APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
539 N.E.2d 736, 184 Ill. App. 3d 321, 132 Ill. Dec. 173 1989.IL.369
Appeal from the Circuit Court of Cook County; the Hon. Donald E. Joyce, Judge, presiding.
Date Reported: Rehearing Denied June 21, 1989. Supplemental opinion filed on denial of rehearing June 28, 1989 at 184 Ill. App. 3d 321 at 336.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA* and RIZZI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendants, Andrew Collins, Michael Cantre, and Darren Ellis, were charged by indictment with murder, rape, home invasion, residential burglary, and conspiracy to commit home invasion in connection with an incident which occurred on November 25, 1983. The three defendants were tried together at a consolidated jury trial. All three were convicted of all charged offenses except rape. The trial court sentenced each defendant to 40 years' imprisonment for murder, 15 years for home invasion, and 15 years for residential burglary. The sentences were to run concurrently. All three defendants appeal and raise a number of contentions.
For the reasons stated below, we reverse the judgment of the trial court and remand the matter for further proceedings.
The record indicates that in the early morning hours of November 25, 1983, a neighbor heard noises in the apartment of the victim. The neighbor then heard people running outside and someone falling down while trying to get over a fence. The person falling over the fence said, "Damn," and the neighbor recognized the voice as that of defendant Ellis. Later that day, Chicago police officer Pontoriero received a telephone call from an unidentified woman who said she overheard defendant Ellis bragging about robbing and killing a woman. The police went to the building where the victim lived, and as they were talking to the building's owner, defendant Ellis walked by. Ellis was taken to a police car and questioned. He admitted breaking into the victim's house on the night of the murder.
Ellis was taken to the police station. Initially, he named three accomplices. Then, he changed the names and named defendant Collins and "Skoony," whose real name Ellis believed to be Michael Washington. Police then brought Collins to the police station. On the way to the station, Collins saw defendant Cantre and identified Cantre as "Skoony."
Defendants Collins and Cantre were questioned by police and denied any knowledge of the victim's death. When Ellis was told that the others denied knowledge of the offense, Ellis named other accomplices, and Collins and Cantre were released from custody. The next day, Ellis was taken to the crime scene. He saw his grandmother there, and she told him to tell the truth. Ellis then told police that he participated in the killing and that his accomplices were defendant Collins and "Rat."
At a pretrial motion to quash, Chicago police detective Robert Anderson testified that he and his partner spoke with Doris McCummit, who had telephoned police regarding the offense. McCummit allegedly told Anderson and his partner that at 4:30 a.m. on November 26, 1983, she pulled off to the side of the road in her car near the victim's house. She saw defendant Collins and "Skoony" run out to the front and a third person run to the rear fence. The defense called Maggie Carr to testify in rebuttal. Carr stated that since 1981, she lived at the address which Doris McCummit gave police. Carr stated that no Doris McCummit lived there.
Detective Anderson further stated that on November 27, 1983, at 1 a.m., he and his partner went to Collins' home and arrested him. Defendant Cantre was located and arrested one hour later. Anderson questioned Collins and Cantre at the police station. Collins and Cantre gave oral and written statements. After a certain time, Collins told Anderson that he had "nothing else to say." Cantre also said that he did not wish to speak further. Anderson wrote in his report at 3 a.m. on November 27, 1983, that "at this time, both Collins and Cantre elected not to speak about the death of [the victim]." Anderson then ceased questioning defendants.
At 10 a.m. the same day, Chicago police detective Lawrence Poli questioned Cantre and Collins at the police station, after giving them Miranda rights. Poli had read Detective Anderson's report. Collins denied to Poli that he participated in the murder. Poli told Collins that Cantre had implicated him. Around 10:30 to 11 a.m., Collins confessed to his participation in the crime and gave a statement in the presence of a court reporter. Collins refused to sign the statement.
Prior to trial, all three defendants presented motions to sever their trials. The trial court denied the motions, on the basis that the confessions of the three defendants were "interlocking" and no severance was required. At trial the evidence included written confessions of all three defendants; testimony by police regarding their investigation; and alibi evidence presented on behalf of each defendant. Defendant Ellis testified at trial. Defendants Collins and Cantre did not.
On appeal all three defendants contend that the trial court committed reversible error in denying their motions for severance. Each defendant asserts that error occurred where the confessions of his co-defendants were admitted at trial and where defendants were denied the right to cross-examine Collins and Cantre, who did not testify at trial.
In Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, the Supreme Court recently held that "where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, see Lee v. Illinois, [(1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056] . . ., the Confrontation Clause [of the fourth amendment] bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him." (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.) Cruz provides that a codefendant's statement must be considered presumptively unreliable when it interlocks with the defendant's own statement, where the defendant asserts at their joint trial that his own statement is not truthful. (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) Therefore, such a statement by a co-defendant is not admissible unless, as stated in Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, there is independent indicia of its reliability. (See People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.) In Lee the Supreme Court stated:
"If those portions of the co-defendant's purportedly 'interlocking' statement which bear to any significant degree on the defendant's participation in the crime are not thoroughly substantiated by the defendant's own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by ...