SUPREME COURT OF ILLINOIS
552 N.E.2d 684, 133 Ill. 2d 469, 142 Ill. Dec. 93 1989.IL.1900
Appeal from the Circuit Court of Cook County, the Hon. Thomas J. Maloney, Judge, presiding.
JUSTICE WARD delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
The defendant, Murray Hooper, was indicted with Roger Collins and William Bracey for the armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, par. 10-2(a)(3)), and murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)) of Frederick Lacey, R.C. Pettigrew and Richard Holliman. Collins and Bracey were tried and convicted separately, and this court affirmed their convictions and sentences of death. (People v. Collins (1985), 106 Ill. 2d 237.) The defendant was found guilty of each offense following a jury trial in the circuit court of Cook County. After a hearing on the question of the imposition of the death penalty (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)), the jury found that there were no mitigating factors sufficient to preclude a sentence of death on the murder convictions. The trial court sentenced the defendant to death. The trial court also sentenced the defendant to concurrent terms of 60 years for each of three counts of armed robbery and 60 years for each of three counts of aggravated kidnapping. The sentence of death was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court under Rule 603 (107 Ill. 2d R. 603).
On the morning of November 13, 1980, Frederick Lacey, R.C. Pettigrew and Richard Holliman were found dead from gunshot wounds under a viaduct at Roosevelt Road and Clark Street in Chicago. Holliman was found in the back seat of a red Oldsmobile, his hands bound, and with three bullet wounds in the chest and one in the back of the neck. Lacey, who was found lying on the ground outside the driver's side of the automobile, had been shot in the back of the head. Pettigrew was lying under the front bumper with rope and cloth tied around his wrists. He had bullet wounds in the face, chest and leg, and four shotgun wounds in his back.
Morris Nellum, who confessed to taking part in the crimes, testified to the following events. Nellum was with his girlfriend, Regina Parker, at her apartment at 2222 South State Street. At about 9:30 p.m., Roger Collins came to the apartment and spoke with Nellum. Nellum then went to apartment 206 at 2240 South State Street, where he observed Collins, the defendant, William Bracey and three other men he did not know. Two of these men, later identified as Pettigrew and Holliman, were lying on a bed in the rear bedroom with their hands tied behind them. The third, later identified as Lacey, was standing next to the bed. Collins gave Nellum the keys to a brown Cadillac which was parked in the rear lot of the building. Nellum proceeded to the car and was followed shortly by Collins, Bracey, the defendant and the three other men. Collins and the defendant shoved the three victims into the rear seat of a red Oldsmobile, and then entered the front seat, with Collins in the driver's seat. Bracey went to his own car, which was parked nearby. When the red Oldsmobile pulled away, Bracey followed in his car. After waiting a few minutes, Nellum drove to Clark Street and Roosevelt Road. As he approached the viaduct, he saw the red Oldsmobile and Bracey's car and heard shots. Nellum saw Bracey put a shotgun in his car and observed the defendant and Bracey drive away. Collins got into the brown Cadillac driven by Nellum, and Nellum drove back to the parking lot at 2240 South State Street. There Bracey gave Nellum $125. Nellum then drove Collins to Lake Michigan at 31st Street, where Collins threw two handguns into the lake. Nellum identified the weapons thrown into the lake as a .38-caliber Charter Arms revolver and a .357 Magnum revolver. He identified the .38-caliber revolver as the gun he had seen Bracey give to the defendant at apartment 206 in October 1980. He also identified a photograph he had taken of Collins and the defendant in October 1980. According to Nellum, the photograph showed the defendant holding in his hand the same .38-caliber revolver.
Nellum testified that on February 21, 1981, he was arrested and brought to the police station at 51st and Wentworth Avenue. As he sat in the interrogation room, he heard the defendant in the next room asking to talk to him. He was brought to the room, where the defendant told him in the presence of officers that "Bracey had told them everything," that he [the defendant] was "already buried," and that Nellum should "save" himself. Nellum stated that he had reached an agreement with the State under which he would not be charged with murder or be sent to prison, but would receive a three-year sentence of protective custody and have his family relocated.
On cross-examination, Nellum said that following his arrest he had denied any knowledge of the whereabouts of the weapons because he was afraid. He stated that although he lied to police initially about the weapons, that was the only time he lied and that he was not lying at trial.
Daretha Redmond testified that on November 12, 1980, she was living in a first-floor apartment at 2240 South State Street. Between 10 p.m. and 10:30 p.m., she observed a group of men pass her living room window in a lighted area adjacent to her building. She saw that the man leading the group was wearing a wide-brimmed "Mexican" hat, and that two of the men appeared to have their hands tied behind their backs. One month later she was shown over 40 photographs by police officers, including one of the defendant. She said the defendant resembled one of the men in the group that had passed her window. When Redmond was shown a picture of Collins, she said he resembled the man wearing the wide-brimmed hat. She also stated that she had seen the defendant and Collins together in the vicinity of the building on other occasions. On cross-examination, she stated that she could not positively identify any of the men in the group she had seen in her neighborhood. On redirect examination, however, she again testified that the photographs she had identified resembled men she had seen that night.
Detective David O'Callaghan testified that a month after the murders he showed photographs to Daretha Redmond, and later recovered evidence from apartment 206 at 2240 South State Street. Sergeant Michael Hoke testified that he arrested William Bracey at 1148 West 51st Street shortly before midnight on February 20, 1981. Bracey gave him a telephone number where he said the defendant could be reached. The number was registered to an apartment at 1354 North Sedgwick in Chicago. Hoke, along with Officers Steed, Griffin, Oravetz and Contino, went to the apartment, but the defendant was not there. However, the officers observed a telephone number on the wall that they speculated might be the defendant's. This number was traced by Sergeant Hoke and the other officers to a building at 1848 North Winnebago, where they were joined by Detective O'Callaghan. O'Callaghan then went to a public phone on the street and dialed the number. The defendant answered and identified himself. Officers at the building were able to hear the phone ringing in the apartment on the first floor. O'Callaghan returned and knocked on the door of the apartment and announced that it was the police. The defendant opened the door and said, "You got me now. Be cool. Be cool." He unlocked a burglar gate, and the police entered and told him that he was under arrest. He was wearing only undershorts and was told to get dressed. He said, "my clothes are in the back and there are some guns back there." The officers recovered a .32-caliber revolver and a shotgun from the room.
The defendant was handcuffed and taken to a squad car, where his Miranda rights were read to him. He indicated his understanding, and said, "You got me now. I am going to tell you everything." He asked who else the police had in custody, and O'Callaghan told him that they had Bracey. Upon learning this, he become angry, and said, "I know that's how you found me. Bracey freaked on me. He told you where I was at." When asked if he was referring to the murders under the viaduct, the defendant said, "I know what you are talking about." He directed the police to a building at 22nd and State, where Nellum was taken into custody. Both Nellum and the defendant were taken to the station, where they were placed in separate interrogation rooms.
Again the defendant was read his Miranda rights, and he again said that he would tell "everything." He said that he went to apartment 206 at 2240 South State and saw Collins, Bracey, Nellum and Lacey there, along with two men he did not know whose hands were bound. The defendant told O'Callaghan that he knew that it was to be a "rip-off" and he wanted to get a "piece of the action." He said that he learned from Collins that the victims had come to buy narcotics, but it was decided that they would be robbed. The defendant said that they left the apartment and that he and Nellum drove to the viaduct in the brown Cadillac, while Collins and Bracey drove in the red Oldsmobile with the three victims. He said that Nellum and Collins had .38-caliber revolvers and that Bracey had a shotgun. He first said that he remained in the car when Collins, Bracey and Nellum began shooting. When questioned on this account, however, he said that he shot "the guy by the right front wheel," apparently R.C. Pettigrew, with a .32-caliber pistol. At this point O'Callaghan left the room to talk to Nellum. The defendant asked to talk to Nellum, and O'Callaghan brought Nellum to see the defendant. O'Callaghan corroborated Nellum's testimony that the defendant told Nellum "I am buried . . . save yourself. You tell them everything." After he spoke to Nellum, O'Callaghan told the defendant that there was no evidence of a .32-caliber pistol having been used. The defendant then admitted that he was given a .38-caliber revolver by Collins, and that he "shot into the back seat of the car at the guy in the back," presumably Holliman.
That morning, Lawrence Hyman, an assistant State's Attorney, spoke with the defendant at the station. The defendant related essentially the same story to Hyman as he had to O'Callaghan, except that he said that he and Bracey drove in the Cadillac, and that Collins, Nellum and the victims drove in another car. The defendant added that Bracey fired the shotgun at the victims and that he was given a gun by Collins with which he shot the victim in the back seat of the car.
Firearms expert Burt Nielson of the Chicago police department testified regarding his examination of the weapons recovered from Lake Michigan and the bullets and bullet fragments taken from the victims. He said that the .38-caliber Charter Arms revolver would mark a shell with eight lands and grooves, inclined to the right, and that the .357 Magnum revolver would mark a bullet with five lands and grooves, inclined to the right. All of the bullets and bullet fragments recovered from the victims exhibited one of these two class characteristics. Bullets with the class characteristics of the .38-caliber revolver were recovered from victims Holliman and Pettigrew. Because of the rusty condition of the recovered weapons, however, Nielson could not say with certainty that the bullets taken from the victims had been fired from the weapons recovered from the lake.
The defendant testified that at 5:30 a.m. on February 21, 1981, he was at the apartment of Patricia Young, 1848 North Winnebago, when the police knocked on the door and said they had a warrant for his arrest. He said that he opened the door and let the officers in, but he denied telling them of the guns in the bedroom. In fact, he denied any knowledge of the weapons. The defendant said that once he was in the squad car, he was beaten by Officers O'Callaghan and Hoke. He said that he was then taken to a viaduct where he was taken from the car, knocked down and questioned with a shotgun to his head. The defendant stated that his right leg was twisted, causing sharp pain. He said that he was then returned to the car. He asked to be taken to a hospital but this was not done. The officers told him they "wanted" Roger Collins, and that "if I cared anything about myself or my family I better had cooperate with them." He said that the officers took him to the parking lot at 2240 South State Street, stayed there for 10 minutes, and then brought him to the police station. He stated that at the station, he requested an attorney and medical attention but that the requests were denied. He said that the statement he gave to the State's Attorney was what O'Callaghan had told him to say.
When cross-examined, the defendant said that he had known Collins for 20 years and had met Bracey while at Stateville penitentiary about a year before November 12, 1981. He said that Officer Hoke had struck him in the forehead upon his arrest but admitted that a photograph taken at the time showed no bruise or mark. He denied telling Harry Robertson, a physician's assistant at the Cook County jail, that the wound on his leg was received three or four days before his arrest. He admitted that he did not complain to Assistant State's Attorney Hyman of being mistreated by the police. He said that he did not recall where he was on the night of the murders.
Dr. Anita Shorter testified for the defense that on February 23, 1981, she treated the defendant for an infected cut on his right ankle. On cross-examination, she stated that the wound might have been on the left leg, and that the injury could have been received anywhere from two to three days to a week before.
Harry Robertson, the physician's assistant at the jail, was called as a rebuttal witness for the State. He identified his report of February 23, 1981, in which he stated that he had been told by the defendant that his leg wound was sustained about a week earlier. His report also noted that the wound was on the defendant's left leg. He testified that if the defendant had told him that the injury was inflicted by the police, he would have included that in his report.
The Conviction and Sentencing Issues
The defendant first argues that the motion to suppress evidence, including statements taken upon his arrest, should have been granted because the arrest warrants outstanding at the time of arrest lacked probable cause on their face. At the time of his arrest, there was a complaint and outstanding arrest warrant in the circuit court of Cook County charging the defendant with the murder of Clorita Ladd. In addition, there was an Arizona complaint and warrant charging him and William Bracey with first-degree murder, and with attempted first-degree murder, kidnapping, armed robbery and burglary. The Cook County complaint later was dismissed at a preliminary hearing for lack of probable cause because the complaining witness failed to appear. The defendant argues that both arrest warrants were invalid on their face because the complaints failed to specify facts that could support a finding of probable cause. The defendant, however, misconstrues the requirements of the concerned Illinois statute. The requirements for arrest warrants are set out in section 107 -- 9 of the Code of Criminal Procedure of 1963, which provides:
"(a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.
(b) The complaint shall be in writing and shall:
(1) State the name of the accused . . .;
(2) State the offense with which the accused is charged;
(3) State the time and place of the offense as definitely as can be done by the complainant; and
(4) Be subscribed and sworn to by the complainant.
(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witness, if any, that the person against whom the complaint was made has committed an offense." (Ill. Rev. Stat. 1981, ch. 38, par. 107-9.)
Section 107 -- 9 does not require that the complaint or warrant articulate the probable cause but rather that the court, in making a determination of probable cause for the issuance of an arrest warrant, examine the complainant or any witness under oath. "Therefore, in issuing the arrest warrant the Judge is not bound by the four corners of the complaint, but may base a determination of probable cause upon his required examination of the complainant or witnesses." (People v. Collins (1979), 70 Ill. App. 3d 413, 423.) Here, the trial Judge that issued the warrant attested that, "I have examined the above complaint and the person presenting the same and have heard evidence thereon, and am satisfied that there is probable cause for filing same." The defendant does not allege that the trial court Judge failed to examine the complainant or that the issuance of the warrant was based only on the statements in the complaint. The Cook County case was not dismissed because of any defect in the warrant, but because, it appears, the complaining witness did not appear at the preliminary hearing.
The defendant contends that the prosecutor made numerous inflammatory statements during closing argument that require reversal of his conviction. The evidence had shown that at the time of the defendant's arrest a shotgun was recovered. The prosecutor began closing argument by attacking various parts of the defendant's story. In doing so, he commented that it was absurd that the defendant could deny any knowledge of the shotgun and .32-caliber pistol found in the bedroom of the apartment where he was arrested. The prosecutor never argued or insinuated that the shotgun found there was used in the murders. He left the subject and went on to attack other parts of the defendant's story. Defense counsel, in closing argument, commented that the shotgun was not introduced into evidence, and was a "red herring." These comments were part of a larger argument in which the defense contended that the State's case was designed to have the jury "ignore the physical evidence and the other evidence and let [the jury's] emotions take over." Replying, the prosecutor stated:
"The shotgun that he talks about, the .32-caliber, you'll hear about that later, ladies and gentlemen. I can't go into that now, you will hear about the shotgun, I can't go into it now."
The remark was objected to, and the court sustained the objection, stating, "Objection sustained. Do not talk about anything that you can't go into now." The defendant argues that the prosecution's comment was reversible error, and that the court's statement in sustaining the objection only increased the harm. The prosecution's statement, however, was error invited by the defense argument that the shotgun was mentioned to mislead the jury. (People v. Collins (1985), 106 Ill. 2d 237, 277; People v. Lyles (1985), 106 Ill. 2d 373, 390; People v. Vriner (1978), 74 Ill. 2d 329, 344.) Too, the objection was sustained by the court, and the prosecutor was instructed not to go into the subject. The court did not expressly instruct the jury to disregard the comment, but it was made apparent to the jury by the court that the remark was improper. The defendant did not request such an instruction and did not ask for a mistrial. The defendant cannot take comfort in his citation of People v. Emerson (1983), 97 Ill. 2d 487. There, a motion to prohibit the State from bringing out that the defendant was in possession of a gun at the time of his arrest was allowed. The prosecutor stated in his closing:
"Well, ladies and gentlemen, we can't tell you everything he did after his arrest and he knows it. Maybe when this is over I will tell you what he did when he was arrested."
This court held that it was error "to suggest that evidence of guilt existed which, because of the defendant's objection, cannot be brought before the jury. . . . he inference that defendant had been guilty of improper conduct at the time of the arrest left the jury free to speculate as to the nature of that misconduct." (People v. Emerson (1983), 97 Ill. 2d 487, 497.) Here, the jury already knew that the weapons were found at the time the defendant was arrested. We consider that the reference had no significant effect upon the jury.
The defendant argues that it was error for the prosecutor to say that the defendant's story that he was told he would be used as a witness against Collins and was coerced into confessing was a "ridiculous, absurd, obscene, defense." We consider this not an observation on the integrity of the defendant's attorney but a comment on the merit, likelihood and strength of the defense's story.
The defendant complains of the prosecutor's comments regarding the testimony of Daretha Redmond. As stated, this witness testified that she picked out a photograph of the defendant and said he resembled one of the men she observed in the parking lot on the night of the murders. On cross-examination, she answered "yes" to the question whether she simply chose pictures of persons that she had seen around her neighborhood, and did say that the police had asked her to do that. On redirect examination, she admitted that she was testifying only because she had been subpoenaed, and that she did not want to be in attendance at the trial. She also admitted that the defense attorney and the defendant's brother had visited her on the day before the trial. Then she again testified that she had picked the defendant's photograph because he resembled one of the men she had seen the night of the murders. On re-cross-examination, she said that the officers who had visited her carried guns. She also said that she did not feel threatened by the visit of the defendant's brother and the defense attorney. In his closing argument, defense counsel argued that the police had coerced Redmond to pick out pictures of persons she knew from her neighborhood. In the prosecutor's rebuttal, he said:
"That's a gutsy lady, ladies and gentlemen, that is a lady that didn't want to be here, didn't like to be here, didn't like getting visited the day before ...