People v. Houston

• Decision Date: 27 February 1976
• Docket Number: No. 60985,60985
• Citation: 344 N.E.2d 641,36 Ill.App.3d 695
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Odell HOUSTON et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 641

344 N.E.2d 641

36 Ill.App.3d 695

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Odell HOUSTON et al., Defendants-Appellants.

No. 60985.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 27, 1976.

James J. Doherty, Public Defender, Chicago (Donald S. Honchell, Asst. Public Defender, Chicago, of counsel), for defendants-appellants.

Bernard Carey, State's Atty., Chicago (Laurence J. Bolon, Michael E. Shabat, and Robert Handelsman, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

DRUCKER, Justice:

Defendants Odell Houston, John Gibson and Tyrone Hall were indicted for armed robbery in violation of Section 18--2 of the Criminal Code (Ill.Rev.Stat.1973, ch. 38, par. 18--2). Each defendant moved to have his arrest quashed, and all evidence procured as a result of that arrest, including their confessions, suppressed. As defendants chose to waive their right to a jury, the hearing on these motions was held together with the trial. At the conclusion of the trial, the motions were denied, and all defendants were found guilty. Defendant Gibson was sentenced to a term of four to six years; defendant Hall was sentenced to a term of five to eight years; and defendant Houston was sentenced to a term of from eight to 24 years. On appeal each defendant contends that the court erred in not suppressing his confession, and additionally Houston contends that the severity of his sentence was based on the improper reliance by the court on an allegation regarding his commission of another crime.

On August 28, 1972, at approximately 10:30 P.M., two gunmen robbed the LaGrange News Agency located in a suburb of Chicago. The cashier, Vera Nikola, was able to give a description of the robbers to investigating officers but was unable to positively identify them. As the two robbers fled, a passerby, Harold Dingus, observed the automobile which they entered and marked down the license number. A third man acted as the driver of the car. Dingus was unable to identify any of the man. He described the car as a white 1970 LeMans. Dingus gave the license number and automobile description to Ms. Nikola who passed this information on to officers of the LaGrange Police Department.

Officers Konzak and Clark of the LaGrange police were assigned to the case. They immediately made a vehicle registration check on the license number and found that it 'checked out' to Beverly Gilbert of LaGrange. Clark went to Ms. Gilbert's home and informed her that a vehicle bearing her license plate had been involved in a hit and run accident. She stated that she no longer owned a car and had given the plates to her boyfriend, John Gibson, for use on his beige 1970 Cutlass. She gave Clark a description of Gibson and his Chicago address.

Clark and Konzak informed the Chicago Police Department of the robbery and their conversation with Ms. Gilbert. Acting on this information the Chicago police located the car. They contacted Konzak who informed them that he was securing an arrest warrant for Gibson and requested that they take him into custody. The Chicago police arrested Gibson and transported him to Area Four Robbery Headquarters.

Clark and Konzak arrived a short time later with the warrant. They questioned Gibson who at that time denied any involvement in the robbery. Gibson's father was present and informed the officers that his son had been out with Elton and Odell Houston. Defendant was transported to Chicago Police Headquarters at 11th and State where after further questioning he made an oral inculpatory statement. He later gave a signed written statement. Gibson told police that he met Odell Houston, Elton Houston and Tyrone Hall in front of the Houston home; that all entered his vehicle, and they drove to LaGrange; that they discussed making some money, and on the way he told the others he knew of a place that would be easy to rob; that they went there and parked near the news agency to wait; that Elton Houston remained in the car with him while Hall and Odell Houston entered the place; that both Hall and Odell Houston were armed; that they returned to the car about five minutes later, and that he drove them back to Chicago.

On the basis of this information Elton Houston and Hall were arrested on August 29. ^* Hall initially denied any involvement in the robbery, but the next morning, after further questioning, he confessed. A few days later Odell Houston was arrested and, after being told that both Hall and Gibson had given statements implicating him, he also confessed. In addition Odell Houston made several phone calls, and shortly thereafter a young woman arrived at the station with a revolver which he stated had been used in the robbery.

Opinion

All three defendants challenge the tactics utilized by the police which resulted in their confessions. We shall discuss their contentions seriatim.

Gibson initially asserts that the subterfuge used by Officer Clark to obtain information from Ms. Gilbert which led to his arrest was unlawful. He argues that therefore his arrest should have been quashed, and his confession should have been suppressed. We believe that since the subterfuge was not directed against Gibson, there is no constitutional basis for his assertion. Simply put, Gibson lacks standing to raise this claim. Our conclusion is grounded on the well established principle that:

'(i)n order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, see also Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441, 458; People v. Black, 52 Ill.2d 544, 553, 288 N.E.2d 376; People v. Basile, 21 Ill.App.3d 273, 276, 315 N.E.2d 293.

Moreover, even if Gibson had standing to raise this issue, we are not persuaded that the police tactics used to gain the information from Ms. Gilbert offended constitutional standards. While courts have frowned upon the wanton use of misrepresentations by police in the course of their investigations, the utility of such tactics in carefully circumscribed situations had been recognized and upheld. (See People v. Walker, 30 Ill.2d 213, 195 N.E.2d 654; People v. Macias, 39 Ill.2d 208, 234 N.E.2d 783.) In the instant case Officer Clark did not hide the fact that he was a police investigator nor did he hide the fact that he was investigating a crime. He merely disguised the nature of the crime which he was investigation. We do not believe that the use of a subtle subterfuge of this nature is so offensive to the Constitution that it requires proscription.

Following his arrest, Gibson underwent extensive interrogation by both LaGrange and Chicago police officers. There is a conflict in the testimony as to the tactics used by the police during the course of these interrogations.

The testimony of LaGrange Police Officers Konzak and Clark for the State regarding the questioning of Gibson was substantially similar. They testified that following his arrest, Gibson was advised of his rights. Gibson's initial interrogation was conducted in the presence of his father. At this time Gibson denied any participation in the crime although he expressed some curiosity as to whether the driver of the get-away car would be considered as culpable as the gunmen. Gibson was transported to police headquarters at 11th and State where he was placed in a cell. Questioning of him continued through the bars of the cell. Konzak told Gibson that the solution to the case lay in merely locating the Houstons and having them identified. At this point Gibson expressed his desire to make a statement. The officers denied physically abusing Gibson.

Gibson testified that at Area Four Robbery Headquarters Officers Konzak and Clark threatened him with small clubs, and Chicago police officers threatened him with nightsticks. He further testified that he was the subject of racial slurs. After he was taken to Chicago Police Headquarters, he was searched, and a handcuff key was found in his pocket. A Chicago police officer hit him over the eye with a nightstick. Defendant displayed a small scar over his eye which he claimed resulted from the blow. However, a photograph of Gibson taken shortly after he made his statement showed no sign of any wound on his face. Gibson testified that Officer Clark repeatedly promised that if he gave a statement, he would be afforded leniency. Gibson stated that he confessed because he feared the police would injure him.

None of the Chicago police officers who participated in the interrogation of Gibson was called by the State.

Gibson contends that even if his arrest were legal, his confession should have been suppressed because (1) the State failed to call the Chicago police officers present at his interrogation who allegedly threatened and struck him and (2) he was deceived into making his statement by the misleading statements and promises of Officers Konzak and Clark.

Gibson claims that all police officers who were present at his interrogation were material witnesses, and the failure of the State to call them constitutes error. Section 114--11(d) of the Code of Criminal Procedure (Ill.Rev.Stat.1973, ch. 38, par. 114--11(d)) states:

'The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.' (Emphasis added.)

Thus the statute expressly requires a...