The opinion of the court was delivered by: Miller
JUSTICE MILLER delivered the opinion of the court:
On February 18, 1987, Madison Hobley was charged by indictment in Cook County with murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2)), felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3)), arson (Ill. Rev. Stat. 1985, ch 38, par. 20-1(a)), and aggravated arson (Ill. Rev. Stat. 1985, ch. 38, pars. 20-1.1(a)(1), (a)(2)). These charges related to a January 6, 1987, fire that left seven persons dead, injured several others, and badly damaged a three-story apartment building at 1121-23 East 82nd Street in Chicago. Defendant entered a plea of not guilty to all counts. The jury returned verdicts of guilty against defendant on seven counts of felony murder, one count of arson and seven counts of aggravated arson.
The death penalty phase of defendant's trial was bifurcated. At the first stage, the jury found defendant eligible for the death penalty. At the second stage, the jury found no mitigating factors sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death. Defendant filed motions for a new trial and sentencing hearing, and the trial court denied these motions. Defendant's death sentence has been stayed pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d R. 603; Ill. Rev. Stat. 1985, ch. 38, par. 9-1(i)).
On January 6, 1987, at approximately 2 a.m., a fire broke out in an apartment building located at 1121-23 East 82nd Street in Chicago. The fire claimed the lives of seven persons: Anita and Philip Hobley (defendant's wife and son), Anthony Bradford, Johnny Dodd, Shelone Holton, Schalise Lindey and Robert Stephens. The cause of death for each victim was determined to be acute carbon monoxide toxicity. Numerous others were burned while escaping from the fire, or severely injured when they leapt from windows.
The three-story apartment building had hallways which ran the length of the building on each floor, and there was a staircase at each end of the building. The south stairwell collapsed during the fire. Analysis of the stairwell debris revealed traces of gasoline. Fire investigators determined that the fire was started in the south stairwell.
At the time of the fire, defendant lived in apartment 301 with his wife and 15-month-old son. Apartment 301 was located directly across from the south stairwell on the third floor of the apartment building. There was conflicting testimony as to whether gasoline was poured on the door of apartment 301. The door and door jam of apartment 301 were almost completely burned away, but tests of the area revealed no traces of gasoline. The State's expert testified that a peculiar burn pattern on the floor in front of the door showed gasoline had been poured there, but that the water used to extinguish the fire could have washed away all traces of gasoline. Defendant's expert testified that the burn pattern was caused by a "chimney effect" created when the fire moved up the south stairwell.
At trial, Andre Council testified that on the night of the fire he stopped at an Amoco station located at 83rd and Cottage Grove in Chicago. Council remained at the station to visit with the gas station attendant, Kenneth Stewart. While he was at the gas station, Council allegedly saw a man in a dark peacoat approach the station on foot carrying a gasoline container. The man purchased $1 worth of gasoline. Council stated that the lighting at the station was excellent, and he was standing within five feet of the man while the man pumped the gas. Council further stated that he paid particular attention to the man because while the man was filling his gas container, he spilled some gasoline on Council's car. Approximately 30 to 45 minutes after the man had left, Council saw fire trucks go past the Amoco station. The fire trucks were heading in the direction of Council's home, so he left the Amoco station.
Upon arriving home, Council noticed that the fire trucks had stopped at a building located approximately one block from where he lived. Council walked over to the fire scene, and he noticed the man who had purchased the gasoline standing near the building. While watching television the next day, Council saw a picture of defendant on the news identifying him as a suspect detained by police in connection with the fire investigation. Council recognized defendant as the man whom he had seen buy gasoline the night before, and telephoned the police to report the incident.
Kenneth Stewart, the Amoco station attendant, also testified for the State. He stated that a short man entered the station with a gas container and bought $1 worth of gasoline. Stewart stated that the lighting conditions were excellent, but that he only saw the man's face for three to four seconds. The day after the fire, the police brought Stewart to view a lineup. Initially, Stewart was unable to identify defendant in the lineup. The police then asked Stewart if he could identify with any degree of certainty any person in the lineup. Once again, Stewart was not able to identify defendant. Finally, the police asked if any of the men in the lineup could have been the man who bought the gasoline. Stewart then identified defendant as "favoring" the man who purchased the gasoline, but stated he could not be 100% sure that it was the same man.
Defendant claims that on the night of the fire, he awoke to the smell of smoke. Defendant allegedly shook his wife awake and went to the front door of the apartment and out into the hallway. After he had walked 40 to 50 feet down the hallway, he turned around to discover the hallway had filled with smoke and flames. Defendant claims that he bent low and exited through the door at the north side of the building.
Defendant testified that after exiting the burning apartment building, he used the phone at a neighbor's house to call his mother, Myra Hobley. Defendant requested that Ms. Hobley bring him some clothes. When Ms. Hobley arrived, she took defendant to her apartment. After arriving at his mother's house, defendant appeared to be extremely upset. At approximately 4 a.m., an ambulance was called so that defendant might obtain a sedative. The paramedics arrived and took defendant to the hospital. Defendant's sister, Robin Milan, accompanied defendant to the hospital. Once at the hospital, some test were run on defendant. Soot was found in his nostrils, and the doctor diagnosed defendant as suffering from smoke inhalation. The doctor proposed more tests be performed, but declined to give defendant a sedative. At this point, Robin apparently became upset and removed defendant from the hospital. After defendant and Robin left the hospital, they returned to their mother's home.
Chicago police department Detective Robert Dwyer was assigned to investigate the fire. The morning after the fire, Dwyer and his partner, Detective James Lotito, went to the medical examiner's forensic institute to identify the victims of the fire. While at the morgue, Dwyer spoke with Myra (Penny) Hobley, defendant's other sister. Penny had gone to the morgue to identify Anita and Philip Hobley. Penny informed Dwyer that defendant was at his mother's home at 8006 South Rhodes.
At approximately 9 a.m. the same morning, Dwyer, Lotito and two other officers went to 8006 South Rhodes to interview defendant. After identifying themselves, Dwyer and Lotito were invited in. Approximately 15 family members had congregated in the apartment. Dwyer suggested to defendant that it might be easier if they spoke outside in Dwyer's vehicle. Defendant agreed.
While Dwyer, Lotito and defendant were seated in Dwyer's vehicle, Dwyer told defendant that the fire had been deliberately set through the use of a liquid accelerant. When asked if he knew who could have started the fire, defendant stated that he suspected a woman named Angela McDaniels. Apparently, McDaniels had a relationship with defendant, but that relationship had been strained since defendant returned to his wife. Dwyer and Lotito then asked defendant if he would come to Area Two Police Headquarters (Area 2) for further questioning. Defendant agreed to accompany the officers.
Once at Area 2, defendant claims that Dwyer placed him in an interview room, handcuffed him to a wall ring, and began to physically abuse and racially harass him. Defendant allegedly requested that he be allowed to contact an attorney, but Dwyer would not allow it. Defendant claims that after the interview with Dwyer, he was driven to police headquarters at 11th and State (headquarters). Once at headquarters, Sergeant Garrity allegedly handcuffed defendant to a chair and began asking him a series of questions. Defendant claims that when he denied involvement in setting the fire, Garrity began to kick him in the shins. After his interview with Garrity, defendant was allegedly escorted to another room by Dwyer, Lotito and Officer McWeeney. Defendant claims that the officers hit and kicked him, and put a plastic typewriter cover over his head. Defendant allegedly "blacked out," and when he awoke, Dwyer told him that he had interviewed McDaniels, and that defendant was in trouble. Defendant was then allowed to see an attorney, Steven Stern, who had been called by defendant's family. Defendant denied that he ever confessed to setting the fire in his apartment building.
Dwyer, Lotito, McWeeney and Garrity's testimony was widely divergent from that of defendant. Dwyer testified that after they arrived at Area 2, he learned of evidence contradicting defendant's story. Lotito therefore advised defendant of his Miranda rights prior to his interview, and defendant stated he understood. During defendant's interview, he provided Dwyer with McDaniels' address and phone number, but did not confess to involvement in setting the fire. Dwyer then asked if defendant would be willing to be interviewed by an officer at headquarters.
While defendant went to headquarters, Dwyer and Lotito attempted to locate McDaniels. They interviewed McDaniels over her lunch hour, and she denied any involvement in setting the fire. She claimed that several days prior to the fire, defendant had expressed a desire to reconcile. Defendant allegedly proposed to McDaniels that she move in with his wife and son. McDaniels stated that she refused, and that she informed defendant he must choose between his wife and her.
When defendant arrived at headquarters, he was taken to see Sergeant Garrity. Defendant agreed to take a polygraph examination and signed a written waiver of his Miranda rights. After the test, Garrity informed defendant that he had reason to believe defendant had lied during the test. Defendant allegedly broke eye contact and slumped in his chair. Defendant then confessed to involvement in setting the fire. Garrity contacted Dwyer, who arrived and took defendant to an interview room. Once again, defendant was advised of his rights. Defendant purportedly repeated his confession.
During the second confession, defendant stated that he had thrown a gasoline can down the second-floor hallway after starting the fire. Dwyer sent Detective Paladino to look for the can, and Paladino found a gasoline can under the sink in apartment 206. The resident of that apartment denied ever having seen the gasoline can before.
After his confessions, Dwyer took defendant to a room where a lineup could be held. Kenneth Stewart, the gas station attendant, was present to participate in the lineup. Before the lineup occurred, defendant's attorney, Steven Stem, arrived and spoke with defendant. The police were told not to interview defendant any further. The lineup then proceeded, with Stern present, and Stewart tentatively identified defendant.
Defendant was returned to Area 2 for booking and processing after the lineup. Defendant was handcuffed in an interview room at Area 2, and Dwyer noticed that he was pulling and wrenching on his handcuffs. This testimony was corroborated by Jane Loeb, an assistant State's Attorney of Cook County who spoke with defendant later that evening. Dwyer denied ever physically brutalizing or intimidating defendant. Garrity, Lotito and McWeeny also denied abusing defendant. The next day, photographs were taken of defendant. His wrist was scraped, and he had one small bruise in the middle of his chest.
At the close of all evidence, the jury found defendant guilty of murder, arson and aggravated arson. The capital sentencing hearing was bifurcated. At the first stage, the jury found defendant eligible for the death penalty.
In aggravation, the State called two witnesses. The first witness was Patricia Phiefer. In late November 1986, Patricia received a call from Anita Hobley asking her to come over to Anita's apartment because defendant had "abducted" Philip. Patricia took Anita home with her that night. The next morning, defendant called Patricia's apartment demanding to speak to his wife, but Anita refused. That afternoon, a brick was thrown through the window of Patricia's apartment, and she called the police. After the police had arrived, the telephone rang. One of the policemen then present picked up a second telephone and listened while Patricia spoke with the caller. Patricia testified that she recognized the voice of the caller as defendant's. The caller asked if Patricia now would let him speak to his wife, and she refused. She then thanked the caller for breaking her window, and he said that she was welcome. The caller then told Patricia that he was going to burn down the apartment in which she lived. The second witness in aggravation was Officer Glenn Evans, the officer who listened in on Patricia's phone call. He corroborated Patricia's story.
Defendant called 27 witnesses in mitigation. Defendant's mother and sisters testified that his father had been an alcoholic, and that his parents had divorced when defendant was very young. Defendant acted as man of the house and helped to support the family financially. Other family members testified that defendant often helped out with chores and odd jobs, and that although he would occasionally take some money for his help, he never asked. Defendant was described as very kind and respectful by his family members.
Several teachers and coaches also testified in mitigation for defendant. His teachers stated that he was a good student who never caused problems in class, and his coaches testified that he was an excellent athlete who acted as a team player.
Employees at the Cook County jail testified that although approximately 85% to 90% of the inmates had some gang affiliation, defendant did not. Defendant was described as a respectful person who did not give the guards any trouble, and it was noted that defendant regularly attended Bible study classes.
A Presbyterian pastor and a Sister also testified that defendant believed in God. They stated that they believed defendant's religious beliefs to be genuine, and not an affectation to try and avoid the death penalty.
Finally, former co-workers of defendant testified that he was a good worker. Defendant worked for a medical supplies company, and would deliver and set up various medical apparatus in the homes of the elderly. He was described as quiet, and those who worked with him stated that he seemed to enjoy helping people. It was also reported that some of the elderly people for whom defendant had set up medical apparatus asked about him and extended their prayers to him.
The jurors returned a verdict of death after concluding that there were "no mitigating factors sufficient to preclude the imposition of a death sentence." Defendant claims numerous errors in pretrial proceedings and at the guilt and sentencing phases of the trial as grounds for reversal in this court.
A. Motion to Quash Arrest
Prior to trial, defendant moved to quash his arrest and to suppress the "direct and indirect products" of that arrest. The trial court denied these motions.
Defendant claims that the trial court erred in determining when he was arrested. The trial court found that defendant was not arrested until after he confessed. Defendant claims that he was arrested before his alleged confession, and that at the point of his actual arrest, the police did not have probable cause to arrest him. "An individual has not been arrested unless the circumstances are such that a reasonable man would conclude that he was not free to leave." People v. Eddmonds (1984), 101 Ill. 2d 44, 61, 77 Ill. Dec. 724, 461 N.E.2d 347.
The day following the fire, Detectives Robert Dwyer and James Lotito arrived at Ms. Hobley's apartment to question defendant. Rather than questioning defendant in the apartment, Dwyer suggested that defendant accompany him to a police vehicle because Ms. Hobley's apartment was crowded. Defendant admits that he consented to go out to Dwyer's car. Once in the car, defendant stated that he suspected his former girlfriend, Angela McDaniels, had started the fire. Understandably, Dwyer wished to speak with defendant further on this subject. Dwyer, however, did not wish to interview defendant at length in his car because a television news van had been following him around all morning. Dwyer, therefore, asked defendant if he would come to the police station (Area 2) for further questioning.
When defendant arrived at Area 2, Dwyer learned some information about the fire that was inconsistent with defendant's story. It was for that reason that prior to interviewing defendant, Lotito read defendant his Miranda rights. The interview terminated with defendant's turning over McDaniels' phone number.
Dwyer testified that after the interview, he suspected defendant was "holding something back." Dwyer thought that because defendant had been involved with McDaniels, he might be trying to protect her. Dwyer therefore asked if defendant would go to the police station at 11th and State (headquarters) to take a polygraph examination. Defendant consented, and he was transported to headquarters. Once at headquarters, defendant signed a written waiver of his Miranda rights and was administered a polygraph examination. At the Conclusion of the polygraph examination, the examiner, Sergeant Garrity, informed defendant that he had reason to believe defendant was lying. Defendant then confessed to starting the fire.
The trial Judge found that defendant was not under arrest until after his confession to Garrity. We agree. Until he had confessed, defendant's status with the police was that of any interested citizen attempting to help in the investigation. Defendant was not handcuffed prior to his confession, nor was he taken any place without his consent. We believe that prior to his confession, a reasonable person in defendant's position would have believed that he was free to leave.
Defendant's confession after the polygraph examination supplied the police with probable cause to arrest defendant. As discussed above, defendant was not arrest until after he had confessed. Accordingly, we reject defendant's contention that the police lacked probable cause to arrest defendant at the time of his arrest.
Defendant further contends that in determining when he was placed under arrest, the trial Judge employed an improper test, i.e., whether or not the defendant was "prevented from leaving." As stated earlier, the correct analysis to be used in determining when an arrest took place is whether a reasonable person in the defendant's situation would have considered himself free to leave. ( Eddmonds, 101 Ill. 2d at 61; People v. Reynolds (1983), 94 Ill. 2d 160, 165, 68 Ill. Dec. 122, 445 N.E.2d 766.) Defendant points to the following statements by the trial Judge:
"THE COURT: The Court fails to see where the defendant's liberties and choice of leaving were prevented.
Counsel for the defense says that the defendant was prevented from leaving the station. I do not recall any testimony to that effect.
In fact, when the defendant was taken to the station, it was because he was aiding the police in developing possible suspects. * * * He certainly was not under arrest at that time.
Then there was a second conversation. He did not appear to be under arrest at that time. There is no indication that he was prevented from leaving.
Counsel for the defense said he was prevented from seeing his family, prevented from making phone calls, et cetera. I do not recall any testimony to that effect.
It is the Court's opinion that the defendant was not under arrest prior to this until the entire story was developed, and under the totality of the circumstances, I certainly feel that the defendant's motion will be denied."
During arguments on the motion to suppress, defendant contended that he was prevented from leaving, making phone calls and seeing his family. In his response to defendant's argument, the trial Judge was merely answering defendant's contentions. The trial Judge found that under the totality of the circumstances, the defendant was not placed under arrest until after he had made a confession. There has been no showing that the trial Judge applied an incorrect analysis in making that determination.
B. Motion to Suppress Statements
Defendant claims that his confession was tainted by an illegal arrest. Because we have found that defendant's arrest was not illegal, we need not consider whether defendant's confession was sufficiently removed from the taint of an illegal arrest. Defendant further claims that he did not knowingly and voluntarily waive his constitutional ...