People v. Wade

• Decision Date: 16 April 1979
• Docket Number: No. 77-1230,77-1230
• Citation: 27 Ill.Dec. 822,71 Ill.App.3d 1013,389 N.E.2d 1230
• Parties: , 27 Ill.Dec. 822 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie WADE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1230

389 N.E.2d 1230

71 Ill.App.3d 1013, 27 Ill.Dec. 822

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie WADE, Defendant-Appellant.

No. 77-1230.

Appellate Court of Illinois, First District, First Division.

April 16, 1979.

Ralph Ruebner, Deputy State Appellate Defender, Chicago, Kathy M. Morris and F. E. Fernandez, Asst. State Appellate Defender, counsel for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Lee T. Hettinger, Timothy D. McMahon, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

GOLDBERG, Presiding Justice:

After a jury trial, Willie Wade (defendant) was found guilty of murder and sentenced to 50 to 100 years. He appeals. In this court, defendant contends the trial court denied him his constitutional right to a hearing and a ruling on his motion to suppress his confession; defendant was denied his constitutional right to counsel because of the incompetency of his trial attorney; the trial court improperly refused to instruct the jury on the testimony of an accomplice witness; the conduct of the prosecutor denied defendant a fair trial and the sentence is excessive.

No point is raised on the sufficiency of the evidence to prove the guilt of defendant beyond a reasonable doubt. A summary of the evidence is therefore sufficient for the purposes of this opinion.

On October 16, 1976, defendant lived with Denise Bankston, 18 years old, and her daughter, on the first floor of an apartment building. Defendant was the janitor of the building. At 4 o'clock that morning a tenant named Emmit Hill, the victim, who lived in a third floor apartment, came down and requested the defendant to repair the sink. Wilma Preston lived with Hill. She testified that on the morning in question, the sink fell off from the wall and water began to run into the apartment. The victim went downstairs and returned with the defendant. The defendant left briefly to get some tools and then returned. He was able partly to stop the flow of water. The victim again complained about the situation to defendant.

Defendant and the victim left the apartment together. The water stopped running but neither of the men returned. Wilma Preston went to search for the victim. She saw defendant and two tenants mopping the floor at the rear door of the building. She saw Denise Bankston mopping the floor at the front door area. She testified that defendant and Denise Bankston acted "nervous." She asked defendant about the victim. Defendant responded that the victim had followed him out of the apartment for only 2 or 3 feet and had then returned. A friend of Wilma Preston went to the boiler room where he saw blood on the floor. He went outside of the rear door and found the body of the victim.

Denise Bankston testified that the first complaint by the victim about the broken sink was made angrily. About a half-hour after the men left, she heard an argument in the hallway between defendant and the victim. The defendant entered the apartment and took a rifle which he kept behind the couch. The witness saw defendant shoot the victim as the victim raised his hands. Defendant then dragged the body to the rear exit of the building. The witness took a mop from her apartment and used it to clean up blood on the floor. Defendant asked her to help dispose of the body. She helped the defendant drag the body from the rear exit to the building next door. She also found six shell cases in the hallway and gave them to defendant. The witness noted that defendant had blood stains on his pants which she had not seen before. She gave a complete statement of these facts to the police. She was granted immunity from prosecution. She conceded that she did not tell the truth when questioned during the preliminary hearing.

Chicago Police Officer Schuler testified that he arrested the defendant in the latter's apartment. He detailed the statement that he made to defendant regarding his Miranda rights. These were the standard rights that he used in all investigations. The defendant told him that he understood the rights. At police headquarters the defendant was interrogated by Police Officer Richards. He did this together with assistant State's Attorney Dennis Porter. Mr. Porter advised the defendant of his legal rights. Defendant stated that he was called to the apartment about 4 a. m. to stop the flow of water. The last time he left the apartment the deceased followed him for a short distance and then left. Defendant then went to his own apartment and went to sleep.

Thereafter Denise Bankston was interviewed. The police officer and assistant State's Attorney then questioned the defendant again. Defendant stated that he had a verbal altercation with the deceased. The argument continued down to the first floor. Defendant stated that the decedent reached into his back pocket. Defendant then reached into his apartment, "grabbed a rifle" and shot the decedent. The evidence shows that a subsequent search of defendant's apartment and of the vicinity did not disclose the rifle or any other weapon.

Assistant State's Attorney Dennis Porter testified in detail regarding the Miranda rights which he explained to defendant. Defendant said he understood these rights. The attorney then corroborated the testimony of the officer regarding the interviews with the defendant and his statements.

Shortly thereafter the attorney was called from the room. He then saw attorney John Lally who acted as attorney of record for defendant and tried the case. The assistant State's Attorney then went back and told defendant that the attorney wished to speak to him. The defendant responded that he would like to speak to the attorney. The interview with defendant was then terminated.

Defendant testified concerning the initial call upon him to stop the water. He stated that he made four trips to the victim's apartment. The second time that defendant left the apartment the victim accompanied him. After defendant had completed work on the sink, he obtained a broom on the first floor and swept part of the floor near the boiler room. He had noticed earlier that the floor area needed attention. Defendant saw that the rear door was unlocked and he locked it. Defendant then went home and went to bed. When the police arrested him, about 5:45 or 6 a. m., they took him to the station. On the way out, he unlocked the back door and tripped and fell on one knee. He saw no blood or bullet shells in the hall. He thought there was blood at the point where he had tripped but he did not know how the blood got on his pants.

Defendant further stated that the police did not tell him he was under arrest. On the way to the police station they stopped for coffee. At the station he was handcuffed to the wall. He was interviewed by various police officers. His trousers were taken from him about 11:30 or 12 o'clock that morning. On direct examination he did not mention his Miranda rights. On cross-examination he testified that the police "didn't advise me of anything because at that time I wasn't under arrest, I wasn't supposed to be."

A stipulation was entered into to the effect that if evidence technician Jackson were called to testify, he would state that he found four shell casings in the hallway. He recovered samples of blood from the alley and also from the hallway of the first floor. In addition, if a medical technician were called she would testify that she took blood samples from the defendant. The testimony shows that the blood samples and blood which was found on defendant's trousers were all of type A. The defendant's blood was type O. The victim's blood was type A.

I.

Counsel for defendant filed a motion to suppress statements by the defendant. The gravamen of the motion is the failure to give defendant his Miranda rights; defendant did not understand these rights because of his emotional and psychological state; the questioning continued after defendant had elected to remain silent and to consult with an attorney and the statements allegedly made by defendant were obtained by means of "psychological and mental coercion."

The motion was presented to the trial court for hearing immediately before trial. The motion was signed by the attorney for defendant. The assistant State's Attorney moved to strike the motion on the grounds of lack of specificity and lack of an affidavit as required by Rule 15.1(a) of the rules of the circuit court of Cook County. The rule provides that, "A motion founded upon facts not appearing of record in the case shall be supported by affidavit reciting the facts." Upon inquiry by the court, defendant's counsel stated that he would not allow the defendant to swear to the motion. The trial court suggested that the motion be withdrawn, properly sworn and resubmitted. Counsel for defendant refused to withdraw the motion. The trial court accordingly struck the motion.

Defendant urges that the failure of the trial court to conduct a pretrial hearing on the motion to suppress was contrary to law. In Illinois, additional testimony at the trial, received even after a complete hearing on a pretrial motion to suppress a confession, may be considered by a reviewing court in passing upon a ruling upon the motion by the trial court. The theory is that a ruling on a motion to suppress is not final and may be changed or reversed at any time. (People v. Braden (1966), 34 Ill.2d 516, 520, 216 N.E.2d 808; People v. Turner (1976), 35 Ill.App.3d 550, 567, 342 N.E.2d 158.) Consequently, although a pretrial hearing may have been preferable, the issue before us is whether upon the entire record the evidence is sufficient to sustain the allegations of the motion to suppress. We conclude that the trial court properly denied the motion as presented under the cited rule of the circuit court. However, we have reviewed the entire record to make certain that the defendant has not been deprived of any constitutional or legal right in this...