People v. Fultz

• Decision Date: 16 September 1975
• Docket Number: No. 56084,56084
• Citation: 32 Ill.App.3d 317,336 N.E.2d 288
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert FULTZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 288

336 N.E.2d 288

32 Ill.App.3d 317

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert FULTZ, Defendant-Appellant.

No. 56084.

Appellate Court of Illinois, First District, Second Division.

Sept. 16, 1975.

Price, Cushman, Keck & Mahin, Chicago, for defendant-appellant; Dennis M. Wilson, George E. Weaver, Robert F. Semmer, Chicago, of counsel.

Bernard Carey, State's Atty., Cook County, Chicago, for plaintiff-appellee; Kenneth L. Gillis, Patricia Bobb, Asst. State's Attys., of counsel.

HAYES, Justice.

Defendant-appellant Robert Fultz (hereinafter defendant) was indicted for the murder of one Pablo Garcia on the night of 30 September 1970. Ill.Rev.Stat.1969, ch. 38, par. 9--1. On 7 December 1970, defendant filed a motion for the setting of pre-conviction bond. The said motion also contained allegations which the parties have mutually treated as constituting a motion to suppress a confession allegedly made by defendant to police officers on the night of 1 October 1970, and to suppress any in-court identification of him as Garcia's assailant by one Michael Ritche. After defendant had waived a jury trial, the trial court announced that the motion to suppress would be heard in conjunction with the trial. At that time defense counsel did not object to this procedure. When, as noted hereafter, the trial was first recessed for a hearing on the motion to suppress the oral statement, defense counsel, on cross-examination of the first State's witness at the hearing (Officer Foster), broadened the basis for the motion to suppress by additionally contending that the statement and any in-court identification by Michael Ritche were tainted fruits of the allegedly illegal arrest of defendant. Ultimately the motion to suppress was denied and defendant was found guilty of murder. After the denial of written post-trial motions in arrest of judgment and for a new trial, defendant was sentenced to a term of not less than 35 and not more than 75 years in the Illinois State Penitentiary. Defendant then filed this appeal.

In order to understand the several issues raised by defendant on this appeal, it is necessary to summarize in detail the sequential developments and testimony from the beginning of the bench trial.

The first trial witness for the State was an investigating officer (Officer O'Boyle) who merely testified that he arrived at 1166 North Milwaukee Avenue in Chicago (the address of the Lewis Hotel) at 9:30 A.M. on 1 October 1970. He observed the body of the victim on a stairwell between the third and fourth floors of the Hotel; rigor mortis had set in. He remained with the body until it was removed about 1:30 P.M.

The parties then stipulated that the victim's wife, if called, would testify that the victim was alive and in good health on 29 September 1970 and was dead on 1 October 1970.

Police Investigator Foster then testified that, in the company of Investigators Thomas, Acosta, and Padar, he arrested defendant and one Lorraine Hayden at about 9:30 P.M. on 1 October 1970, and promptly advised defendant of his constitutional rights. Defendant replied that he had nothing to say except that he understood his rights. At about 10 P.M., defendant was taken to a police station. At about 11:30 P.M., the witness was in a room at the station with defendant and Investigators Griffin, Broderson, and Padar. At that time the witness heard Investigator Griffin say something to defendant, after which defendant made an oral statement. Defense counsel objected to any testimony by Foster as to the statement because there had been no hearing on the pre-trial motion to suppress the statement. The trial court responded that the motion to suppress was to be heard in conjunction with the trial testimony; that, when there was some objection to the trial testimony relative to its suppression, the trial would be recessed for a hearing on the motion; and that such a point had now been reached.

Officer Foster continued to testify as the State's first witness on the hearing to suppress the statement. The grounds alleged for the motion to suppress the statement (as finally fully articulated in the post-trial motions) were as follows: that defendant had not made the statement; that proper Miranda warnings had not been given; that repeated prior requests for an attorney to be present had been ignored and the police questioning had continued; and that the statement had been made involuntarily and under duress. Officer Foster stated that he heard Officer Griffin advise defendant as to his constitutional rights; with respect to defendant's right to an attorney, Griffin had said defendant had such a right if he decided to waive his right to be silent. Foster then testified that he heard defendant give, in substance, the following oral statement: I (defendant) was in bed in a room with my girl friend Lorraine; there was a knock on the door and Maria Fischer entered the room with the victim and a young boy; I got out of bed and hit the victim in the face with my fist; Maria Fischer then hit the victim in the head with a frying pan, and the victim fell; I then shot the victim twice in the head; I do not wish to say anything further without consulting anyone. Foster stated that, at the time defendant made his statement, Investigators Griffin, Broderson, and Padar were also present. Defense counsel did not object to Officer Foster's recital of the substance of defendant's oral statement.

In response to further questions by the prosecutor, Foster added that defendant had also said that, after the victim had fallen, he (defendant) had taken some money from the victim's pocket and given it to Lorraine.

On cross-examination, Foster admitted that his arrest of defendant was a warrantless arrest and that his fellow officers had informed him of the facts of this case when he arrived to make the arrest on orders from Officer Griffin. This line of questioning on cross-examination initiated defense counsel's additional contention that the arrest of defendant had been made without probable cause and was therefore illegal, so that the statement (as well as any in-court identification by Ritche, who was the young boy to whom defendant had referred in his statement) should be suppressed as a fruit of the alleged illegal arrest. This additional ground for suppression is important in that it served to make relevant a great deal of subsequent testimony at the hearing which would otherwise have been irrelevant.

On further cross-examination, Officer Foster was asked again about Officer Griffin's Miranda warnings to defendant just prior to defendant's statement; Foster's testimony this time reflected the giving of unobjectionable Miranda warnings.

The next State's witness at the hearing was Investigator Griffin, who appears to have been in charge of the whole investigation. He testified that he went to the Lewis Hotel at about 9:30 A.M. on 1 October 1970 to investigate a possible homicide; that he observed a body on the stairwell of the Hotel between the third and fourth floors; that he called investigators from the Crime Laboratory, who arrived about 20 Minutes later; that he then proceeded to the fifth floor of the hotel, and looked into a service closet adjacent to room 522; that in the closet he found a large box containing a piece of blood-stained carpeting, pieces of glass, a frying pan, a radio, the victim's personal identification papers, broken bottles, and a bedspread, sheets and shorts, all of which were blood-soaked. Officer Griffin then testified that he consulted a hotel employee to find out which hotel rooms and carpeting like the blood-stained piece which he had found in the box. Defense counsel then objected on hearsay grounds to any testimony by Officer Griffin as to what he hotel employee had told him. The trial court overruled the objection on the ground that the hearsay testimony, unobjectionable as such in a hearing on a motion to suppress, was relevant to the issue of probable cause for arrest, which defense counsel had raised in cross-examining Officer Foster. Officer Griffin then testified that the hotel employee directed him to room 523; and in that room he observed the same type of carpeting, with a portion cut out of it which matched the blood-stained piece of carpeting which he had found in the box. Officer Griffin testified that he ascertained that the room was rented to a Mr. and Mrs. James Belles and that he found in the room identification papers, letters, and other objects indicating that a James Belles and a Maria Fischer had used the room.

Officer Griffin was thus led to James Belles, whom he questioned later that day. Defense counsel objected on hearsay grounds to any testimony by Griffin as to what Belles had told him, but the trial court overruled the objection on the ground that the hearsay was relevant to the issue of probable cause for the warrantless arrest of defendant. Griffin then testified that Belles had explained that Maria Fischer had been his girl friend up to a few days before, but that he had not seen her since 26 September 1970. Belles then gave Griffin the names of 'Fred' and 'Lorraine' and the address of the building in which they lived (1068 North Milwaukee Avenue in Chicago). Belles also reported that Lorraine was associated with one Robert Fultz.

Griffin thereupon sent investigators to that building, who found and questioned one Fred Hall, age 20, in his apartment. Defense counsel objected on hearsay grounds to any testimony by Griffin as to what Hall had told the investigators, but the trial court overruled the objection on the ground that the hearsay was relevant to the issue of probable cause for defendant's arrest. Griffin then testified that Hall told the officers that Lorraine Hayden was his mother; that she was about 40 years old; that she had a younger boyfriend named Robert Fultz; that she and Fultz and an apartment in the building; that she and Fultz and entered Hall's...