People v. Creach

• Decision Date: 15 February 1979
• Docket Number: 76-835,Nos. 76-834,s. 76-834
• Citation: 69 Ill.App.3d 874,25 Ill.Dec. 886,387 N.E.2d 762
• Parties: , 25 Ill.Dec. 886 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John CREACH and Thomas Ruppert, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 762

387 N.E.2d 762

69 Ill.App.3d 874, 25 Ill.Dec. 886

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John CREACH and Thomas Ruppert, Defendants-Appellants.

Nos. 76-834, 76-835.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 15, 1979.

Patrick G. Reardon, Chicago (Edward Burke Arnolds, Chicago, of counsel), for defendant-appellant Thomas Ruppert; Edward M. Genson, Chicago, for defendant-appellant John Creach.

Bernard Carey, State's Atty. of Cook County (Lee T. Hettinger, Renee Goldfarb, Richard D. Heytow, Asst. State's Attys., of counsel), for plaintiff-appellee.

ROMITI, Justice.

John Creach and Thomas Ruppert, the defendants, were charged with the murder and armed robbery of Delores Irion. Following their joint trial before a jury, defendant Creach was found guilty of murder and armed robbery and defendant Ruppert was found guilty of armed robbery. Creach was sentenced to 35 to 70 years on each charge, to run concurrently, and Ruppert was sentenced to 4 to 12 years for armed robbery. On appeal the following issues are raised: (1) both defendants contend they were arrested illegally and without probable cause; (2) both defendants contend statements they made should have been suppressed because they were not fully warned of their rights; (3) defendant Ruppert advances two additional reasons for suppression of his statements: (a) the police made no attempt to notify his parents of his arrest, and (b) he did not knowingly and intelligently waive his rights; (4) both defendants contend the trial court erred in failing to suppress evidence obtained as a result of what they assert were illegal arrests; (5) defendant Creach contends the trial court also erred by allowing into evidence statements made by defendant Ruppert which implicated Creach where Ruppert did not testify and thus was not available to Creach for cross-examination; (6) both defendants assert that their guilt was not established beyond a reasonable doubt, although on two distinct grounds: (a) Creach argues his sanity was not proven, and (b) Ruppert argues that his accountability for the acts of Creach was not proven; (7) finally, defendant Ruppert contends the trial court erred in refusing to give his tendered instructions on compulsion, accountability, and accessories after the fact.

We reverse and remand for a new trial.

The body of Delores Irion was found lying near the CTA tracks in Evanston at about 7:00 a. m. on September 25, 1973. Detective Carlos Mitchem of the Evanston Police Department spoke that day to Dolly Moore, defendant Creach's mother, who lived at 5717 North Magnolia Street in Chicago. She told Mitchem that her son had been living with the victim in the victim's apartment for the last four weeks. During that time he had driven the victim's car, and had been driving the victim to and from work. Mrs. Moore had spoken to her son in Ohio by telephone. He told her that he was there with a friend named Tom, and that he had last seen Irion alive when he left for Ohio in her 1966 Cadillac. The police investigation had already revealed that the automobile was missing. Detective Mitchem related this conversation to Detective Douglas Glanz of the Evanston Police Department on the evening of September 25. The next morning at about 8:00 a. m. Glanz and his partner, Detective John Birkenheier went to Creach's residence. They spoke to Mrs. Moore, who related what she had told Detective Mitchem, also stating that she had told Creach to come home and he said he would do so right away. The officers told Mrs. Moore that when the defendants returned, they intended to take them to the Evanston police station for questioning. Mrs. Moore asked if she could accompany them and they agreed to let her do so. Mrs. Moore showed them a photograph of Creach. Earlier Detective Mitchem had described Ruppert to Glanz as a short youth with fair hair.

At about 9:30 a. m. on September 26 the officers observed Creach and Ruppert approaching Creach's home on foot. The officers got out of their unmarked squad car, approached the defendants, identified themselves as police officers, and told them they were going to return them to Evanston for questioning. They also frisked the defendants for weapons. Defendants were ultimately transported to the Evanston station and questioned. The statements obtained from them constituted the major evidence used against them at trial.

1.

The State contends that defendants were not arrested at the time of their encounter with the police at the Magnolia Street location. By statute in Illinois "(a)n arrest is made by an actual restraint of the person or by his submission to custody." (Ill.Rev.Stat.1975, ch. 38, par. 107-5(a).) Because the existence of restraint or of a custodial situation is not always unambiguously clear, the courts of this State have found it necessary to elaborate some of the elements of an arrest. A common listing of elements includes: (1) authority to arrest; (2) assertion of that authority with intention to effect an arrest; and (3) restraint of the person to be arrested. (People v. Mirbelle (1934), 276 Ill.App. 533; People v. Howlett (1971), 1 Ill.App.3d 906, 274 N.E.2d 885; People v. Robbins (1977), 54 Ill.App.3d 298, 12 Ill.Dec. 80, 369 N.E.2d 577.) Our Supreme Court has recently focussed on two elements involving the perceptions of the parties in determining whether a police encounter constituted an arrest: the intent of the officer and whether a reasonable Innocent man in the defendant's situation would have considered himself under arrest. (People v. Wipfler (1977), 68 Ill.2d 158, 11 Ill.Dec. 262, 368 N.E.2d 870.) In Wipfler the defendant's mother relayed a police request to talk to him about some burglaries. Defendant went to the police station after school. He was asked to come into a sergeant's office where, with the door closed, he was questioned by two police officers. The supreme court, applying the second of the two tests set out above, found that defendant went to the police station voluntarily, knowing that the police had wanted to reach him and knew where he was but had not attempted to take him into custody. At the station he was not searched, booked or fingerprinted. Under these circumstances the court concluded: "A reasonable, innocent man * * * would have been cognizant that this did not amount to arrest, In light of the total lack of compulsion by the police either in obtaining or retaining his presence at the station." (People v. Wipfler, 68 Ill.2d 158, 167, 11 Ill.Dec. 262, 265, 368 N.E.2d 870, 873, Emphasis added.) The court stated that because of their determination of this factor the intent of the police did not have to be established. The court did, however, note that "* * * the manner in which defendant's presence was obtained, and the information the police had about defendant prior to interrogation, lends (sic) credence to the testimony of (the officer) that defendant was not, in (the officer's) mind, under arrest at the time and that He could have left without police permission because there was 'nothing to hold him for.' " 68 Ill.2d 158, 167, 11 Ill.Dec. 262, 265, 368 N.E.2d 870, 873, Emphasis added.

It is clear from this summary that the relevant perceptions of the police pertain to whether coercion exists and whether defendant is in custody or is free to leave. This focus comports with the statutory definition of an arrest we have cited. In this cause the testimony of the arresting officers was they did not intend to "arrest" the defendants, but did intend to take them into custody for questioning. They also testified that defendants would not have been free to leave. It is evident the distinction made by the officers was not a legal one: their intention to take the defendants into custody constituted the essence of an arrest. Therefore the testimony of these officers establishes their intent to arrest the defendants within the meaning of the term as construed by Illinois courts. The second facet of this test, the perception of an innocent man in the defendant's position, also establishes that there was an arrest. Defendants were approached by two officers, informed that they were to be transported to the police station for questioning, and then were searched for weapons. They were then transported in a police car to the police station and separately questioned. This is not analogous to the situation in Wipfler where a defendant received a police request to come to the station for questioning and voluntarily acquiesced on his own. Defendants were given no choice in the matter. Under these circumstances we conclude defendants were arrested when the police took them into custody on Magnolia Street.

Because we have determined that defendants were arrested at this initial police encounter, the issue becomes whether the officers had probable cause to make these arrests. The arresting officers, Douglas Glanz and John Birkenheier, testified at the motion to suppress hearing. Our review of that testimony indicates that the officers had the following information at the time of the arrests: Delores Irion was found dead at about 7 a. m. in Evanston on September 25, 1973. It had rained the night before but the victim's clothes were dry, suggesting she had been killed some time after midnight. The victim's automobile, a 1966 Cadillac, was missing. Defendant Creach was the victim's boyfriend and had been living off and on with her for four weeks. He had been driving her car, taking her to work on occasion. Creach's mother had talked to him by telephone in Ohio. He told her he had the victim's 1966 Cadillac and had last seen her alive at about 1:30 on the morning of September 25, when he had left for Ohio in her car. He was in Ohio with a friend named Tom. When Creach was informed by his mother of Delores Irion's death he told her he would drive back to Chicago right away. The officers were shown a picture of Creach by his mother, but the...