Before addressing issues related to defendant's arrest and confession, we will consider his contention that the apparent assignment of his case to Judge Boharic by order of the court, rather than through a customary computer assignment process allegedly in use, violated his constitutional rights. Defendant maintains that Judge Bailey's denial of his motion to transfer the case to another Judge by computer assignment, or, alternatively, to grant an evidentiary hearing, was in error.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
539 N.E.2d 368, 183 Ill. App. 3d 785, 132 Ill. Dec. 58 1989.IL.771
JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA
Defendant Charles Hattery appeals from his conviction for three counts of murder in a 1987 bench trial. He also asks this court to vacate the three consecutive life sentences imposed upon him by the trial Judge after a jury, following a separate hearing, declined to impose the death penalty.
In January 1983, the defendant was indicted for murder and armed violence in connection with the killings of Trenette Anderson and her two small children, Albert Anderson, Jr., and Reshonda Anderson, in their Chicago home. A jury found him guilty on both charges and sentenced him to death. On appeal, the Illinois Supreme Court reversed his convictions and vacated the death sentence, finding that he had received inadequate assistance of counsel. The matter was remanded for a new trial. People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513.
On remand, the case was initially assigned to circuit court Judge James M. Bailey, who had presided over the first trial. Defendant then filed a substitution of Judge motion (Ill. Rev. Stat. 1985, ch. 38, par. 114-5(a)), which was denied. However, acting upon defendant's petition, the Illinois Supreme Court issued a supervisory order directing the trial court to grant the motion. The case was then assigned to circuit court Judge Robert V. Boharic. Acting presiding Judge James M. Bailey denied a subsequent motion by defendant for transfer of the case "by random computer assignment" to a Judge other than Judge Boharic and those Judges already substituted out of the case by defendant's section 114-5(a) motion. He also denied defendant's request for an evidentiary hearing on the "computer assignment" motion. Petitioning the Illinois Supreme Court for a supervisory order relative to this motion, defendant argued that because it appeared that he had not been assigned a trial Judge by computer, according to routine court practice, but had instead been assigned a Judge by order of the court, he had been deprived of his constitutional rights of due process and equal protection of the laws. His petition was denied, and proceedings continued.
Prior to trial, defendant moved to suppress his written statements to police, contending that they not only were involuntary, but also were the product of a pretextual and illegal arrest. He further claimed that the statements had been obtained as a result of denying him an opportunity to consult with a family member.
Following a hearing, all of defendant's pretrial motions were denied. His written confession was admitted into evidence and the court found him guilty on the three murder counts. Judge Boharic then pronounced a sentence of natural life imprisonment for each of the murders, pursuant to two relevant provisions of section 8-1 of the Unified Code of Corrections, one relating to defendants found guilty of murdering more than one person (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(c)), and the other relating to murders accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(b)).
On appeal, defendant raises issues pertaining to both his convictions and the sentences imposed. He contends that his convictions for the murders should be reversed for the following reasons: (1) the assignment of Judge Boharic to the case, outside of the random computer assignment system, violated his rights to due process and equal protection and, therefore, his motion to transfer the case to another Judge by computer assignment was improperly denied; and (2) the trial court erred in refusing to suppress his statements to police because (a) the statements were inadmissible as the product of an illegal pretextual arrest, (b) there was no probable cause to arrest him for aggravated battery, the charge upon which he was taken into custody for questioning about the murders, and (c) the statements were the product of the coercive use of a polygraph examination and the denial of parental consultation. Defendant further maintains that, should this court uphold his convictions, his three consecutive life sentences must nonetheless be vacated. He argues that the sentences were improper for any of three reasons: (1) the killings, however tragic, were not characterized by the "exceptionally brutal or heinous behavior indicative of wanton cruelty" required under the relevant statutory provision; (2) the statutory provision relating to sentencing for multiple murders does not require a natural life sentence; and (3) the trial Judge exceeded his statutory authority in imposing the three life sentences to run consecutively, rather than concurrently.
As disclosed in the record, the facts surrounding the deaths of the three victims are not complex. In December 1982, Albert Anderson lived with his wife, Trenette, their 22-month-old son, Albert, Jr., and their seven-month-old daughter, Reshonda, in a third-floor apartment at 919 West Sunnyside in Chicago. At about 1 a.m. on December 4, Albert left the apartment and walked to a nearby store to purchase a package of cigarettes for his wife. On his way home, he heard his name called by Rufus Mister, also known as "Smooth." Mister was standing with the defendant about one-half block away. As Anderson approached the two men, Mister began arguing with him about drugs, claiming that Anderson owed him money for some drugs that Mister had purchased from him and that it was Anderson's turn to reciprocate. Rather than continue the argument on the street, Anderson invited Mister and the defendant into his apartment. Once inside, Mister continued his demands, loudly insisting that he wanted some drugs, not just the money Anderson owed him. As soon as Anderson managed to calm Mister down, the two men decided to go out together to look for drugs. Before they left, Anderson overheard part of a conversation between Mister and the defendant. He recalled Mister telling the defendant that if he was not "back in five," he (Hattery) knew "what to do." Then Mister and Anderson set out, leaving Trenette, the two children, and the defendant alone in the apartment.
The men's initial effort to find drugs was unsuccessful, but Mister insisted that they continue the search. Eventually, Mister was able to make a purchase with some money supplied by Anderson. They returned to the apartment about 6 a.m., accompanied by Mister's girl friend, Kathy Robinson, and two other women. Having forgotten his keys, Anderson knocked repeatedly at the back door. There was no response. He also suspected that something was wrong because a light had been left on. Mister kicked the door in, and they entered the apartment. Passing through the kitchen into the living room, which was in disarray, Anderson noticed some blood on the floor next to the bedroom door. Trenette's body lay across the foot of the bed. She was clothed only in a pajama top, which had been pulled up over her breasts. Next to her on the bed was Albert, Jr. When Anderson picked up his son, he realized that he, too, was dead. Reshonda was in her crib in the same room. Anderson assumed that she was asleep until one of the women picked her up and said, "Oh, my God, not the baby, too." Turning to Mister, Anderson asked him if he had anything to do with it. He seized a small steak knife which was lying on the floor and started toward Mister with the knife. The women stood in his way and urged him to call the police. Anderson ran downstairs and tried unsuccessfully to find a telephone, first at the building's security office, which was locked, then at a nearby service station. Then he returned home.
John Salyers, a Chicago police sergeant, testified that upon arriving at Anderson's apartment building about 6:30 a.m., he was directed to the rear by a man, later identified as Rufus Mister, who was standing on the sidewalk with two patrol officers. The back door of the apartment appeared to have been forced open. Entering the residence with the other officers, he observed Albert Anderson standing in the bedroom, holding a knife in his hands and making stabbing motions toward his own chest. He ordered Anderson to drop the knife, then led him into the kitchen and handcuffed him. Returning to the bedroom, he discovered the bodies of a woman and two small children on the bed. The woman's body was partially nude, and he observed lacerations on both of her wrists, a small mark on her neck, and an injury to her breast area. There were also injuries to the children's necks. Traces of blood were visible on the living room floor. Salyers then ordered one of the officers to handcuff Rufus Mister, who had followed them into the apartment. After calling for a mobile crime lab to be brought to the scene, he arranged for Mister and Anderson to be transported to a police station for questioning.
Dr. Robert Stein, chief medical examiner of Cook County, testified that he performed autopsies on the three victims on December 6, 1982. His examination of Trenette revealed contusions and abrasions of the head and neck, a superficial incised wound on the left breast, and a number of other cuts to the right arm. Dr. Stein described some of the cuts to Trenette's arm as compatible with defense wounds, or wounds inflicted against a person who is trying to defend himself. His Conclusion as to the cause of her death was manual strangulation. Autopsies of Albert, Jr., and Reshonda revealed contusions and abrasions around their necks. Dr. Stein testified that the children's cause of death was also manual strangulation.
Dale Sayset, special agent, Illinois State Police, testified that in January 1983, he was assigned to the Gang Prosecution Unit of the Cook County State's Attorney's office. On January 18, 1983, a telephone call from Troy Hattery, defendant's father, was directed to him by Assistant State's Attorney Greg Owen. Prior to this telephone conversation, he was not involved with the Anderson murder investigation and had no knowledge of defendant. Troy Hattery told Sayset that his son, Charles, wished to speak to the State's Attorney's office about a triple homicide that he had witnessed somewhere on the north side of Chicago. The incident had apparently involved a street gang and caused Charles to fear for his life. The next morning, during a second telephone conversation with Troy Hattery, arrangements were made for Sayset to meet defendant the next day at O'Hare airport. In the meantime, Sayset tried to learn something more about the murders. He was directed to Chicago police detective Chris Grogman, who apprised him of the ongoing investigation. Grogman also informed Sayset of an outstanding aggravated battery warrant for defendant's arrest and furnished him with a copy of the warrant and complaint for the aggravated battery and with copies of police reports on the homicides.
The prearranged meeting with Charles Hattery took place at O'Hare airport on the morning of January 20, 1983. As the defendant arrived on a flight from Texas, he was approached by his father, mother, and sister, Agent Sayset, and Sayset's partner, Agent John Stevens. Sayset recalled that Troy Hattery introduced Sayset and Stevens to defendant as "men that he had spoken to [him] about." Then Sayset discussed the arrangements which had been made for defendant to talk to an assistant State's Attorney. Agents Sayset and Stevens would drive Charles to the State's Attorney's office at 26th and California. Troy, Mary, and Maureen Hattery would drive to that location in their car. Shortly after the two officers and defendant entered the car, Sayset informed Hattery that he was under arrest for aggravated battery and immediately read him his Miranda rights. However, the officers made no attempt to discuss any of the crimes with him. Upon arriving at the State's Attorney's office, the entire family was introduced to Assistant State's Attorney Greg Owen and placed in a large conference room. Sayset took no further part in the investigation, which was handled primarily by Owen and Assistant State's Attorney Timothy McMahon.
Timothy McMahon testified that he first became involved in the Anderson homicide investigation on the morning of January 20, 1983, when he was informed that Charles Hattery was coming to Chicago from Texas and wished to speak to a representative of the State's Attorney's office about that incident. After reviewing some police reports, he and Owen met defendant shortly after noon in the Gang Prosecution Unit offices at 26th and California. After being advised of his Miranda rights, Hattery related two conflicting versions of what had occurred in the early morning hours of December 4. He initially stated that Anderson and Mister returned to the apartment after purchasing some drugs. While he was in the bathroom assisting Anderson tie off his arm to inject drugs, he heard nothing unusual in the apartment. However, when he left the bathroom, he discovered that Trenette was dead and Mister was gone. He did not mention seeing any children in the apartment. Anderson and the defendant then fled. He also stated that he was a member of the Black Gangster Disciples gang and the bodyguard of a gang faction leader. After a brief Discussion outside the room, McMahon and Owen confronted defendant with some inconsistencies between his story and what they knew of the incident from police reports. He then altered his account, stating that he had heard noises while in the bathroom, and upon leaving that room, had observed Mister strangling Trenette while one of the children sat nearby. When he asked Mister what he was doing, Mister replied that if he did not like it, he could leave. He then fled the apartment and the jurisdiction. The attorneys left the room and spoke to defendant's parents, indicating that there were some conflicts in his explanation which a polygraph examination might clarify. When a polygraph was also suggested to Hattery, he agreed to take the test. During the course of these interviews, McMahon recalled that the defendant's physical appearance and behavior appeared normal, that he communicated well, and that he was allowed to speak to his parents and sister several times. About 2 p.m., defendant was driven to Area 6 police headquarters by several officers.
Sergeant John Schnoor (then a detective) testified that immediately before he and Detective Chris Grogman transported defendant to the police crime laboratory about 4:30 p.m., defendant was again asked if he were willing to take a polygraph test, which had been scheduled for 5 p.m. He answered that he was. Upon arrival, Schnoor and Grogman turned Hattery over to the polygraph examiner, Thomas Walsh, having first informed Walsh that they considered him a prime suspect in the homicides. After approximately 20 minutes, Walsh called the officers into the examination room and informed them that Hattery wished to speak with them. As soon as they stepped into the room, defendant stated, "I had done it, and I'm sorry I caused you all this trouble." He was immediately advised of his rights and transported back to Area 6 police headquarters. There, he was readvised of his Miranda rights before being interviewed by Schnoor and Grogman. During this interview, defendant admitted strangling the three victims and later borrowing $400 at his mother's house before flying to Texas the next day. Schnoor further testified that at no time during the interview did Hattery ask to speak to his father. The aggravated battery charge was not discussed. Following the interview, Schnoor telephoned Assistant State's Attorney William Merritt and requested that he take a signed statement from the defendant.
William Merritt testified that shortly after 7 p.m. on January 20, he interviewed the defendant after Schnoor informed him about the murders and Hattery's inculpatory statements. Schnoor, Merritt, and the defendant were present for the interview. Merritt initially explained that he was not defendant's attorney, but was an attorney assisting the police. He then read defendant his Miranda rights, inquiring after each right whether Hattery understood it, and specifically explaining that he could have an attorney free of charge before any questioning began. The defendant responded that he understood these rights. Then he again admitted committing the murders and described the surrounding circumstances. Following the interview, Merritt explained what a court-reported statement was and asked Hattery if he would be willing to give such a statement. Defendant replied that he would.
While waiting about an hour for the court reporter's arrival, defendant told Merritt that he had been treated "fine" by the police and had eaten lunch. Because it was 9 p.m., Merritt sent for the hamburger, fries and milk shake which Hattery requested. In a court-reported statement taken at 10:12 p.m. and before which he was again advised of his constitutional rights, defendant related the following events. Sometime about 2 a.m. on December 4, 1982, as he and Rufus Mister were walking along Sunnyside toward Sheridan Road, looking for Albert Anderson, they spotted Anderson on the street. Following a Discussion about drugs, all three went to Anderson's apartment, where Hattery sat in a living room chair. Albert and Trenette Anderson were in the front room; the two children were in the bedroom. After further Discussion about drugs, Albert Anderson and Mister got ready to leave. Mister told Hattery that he should stay in the apartment. If he (Mister) were not back in five minutes, Hattery should kill everyone in the apartment. If he did not do this, defendant and his family would be hurt.
Defendant recalled that he was wearing a digital watch at the time. As soon as the two men left, he "pushed it twice so it recorded seconds." He waited until exactly five minutes had passed in seconds. Then he told Trenette that if he did not take care of what he had to do, he and his family would be hurt. Trenette began screaming. Defendant grabbed her, then pulled out his knife. Her wrist was cut in the ensuing struggle. Then he started choking her. Hattery recalled that it was precisely 3:23 a.m. at the time he choked Trenette because he had pushed his digital watch again, to show minutes. After strangling Trenette Anderson, he undressed her and was about to bring her into the bedroom when Albert, Jr., came running into the front room. Defendant choked the boy and put him on the bed with his mother. Then he went over to the crib, choked Reshonda and left her in the crib. He remained in the apartment for approximately 30 more minutes. During that time, he heard a knock and a woman's voice at the back door, calling for Albert. He replied through the door that Albert was not home, but would be back later. As he left the apartment, defendant placed the knife in his pocket. He later discarded it in a dumpster.
Following Hattery's statement, Merritt asked him if he had come back to Chicago to "turn himself in." Hattery replied that he had. He also replied, in response to Merritt's questions, that he had been treated well while in police custody since 11 a.m., that no one had pressured him to give his statement, and that he gave it "of his own free will and accord." Merritt had defendant read a portion of the statement aloud to be sure that he could read, then had him read and review the remaining pages, which Hattery signed.
A grand jury subsequently indicted Charles Hattery for the murders of Trenette Anderson and her two children. Another grand jury indicted him for an aggravated battery against Daniel K. (Danny) Anthony, the charge stemming from an unrelated incident on December 2, 1982, for which a warrant was obtained by Chicago police and executed upon defendant by Agent Sayset at O'Hare airport. Defendant was arraigned on the aggravated battery charge and a public defender was appointed to defend him. On July 25, 1983, following Hattery's conviction on the three murder charges in his first trial, and the imposition of the death penalty, the battery charge was dismissed at the State's request.
THE "COMPUTER ASSIGNMENT" MOTION
Defendant filed his "Motion for Transfer of Case to a New Judge by Random Computer Assignment" in January 1987. Four months earlier, defendant had named Judge Bailey, who had presided at his first trial, and Judge Thomas J. Maloney, in a timely substitution of Judge motion. (Ill. Rev. Stat. 1985, ch. 38, par. 114-5(a).) This motion was granted pursuant to a supervisory order of the Illinois Supreme Court, thereby precluding the two named Judges from hearing the case on remand. On October 10, 1986, presiding Judge Richard Fitzgerald assigned the case to Judge Boharic, with whom defendant filed motions to suppress his statements to police. A hearing on the motions was set for January 8, 1987. On January 5, Judge Boharic denied defendant's request for a two-week continuance. At this point in the proceeding, nearly three months after Judge Boharic had been assigned to the case, defendant presented his "computer assignment" motion to Judge Bailey, then acting presiding Judge of the criminal division.
Defendant's motion contained the following sworn allegations: (1) that in 1978, the circuit court of Cook County, criminal division, instituted a policy of assigning cases to Judges by use of a random computer assignment system; (2) that a separate computer category of Judges exists for the random assignment of "highly sensitive" cases, although "counsel for the defense does not know the identity of these Judges or the basis for this special category"; (3) that it recently had come to defendant's attention that there was no computer sheet for his case, indicative of computer assignment, in the court file; rather, there was only a written docket entry indicting an assignment by order of the court; and (4) that he had recently learned that two 1986 cases with virtually identical procedural histories (i.e., murder cases on remand from reversals by the Illinois Supreme Court, with vacated death sentences, where section 114 -- 5(a) substitution of Judge motions had been denied and then granted pursuant to supreme court supervisory orders) had also been assigned to Judge Boharic by order of the court and not by computer.
Defendant's motion further contended that the criminal division, in allegedly deviating from the random computer assignment system in his and certain other capital cases, violated his rights to due process and equal protection under the law. It specifically requested the court to (1) transfer his case from Judge Boharic to a Judge selected by random computer assignment, after first eliminating Judges Bailey, Maloney, and Boharic from the pool of eligible Judges; and (2) in the alternative, grant him an evidentiary hearing for the purpose of adducing evidence on these matters. Judge Bailey, after refusing to recuse himself from ruling on the motion, denied both the motion and defendant's request for an evidentiary hearing. He based his ruling upon his stated belief that pursuant to circuit court rule, the presiding Judge has complete discretion in assigning Judges to cases as he deems appropriate and is not under any obligation to assign them by computer. Defendant then petitioned our supreme court for a supervisory order vacating Judge Bailey's ruling. The supreme court denied defendant's motion in an order which recited neither findings nor rationale. We therefore consider, on review, the issues raised by the "computer assignment" motion.
As a preliminary matter, we find that Judge Bailey acted properly in not recusing himself from ruling on the motion. Defendant contends that he was entitled to a ruling by someone other than a Judge already substituted out of the case by his previous section 114-5(a) motion. However, even if we were to characterize defendant's motion as a proper motion for substitution of Judge for cause, which for reasons set forth below, we do not, the case law interpreting such motions does not support defendant's contention. Section 114-5(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114(d)) provides that upon filing a motion for substitution of Judge for cause, supported by affidavit, a hearing shall be conducted as soon as possible by a Judge not named in the motion. Defendant's motion before Judge Bailey named Judge Boharic as the Judge to be substituted. In a previous decision, this court held that a Judge previously substituted out of a case under section (a) of the statute acted properly in ruling upon a subsequent motion for cause in the same case. We found support for this holding in the general rule that a Judge who has previously been substituted from a case may perform ministerial functions concerning that case as long as the action taken has little or no direct relation to the merits. (People v. Washington (1984), 121 Ill. App. 3d 479, 484-85, 459 N.E.2d 1029, 1034.) Defendant's "computer assignment" motion had no direct relation to the merits of defendant's murder trial. Therefore, even if the motion were a section 114-5(d) motion for cause, Judge Bailey would not be precluded from ruling on it.
In briefs submitted to this court, defendant cites cases interpreting section 114 -- 5(d) as authority for the premise that an evidentiary hearing on his motion should have been granted, although the motion itself nowhere refers to that statute. A defendant moving pursuant to section 114 -- 5(d) to substitute a Judge for cause has the burden of showing prejudice on the part of the Judge which disqualifies him from sitting on the case. (People v. Washington (1984), 121 Ill. App. 3d 479, 485, 459 N.E.2d 1029, 1035.) As defined in prior opinions of this court, "[prejudice] is a condition of the mind that imports the formation of a fixed anticipatory judgment as distinguished from opinions which yield to evidence." (People v. Winchell (1977), 45 Ill. App. 3d 752, 756, 359 N.E.2d 487, 490, quoting People v. Robinson (1974), 18 Ill. App. 3d 804, 807, 310 N.E.2d 652, 655.) The burden rests not upon the court to justify retention of the case, but upon the defendant to offer evidence that prejudice will result if his motion is not granted. (People v. Trolia (1982), 107 Ill. App. 3d 487, 499, 437 N.E.2d 804, 813.) Defendant made no allegations of prejudice on the part of Judge Boharic in either his written motion or at a brief hearing before Judge Bailey. Nor did he clearly set forth the reason for any prejudice alleged, as required. (People v. Covington (1981), 92 Ill. App. 3d 598, 602, 416 N.E.2d 61, 64.) He never supported an allegation of prejudice with an affidavit, as required by the plain language ...