underwear. The front and rear of his underwear was bloodstained and both of his knees were scraped. Photos were taken of his knees.
Next, the detectives located defendant's car and found blood on the hood, right front hubcap and rear. A leather, metal-studded bracelet, which was also bloodstained, was found in the car. A stereo speaker appeared to have been removed. It was found in the trunk. It had wires similar to those found at the crime scene.
At about 5:30 p.m., the detectives spoke to Marilyn Green, who told them that she was with the victim, defendant and McGhee the previous evening. Prior to joining the defendant and McGhee, she and the victim went to a girlfriend's home, where the victim took a shower, put on a new bra and new underwear and fresh clothes. They later met defendant and McGhee, whom the victim introduced as her cousins. After visiting some taverns and drinking, Ms. Green was taken home. During the evening, they ran into the victim's father and the defendant stopped at home briefly and argued with his pregnant wife. The last thing she heard defendant say to the victim as he drove away was "we have something to do" and the victim yelled "[Hey], wait a minute."
The detectives next spoke with defendant at about 7 p.m. after reading him his Miranda rights. At this time, the defendant told them that he, McGhee and the victim had been where the victim's body was found the evening before. The defendant claimed that he saw his marijuana tucked into the victim's waistband and the two argued over it. During the course of the argument, defendant reached down, picked up a rock and hit the victim in the forehead, causing her to fall. Next, defendant stated that McGhee got some stereo speaker wire and began to tie the victim up. McGhee then picked up a larger rock and struck the victim five or six times and then dropped the rock on her face. Defendant picked the rock up off her face. He noticed that the victim was wearing a studded leather bracelet that he had given her and he removed it from her hand. Then defendant and McGhee drove off.
Later during the evening of May 27, 1984, Assistant State's Attorney John Hynes arrived at the station where the defendant and McGhee were being held. He spoke with the defendant after reading him his Miranda rights. Their first meeting took place at about 1 a.m. on May 28, 1984.
At this time, defendant repeated his prior story, adding that before leaving the scene, he checked to see if the victim was still alive and it appeared that she was not breathing. Defendant drank another beer, and while driving away, he ...