People v. Green (179 Ill. App. 3d 1, 1988)

JUSTICE MURRAY

delivered the opinion of the court:

After a bench trial, defendant Charles Green was found guilty of four counts of murder, aggravated arson, residential burglary, home invasion, armed robbery, and four counts of armed violence. He was sentenced to natural life imprisonment in the Illinois Department of Corrections. On appeal, defendant argues: (1) he was improperly tried and sentenced as an adult; (2) the trial court erred in denying his motion to quash his arrest; (3) he was not proved guilty beyond a reasonable doubt; and (4) the trial court abused its discretion in refusing to allow the admission of evidence indicating that persons other than he committed the offenses for which he was charged. For the reasons set forth below, we affirm.

On January 12, 1985, police officer Joe Deases, in responding to a fire call, discovered the burned bodies of Raynard Rule, Lauren Rule, and Yvonne Brooks in a second-floor apartment located at 458 North Hamlin Avenue in Chicago. The victims had been gagged and their hands tied behind their backs, Raynard Rule had been stabbed, and Lauren Rule and Yvonne Brooks had been shot. Deases also found Kim Brooks outside of the apartment building. She told Deases that one of her assailants attempted to shoot her, the bullet missed her and she had managed to free herself and escape from the apartment after her assailants left. Brooks, who was severely burned, was rushed to a hospital for treatment, but subsequently died on February 16.

The events leading up to the deaths of the victims, according to defendant’s grand jury testimony, consisted of the following. On January 12, at approximately noon, defendant, who was 16 years old at the time, met Derrick House in a “game room” at 750 North Lawn-dale in Chicago. Upon leaving the game room, defendant and House met Teddy Bobo. House and Bobo asked defendant if he would get Raynard Rule, whom defendant had known for three years, to open the burglar bars which were in front of the door to his apartment on the pretext that he wanted to buy some drugs. House gave defendant $25, defendant went to Rule’s apartment, went up to the door by himself and knocked, Rule answered and asked defendant what he wanted, defendant said he wanted to buy a bag of cocaine and told Rule he had $25 to pay for some, Rule opened the burglar bars, defendant stepped into the apartment, and immediately thereafter House and Bobo ran in after him. House grabbed Rule and put a pistol to his head and said something about money to him. House then took Rule to the kitchen while Bobo went into another room where three girls were sleeping on two mattresses. Bobo woke the girls up and tied them up with a brown extension cord. At that time defendant heard Rule yelling “No, no” in the kitchen. House came out of the kitchen shortly thereafter and went into the room where Bobo and the girls were. After talking with Bobo and the girls, House left the room, went back to the kitchen, and took Rule to a back bedroom, supporting him as they went. House then again went to the room where Bobo and the girls were, the girls “started to panicking [sic\” because they smelled smoke, which was coming from the back bedroom, and House told the girls not to worry about the smoke because the extension cord binding them was loose enough for them to free themselves and to get out of the apartment before it “started flaming.” Immediately thereafter House shot one of the girls, Bobo shot another, and House shot the third girl. Kerosene was poured over the girls and ignited by Bobo. Defendant, who had been standing inside the doorway of the apartment throughout this time, then ran out and went to the game room on Lawndale. He subsequently met House in the game room and House told him he had stabbed Rule.

Following a police investigation, defendant was implicated in the Rule murders, taken to a police station on February 5, taken before a grand jury on February 6, subsequently charged with the crimes set forth above, found guilty after a bench trial, and sentenced to natural life imprisonment. This appeal followed.

Defendant first argues that the trial court lacked jurisdiction to try and sentence him as an adult. We find defendant’s argument without merit. Section 2 — 7(6)(a) of the Juvenile Court Act (the Act) provides as follows:

“The definition of delinquent minor under Section 2 — 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, aggravated criminal sexual assault, armed robbery when the armed robbery was committed with a firearm, or violation of the provisions of subsection 24 — l(a)(12) of the Criminal Code of 1961, as amended. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 37, par. 702— 7(6)(a).

Here, defendant was 16 years old at the time he was charged with the murders of the victims, as well as the other offenses arising out of the same incident. Defendant argues, however, that since he was convicted on a theory of accountability and did not directly participate in the crimes, section 2 — 7(6)(a) is inapplicable, i.e., he in fact did not actually commit any of the crimes enumerated in section 2 — 7(6Xa), triggering application of that section.

It is well settled that the accountability statute (Ill. Rev. Stat. 1985, ch. 38, pars. 5 — 1, 5 — 2) makes both parties guilty as principals; the statute admits of no degrees. (People v. Clark (1986), 144 Ill. App. 3d 420, 494 N.E.2d 551, rev’d on other grounds (1987), 119 Ill. 2d 1, 518 N.E.2d 138.) Furthermore, the language of section 2 — 7(6Xa) provides for automatic trial of a defendant as an adult who is charged with the offenses enumerated in that section and who is at least 15 years of age at the time he allegedly commits those offenses. Therefore, whether a defendant is charged with those offenses on an accountability theory or otherwise is irrelevant; the fact remains that he is charged with the pertinent offenses, triggering application of section 2 — 7(6Xa).

We also reject defendant’s similar argument with respect to the trial court’s sentencing him as an adult. The pertinent section of the Act provides as follows:

“If after trial or plea the minor is only convicted of an offense not covered by paragraph (a) of subsection (6) of this Section, such conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of this State, however the court must thereafter proceed pursuant to Sections 4 — 7 or 4 — 8. In all other circumstances, in sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 37, par. 702— 7(6Xc).)

Defendant again argues that he was not convicted of an offense covered by section 2 — 7(6Xa), i.e., he insists that his convictions on an accountability theory are convictions for qualitatively different offenses. As indicated above, defendant, under an accountability theory, is deemed to be as guilty as a principal in committing the offenses charged and whether or not he directly participated in the crimes is irrelevant. Defendant was convicted of the offenses of murder and armed robbery, among others, and thus subject to sentencing under the Unified Code of Corrections.

Defendant next argues that the trial court erred in denying his motion to quash his arrest, contending that his warrantless “arrest” was made without probable cause during an illegal entry of his home on February 5, his arrest and detention violated his fourth amendment rights and the Juvenile Court Act, and his testimony before the grand jury “should be deemed tainted and unable to provide probable cause for his arrest” on February 6 when he was officially charged by the police.

At the hearing on defendant’s motion to quash his arrest, Detective John Summerville testified that pursuant to his investigation of the deaths of Raynard and Lauren Rule and Yvonne and Kim Brooks, he spoke to James Davis on February 3. Davis told Summerville that on January 11 he saw Rule and House get into an argument and fistfight over money; Rule “got the better of House” in front of a crowd which included House’s girl friend. On January 12 at 11 a.m., he saw defendant and House at the Lawndale game room at which time they said they were going to “peep” or look for Rule, and later that evening he saw defendant, House and a boy named Virgil, who all had handguns and were smoking “happy sticks” (marijuana laced with PCP), and heard House say, “We got them, we got them, we just burnt Raynard.” Summerville further stated that he subsequently identified Virgil as defendant’s cousin, Virgil Bridges. Bridges later told Summerville that he had met defendant on January 12 at 7:30 p.m. and asked defendant what he “had done wrong,” to which defendant responded that he had “gone up to Raynard’s dope house with someone else and got Raynard to open the burglar gates” and, after the gates were opened, “things happened that were not suppose [sic] to happen,” and that he also later overheard a conversation between defendant and House at the game room about opening burglar gates. Bridges subsequently gave Summerville defendant’s address.

Summerville further testified, as did his partner Detective James Clemmons, that on February 5, at approximately 1 p.m., they went to defendant’s apartment. They knocked on the door of the apartment, a young woman answered, they identified themselves as police officers and asked to speak to defendant, and they were allowed entry into the apartment. Summerville asked the male occupants in the room to identify themselves, defendant produced an ID, and Summerville asked defendant if he would come to the police station and answer some questions. Defendant stated that he wanted to get dressed first and telephone his mother. Summerville told both defendant and his mother that defendant did not have to go to the station, and defendant accompanied the police to the station house. No force was used to gain entry to the apartment, neither officer displayed his weapon, they were in the apartment for approximately 15 minutes, they did not search the apartment, defendant was not handcuffed when he left the apartment with them, and no other occupants of the apartment were taken to the police station. At the station, defendant was not handcuffed, searched, fingerprinted or booked on any charge.

Defendant, in recounting the events of February 5, testified that three policemen, with their guns out, arrived at his apartment just as his sister was leaving, they rushed into the open door of the apartment, and they began searching the apartment. Defendant asked a police officer if he had a warrant and was told to shut up. He further stated that the police remained in the apartment for V-fe hours, he was taken from the apartment to the police station in handcuffs, as were his brother and cousin, the police told him he was under arrest, and he was photographed at the station house.

Gloria Thompson, defendant’s sister, testified differently only to the extent that she telephoned her mother, one police officer had his gun out, one officer searched the apartment while the other two spoke to defendant’s brother and cousin, the police officers never threatened anyone while they were in the apartment, and the officers only remained in the apartment for 20 to 30 minutes. Terry Green, defendant’s brother, and Willie Thomas, defendant’s cousin, similarly testified on these points.

Viola Green, defendant’s mother, testified that on February 5 she received a telephone call from her daughter Gloria Thompson. Thompson said police were at her house “getting” defendant, Terry Green and Willie Thomas and searching the house. She went to the police station and spoke to Sergeant John Regan at 1:30 p.m., asked to see defendant, and Regan refused her request. She stayed at the station for approximately 45 minutes longer, then left.

With respect to the time of defendant’s arrest, Detective James Clemmons acknowledged that an arrest report, with his name on it but which he did not prepare, indicated February 5 at 1 p.m. as defendant’s time of arrest. Detective Michael Miller testified that he saw defendant at the police station on February 5, he was not under arrest, restricted or charged with any crime, and he formally arrested defendant on February 6 after defendant testified before the Cook County grand jury. Miller also acknowledged on cross-examination that an arrest report with his name on it indicated defendant’s time of arrest at 1 p.m. on February 5. Assistant State’s Attorney John O’Donnell testified that on February 6 no charges had been lodged against defendant prior to his testimony before the grand jury. On cross-examination, however, O’Donnell acknowledged preparing a “Form 101” prior to defendant’s appearance before the grand jury, which indicated February 5 as defendant’s date of arrest.

The trial court subsequently found that defendant’s arrest occurred at 1 p.m. on February 5, that probable cause for his arrest existed at that time, and that the police had consent to enter his apartment. Accordingly, the court denied defendant’s motion to quash his arrest.

It is well settled that probable cause to arrest an individual exists where, when viewed objectively, the situation confronting the arresting officer, as well as the facts known to him, are such as would cause a person of reasonable caution to believe that the individual to be arrested had committed a crime, bearing in mind that probabilities are involved, not proof beyond a reasonable doubt. (People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) A reviewing court will not disturb a finding of probable cause to arrest unless it is manifestly erroneous. (People v. Philson (1979), 71 Ill. App. 3d 513, 389 N.E.2d 1223.) A warrantless arrest based on probable cause may be made in an individual’s home if the police have consent to enter. People v. Williams (1984), 128 Ill. App. 3d 384, 470 N.E.2d 1140.

Here, defendant merely asserts but does not argue with specificity that the police did not have probable cause to arrest him. Instead, his probable cause argument appears to be premised on his contention that his arrest was illegal because he did not give the police his consent to enter his home.

On the other hand, the State argues that probable cause existed based on information obtained from James Davis and Virgil Bridges, defendant's cousin. James Davis told the police he saw defendant and House at the game room and heard them say they were going to look for Rule and, later that evening while defendant, House and Virgil Bridges were together, he heard House say, “We got them, we got them, we just burnt Raynard.” Davis also stated that all three men had handguns at the game room and began smoking “happy sticks.” Virgil Bridges, defendant’s cousin, corroborated much of Davis’ statement to the police. Bridges told Detective Summerville that defendant told him he had “gone up to Raynard’s dope house with someone else and got Raynard to open the burglar gates” and “things happened that were not suppose [sic] to happen.” We find the obvious inference to be drawn from this information by any reasonable person is that defendant and House had participated in the shootings and fire at Rule’s apartment on January 12. Accordingly, we hold that the trial court’s finding of probable cause to arrest defendant was not against the manifest weight of the evidence.

We also reject defendant’s argument that the police entered his apartment without his consent. Although the testimony of the police and defendant’s witnesses contradict each other, it was within the province of the court to determine the credibility of the witnesses and the weight to be accorded their testimony to resolve the inconsistencies and conflicts therein. (People v. Washington (1984), 125 Ill. App. 3d 109, 465 N.E.2d 666.) Based on the record before us, we cannot say that its determination was erroneous. While Detectives Summerville and Clemmons similarly testified that they knocked on the door, did not have their guns drawn, did not use force in entering defendant’s apartment, and defendant consented to their entry, there were discrepancies in the testimony of defendant’s witnesses with respect to the number of police in and out of the apartment, the number of officers who had their guns drawn, the amount of time the police remained in the apartment, and who was handcuffed to whom. Apparently the trial court determined the two police officers were more credible than defendant and his witnesses. Since the court was in a better position to judge the credibility of the witnesses, we see no reason to disturb its determination that the police entered defendant’s apartment with consent.

Defendant next argues that his arrest on February 5 and his alleged subsequent 27-hour detention at the police station violated his rights under the fourth amendment and the Juvenile Court Act. He first contends that he was illegally restrained at the police station for 27 hours under “unknown circumstances” prior to being charged, was not represented by counsel during that time and was “cut off” from his family. Accordingly, he asserts that a statement made by him after 10 hours “in custody” and his testimony before the grand jury 17 hours later were the products of physical and psychological coercion.

It is well settled that an arrest involves three elements: intention of the officer, understanding of the arrestee, and restraint of the person. (People v. Fulton (1979), 68 Ill. App. 3d 915, 386 N.E.2d 605.) The test of an arrestee’s understanding is whether an innocent, reasonable man would have thought himself under arrest. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.

Here, notwithstanding the fact that the time of defendant’s arrest is disputed, the record is clear that he was not handcuffed, fingerprinted, or charged while at the police station until after his testimony before the grand jury on February 6. Detective Miller testified that defendant was “in custody” but that meant merely that “he was in the police presence in a police facility.” Miller further testified that he and Summerville told defendant he was free to leave but that defendant stayed overnight at the station in the interview room. John Regan testified that defendant was “in custody” but that meant only that he was in the area of the station.

On the other hand, defendant only asserted he was photographed but does not cite to the record evidence in support thereof. Defendant also does not argue in his brief or cite to the record evidence supporting his contention that he was not free to leave the station house, i.e., he failed to account for his whereabouts during the 27 hours or allege any specific conduct by the police barring his freedom to leave. Defendant also only states that his mother asked to see him when she initially came to the station at 1:30 p.m. on February 5 and her request was denied; defendant does not allege that his mother asked to see him again and that her request was denied over the alleged 27-hour period of illegal detention.

It is well settled that an appellant is responsible for providing a record which shows the errors claimed; where the record is incomplete, or is silent, a reviewing court will invoke the presumption that the trial court ruled or acted correctly. (People v. Hamilton (1978), 64 Ill. App. 3d 276, 381 N.E.2d 74.) Defendant clearly has failed to support his claim that he was illegally restrained.

We further observe that defendant was familiar enough with police procedure to ask the police if they had a warrant to enter his apartment. He further testified that at the police station he was neither searched nor fingerprinted. Defendant also had previous involvement with police procedure given the fact that a delinquency petition was filed against him stemming from an alleged battery. Defendant was interrogated on February 5 for a total of approximately three hours during which time he was in and out of the interview room. The unrebutted testimony of the State’s witnesses indicates that defendant left the interview room to use the washroom facilities and to get something to eat. Defendant never complained of being mistreated and in fact stated before the grand jury that he had been treated well by the police; no threats or promises were made by the police.

Based on the evidence presented, therefore, we cannot say that defendant should have reasonably believed he was under arrest and not free to leave the station.

Defendant also argues that his arrest violated the provisions of the Juvenile Court Act because the police failed to contact his mother and to promptly take him before the court as a juvenile in custody. We first observe that even if the police did not talk directly to defendant’s mother by telephone, Mrs. Green testified that shortly after the police entered defendant’s apartment her daughter spoke to her at that time and told her the police were “getting” defendant. Secondly, we note that section 3 — 2(2) of the Act, which defendant relies on as requiring notification of the parents of juveniles, does not apply to defendant’s situation. The pertinent part of that section provides:

“A law enforcement officer who takes a minor into custody without a warrant under Section 3 — 1 shall, if the minor is not released, immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care, *** that the minor has been taken into custody and where the minor is being held; and the law enforcement officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes in the county of venue or shall surrender the minor to a juvenile police officer in the city or village where the offense is alleged to have been committed.” (Ill. Rev. Stat. 1985, ch. 37, par. 703-2(2).)

Section 3 — 1, referred to above, applies to minors who are believed to be delinquent or who have escaped from any court-ordered commitment or who are sick or injured in a public place. (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 1.) Moreover, based on our above discussion, we have determined that defendant was not taken into custody, but rather went to the police station on his own volition to answer questions. In addition, defendant was taken to the station based on his suspected involvement in four murders and therefore was subject to the jurisdiction of the criminal courts, not the juvenile courts. See People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744.

Defendant’s last argument on this issue is that no probable cause existed to arrest him on February 6 because his statements to Assistant State’s Attorney O’Donnell and before the grand jury on that day were not made voluntarily. In support thereof, defendant repeats his argument that he was physically and psychologically coerced into making the statements as a result of his 27-hour detention during which he was isolated from his family and the court.

Because we have determined that probable cause existed to arrest defendant on February 5, we need only address the voluntariness of defendant’s statements on February 6. “The test of whether a confession was admissible at trial is whether the [State] met its burden of showing that the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether defendant’s will was overcome when he made the statement.” (People v. Stachelek (1986), 145 Ill. App. 3d 391, 401, 495 N.E.2d 984.) In making this determination, the court must consider the totality of the circumstances surrounding the making of the statement, including the existence of any threats, promises, or physical coercion, the length and intensity of the interrogation, and the age, intelligence, experience, and physical condition of the defendant. The court’s determination will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Stachelek, 145 Ill. App. 3d at 401.

Here, defendant stated in his grand jury testimony that he was given Miranda warnings on February 5 and that they were repeated again at the grand jury hearing, he admitted neither the police nor the State’s Attorney made any threats or promises to him and never hit or did anything to scare him, and that the police treated him well throughout the time he was at the station house. We further observe that defendant never complained about being mistreated. There is no evidence that defendant was subjected to lengthy periods of interrogation or that he was denied sleep, food or access to a washroom. Nor was any affirmative evidence presented showing that coercion was used to get defendant to appear before the grand jury. Additionally, various police officers and assistant State’s Attorneys testified that defendant’s movement was not restricted and that he was treated well throughout his stay at the police station. In considering the totality of the circumstances, therefore, we cannot say that the trial court’s determination that defendant’s statements on February 6 were voluntary was against the manifest weight of the evidence.

In light of the foregoing, we hold that the trial court properly denied defendant’s motion to quash his arrest.

Defendant next argues that he was not proved guilty beyond a reasonable doubt based on accountability, nor was his guilt established beyond a reasonable doubt because his grand jury testimony was contradicted by other evidence. He first contends that no evidence was presented that he encouraged House or Bobo by word, gesture or deed to commit any of the specific offenses for which he was subsequently held accountable, there was no evidence that House and Bobo revealed their true intent to him, and he did not actually participate in any of the specific offenses and therefore cannot be held accountable.

A person is legally accountable for the conduct of another when, “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2.) Evidence that a defendant voluntarily attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, makes him criminally liable for any wrongdoings committed by the other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not actively participate in the overt act itself. (People v. Gutierrez (1985), 136 Ill. App. 3d 774, 483 N.E.2d 944.) Proof of a common purpose need not be supported by words of agreement but can be drawn from circumstances surrounding the commission of an act by a group. People v. St. Pierre (1975), 25 Ill. App. 3d 644, 324 N.E.2d 226.

Here, the common purpose of defendant, House and Bobo was to illegally enter Rule’s apartment while he was at home to force him to turn over money he otherwise refused to pay to House. This unauthorized entry with the intended use of some force (home invasion) is the offense which is the basis of finding defendant accountable for the other offenses committed in furtherance of the purpose for the unauthorized entry. Defendant’s role in the home invasion was integral to its success and clearly he intended to promote or facilitate the commission of that offense by pretending to buy cocaine from Rule so that House and Bobo could gain entry into the apartment they could otherwise not lawfully enter. Obviously defendant knew a conflict existed between Rule and House, based on the necessity of using him to get Rule to open the protective burglar gates, and that that conflict could result in the use of force against Rule.

We further observe that in determining whether accountability has been established, the trier of fact may consider factors such as defendant’s presence without disapproving or opposing the commission of the crime, a continued close affiliation with the codefendants after the commission of the crime, the defendant’s failure to report the incident or confide in anyone about it (People v. Watson (1982), 106 Ill. App. 3d 315, 436 N.E.2d 7), and the defendant’s flight from the scene (People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285).

In the instant case, defendant initially made a statement that he remained in the hallway near the front door rather than in the apartment while the subsequent crimes were being committed. This statement was contradicted by his testimony before the grand jury that he had originally lied and in fact had been in the apartment near the entryway. On appeal, he also contends that he was prevented from fleeing the scene because the burglar gates had been locked again and he knew of no other exit. At the same time, however, defendant recited in his various statements that he was close enough to the events to hear the argument over money with Rule and his codefendants’ later questioning of the three girls concerning money and where “dope” might be hidden. He also was able to observe Bobo enter the bedroom where the girls were sleeping and see him tieing them up with a brown extension cord. Later, when there was evidence of smoke in the apartment, defendant heard Bobo tell the girls not to panic because the extension cord binding them was loose enough for them to free themselves and get out of the apartment. Defendant further saw House and Bobo shoot the girls, pour kerosene over them, and ignite the kerosene. Accordingly, we find it incredible, as apparently did the trial court, to believe that defendant could have described these events had he been positioned in the hallway outside the apartment. Logically then, having been in the apartment, the burglar gates could not have been locked when he fled the scene, notwithstanding the fact that they were locked when the fire department arrived and had to be tom away from the wall.

We also observe that at no time did defendant attempt to disapprove or oppose the actions of House and Bobo; he remained to view all of the crimes and only then did he flee to the Lawndale game room where he met House and discussed details of the crime with him and smoked “happy sticks.” Defendant did not contact the police and he later initially denied his participation in the occurrence. In the absence of any evidence that defendant detached himself from the criminal enterprise (see People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17), defendant was accountable for the conduct of House and Bobo after his initial action in getting Rule to open the burglar gates.

We similarly reject defendant’s argument that he was not proved guilty beyond a reasonable doubt because of conflicts between his grand jury testimony and other evidence. In support of this contention, defendant again argues he remained in the hallway during the occurrence. He also appears to argue that the burglar gates were locked so he therefore could not have been in the apartment. He further contends that a conflict existed based on Kim Brooks' statement that she only saw two men in the apartment, thereby strengthening his argument that he did not enter the apartment.

Where inconsistencies and conflicts exist in the evidence, the trier of fact has the responsibility of weighing the credibility of the witnesses and resolving these conflicts and inconsistencies. (People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329.) We find, as apparently did the trial court, that any number of reasons could explain why Brooks only saw two men. For example, defendant could have been out of her line of vision or she only focused on House and Bobo, with whom she was in direct contact. Similarly, the burglar gates could have been locked by any one of the defendants upon leaving the apartment. On the other hand, we do not find the State’s evidence improbable, unconvincing, or contrary to human experience. (See People v. Scott (1982), 108 Ill. App. 3d 607, 439 N.E.2d 130.) In light of the foregoing, therefore, we cannot say that the evidence is so unsatisfactory as to raise a reasonable doubt of guilt.

Defendant’s final argument is that the trial court erred in refusing the admission of evidence as hearsay that the offenses were committed by other persons. Specifically, he contends that the testimony of Sterling Buchanon implicated another party and his alleged accomplice as the perpetrators of the.crimes and the court improperly excluded certain statements made by Kim Brooks at the hospital which supported this theory.

In Illinois, the general rule is that an extra-judicial declaration not under oath by the declarant that he, and not the defendant on trial, committed a crime is inadmissible as hearsay notwithstanding the declaration is against the declarant’s penal interest. An exception to this rule exists where the statement is supported by sufficient indicia of trustworthiness. (People v. Bowel (1986), 111 Ill. 2d 58, 488 N.E.2d 995.) The trustworthiness of such a declaration can be determined by consideration of whether the statement was spontaneous and occurred shortly after the crime, the statement was corroborated by other evidence, the statement was self-incriminating and a declaration against penal interest, and there was an adequate opportunity for cross-examination of the declarant. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) The admission of evidence is within the sound discretion of the trial court and its ruling will not be reversed absent a clear showing of abuse of that discretion. People v. Bowel (1986), 111 Ill. 2d 58, 488 N.E.2d 995.

At trial, defendant made an offer of proof that Sterling Buchanon would testify to certain statements made by his brother, Jeffrey Hagans, also known as “Bodine.” Buchanon stated that on January 16,- 1985, he was with Bodine and some friends and asked Bodine if he knew anything about the “Hamlin crimes,” and Bodine responded “[T]he less you know the better off you is”; that he overheard Charlie Hill, a friend of Bodine’s, tell Bodine that he “[BJetter get rid of the clothes because [he] throwed that shit everywhere. It got on me, on my pant, my shoes, everything”; that he saw Bodine burn a “roll of clothes”; that Hill told Bodine that “You should have called the nigger back upstairs, cause he could put us in the building”; that in response to Buchanon’s statement to Bodine that Hill had too much influence over him and the Hamlin crimes did not “make any sense,” Bodine responded that “it just didn’t go the way we planned”; that at a later time Buchanon showed Bodine a photograph of his brother-in-law’s girlfriend, who Buchanon learned was one of the victims and Bodine said she was “one of the bitches with Raynard” and that “that bitch shouldn’t have been up there”; and that at another time Buchanon overheard a conversation between Bodine and Hill in which Hill remarked to Bodine that “You know that bitch is still alive,” to which Bodine responded, “Don’t worry about it, she in a coma” and told Hill to “keep tabs on the broad,” and Hill responded that “she the only one can identify us” and “if worse come to worse, we will go up in the hospital and get her.” The trial court refused admission of these statements as hearsay.

Defendant also contends that Kim Brooks’ statements to Detective Thomas Blomstrand approximately two hours after being taken to the hospital corroborates Buchanon’s proffered testimony, i.e., she identified Bodine as one of the two men responsible for the incident at the Rule apartment and described the other offender as being approximately 5 feet 7 inches (allegedly Hill). The court refused admission of Blomstrand’s testimony as to these statements as not falling under the spontaneous declaration exception to the hearsay rule.

We agree with the trial court that Buchanon’s and Blomstrand’s testimony was inadmissible as hearsay. Neither Bodine nor Brooks was available for cross-examination; both died prior to trial. Although Buchanon’s testimony would have been against his penal interest, presumably because in making his statement in court he admitted smoking marijuana and stripping a stolen car, the very fact that he was smoking marijuana and “getting high” when he initially overheard Bodine’s and Hill’s alleged references to the Rule murders casts doubt on their trustworthiness. We further observe that nothing in Bodine’s alleged statements to Buchanon contained any specifics about the crime and no direct admission by Bodine that he in fact committed the offenses. The only corroborating evidence was Donald Grigsby’s testimony that he saw Bodine and another man who was 5 feet 7 inches on the stairs of the apartment building on the date of the crimes, but that is not proof that Bodine was the perpetrator of the crimes. On the other hand, defendant confessed to his participation in the incident in accurate detail before the grand jury, and House subsequently corroborated his testimony in the same detail. In addition, James Davis and Virgil Bridges both implicated defendant as a participant in the incident. Buchanon’s offered testimony thus was not only uncorroborated but it lacked trustworthiness because of its sheer implausibility in light of defendant’s and House’s confessions.

Similarly, we reject defendant’s contention that Kim Brooks’ statements to Detective Blomstrand were admissible under the spontaneous declaration exception to the hearsay rule. At 6:15 p.m. on the date of the Rule incident, Detective Joe Deases spoke with Kim Brooks prior to her being taken to the hospital. Her version of the events leading up to the crimes corresponded with defendant’s and House’s subsequent accounts, but she did not identify her assailants at that time. After arriving at the hospital, Detective Blomstrand spoke with Brooks at approximately 8:30 p.m. During her interview with him, she stated that one of the assailants was 5 feet 7 inches and she referred to another offender as “Bo” or “Boo.” Blomstrand later acknowledged that he had written the name Bodine at least once in his report but that in fact Brooks had not named one of the assailants as Bodine; Blomstrand apparently had become aware of the name of Bodine during his investigation.

In order for a statement to be admissible as a spontaneous declaration, there must be (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, (2) absence of time to fabricate, and (3) the statement must relate to the circumstances of the occurrence. (People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395.) The spontaneous declaration exception “is based upon the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” People v. Poland (1961), 22 Ill. 2d 175, 180-81, 174 N.E.2d 804, quoting 6 J. Wigmore, Evidence §1747 (3d ed. 1940).

Here, Brooks’ statements to Blomstrand were made at least two hours after being taken to the hospital. At that time she was alert, responsive and speaking without trouble, unlike her condition when she first spoke to Detective Deases and related the events leading up to that time but did not name anyone as her assailants. At the least, Brooks had time at the hospital to reflect on who her assailants were. We further observe that even assuming Brooks’ hospital statements had been admitted, she clearly referred to one assailant as “Bo” or “Boo,” but specifically not “Bodine,” and could have been referring to Teddy Bobo. In addition, her statements corroborated defendant’s confession in all other respects. With respect to her description of one of the offenders being 5 feet 7 inches, this point would have carried little weight in light of defendant’s and House’s confessions as discussed above. Accordingly, we find the trial court did not abuse its discretion in refusing to admit the hearsay statements of Buchanon and Blomstrand.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ, P.J.,

concurs.

JUSTICE PINCHAM,

dissenting:

I

I dissent. For police officers, without a warrant, to enter a home and arrest an American citizen, particularly a 16-year-old boy in the absence of his parents, without probable cause as the State was compelled to urge in the trial court, or with probable cause as the State is compelled to inconsistently and diametrically urge on appeal before this court, take the juvenile from his home and voluntarily or involuntarily detain him incommunicado in a police station for over 27 hours, refuse the juvenile’s mother’s request to see the child, take the juvenile before a grand jury, where and without counsel on his behalf, the prosecutor extracts an incriminating statement from him, on which that grand jury indicts him and which is the only evidentiary basis for his murder convictions, constitute flagrantly egregious violations of the juvenile citizen’s cherished, revered and basic Federal and State constitutional rights to (1) due process of law, (2) to be secure in his person and home against unreasonable search and seizure, (3) to the assistance of counsel, (4) not to be compelled to be a witness against himself, and (5) against self-incrimination, notwithstanding the egregiousness of the offenses with which the defendant was charged, convicted and sentenced to life imprisonment.

The record on appeal reflects that the People of the State of Hlinois were represented at a 4 p.m., February 6, 1985, meeting, called “to discuss the fact whether Mr. Green was in fact a witness or a participant in the murders that occurred in that apartment,” by at least four lawyers of considerable talent and experience, Assistant State’s Attorneys Dennis Demback, Timothy Quinn, Tom Brennan and John O’Donnell, who had, in addition, the majesty and power and authority of a grand jury literally at their collective elbow. Arrayed against all this talent and power was one uncounseled, unadvised 16-year-old boy who had spent 27 continuous hours in police custody and who had been denied the request during that time to see his mother. The fact that this young lad had been denied access to his family obviously preyed upon the defendant’s mind at the grand jury because he testified at the grand jury that the night before he had given a statement to an assistant State’s Attorney and a court reporter in the police station and that that statement contained lies. After being questioned about this prior statement before the grand jury the following then occurred:

“Q. (by Assistant State’s Attorney O’Donnell at the grand jury) And now you’re telling the truth today?

A. Yes.

Q. Why are you telling the truth today?

A. Because I want to be with my family.” (Emphasis added.)

This answer, that he was telling the truth at the grand jury “because I want to be with my family” (emphasis added) from a 16-year-old boy, under these circumstances, is a prima facie indication that his. testimony had been coerced. Something happened while the defendant was in police custody which caused him to change his story with respect to the homicides, and it obviously related to his deprivation from his family. From the totality of the hereinafter mentioned facts and circumstances, the later set forth testimony of Assistant State’s Attorney John O’Donnell regarding why he took the defendant before the grand jury and the defendant’s answer before the grand jury, “because I want to be with my family,” (emphasis added) it is quite apparent to me that the defendant was of the frame of mind that because of and upon the conclusion of his grand jury testimony he would be allowed to return home to his family.

His answer troubled at least one grand juror, who asked the defendant:

“A JUROR: He made a statement that he want [sic] to be with his family. Will you explain what he meant by what he want [sic] to be with his family or how is this working?

MR. O’DONNELL: Charles, did you tell me that the reason you’re telling the truth is because you wanted to protect your family?

A. Yes.

Q. Is that the reason why you’re telling the truth today?

A. Yes.

Q. Have I made any promises to you?

A. No.

Q. Have I made any threats to you?

A. No.

A JUROR: How did you find Charles?

MR. O’DONNELL: I couldn’t tell you that.

A JUROR: He just came?

MR. O’DONNELL: There was a police investigation. Charles was picked up as a result of that police investigation.” (Emphasis added.)

Thus, when the juror asked about the defendant wanting “to be with his family” Assistant State’s Attorney O’Donnell diverted the trajectory of the grand juror’s question by suggesting that the defendant “wanted to protect” his family. (Emphasis added.) The defendant’s desire “to be with his family,” the words of the defendant and the grand juror, and “to protect his family,” (the words of Assistant State’s Attorney O’Donnell), which are not the same thing. (Emphasis added.)

Assistant State’s Attorney O’Donnell’s zeal before the grand jury to immediately extricate himself from any possible accusation of skullduggery is glaringly apparent. Promptly after the grand juror asked him to explain what the defendant meant when he said that he had testified before the grand jury because he wanted to he with his family, and O’Donnell’s successfiil sidetracking and redirecting the defendant’s statement and the grand juror’s inquiry about it, O’Donnell hastily asked the defendant, “Have / made any promise to you?” and, “Have I made any threats to you?” (Emphasis added.) I find it extremely significant that this experienced astute prosecutor did not likewise ask this minor defendant if any other prosecutor or law enforcement officer had made any promises to him or had threatened him, in order to also eliminate any possible charges of chicanery against them.

It is indeed noteworthy that, according to the grand jury testimony of the defendant Charles Green, he was simply the decoy who persuaded Raynard Rule to open the burglar gates to enable Derrick House and Teddy Bobo to gain entrance into the apartment, where House and Bobo actually committed the four atrocious murders, in which the defendant Charles Green did not actually or actively participate. Thus, at best, defendant Charles Green was merely an accessory and only accountable for the murders, while House and Bobo were the principal offenders, and all three were charged in the indictment with the murders. Yet, the record reflects, Teddy Bobo was not prosecuted for the murders because, on motion of the State, the trial court nol-prossed the indictment against him, whereas, in a bench trial severed from the trial of the defendant Charles Green, Derrick House was found guilty of the murders and sentenced to death. Derrick House’s sentence being death, his appeal was directly to and is now pending before the supreme court of Illinois. From the entire record before us on appeal, it could be argued with a great degree of persuasion that the law enforcement officers’ interactions with the defendant, Charles Green, were initially designed to coerce him into being a witness against Derrick House and Teddy Bobo, and when that failed, for reasons which do not appear, the law enforcement officers then prosecuted the defendant for the crimes and used his illegally obtained grand jury testimony as the evidence to convict, him.

It is clearly borne out by Assistant State’s Attorney John O’Donnell’s testimony on the hearing of the defendant’s motion to suppress his grand jury testimony:

“Q. (By defense counsel) Prior to Mr. Green testifying in front of the Grand Jury, you had spoken with him, had you not?

A. Yes, sir.

Q. And you talked with him about everything he in fact testified to in front of the Grand Jury; is that correct?

A. Yes, sir.

Q. He told you nothing new in front of the Grand Jury; is that correct?

A. No, sir.

Q. What did he tell you new in front of the Grand Jury?

A. He didn’t tell me anything new in front of the Grand Jury.” (Emphasis added.)

The final proof, if any were needed, that this scheme was deliberate and purposeful came from Assistant State’s Attorney O’Donnell’s testimony later at the trial when the denouement of the stratagem was revealed:

“Q. Now, why did you put Mr. Green in front of the Grand Jury after you interviewed him?

A. There were two reasons. One was I was waiting for a youth officer at that time — well, that is not a reason but I was waiting for a youth officer. The youth officer was late and the time was late. It was time that the Grand Jury was leaving. I put him in the Grand Jury because we believed — ive were going to discuss the fact whether Mr. Green was in fact a witness or a participant in the murders that occurred in that apartment.

Q. Is it not a fact, Mr. O’Donnell, that you wanted to commit Mr. Green’s testimony to writing in front of a charging authority, the Grand Jury?

A. I wanted his statement to in effect be in writing since he had given, a prior inconsistent statement the night before.

Q. You could have brought a court reporter in to do that, couldn’t you?

A. I could have brought in a court reporter, yes.

* * *

Q. Mr. O’Donnell, these events that you have testified to here today took place approximately 11 months ago, is that correct?

A. That’s correct.

Q. How many cases have you been responsible for handling in those 11 months?

A. I have been responsible for quite a few cases.

Q. Hundreds?

A. Well, it depends what you mean responsible for, whether you mean responsible for trial or responsibility for putting someone before the Grand Jury.

Q. How many investigations, indictments, informations, complaints, charges or the like have you handled in the last 11 months?

A. I have probably been responsible for hundreds of cases for trial or motions. This probably was one of the only cases that I in fact put a defendant in before the Grand Jury.” (Emphasis added.)

I am impelled to briefly comment, first, upon the horrible state of the record on appeal, filed in this court, and, second, upon the grossly inadequate and incompetent performance of defendant’s counsel.

According to the common law record, there was testimony heard on the motion to quash arrest and to suppress evidence on January 7, 8 and 10, 1986, and on January 13, 1986, the court denied the motions. On January 17, 1986, the defendant’s bench trial commenced. Testimony was heard thereafter on January 21, 22, 23, 24, 27, 28, 29, 1986; closing argument was heard on January 31, 1986, and on February 4, 1986, the trial court found the defendant guilty. The record on appeal does not contain any report of proceedings at all for January 27. The report of proceedings for January 31, 1986, is physically inserted between the reports of proceedings for April 1, 1986, and February 4, 1986. As to the January 21, 23, 24 and 29 trial dates, the report of proceedings contains only partial or “excerpted” trial proceedings and, naturally, there is no way of knowing the relative importance or unimportance of the missing trial proceedings. In addition, the report of proceedings (“excerpted” or otherwise) is bound in nonsequential misorder. For example, Volume I begins with the report of proceedings for May 7, 1986, followed by January 7, 1986, and next, followed by January 17, 1986. One must refer to the “Supplemental Record,” another volume (Volume III), for the intervening report of proceedings for January 8, 9, 10, and 13 (excerpted only), and then back to Volume I for the report of proceedings for January 21 (excerpts only), January 22, 23 (excerpts only), January 24 (excerpts only), and January 28, 1986. One then proceeds to Volume II for the proceedings of January 29, 1986, and returns to the “Supplemental Record” (Volume III) for the February 4, 1986, guilty findings of the trial court, only to find that the same appears inserted into Volume III after the sentencing proceeding on April 1, 1986. In addition, the record on appeal nowhere contains the defendant’s motion to quash arrest and to suppress evidence, the very matter upon which the defendant places primary reliance in his brief for reversal in this court. Likewise missing are most of the exhibits admitted into evidence on the hearing of the motion to suppress and considered by the trial court in ruling thereon.

Now, certainly none of the insufficiency of the record on appeal is attributable to the defendant personally, a teenager in the penitentiary and who is compelled to exclusively rely upon appointed counsel on appeal. The majority points out (179 Ill. App. 3d 12) that it is the responsibility of appellant’s counsel to provide the court with a complete and orderly record on appeal so that we may accurately discharge our obligations to the parties and to the public. True. But this should rightly create an obligation on this court, not serve as an excuse for this court to affirm a conviction. It is our duty to see to it that the obligations of the appellant’s counsel are properly fulfilled. We are required in this case to render a decision which determines the remainder of the entire life of the defendant, and we are asked by defendant’s own counsel to make this serious and awesome determination on the basis of partial transcripts, excerpted proceedings, and missing documents. In my judgment, this constitutes dereliction of duty and incompetence by defendant’s counsel in its grossest and rawest form.

In addition, the brief filed on behalf of defendant is, in my judgment, woefully inadequate and disorganized. For instance, the brief cites very little pertinent testimony, abandons the Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, issue specifically relied upon by the defendant below, fails to point out the utter confusion and contradictions of the trial court’s findings and conclusions at the motion to quash and suppress hearing, and pays but scant heed to the propriety of the State’s eliciting self-incriminating testimony from an uncounseled juvenile arrestee before the same grand jury which subsequently indicted him, and the State’s introduction of that same testimony at the defendant’s trial to convict him. In addition, nearly one-third of defendant’s 52-page brief (pages 2 through 17), purports to quote defendant’s testimony before the grand jury on February 6, 1985. However, the transcript of the defendant’s testimony before the grand jury which was introduced into evidence at the trial as People’s exhibit No. 27 is not a part of the record on appeal. This court therefore has no way of determining whether the quotation in the defendant’s brief is accurate or complete. Except for the two short paragraphs preceding the defendant’s supposed grand jury testimony, and one short paragraph following it, the defendant’s supposed grand jury testimony constitutes the entire “Statement of Facts” in the defendant’s brief. Moreover, and at least equally important, the defendant filed no reply brief in this court and thus totally abstained from thereby bringing to this court’s attention the misrepresentations of certain motion to suppress testimony set forth and relied upon by the State in its brief, as well as the impropriety of the State’s urging a position in this court exactly contrary to that which the State urged in the trial court.

It is now well established that a defendant on direct appeal has a sixth amendment constitutional guarantee to competent counsel on appeal. (Penson v. Ohio (1988), 488 U.S. _, 102 L. Ed. 2d 300, 109 S. Ct. 346; McCoy v. Court of Appeals of Wisconson, District 1 (1988), 486 U.S. 429, 100 L. Ed. 2d 440, 108 S. Ct. 1895; Evitts v. Lucey (1985), 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830.) It is also now well established that an appellate court has an independent constitutional obligation to examine the record on appeal for completeness and a criminal defendant’s brief for competence of counsel on appeal. (Penson v. Ohio, 488 U.S. _, 102 L. Ed. 2d 300, 109 S. Ct. 346.) This court has been repeatedly admonished — see, e.g., People v. White (1987), 117 Ill. 2d 194, 228; United States ex rel. Thomas v. O’Leary (7th Cir. 1988), 856 F.2d 1011 — that a decision by this court adverse to a criminal defendant without a brief having been filed on behalf of such defendant violates the defendant’s sixth amendment right to counsel. Surely no different rule prevails where the defendant’s counsel files an inadequate brief. No longer is a court of review permitted to sweep a defense counsel’s defective representations under the rug with a rationalization: “It is well settled that an appellant is responsible for providing a record which shows the errors claimed; where the record is incomplete, or is silent, a reviewing court will invoke the presumption that the trial court ruled or acted correctly.” (179 Ill. App. 3d at 12.) The sixth • amendment makes no distinction between appointed and retained counsel. In McCoy v. Court of Appeals of Wisconsin, District 1 (1988), 486 U.S. 429, 100 L. Ed. 2d 440, 108 S. Ct. 1895, Justice Stevens recently stated for the court:

“Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In preparing and evaluating the case, and in advising the client as to the prospects for success, counsel must consistently serve the client’s interest to the best of his or her ability.” 486 U.S. at_, 100 L. Ed. 2d at 453,108 S. Ct. at 1902.

“The attorney must still provide his or her client precisely the services that an affluent defendant could obtain from paid counsel — a thorough review of the record and a discussion of the strongest arguments revealed by that review. In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.” 486 U.S. at_, 100 L. Ed. 2d at 457,108 S. Ct. at 1905.

No citizen should be imprisoned for life simply because his appointed counsel was incompetent, either at trial or on appeal, or at both. When the State of Elinois appoints counsel for an indigent it warrantees that the counsel possesses certain minimum standards. These minimum standards should include at least the following: That counsel file in the court of review (1) a complete, accurate and sequential report of proceedings; (2) a complete and accurate original or copy of all relevant motions filed in the trial court; (3) a statement of