APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
554 N.E.2d 263, 197 Ill. App. 3d 226, 143 Ill. Dec. 328 1989.IL.2050
PRESIDING JUSTICE BILANDIC delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Defendant, Thomas Smith, and a co-defendant were indicted for the murder, aggravated sexual assault and concealment of the homicidal death of Cheryl Cloud (victim). Both defendants moved to suppress inculpatory statements made while in police custody. After a joint suppression hearing, the court denied both defendants' motions. The cases were severed for trial. An oral and written statement of defendant were admitted in evidence at his separate trial.
On August 11, 1988, a jury found defendant guilty of murder, aggravated sexual assault and concealment of a homicidal death. The trial court denied defendant's post-trial motion and entered judgment on the jury verdict. Defendant appeals.
Defendant's principal assignment of error is the denial of his motion to suppress his custodial inculpatory statements. For purposes of this appeal, it is not necessary to relate the gruesome details involved in this case. The alleged crime occurred on January 31, 1987.
On February 7, 1987, at approximately 5 p.m., the defendant was taken into police custody in connection with the Cheryl Cloud homicide investigation. The arrest was made at the home of a relative of defendant's girlfriend. At the time of the arrest, defendant was wearing slacks but was naked from the waist up. His girlfriend testified that he had no visible marks or bruises on his body.
Defendant was taken to the police station where he was required to remove his clothes. Because an aggravated sexual assault usually involves resistance by the victim, the police examined defendant's body to determine the existence of any signs of a recent struggle. An abrasion was discovered on defendant's left bicep, which was photographed and included in an official police report. The arresting officers did not see or record any other injuries. Defendant was then given a paper jump suit to wear while he was handcuffed by his left arm to a retaining ring in an interview room. A similar examination was made of the codefendant, which resulted in the discovery of numerous physical injuries. Codefendant's injuries were included in a separate police report.
Defendant was interviewed by various detectives throughout the course of his custody. The State presented testimony that defendant was given food and water, permitted to use the bathroom, and not beaten. On February 8, 1987, at 4:45 p.m., the detectives attempted to get an extension of the police department's 24-hour rule, which requires a defendant to be formally charged within 24 hours of arrest or else released. The extension was denied. At 5 p.m., formal charges of murder were approved against the defendant. At 5:30 p.m. defendant made an inculpatory oral statement and, at 7:35 p.m., defendant made substantially the same statement, which was transcribed by a court reporter and signed by defendant. The statement indicated that it was made freely and voluntarily. At the time the statement was made, the court reporter took a Polaroid photo of the defendant and attached the photo to the transcribed statement. The Polaroid was of poor quality and depicted defendant fully clothed. The court reporter photographed defendant from a left angle, and it is inconclusive from the Polaroid whether or not the right side of defendant's lip is split. The statement and photo were admitted into evidence, over defendant's objection, at the suppression hearing.
At the hearing, defendant contended that he was physically coerced into making the two inculpatory statements. Kathy Diver, defendant's girlfriend, testified that she had seen defendant dressed only in slacks immediately prior to his arrest. At that time, she did not see any bruises, cuts or abrasions on defendant's lip, right shoulder, right side, or lower right back.
Defendant testified that Detective Thiel beat him twice and threatened more severe beatings if defendant did not cooperate. The first beating took place when Thiel brought the co-defendant into defendant's interview room for a confrontation. Defendant called his codefendant a liar. Then Detective Thiel kicked defendant in the chest and told him to shut up. This testimony was corroborated by the codefendant at the joint suppression hearing. Shortly thereafter, Detective Thiel interrogated defendant and punched him in the mouth, attempted to kick defendant in the groin and punched defendant in the right ribs and the lower back a number of times. Defendant also testified that he was denied food and bathroom privileges until he made a statement.
The defense offered photos of defendant taken by George Broest on February 9, 1987, at 2:15 p.m. The State stipulated to the fact that Broest was an investigator for the Cook County public defender's office and that the 12 photographs of defendant which he took on February 9, 1987, at 2:15 p.m., depict defendant with a split lip and bruises on his right shoulder, right side and lower right back. The photos were admitted in evidence by stipulation.
In rebuttal, the State presented testimony of the detectives that merely denied defendant's contentions and stated that they did not know how defendant received the injuries depicted in the photographs. The State also presented testimony by the emergency medical technician for Cook County jail that screened defendant during intake at Cook County jail. She had no independent recollection of the examination and testified solely from a report she made at the time of the examination. The report was dated February 8, 1987, 2 p.m., and did not note any injuries. This is an obvious error because defendant was at Area 6 at that time. The defendant was not required to disrobe for the examination. For this reason, all of the alleged injuries, except the split lip, would not be visible. When confronted with Broest's photos of defendant, Detective Thiel testified, "I don't know where the bruises came from." The assistant State's Attorney conceded to the trial court, "I cannot explain to this court how Mr. Smith got his injuries."
The State did not present any evidence establishing that the defendant was out of police custody from the time of his arrest on February 7, 1987, at 5 p.m., up to the time when the photographs were taken by Broest on ...