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September 22, 1994



The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

In the circuit court of Cook County a jury convicted the defendant, Dorothy Williams, of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(1)) and robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18-1(a)). Following a hearing the circuit court denied her post-trial motion for a new trial or, in the alternative, a judgment non obstante veredicto. Defendant having waived a jury for sentencing, the cause was submitted for hearing on sentencing to the court, which found the defendant eligible for the imposition of the death penalty, pursuant to section 9-1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)), for the reason that she had committed murder in the course of another felony, namely, robbery. Following the consideration of aggravating and mitigating factors (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(c)), the court found that there were no mitigating factors sufficient to preclude the imposition of the death sentence and, accordingly, sentenced her to death. The cause comes directly to this court for review (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d R. 603), where defendant presents 19 issues for consideration.

Initially defendant contends that she was arrested without probable cause in violation of her fourth amendment rights and, as a result, her statement, together with other products of the illegal arrest, must be suppressed. The victim, 97-year-old Mary Harris, who resided in housing for senior citizens operated by the Chicago Housing Authority, was strangled on July 25, 1989, in her apartment, from which a stereo set was found to be missing. At the hearing on the defendant'spretrial motion to quash her arrest and to suppress statements that she claimed to be the direct product of her unlawful arrest, the following evidence was adduced.

Officer Betty Woods testified that she was assigned to the division of the police department providing services to senior citizens and was familiar with the circumstances of Harris' death. On September 6, 1989, she was using an unmarked squad car and working alone in plain clothes at the building in which Harris' body had been discovered. While the officer was in the building, a man whom she later learned was Hubert Carmichael approached her at approximately 11 or 11:30 a.m. He indicated that he had observed a woman carrying a box and leaving the building on the date of Harris' murder, that he had suspected that the woman might have been involved in this murder, and that he had seen the woman in the building again on September 5, 1989. He indicated further to Officer Woods that the woman, whom he had known as "Peggy," had altered her appearance since the date of the homicide by shortening her hair and dyeing it red. Although this woman had frequented the building prior to the death of Harris, she had stopped coming there since that time. To the best of the officer's knowledge, the woman described had no friends or relatives in the building and no lawful reason to be in it. The officer was aware that the person Carmichael had seen leaving the building around the time of the murder of Harris had also been identified by him as the same person whom he had previously seen choke another resident of the building. The officer was aware as well that the suspect in the strangulation of still another elderly person, residing in a neighboring building for senior citizens, fit the description of the woman whom Carmichael had seen leaving on the evening of Harris' murder. Later, as Officer Woods was departing from the building at about noon, Carmichael pointed toa woman walking by the building outside the window and indicated that this was the same woman about whom he had spoken earlier.

Officer Woods then approached the woman, identified herself as a police officer, showed the woman her badge, and asked if she could speak with her. The woman was the defendant, 35 years old at the time, who identified herself as "Deborah" Williams and was accompanied by another woman, Michelle McBride. At first Officer Woods attempted to have detectives who were familiar with the case come out to interview the defendant, but the detectives were unavailable at that time. Officer Woods then informed defendant and her companion that it might be faster and easier if they went to the place where the detectives are generally stationed. Both women agreed to do so. When defendant's companion expressed concern about picking up her child from school, Officer Woods told her that the police would accommodate her. McBride had wanted to be sure that either she would be back in time to pick up her child or her child would be picked up by someone else. The officer offered the two women transportation in her car and drove them, without handcuffs, to the police station, which was located a distance of less than two miles, or about 16 to 18 blocks, from the building where the offense occurred. The drive took about 8 to 10 minutes. Although Officer Woods was armed, her weapon was not visible, and the officer did not draw it at any time. Officer Woods had no warrant for defendant's arrest. Nor did she tell defendant or her companion that they did not have to accompany her to the station. However, neither woman objected to doing so.

At the station Officer Woods left the two women in the middle of the large office on the second floor and went a distance of about 40 feet to a desk to inform the officer on duty there that she had a woman with her who hadbeen implicated in a homicide. After the desk sergeant looked up the case, Officer Woods told the two women, who were standing and waiting in the middle of the room, that it would be only a few moments until they found out which detective was handling the case. Once Officer Woods located and spoke to the detective assigned to investigate the murder of Mary Harris, she left the police station and had no further involvement in the matter.

The other witness who testified at this hearing was a police detective, Edward Schmitt, who stated that on July 27, 1989, during the course of the investigation into the death of Harris, he had spoken with Carmichael. During his investigation he had learned that a number of items were found to have been missing from the apartment of Harris following her death, including a Realistic Clarinet Number 16 stereo, two speakers, a bedspread, and a cardboard box. On the afternoon of September 6, 1989, he and his partner spoke with Officer Woods and then with the defendant, who was with McBride in a large interview room measuring approximately 10 by 20 feet on the second floor of the police station. The door to the room was open. The officers asked McBride to "step out" of the room. Their conversation with defendant began at about 1:15 or 1:30 and lasted approximately 10 or 15 minutes. At the beginning of the conversation he and his partner advised defendant of her Miranda rights. When they asked her when she had last been in the building in which Harris had lived, she responded that it had been several years since she had been there. At the end of the conversation the detective and his partner left the interview room, leaving the door open. McBride, who had been asked to leave the interview room while the police spoke with defendant, was walking around in the police station when the officers left the interview room and "might haveeven been sitting in there with Miss Williams when we left." Defendant was not handcuffed when they left the interview room.

Thereafter he and his partner spoke with Carmichael, who advised them that he had seen the defendant there the day before, on September 5, having changed her appearance by dying her hair a reddish color. At approximately 2 p.m. the detective asked defendant to sign a form consenting to the search of her apartment; she did so using the name "Deborah" Williams. From defendant's apartment the detective and his partner recovered a Realistic Clarinet Number 16 stereo and two speakers. Shortly after 3 that afternoon he and his partner conversed with defendant again, this time for about five minutes, in the same interview room in which they had spoken earlier, the door of which was open. Defendant was not handcuffed upon their return. At that time Detective Schmitt showed defendant the stereo. Defendant responded that it was hers, that she had bought it "hot," that is, as stolen property, on the street about a month earlier from a black man whom she did not know. At that time she agreed to take a polygraph examination and to be fingerprinted. During both conversations the defendant appeared to be cool, calm, and unconcerned, answering all questions freely.

Thereafter the defendant was fingerprinted and, at about 6:30 p.m. that same day, transported to another location where she took and failed a polygraph examination. Later, at about 8:30 p.m., police formally arrested her for the murder of Harris.

At the hearing on the motion to suppress, the trial court expressly found that at the moment defendant responded that the material discovered in her apartment was "hot" and that she had so purchased it, probable cause existed to take her into custody. In denying thedefendant's motion, the circuit court observed, inter alia, that Officer Woods "is a very slightly built woman * * * five feet tall at best and a hundred pounds at best." The court described the defendant as "five-foot-five to five-foot-seven in height and * * * accompanied by another woman." The circuit court concluded that "during the period of time that the Defendant was in the station I have no evidence of any objective facts from which I believe I can rationally conclude she was in custody until the time the officer says she was formally arrested."

Defendant asserts that the circuit court's finding that she was not under arrest when Officer Woods took her to the police station is against the manifest weight of the evidence and, accordingly, must be reversed. She argues further that she "was under arrest when she was taken to the police station and interrogated by different detectives over a twenty-four hour period. Dorothy did not choose to spend two days and a night in the police station. The trial Judge's ruling to the contrary was manifestly erroneous and should be reversed."

The constitutions of both the United States and the State of Illinois protect individuals from unreasonable searches and seizures. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.) For purposes of the fourth amendment, a seizure is synonymous with an arrest, and an arrest effected without probable cause or a warrant based thereon violates the protections of the amendment. ( People v. Melock (1992), 149 Ill. 2d 423, 436, 174 Ill. Dec. 857, 599 N.E.2d 941.) An arrest occurs when a person's freedom of movement has been restrained by means of physical force or by a show of authority. ( Melock, 149 Ill. 2d at 436.) To determine whether an arrest has, indeed, occurred, the question to ask is whether a reasonable, innocent person would, under the circumstances, have considered herself arrested or free to leave. ( People v. Reynolds (1983), 94 Ill. 2d 160, 165, 68 Ill. Dec. 122, 445 N.E.2d 766.) A reviewing court will not disturb the determination of a circuit court on a motion to suppress evidence unless the determination is manifestly erroneous. ( People v. Galvin (1989), 127 Ill. 2d 153, 162, 129 Ill. Dec. 72, 535 N.E.2d 837; Reynolds, 94 Ill. 2d at 165.) On such a motion the defendant bears the burden of proof that the search and seizure were unlawful. People v. Hoskins (1984), 101 Ill. 2d 209, 212, 78 Ill. Dec. 107, 461 N.E.2d 941.

The undisputed evidence here does not support defendant's contention that she was under arrest when Officer Woods took her to the police station. As we have said, the officer attempted initially to have detectives familiar with the case come out to interview the defendant, but when she learned they were unable to do so, she advised the defendant and her companion that it might be faster and easier if they went to the police station. The women agreed, accepting the transportation offered by Officer Woods, who was driving an unmarked car. Although the officer was armed, her weapon was not visible and was at no time drawn. The officer, a slight woman several inches shorter than the defendant, was alone in her dealings with the two women. The officer, who was wearing plain clothes, addressed the concerns of the defendant's companion concerning her child's dismissal from school, advising her that she would be back in time to pick the child up herself or that someone would pick the child up for her. The drive to the station was not long. At no time was the defendant handcuffed. After transporting the defendant and her companion to the police station, Officer Woods departed, leaving the two unattended in the middle of a large room. Although the officer did not tell defendant that she did not have to accompany her to the station, nothing about these circumstances would lead a reasonable, innocent person to consider herself arrested or to conclude that she was not free to leave. The evidence ofrecord reveals that the defendant accompanied Officer Woods to the police station voluntarily.

The defendant declares in her brief that after she arrived at the police station she was detained unlawfully for approximately 24 hours or longer. However, once she stated at about 3 p.m. on September 6, 1989, that she had purchased the stereo set resembling the one missing from Harris' apartment in the knowledge that it was stolen, police had probable cause to arrest her. Thus, after making that statement she could not have been detained unlawfully.

Moreover, the conduct of the two detectives who interviewed defendant at the police station prior to her making of this statement would not cause a reasonable, innocent person to conclude that she was either under arrest or deprived of her freedom. What this court said in People v. Wipfler (1977), 68 Ill. 2d 158, 168, 11 Ill. Dec. 262, 368 N.E.2d 870, of station-house interrogations applies equally to the detectives' initial questioning of the defendant here:

"To hold that this amounted to an arrest would be to hold that virtually any station-house interrogation is necessarily so custodial as to indicate that the person questioned has been placed under arrest. This would mean that the police could not request the presence of anyone, even for noncustodial questioning, unless and until they had probable cause to arrest the person to be questioned. We see no reason to so restrict the investigatory function of the police."

Although the officers did advise the instant defendant of her Miranda rights at the beginning of their conversation with her, a custodial situation cannot be created merely by the giving of Miranda warnings ( Wipfler, 68 Ill. 2d at 171). Having given these warnings, the detectives spoke with defendant but briefly, she was not handcuffed, and the door to the large room in which they interviewed her was open. Further, her companion was permitted to remain in the same room with her before, and possibly after, the detectives' initial conversationwith her. As the circuit court pointed out, "apparently, at all times critical her companion was in the police station with her." In addition, from the time defendant arrived at the police station until she stated that she had bought the stereo set as stolen property, none of the procedures, such as booking and fingerprinting, that are normally associated with arrest were performed. (See Melock, 149 Ill. 2d at 438.) The evidence adduced at the motion to suppress does not tend to show that a reasonable, innocent person would have felt that she was not free to leave during the time that elapsed between defendant's arrival at the police station and her statement concerning the purchase of the stereo set at about 3 p.m. Plainly, the circuit court's determination that defendant was not arrested at the time in question is not manifestly erroneous. Thus, the circuit court properly denied her motion to suppress.

As the second issue defendant presents for review, she maintains that she was denied a fair hearing on her pretrial motion to suppress evidence, in part because the circuit court prevented her from eliciting from Officer Woods an answer to the question whether defendant was free to leave once she arrived at the police station. Defendant argues that this and other rulings of the circuit court during the hearing rendered it a "sham." Although the subjective intent of a police officer to detain a suspect is relevant, such intent is not controlling. (See Reynolds, 94 Ill. 2d at 165.) The record contains no indication that the circuit court restricted defendant's examination of Officer Woods concerning the officer's speech or any other conduct by which the officer might have manifested a belief that the defendant was not free to leave. In short, this record contains no evidence whatsoever that, if Officer Woods did entertain such a belief, it was communicated to the defendant in any way, either directly or indirectly. In viewof the abundant evidence in the record supporting the circuit court's denial of defendant's motion to suppress, any error on the part of the court in sustaining the State's objection to this question could not have affected the ...

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