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May 2, 1997


Appeal from the Circuit Court of Cook County. Honorable Shelvin Singer, Judge Presiding.

Released for Publication June 25, 1997.

Presiding Justice Hartman delivered the opinion of the court. Hourihane and South, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Defendant appeals his conviction for attempted armed robbery and first-degree murder in a bench trial, raising as issues whether (1) his motions to quash his arrest and suppress his confession were erroneously denied; (2) the corpus delicti of his attempted armed robbery was proved beyond a reasonable doubt; (3) his conviction of attempted armed robbery was a lesser included offense of felony murder; and (4) the sixty-year sentence for the murder conviction imposed upon him was excessive.

On August 28, 1991, Edward Porter was shot and killed as he stood on the sidewalk at 2858 West Flournoy, near Francisco. A few weeks later, an anonymous telephone call to police offered details of the crime and claimed that defendant, then nineteen years old, shot and killed Porter. On October 6, defendant confessed to the crime and signed a written statement for police who then formally placed him under arrest. A grand jury indicted defendant and another man, Jeffrey Williams, charging them with four counts of first-degree murder, one count of armed violence, one count of attempted armed robbery, and one count of aggravated unlawful restraint. Defendant also was charged with unlawful use of a firearm by a felon.

Defendant moved to quash his arrest and suppress his statement, arguing that the State lacked probable cause to arrest him, and that any evidence obtained after that arrest was inadmissible. In an amended motion to suppress the statement, defendant asserted that police abused him, forced him to sign the statement, and misrepresented to him that he was identified in a lineup.

At the hearing on the motion to quash his arrest, defendant testified that on the evening of October 6, while he was asleep at his girlfriend's home, Detective Kriston Kato *fn1 entered the bedroom with his gun drawn, ordered him to get up, handcuffed him, and took him to the police station without allowing him to get dressed. Defendant was placed in an interrogation room, his left hand was handcuffed to the wall, and he was not allowed to use the bathroom or obtain water from a fountain.

Countervailing testimony of four police officers included that of Detective Dennis Keane, who stated that he and his partner investigated the August 28 shooting and learned that Juanita Reed, who lived at the corner of Flournoy and Francisco, had been sitting in a chair in the back yard of her home, saw the victim park a car nearby, walk eastward on Flournoy and, a few minutes later, heard a single noise she believed to be a gunshot. She then saw a black male wearing a baseball jersey with matching shorts and a baseball cap, running past her, heading west on Flournoy and then south on Francisco. He was about nineteen or twenty years old, weighed about one hundred sixty pounds, and had a medium complexion. She had seen him before in the neighborhood and, after the shooting, the gunman returned to the scene wearing different clothes. Reed neither identified the man by name, nor did she see the actual shooting.

Detective Eugene Roy testified that on August 29 he and his partner spoke with the victim's mother, who revealed that Porter had a substance abuse problem, and normally bought his drugs at the corner of Flournoy and Francisco. Roy and his partner returned to that corner, spoke with area residents, passed out his business cards and asked people to call him if they had any information regarding the homicide. On September 7, Roy received a telephone call from a man who refused to give his name for fear of retaliation, but told him that defendant had committed armed robberies of drug sellers and users near Flournoy and Francisco and that defendant shot the victim during an attempted robbery because the victim refused to comply with defendant's demands. The caller stated that defendant resided at 706 South California. Roy found a police file record of defendant living at 706 South California, but could not locate him.

Detective Kato testified. On October 6, while assigned to conduct a follow-up investigation of the Porter homicide, he spoke with an unnamed person on a street near the site of the homicide, who told Kato that defendant had been staying at 3047 West Flournoy since the day of the shooting. That evening, Kato and his partner went to that address with two police officers to find defendant. A woman, defendant's girlfriend, allowed them to enter. Defendant appeared in a hallway toward the back of the apartment and agreed to come to the police station to talk about the homicide.

At the station shortly after 10:00 p.m., Kato seated defendant in an interview room. Kato left, leaving the door open and without handcuffing defendant. He returned after about five minutes, carrying reports of the homicide investigation. Kato and his partner advised defendant of his Miranda rights. Defendant then told the detectives that he was near the scene of the crime at the time of the shooting. After hearing gunshots, defendant ran over to the victim, where he heard people saying that another man named Jeffrey attempted to rob the victim and shot him in the process. Defendant gave Kato a physical description of Jeffrey and suggested possible locations where Jeffrey could be found. Kato then left in search of Jeffrey. He told defendant that he would leave the door to the interview room open, but that another officer might shut the door to prevent other investigations from being interrupted. Kato also told defendant that he could go to the bathroom or water fountain.

Kato returned to the station after about an hour, spoke with defendant to obtain more information about Jeffrey, learned the suspect's last name was Williams, and left again to look for him. By now it was 1:00 a.m. on October 7. Kato brought Juanita Reed to the police station to view a lineup, but she could not identify anyone, including defendant. Kato left again to look for Williams, and returned to the police station about an hour later, now at 4:00 a.m. Kato, unable to find Williams, asked defendant if he knew of any other place where Williams could be found. This time defendant responded that Kato did not have to look for Williams anymore, because defendant himself accidentally shot the victim. Kato then arrested defendant.

Police Officer Paul Sarpalius testified that on October 6, he, his partner, and two detectives went to 3047 West Flournoy to find defendant. Sarpalius and his partner covered the side and rear exits to the house as the two detectives knocked on the front door. Once the detectives were allowed in the home, Sarpalius and his partner went to the front of the home. Sarpalius saw defendant sitting on a couch in the front room, without handcuffs. A detective asked defendant about the shooting and, after defendant responded in the affirmative, the detective asked defendant to come down to the police station to make a statement. Defendant agreed. The officers and detectives returned to the station with defendant. The detectives took defendant to an interview room, later exited the room, leaving the door open, and told Sarpalius they planned to look for a suspect named Jeffrey. Sarpalius allowed defendant to go to the water fountain.

Michael Harris, a second floor resident at 3047 West Flournoy, testified on rebuttal for defendant that on October 6 at 10:00 p.m., a police officer pushed in his front door, told him and a friend to get up and get dressed, took the two men downstairs and placed them in a police car. As he walked downstairs, Harris saw defendant coming out of the first-floor apartment with his girlfriend, Detective Kato, and other police officers. Defendant also was being brought to the police station, and was handcuffed. On redirect examination, Harris testified that he saw the handcuffs as defendant left his girlfriend's apartment, but on cross examination, Harris stated that he saw the handcuffs when defendant got into the police car. Harris stayed at the station for several hours, during which time he was placed in a lineup.

Officer Sarpalius testified a second time to rebut Harris' testimony, whom he recognized from the lineup in which defendant was also present. Sarpalius asserted that he and his partner had picked up Harris and another man on the street, asked them to participate in a lineup, and offered to give them a ride back to their homes or wherever else they wanted to go afterwards. The two men were not handcuffed.

The circuit court denied defendant's motion to quash his arrest, found that based upon the totality of the circumstances, the police had probable cause to believe that defendant was involved in the murder, determined that the State's witnesses were more credible than defendant's, did not believe defendant's testimony that he was sleeping in his bedroom when the police arrived, and noted that both defendant and Harris were convicted felons, defendant having served time for armed robbery, and Harris currently serving time for robbery. Harris also had a previous conviction for possession of a controlled substance.

The circuit court next concluded that defendant was not in custody when he went with the officers to the police station and remained there for several hours, until he made the confession and was then arrested.

At the hearing on the motion to suppress defendant's confession, Assistant State's Attorney Domenica Stephenson testified that on the morning of October 7, 1991, she took defendant's confession concerning Edward Porter's murder. Defendant was not handcuffed and told Stephenson that he had been treated well by the police. Defendant told her the police informed him that a witness identified him in the lineup. She never heard a police officer tell defendant he had been identified in the lineup. Detective Kato also testified that defendant was not handcuffed until he gave Stephenson his statement, and just before he was taken to the lock-up.

The circuit court denied defendant's motion to suppress the confession. Defendant and Williams thereafter were tried as codefendants in a bench trial, although the court severed their cases. The Williams appeal has been considered separately in Docket No. 1-95-0311, in an unpublished Supreme Court Rule 23 order. ...

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