Petition — Boyd v. Illinois

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Office-Supreme Court, U.S.

eS ie ay

80-2027 MAR 31 1981

No. ALEXANOER | STEVAS,

In the

Supreme Court of the Aniter States

Octoper Term, 1980

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff,

vs.

WALTER L. BOYD,

Defendant.

PETITION FOR WRIT OF CERTIORARI TO

THE ILLINOIS APPELLATE COURT

FIRST DISTRICT

Terry F. Morrrz

Rosert H. Aronson

100 West Monroe Street

Suite 714

Chicago, Illinois 60603

Attorneys for Walter L. Boyd

The Scheffer Press, Inc.—(312) 263-6850

QUESTION PRESENTED

The Illinois Appellate Court

admitted (Appendix A) that the State did

not address the constitutional argument

of the petitioner that he was denied his

right to confront the witnesses against

him. The Court, relying on this Court's

opinions in Schneble v. Florida, 405 U.S.

427 (1972) and Parker v. Randolph,

442 U.S. 62 (1979), held that the admis-

sion of the statement of an out-of-court

declarant who was deceased at the time of

trial was harmless error beyond a reason-

able doubt.

The Illinois Appellate Court misread

both those opinions and completely

ignored the opinions of this Court in

Chapman v. California, 386 U.S. 18 (1966)

Harrington v. California, 395 U.S. 250 (1969)

-i-

Brown v. United States, 411 U.S. 223 (1973),

Sandstrom v. Montana, 442 U.S. 510 (1979),

Fahy v. Connecticut, 375 U.S. 85 (1963,

and most especially

Moore v. United States, 429 U.S. 20 (1976).

The question presented is:

Did the State Court properly

follow the decisions of this

Court in determining whether

admitted error of constitu-

tional magnitude in a criminal

trial can be held to be harm-

less beyond a reasonable doubt.

- ii -

TABLE OF CONTENTS

Page

Citation to Opinion Below .......... 2

GussGEOn PLOSONEOR siccccccccdcccccs §&

Statement of the Case .....eeeeeeee- 3

Reasons for Granting the Writ ...... 6

Conclusion cccccccccceccccccccccccce 14

Appendix "A" (Opinion of Court

Below) cocccccccccccs chp. |

Appendix "B" (Notice of denial of

petition for leave to

appeal to the State

Supreme Court) .......-App. 140

e iii -

TABLE OF AUTHORITIES

Page

Constitutional Provision:

Sixth Amendment, confrontation

clause eeeeseeeeeeeeeeeeeeeeeeenenee 3

Cases

Brown v. United States, 411 U.S. 223

(1973 eeeeseeeeeeeeeeeeeeeeeeeee 13

Bruton v. United States, 391 U.S. 123

(1968) *eeeseoeeeeeeeeeeeeeeeeeeene 14

Chapman v. California, 386 U.S. 18

(1966 e*eeeeeeeeeseeeeneeaeeeeeneeneeee 8

Fahy v. Connecticut, 375 U.S. 85

(1963) e*eeeeeeeeeeeeeeeeeeeeeeeene 9

Heresagion v. California, 395 U.S. 250

(1969 e*eeeeoeeeeeeeeeeeaeeeeeeneeene 10

Moore v. United States, 429 U.S. 20

(1976) eeeeeeveeoeeeee eee eeeeeeeeee 7

Parker v. Randolph, 442 U.S. 62

(1979) Rs ate 11

Sandstrom v. Montana, 442 U.S. 510

(1979) e*eeeeseeoeeweeweeeeeeeeeeeeeeneneene 4

Schneble v. Florida, 405 U.S. 427

(1972) e*eeeoeeeeeeeeeeeneeeeeeeneeee 11

IN THE

SUPREME COURT OF THE UNITED STATES

October term, 1980

No.

PEOPLE OF THE STATE

OF ILLINOIS,

Plaintiff,

vs.

WALTER L. BOYD,

Defendant.

PETITION FOR A WRIT OF CERTIORARI TO

THE ILLINOIS APPELLATE COURT

FIRST DISTRICT

Petitioner, Walter L. Boyd, prays

that a writ of certiorari issue to review

the judgment of the Illinois Appellate

Court, First District, Fourth Division,

entered on September 11, 1980, and the

denial of a petition for rehearing by

that court on October 9, 1980.

The Illinois Supreme Court entered

an order on January 30, 1981 denying peti-

tioner herein leave to appeal.

CITATION TO OPINIONS BELOW

The opinion of the Illinois Appellate

Court is reported in the advance sheets

as 88 Ill. App. 3d 825 (1980) and is set

out in Appendix A hereto. Though the

opinion runs 47 pages in length because

of the numerous errors committed during

the trial, only the issue discussed in

Point II of the opinion is sought to be

reviewed in this Court. However,

"harmless error’ appears throughout the

opinion.

STATEMENT

Walter Boyd was arrested after enter-

ing the police station to tell the police

what he knew about a triple murder which

had occurred several days before in

Chicago. He was interrogated off and on

until early evening.

At that time the police arrested

Oliver Holiday for questioning. After

Investigator Rochowicz finished question-

ing Holiday alone in an interrogation

room, he returned to the room where Boyd

was being held. After confronting Boyd

with the alleged statement of Holiday,

which supposedly incriminated Boyd as the

Killer, Boyd changed his story to the

police as to what happened the night of

the murders.

Both his early morning statement and

his subsequent statement were exculpatory.

Oliver Holiday was released that

night and died 30 days later from a heroin

overdose in a South Side motel.

At the trial of Boyd, over strenuous

objection of defense counsel on federal

constitutional grounds, the trial judge

permitted Investigator Rochowicz to tell

the jury that Oliver Holiday had told him

that Boyd came to Holiday's house the

night of the crime and told Holiday he

had killed all three of the victims.

After two days and a night of delib-

erating, during which they sent out three

requests for testimony which the trial

judge cotieats the jury found Boyd guilty

on all counts of a nine count indictment,

and he was sentenced to serve 100-300

years in the State Penitentiary.

REASONS FOR GRANTING THE WRIT

It is difficult to imagine a more

serious deprivation of a right to a fair

trial and the right to confront witnesses

against an accused than the facts pre-

sented here. In effect, a dead man was

allowed to testify at Boyd's trial.

The decision of the Appellate Court

has set a dangerous precedent which will

have a chilling effect on the administra-

tion of criminal justice in Illinois. To

hold that the admitted error was "harmless

beyond a reasonable doubt" is contrary to

every decision of this Court.

In Moore v. United States, 429 U.S. 20

(1976), a police officer testified that

an informant had told him that Moore was

in possession of heroin in his apartment,

and the officer also testified the infor-

mant told him the location of the apart-

ment that Moore allegedly owned or leased.

No admissible evidence was adduced that

Moore was in possession of the heroin nor

that the apartment was Moore's apartment.

This Court held that the informant's

declaration fell within no exception to

the hearsay rule and that reliance on

this hearsay statement in determining

petitioner's guilt or innocence was

error.

We do not know if the informant was

available to testify at Moore's trial but

we are certain that the alleged out-of-

court declarant in this case, Oliver

Holiday, surely could not be called be-

cause he was deceased at the time of

trial. The hearsay in this cause was as

prejudicial as the hearsay in Moore.

When the California State Courts

were stretching the "harmless error" doc-

trine, this Court did not hesitate to

reverse a robbery-kidnapping-murder con-

viction in Chapman v. California, 386 U.S.

18 (1°56). In the Cheneen case this

Court adopted the test laid down in

Fahy v. Connecticut, 375 U.S. 85 (1963):

"The question is whether

there is a reasonable possi-

bility that the evidence

complained of might have

contributed to the convic-

tion." (pp. 86-87)

In the Chapman case this Court held

that the California courts were perhaps

overemphasizing the "overwhelming evidence

of guilt" concept to neutralize serious

trial errors of constitutional magnitude.

(p. 23) That is exactly what the Illinois

Appellate Court has done here.

At page 23 of the Chapman case this

Court noted that the Fahy decision

“emphasizes an intention not to treat as

harmless those constitutional errors

that ‘affect substantial rights’ of a

party."

If this Court's decisions in Fahy

_™

and Chapman had been followed in our case

the Illinois Appellate Court could have

reached no other conclusion than that the

devastating testimony of Investigator

Rochowicz absolutely caused the convic-

tion of Walter Boyd. Neither the Fahy

case nor the Chapman decision were found

in Point Il of the Illinois Appellate

Court's opinion.

In Harr on v. California,

395 U.S. 250 (1969), this Court suggested

the state courts ask this question to

determine if Bruton error is harmless:

Based on a reading of the

record what seems to have

been the probable impact

of the hearsay statement

on the minds of the average

jury?

Under this test, applied to our

facts, it must be concluded that the

-10-

probable effect of Rochowicz' admittedly

hearsay testimony was crucial in the

minds of our jury. The Harrington case

did not appear in the opinion of the

Illinois Appellate Court.

It is abundantly clear that the de-

cision of the Illinois Appellate Court

conflicts with the import of relevant pre-

cedent of this Court.

The Illinois Appellate Court cited

Schneble v. Florida, 405 U.S. 427 (1972)

and Parker v. Randolph, 442 U.S. 62 (1979)

as authority for holding Rochowicz' testi-

mony to be harmless error beyond a

reasonable doubt. However, in those

cases there was properly admitted over-

whelming evidence of guilt. That is not

the case here.

Walter Boyd had type "0" blood.

-ll-

There was blood found on the victims and

on objects in the apartment where the

killings took place. Walter Boyd's hand

had been severely cut at the scene, and

he testified he fled the apartment while

everyone was alive. The State's witness

from the crime lab, George Spryne, testi-

fied there was not one drop of type "0"

blood at the sie of the crime. He

tested all of the weapons, carpeting,

clothing and found no type "0" blood what-

soever. Type "0" blood was found on the

sidewalk outside the scene of the crime

in droplets leading down the path Boyd

testified he ran after fleeing the apart-

ment where Oliver Holiday had gone beserk.

This Court's decisions in Schneble and

Parker have no relevance to our case and

were thrown in to the Illinois Court's

-12-

opinion to “dress it up".

A case decided by this Court more

closely applicable to our case is

Brown v. United States, 411 U.S. 223(1973).

In that case police testified regarding

extrajudicial statements made by two non-

testifying co-defendants neither of which

took the stand. Your Honors held that

the police testimony "was merely cumula-

tive of other overwhelming and largely

uncontroverted evidence properly before

the jury". (p. 231) There was no such

overwhelming and largely uncontroverted

evidence properly before the Boyd jury.

We agree with the conclusion reached

in Brown that "a defendant is entitled to

a fair trial but not a perfect one". How-

ever, Walter Boyd's trial was not fair in

any sense of the word. He was found

=13-

guilty upon the alleged statements made

to a police officer by a person who most

likely committed the murders and who was

deceased at the time of the trial. Had

he not died of a heroin overdose, Holiday

surely would have been a co-defendant,

and a severance would have been required

under Bruton v. United States, 391 U.S. 123

(1968). For this reason Walter Boyd's

conviction must not be allowed to stand.

His trial was a sham. The Illinois

courts have refused to apply any test

laid down by this Court to measure "harm-

less error". The testimony of Investiga-

tor Rochowicz had a devastating effect on

the minds of the jury. (See Bruton, supra)

CONCLUSION

Chief Justice Burger, in his recent

«ie

remarks to the American Bar Association,

stated that only criminal cases in which

a true miscarriage of justice of consti-

tutional magnitude has occurred should be

brought to the attention of this Court.

This is such a case. The Chief Justice

also quite properly observed that the

war against crime will not be won by

abandoning the constitutional rights

of defendants.

On the grounds and for the reasons

hereinabove set forth, petitioner prays

that this Honorable Court grant this

petition and issue a writ of certiorari

to the Illinois Appellate Court, First

District, Fourth Division, so that the

"harmless error’ doctrine can be clari-

fied and its application be restricted

to those cases where there is such over-

othe

whelming admissible evidence of guilt

that it can be said beyond a reasonable

doubt that the minds of the average jury

were not swayed by inadmissible prejudi-

cial evidence which denied the defendant

his constitutional right to a fair trial.

Respectfully submitted,

Attorneys for Petitioner

TERRY F. MORITZ

ROBERT H. ARONSON

100 West Monroe Street

Suite 714

Chicago, IL 60603

(312) 372-7123

-16-

1975, dh. 38, par. 9-1) and three counts

of attempt armed robbery (I11. Rev. Stat.

1975, ch. 38, par. 18-2). He was senten-

ced to three concurrent prison terms of

100 to 300 years for the murders and

three concurrent prison terms of 3 to 15

years for the attempt robbery convictions.

On appeal, defendant contends:

(1) he was denied his constitutional

right to a speedy trial; (2) the intro-

duction of an inculpatory hearsay state-

ment deprived him of his constitutioaal

right to confrontation; (3) the trial

court erred in ruling that defendant's

statements to the police were voluntary

and therefore admissible; (4) the trial

court erred in admitting into evidence

the photographs of the victims; (5) his

guilt was not proven beyond a reasonable

APPENDIX "A"

FOURTH DIVISION

September 11, 1980

78-482

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

WALTER L. BOYD,

Defendant-Appellant.

Appeal from the Circuit Court of Cook

County.

Honorable Francis J. Mahon, Presiding.

MR. PRESIDING JUSTICE LINN delivered the

opinion of the court:

At the conclusion of a jury trial in

the circuit court of Cook County, defen-

dant, Walter Boyd, was convicted of three

counts of murder (I11l. Rev. Stat. 1975,

ch. 38, par. 9-1) and three counts of

attempt armed robbery (I11. Rev. Stat.

ele.

doubt; (6) the trial court erred in ad-

mitting into evidence the weapons found

at the scene of the crime; (7) the trial

court erred in refusing to admit defen-

dant's testimony about statements made

to him by a person who later died;

(8) reversible error occurred when the

prosecutor cross-examined defendant about

pre-trial plea bargaining; (9) the trial

court erred in unduly restricting the di-

rect examination of a defense witness;

(10) reversible error occurred when the

prosecutor improperly argued to the jury

that defendant was a drug addict;

(11) reversibel error occurred during

closing argument when the prosecutor re-

ferred to the grand jury proceedings;

(12) the trial dourt improperly restric-

ted defendant's closing argument;

o3e

(13) the trial court abused its discre-

tion by refusing the juror's request for

transcripts of testimony; and (14) the

sentences imposed by the trial court were

excessive.

We affirm.

Defendant was convicted of the mur-

der and attempt robbery of three members

of the Thomas family: Tyrone and Virginia,

the parents; and Michelle, their seven or

eight year old daughter. The Thomas'

five month old baby girl, present at the

scene of the eastiake was not harmed.

THE STATE'S CASE IN CHIEF

At trial,1/ the State's first wit-

ness, Larry DeBerry, testified that he was

an acquaintance of defendant and Tyrone

houas’. On June 29, 1976, after 10 P.M.,

DeBerry went to Tyrone's home to purchase

o4e

narcotics. Tyrone asked him to go to the

store and DeBerry agreed because Tyrone

promised “to tighten up the package"

which DeBerry explained meant Tyrone

would give DeBerry more drugs.

As DeBerry left the Thomas home, he

saw defendant standing on the street curb,

next to a yellow car. Defendant appeared

to be talking with someone who was seated

in the car. DeBerry nodded to defendant

in recognition and noted that defendant

wore light colored clothing. Approxi-

mately five minutes later, DeBerry re-

turned to the Thomas residence. The

yellow car was parked in the same loca-

tion. He did not see the defendant, but

he did see a man walking south. DeBerry

did not recognize this man; he could not

see the man's face because he was wearing

oSe

a hat which covered his eyes. DeBerry

asserted he was sure this man was not the

defendant.

DeBerry continued to walk toward

Tyrone's house and, when he arrived at

the back door, he rang the bell but no

one answered. He waited 10 to 15 minutes,

and then went to a phone booth and tele-

phoned Tyrone, but no one answered the

telephone. He returned to Tyrone's home

and, not gaining entry, he left. Approxi-

mately one or two hours later, DeBerry

returned again to Tyrone's residence. He

first rang the bell at the back door and

then went to the front door. DeBerry

rang the bell and looked through the

front glass. After discovering the bur-

glar gates were open, he pushed the door

open and saw Tyrone's body lying on the

-6-

floor. As DeBerry continued to push the

door open, he saw Virginia and Michelle.

Their bodies were on the floor and were

stained with blood,

At trial, DeBerry identified several

photographs of the victims as accurately

depicting the victims as he had seen them.

DeBerry also testified that Tyrone's

house had burglar gates across the back

and front doors and burglar bars all over

the house. DeBerry also stated that a

person would have to be a good friend of

Tyrone to get into the house via the

front door.

The State's next witness, Police

Officer Chester Zubrzycki, testified that

on the morning of June 30, 1976, he and

his partner went to the location of the

Tyrone Thomas home. In the hallway,

they discovered the body of a man covered

with blood. The man's throat had been

cut; a cord had been tied around his neck.

In the living room, the police officers

found the bodies of a woman and a young

girl. Both bodies were covered with

blood. The young girl's throat had been

cut. The police officers also found an

infant, who was alive. A dead German

Shepherd dog was lying on the floor.

Officer Zubrzycki identified several

color photographs which depicted the

bodies of the victims. The bodies were

covered with blood.

Police Officer Raymond Peterson tes-

tified to the removal of the man's body

to the morgue. He also identified a

color photograph of the bodies of the

woman, the little girl, and the dog.

-8-

Police Officer William Sherlock, a Mobile

Unit Technician, asserted that he exam-

ined for physical evidence, the bodies of

the victims and the scene. The evidence

he recovered included a revolver found

near Tyrone's body, a pair of scissors.

found under Virginia's body, a knife dis-

covered partially under Tyrone's body,

another knife located on the hallway floor

and another revolver discovered in the

front room on the floor under the baby's

crib.

Sherlock further stated that samples

of blood were obtained from inside the

apartment and the front porch. Samples

of the victim's clothing were sent to the

crime laboratory. Another officer found

a blue jacket in a nearby vacant lot.

According to Sherlock, the jacket

-9-

appeared to have bloodstains on it.

Sherlock checked all the windows and

doors and observed that all were barred

andintact. He also identified, as an

accurate depiction, a photograph of the

knife found on the floor near the bath-

room and another photograph of the wound

in Tyrone's back.

Police Officer Richard Binkus testi-

fied that on the night of the incident he

examined a trail of blood outside the

Tyrone Thomas home. The trail consisted

of clusters of six to ten drops of blood.

Each of the drops was approximately two

to three feet apart. Ina northerly di-

rection, Binkus followed the trail from

the house and then west through a vacant

lot to the alley between Wentworth and

Wells Streets. The trail continued south

-10-

through the alley for a few feet and then

stopped. Binkus proceeded south in the

alley at 45th Street, and found the trail

again. Binkus followed the trail into a

weeded area in the back of a house at 45th

and Wells Streets. There Binkus found a

blood-stained light blue jacket. The

trail continued southwest and stopped at

45th Street.

Police Officer Joseph Pikowski testi-

fied that on June 30, 1976, he examined

the area around 4442 South Wentworth. He

found a blood-stained carving knife ber

tween two garages located behind 4423

South Wentworth, approximately six feet

from the alley which runs between Wells

and Wentworth Streets.

Police Officer Patrick McNulty tes-

tified that on July 2, 1976, he removed a

ott.

piece of a living room throw rug and sent

it to the crime laboratory. The parties

then stipulated that a technician took a

blood sample from defendant and determin-

ed that he had Type O blood.

Sergeant Donald Smith of the Fire-

arms Identification Unit testified he

examined a gun and bullet recovered from

the scene of the slayings but he could

not make a positive identification be-

cause the bullet was mutilated. He also

examined a .38 caliber bullet and deter-

mined that it had not been fired from the

-38 caliber gun recovered at the scene.

A chicago Police Department micro-

analyst, George Spreyne, testified that

he analyzed the blood of the three vic-

tims. Both Tyrone and Michelle had Type

AB blood; Virginia had Type A blood.

-12-

Spreyne further stated that the scissors

and the knives found in the house and the

carving knife found near the alley were

stained with Type AB blood. No blood was

found on the orange rug sample but the

blue jacket discovered near Tyrone's res-

idence contained orange fibers morpholog-

ically similar to the fibers from the

carpet sample. }

Spreyne further stated that the

collar, right sleeve, left panel and back

of the blue jacket were stained with Type

O blood. Spreyne further discovered Type

AB blood on the jacket's left fron panel,

front sleeve, and right sleeve. He exam-

ined other items but none of these con-

tained Type O blood. The porch outside

Tyrone's home was stained with Type B

blood. Spreyne asserted that none of the

wi3e

victims had Type O blood.

Dr. Robert Stein testified he re-

moved a small caliber bullet from the

head of the dead dog found at the scene

of the slayings. Dr. Ty An examined the

bodies of the victims. Two bullet wounds

were found in Virginia's body; one bullet

was found at the base of the nose, and

the other was found in the left occipital

area of the skull. The cause of her

death was a bullet laceration in the

brain. Dr. An further stated that the

examination of Tyrone's body revealed

that a large slash wound on his neck,

three stab wounds on his back and three

stab wounds on the left side of his head

with scalp lacerations in the same area.

An determined that Tyrone died from the

slash wound to the neck which lacerated

=14-

the carotid artery and the jugular vein.

An also noted that blood could have

flowed from the lacerations and cuts he

found on Tyrone's head.

An further asserted that Michelle's

neck sustained a large slash wound, her

left eyelid revealed multiple contusions,

and he left thumb contained cutting wounds.

An determined that Michelle died of head

wounds and a slash wound to her neck

which lacerated the major branch of the

left jugular vein,and larynx. The wounds

of Tyrone and Michelle might have been

caused by the use of the knife found near

Tyrone's body and the knife found in the

alley.

On cross-examination, An admitted he

could not determine that either knife had

actually caused the wounds to the bodies

-15-

of Tyrone and Michelle. An also indi-

cated that he had found morphine in the

bile of both Tyrone and Virginia. He

also informed the jury that heroin pro-

duces morphine in the bile.

Police Officer John Furmanek testi-

fied that on July 7, 1976, at 9:15 a.m.,

he and his partner, Edward Gallagher,

were working in civilian clothes when the

defendant and his brother, Alvin, entered

the police station. Lieutenant Hensley

also was present. In the presence of

these police officers and defendant's

brother, Furmanek advised defendant of

his constitutional rights and then at

approximately 10 a.m. he talked with de-

fendant.

Furmanek related the substance of

the 20 minute conversation with defendant.

~i6e

Defendant told him that on the night of

the crimes, he went to the front door of

the Tyrone Thomas house. Suddenly and

without warning, two men pushed him into

the house. One man pointed a gun at

Tyrone's head and made defendant kneel

near the sofa. The other man had a

scuffle with Virginia. Someone said, "I

want my money", and then someone said,

"I'll tighten up with money". Virginia

then entered the room with the second man

and during the scuffle, a gun fell to the

floor. Defendant picked it up and tried

to fire a shot, but the gun misfired. A

scuffle ensued. Defendant ran out of the

house to 45th Street. He noticed he was

bleeding. His coat was stained with

blood and he discarded the coat. His

hand was bleeding and he wrapped it in

-17-

his shirt. After riding a bus for two

hours, he decided to go to Miami,

Florida. He then went to to the West

Side of Chicago, obtained some clothes

and then took a bus to Miami. He did not

notify anyone, and he was not worried be-

cause he thought the "dudes" knew Tyrone.

Defendant said he did pal know the men

who had accosted him in front of Tyrone's

home. Furmanek also stated that defen-

dant said he had wanted to get away,

"something about someone knowing about

Walter doing drugs". Defendant said he

learned of the killings on July 2, 1976.

After defendant gave this statement,

Furmanek received a call regarding a wit-

ness who wanted to talk about a triple

slaying he had witnessed. Furmanek went

to the Civic Center and, after obtaining

-18-

Oliver Holiday's release, brought Holiday

back to the police station.

Furmanek further testified that

after his conversation with defendant, de-

fendant was placed in an interview room

and remained there from noon to 3 p.m.

At 3 p.m., the police took defendant to

another station where he remained with

Investigators Rochowicz, Bulger and Strong.

On cross-examination, Furmanek

asserted he did not know how long Oliver

Holiday had remained at the police sta-

tion, who had talked with him or whether

Holiday had made any written statements.

Holiday was released from police custody

but Furmanek did not know why Holiday was

not arrested after defendant gave a

second statement which inculpated

Holiday.

-19-

Police Investigator Rochowicz testi-

fied that in the late afternoon on July

7, 1976, he had a conversation with Inves-

tigators Strong and Bulger, and with

police officers Hensley, Gallagher and

Furmanek. After this conversation, at

approximately 5 p.m. or 5:30 p.m., he

talked with defendant. Rochowicz and

defendant were alone during this conver-

sation. After Rochowicz advised defen-

dant of his rights, defendant gave him a

statement.

Rochowicz related the substance of

defendant's statement. Defendant went to

the Tyrone Thomas house to purchase nar-

cotics. Defendant passed two men who -

were standing on the street and, as he

knocked on the front door, and as he gain-

ed entry, the two men pushed him through

-20-

the door. The men had guns and they

first made Tyrone kneel on the living

room floor and then tied him with electri-

cal cord. As Virginia ran to the kitchen,

one of the men grabbed her, and as they

struggled, he dropped the gun. Defendant

then picked up the gun, pointed it at the

man, and pulled the trigger twice. The

_gun misfired. The man also had a knife

and, during the scuffle, defendant

grabbed the knife and cut his hand. He

then ran out of the house and proceeded

north on Wentworth and west through a

gangway. He discarded his jacket because

it was full of blood.

Rochowicz further testified that at

approximately 6 p.m., Rochowicz talked

privately with Holiday. At 6:20 p.m.,

Rochowicz returned to defendant's

-21-

interview room. Only he and defendant

were present. Rochowicz told defendant

what Holiday had said to him. Rochowicz

testified Holiday told him that on the

night of the incident, defendant went to

Holiday's apartment. Holiday said defen-

dant's hand was wrapped with a shirt and

Holiday asked defendant what had happened.

The trial court overruled defendant's

objection to Rochowicz's testimony as to

what Holiday said defendant had said.

Rochowicz continued testifying. Rochowicz

asserted Holiday told him that defendant

had said he had killed two people and had

done something he really did not want to

do. Rochowicz stated that Holiday said

to the defendant, "Well, what can I do *

* *?" Holiday told Rochowicz that he

told defendant to get out of town.

@22<

Holiday also told Rochowicz that defen-

dant then said to Holiday, "I1l contact

you later."

Rochowicz further testified that

after he told defendant what Holiday said

to him, defendant responded that he would

tell Rochowicz "what really happened",

Rochowicz then related the substance of

defendant's conversation. Defendant,

Holiday and two other persons drove a

white car to the Tyrone Thomas house to

"rip him off", which defendant explained

was a robbery. Only defendant and Holi-

day left the car. After they gained en-

try and began talking with Tyrone, Tyrone

felt something was wrong. Tyrone shouted

to Virginia, and Holiday struck Tyrone

with a gun. After Tyrone fell to the

floor, they used an electrical cord to

-23-

tie Tyrone. Yoliday grabbed Virginia as

she came out of the kitchen and forced

her back into the kitchen.

Rochowicz further stated defendant

told him that as Holiday returned from

the kitchen, Holiday told defendant he

had everything the Thomas's had. At that

time, defendant noticed Virginia was

bleeding from the head. She attacked de-

fendant with a butcher knife. Defendant

grabbed the knife and yelled, "This is

too much for me. I am leaving." He left

the apartment and went north on Wentworth

and west through a gangway. He discarded

he blood-stained jacket. He saw Holiday

and the two other persons pull up in the

car. Defendant joined them and they went

to Holiday's apartment. Holiday gave de-

fendant $100 and told him to get out of

-24-

town.

Rochowicz testified that between six

and eight hours after taking defendant's

statement, he typed some notes relating

to the conversation. After reading the

notes, he prepared the police reports con-

taining all the information he had re-

ceived during his investigation. He did

not keep his original notes.

Several color photographs and

weapons found at the crime scene were in-

troduced into evidence over defendant's

objections. The State rested. The court

denied defendant's motion for a directed

verdict. The court granted the State's

motion in limine seeking to prevent de-

fendant from introducing statements made

by Holiday to defendant during telephone

conversations. Defendant objected to

-25-

the motion and the ruling.

THE DEFENSE

Defendant testified he met Tyrone

Thomas in 1974, and he later hired

Tyrone to work the night shift at a ser-

vice station which defendant operated.

Tyrone and defendant became good friends.

Defendant frequented the Tyrone Thomas

residence and knew Virginia and Michelle.

He also sometimes walked in the park with

Tyrone and Tyrone's dog. When defendant

learned that Tyrone was a drug dealer,

Tyrone's employment was terminated by

mutual agreement. Defendant asserted he

never used narcotic drugs.

In late 1970 or early 1971, defen-

dant met Holiday. Although they con-

versed, they did not socialize. After

speaking with Holiday on June 27, 1976,

-26-

defendant called Tyrone and told him he

knew someone who wanted to purchase $100

worth of heroin. Holiday and defendant

went to Tyrone's house. Holiday gave de-

fendant $100 and defendant went inside

Tyrone's home and purchased the heroin.

Defendant had told Holiday to remain out-

side because Tyrone did not like to meet

people.

Defendant further stated that on

June 29, 1976, at 12 p.m., Holiday tele-

phoned defendant. Defendant then called

Tyrone and complained that the drugs pur-

chased for Holiday were "Fried Dormin".

Tyrone told defendant he would supply

fresh drugs or return the money. In the

evening, defendant joined Holiday and two

other persons who were riding in a white

car. They parked nearby the Tyrone

Thomas residence. Holiday insisted that

he join defendant and he went with defen-

dant to the Tyrone Thomas home.

Defendant further testified that as

he and Holiday walked towards the Thomas

residence, he saw Larry DeBerry and

nodded in recognition. After they arri-

ved at Tyrone's residence, defenant rang

the bell. When Tyrone looked out the

window, defendant stepped back under the

street light so that Tyrone could see

him. Tyrone unlocked the gate and the

door. Defendant went inside the apart-

ment. Holiday remained on the porch.

Suddenly, defendant heard Tyrone say,

"What is this?" Tyrone called out to

Virginia. Defendant saw Holiday. Holi-

day had a gun and he hit Tyrone in the

head two or three times. Holiday then

-28-

pushed Tyrone towards the defendant and

Tyrone fell against defendant's chest.

Defendant asserted that prior to this

time, he had no knowledge that Holiday

Defendant never considered robbing

Tyrone. Defendant yelled to Holiday,

"What are you doing?" and Holiday respon-

ded that he had come for his money.

At this point, Virginia entered the

room. She had a gun and Holiday told her

to drop the gun or Tyrone would die.

Virginia dropped the gun. Holiday told

Tyrone to lie on the floor. Holiday then

pulled the telephone cord out of the wall,

gave the cord to defendant and ordered

him to tie Tyrone's hands. Holiday told

Virginia to get him "everything they had".

Virginia went into the bedroom. As de-

fendant tied Tyrone with the cord, he

-29-

tried to convince him that he had nothing

to do with the robbery. Defendant did

not tie a know in the cord he placed

around Tyrone's hands.

Defendant further testified that

throughout the robbery Holiday had a gun

in his hand and he never let defendant

move outside of his sight. After Vir-

ginia handed something to Holiday, she

went towards defendant. She had a knife

and, as she swung,it at him, defendant

grabbed the blade and said to her, "Can't

you see, I don't have nothing to do with

this?" Defendant then ran to the porch.

As he jumped over the porch railing, he

heard a gunshot. He ran north, away from

the car, and then ran west through a

vacant lot to the alley. He proceeded

south through the alley. As he ran, he

-30-

removed his jacket and threw it into the

lot at the end of the alley. He wrapped

his bleeding hand in his shirt. He did

not have a knife.

Defendant stated that later he tried

to telephone both Holiday and Tyrone but

he could not get a response from either

person. He decided to buy a ticket to

Miami Beach and remain there until he

could "straighten out" the matter. He

first went to his brother's apartment

on the West Side of Chicago and obtained

some clothes. He then took a bus to

Florida and stopped in Daytona Beach,

Florida. He called Holiday who assured

him the gunshot he had heard was nothing.

Holiday, told defendant to get in touch

with him when he returned to Chicago.

After defendant returned to Chicago,

aSi<

he met with his broghers Robert and Alvin.

They told defendant the police and the

"Blackstone Rangers were looking for him.

They also advised defendant to surrender

to the police to obtain protection.

Alvin took defendant to a hotel where he

remained for a few days. On July 7, 1976,

defendant, accompanied by his brothers

Alvin and Nathaniel, walked into a police

station.

Defendant further asserted that

Officer Furmanek then took defendant and

his brothers into a room. After Furmanek

advised defendant of his rights, he

asked defendant to tell him about the in-

cident. Defendant admitted he told

Furmanek an untrue story. Between 11:30

a.m. and 12 p.m., several of the police

took defendant upstairs and they began

-32-

talking about the Blackstone Rangers.

Defendant testified the police asked

him whether he knew that Mickey Cogwell,

the leader of the Blackstone Rangers, a

street gang, had been calling the police

station. The police expressed the view

that defendant should be "turned over" to

the Rangers. Defendant remained hand-

cuffed in the room for three hours; he

was not given any food. Sometime after

3 p.m., the police transported him to

another location. He was handcuffed to

the radiator and was not given any food

until 7 p.m. that evening.

The defendant denied making a state-

ment to Investigator Rochowicz in which

he admitted planning and participating

in a robbery. Defendant stated he did

not plan to rob the Tyrone Thomas family

-33-

nor did he kill them. On cross-examin-

ation defendant admitted he had never

called the police, although he had heard

a gun fire and knew Larry DeBerry had ob-

served him at the scene. Defendant also

acknowledged that while he was in Florida

he telephoned only Holiday, not Tyrone.

Defendant also stated that he was

frightened of the Blackstone Rangers but

he did not ask the police for help. He

also asserted that on the night of the

incident, he did not see Michelle, the

baby or the dog in the apartment.

Police Officer Thomas Brankin was

called as a defense witness. The State

objected to the officer's testimony.

During a voir dire examination, outside

the jury's presence, Brankin testified

he had been assigned to investigate the

«34-

death of Oliver Holiday on July 29, 1976.

Brankin admitted that no police officer

requested a determination of Holiday's

blood type. At the Holiday inquest,

Brankin testified that Holiday's death

normally would have been a routine drug

overdose matter but that it was not rou-

tine because Holdiay was a witness to a

murder.

Brankin testified before the jury

that he had investigated Holiday's death

and had been informed that Holiday was a

witness to a triple murder of the Tyrone

Thomas family. Brankin also asserted he

had no personal knowledge whether Holi-

day's blood type had been determined.

The defense also called Dr. An as a

witness. ile stated that on July 36, 1976,

he examined Holiday's body and, in his

a3Se

opinion, the cause of death was habitual

use of morphine. Although Dr. An drew

a blood sample from Holiday's body, he

did not submit the sample for testing

because he was not asked to do any crime

laboratory bloodwork in conjunction with

the Holiday autopsy.

Defendant's brother, Alvin, also

testified as a defense witness. He re-

lated that the police had been looking

for defendant and they told him that the

Blackstone Rangers wanted to kill the de-

fendant because he had killed Tyrone who

was a drug dealer for the gang. Alvin

saw defendant on July 3, 1976, and com-

municated this information to him. On

July 7, 1976, he accompanied defendant to

the police station and remained with de-

fendant while defendant told the police

-36-

the false version of the incident.

Earlier, defendant had told Alvin the

same story and Alvin did not know the

story was untrue.

Three character witnesses also tes-

tified to defendant's reputation in the

community as a peaceful and law-abiding

citizen. The defense rested.

THE STATE'S REBUTTAL

In rebuttal, assistant state's attor-

ney Gary Griffith testified that on July

7, 1976, at 7 p.m., he talked with defen-

dant in the presence of Investigator

Rochowicz. Defendant told him that on

the night of the incident, defendant,

Holiday and another person named Ben,went

to the Tyrone Thomas home to rob Tyrone.

When Griffith asked defendant who set it

up, defendant told him they did.

e37<

Defendant was picked up in a white car

and the group parked the car south of the

Tyrone Thomas residence.

Griffith further stated that defen-

dant told him he and Holiday then walked

to the door of the apartment. Defendant

knocked; Holiday hid from view. After

Tyrone answered the door, Holiday ran up

the stairs and hit Tyrone in the head.

He and defendant then took Tyrone into

the living room and tied him with a tele-

phone cord. Holiday struck Tyrone with

a gun and then took Virginia into the bed-

room. When Holiday and Virginia returned

Virginia's head was bleeding and Holiday

said, "I've got all they have." Virginia

then lunged with a carving knife at de-

fendant. Defendant struggled to obtain

the knife and cut himself as he pulled it

-38-

away from her. Defendant became fright-

ened, ran out the door, and as he ran

north, he heard a gunshot. Later, defen-

dant met Holiday and received his $100

share.

On cross-examination, Griffith as«

serted that while he was questioning de-

fendant, defendant told him he had set up

the robbery. Upon further questioning,

Griffith admitted that the police report

which he had prepared reported, "I

[Griffith] stated that he had set it up

to rob Tyrone Thomas."

The State then rested; defendant's

motion for a directed verdict was denied.

After closing arguments, the jury was in-

structed. Approximately three and one-

half hours after the jury retired to de-

liberate, the trial judge received three

-39-

requests for transcripts of trial testi-

mony: two of the requests were for defen-

dant's testimony; one request was for all

the testimony. After discussion with

counsel, the court advised the jury, in

writing, that they must base their ver-

dicts on the testimony they heard, the

stipulations, and the exhibits received

in evidence. The jury returned guilty

verdicts.

Defendant was subsequently sentenced

to three prison terms of 100 to 300 years

for the murders and three prison terms of

3 to 15 years for the attempt robberies,

all terms to run concurrently.

Defendant appeals his conviction.

OPINION

Defendant first contends the trial

-40-

court erred in denying his motion for

discharge. With respect to offenses com-

mitted prior to March 1, 1977, the Four

Term Act (111. Rev. Stat. 1975, ch. 38,

par. 103-5(a), (d), (£)) provides in per-

tinent part:

"Every person in custody in

this State for an alleged offense

shall be tried by the court having

jurisdiction within 120 days from

the date he was taken into custody* *,

kk *

- Every person not tried in ac-

cordance with subsections (a), *

* * of this Section shall be dis-

charged from custody * * *,

kk *

Delay occasioned by the defendant

shall temporarily suspend for the

-41-

time of the delay the period * * *

and on the expiration of the delay

the said period shall continue at

the point at which it was suspended

ke we"

In accordance with the statute, where a

defendant, by his won actions, causes a

delay in trial, the statutory period is

tolled and begins to run anew from the

date to which the case has been delayed.

People v. Donalson (1976),64 I11. 2d 536,

356 N.E. 2d 776:

People v. Lee (1969),44 111.2d 161,254

N.E. 2d 469.

Thus, our inquiry in the instant

case is whether an act of defendant, or

some act to which he consented, necessi-

tated a "slow-down" in the judicial pro-

cess so as to delay his trial.

People v. Jones (1971),130 111. App. 2d

769, 266 N.E. 2d 411.

Defendant was arrested on July 7,

1976 and remained in custody until the

trial began on August 9, 1977. The trial

was continued "by agreement" of the par-

ties four times between July 29, 1976

and November 24, 1976. On October 20,

1976, defense counsel informed the trial

court that he was compelled to agree to

a continuance because the State had not

yet tendered all of the requested dis-

covery materials. On November 24, 1976,

defendant filed his petition for dis-

charge and by agreement of the parties,

the hearing was set for December 8, 1976.

On December 8, 1976, defense counsel

agreed to continue the case to December

22, 1976, and restated his position that

-43-

he was compelled to do so since he had

not obtained certain discovery materials.

Defense counsel maintained that he could

not answer, in good faith, that he was

ready for trial nor could he adequately

represent his client in view of the State's

failure to comply with discovery requests.

On December 22, 1976, a different

trial judge heard arguments on defendant's

motion for discharge. By order of the

court, the case was continued to December

28, 1976. On that date, the trial judge

denied defendant's motion. The court

reasoned that every continuance was "by

agreement" and defense counsel, a

"seasoned criminal lawyer", understood

the legal meaning of these words. Defen-

dant argues here, as he did in the trial

court, that since he was forced to

ehhe

choose between his right to a speedy

trial and the right to effective assis-

tance of counsel, he was denied the right

to a speedy trial when he elected not to

proceed to trial unprepared. We disagree.

Our supreme court has rejected the

notion that defendant's right to a speedy

trial is violated when the case is con-

tinued to allow defendant to prepare for

trial:

"'To argue that he was forced to

choose as he did is to argue tech-

nicalities. The right to a speedy

trial and the right to avoid a

precipitous trial are separate

but related rights. Both are

designed to assure an accused a

fair trial, to prevent undue de-

lay in one instance and undue

-45-

haste in the other. He can

demand action or avoid action

as the exigencies of his situ-

ation may dictate. But fairness

and justice are not a one-way

street. * * * The fact that on

occasion the accused might have

to jeopardize the legislative

benefits of the four-month rule

by asserting his right to a con-

tinuance does not entail a denial

of his right to a speedy trial. * * *

The election was defendant's to de-

termine on the basis of what would

better ensure him a fair trial, and,

having chosen to proceed, his present

argument is nothing more than tech-

nical obfuscation.'"

People v. Lewis (1975),60 111.2d 152,

-46-

156-157, 330 N.E.2d 857, 860 quoting

People v. Johnson (1970),45 111.2d 38,

43-44, 257 N.E.2d 3,7. Cf. i

McGautha V. California (1971) ,402 U.S.183.

(Criminal law is replete with situations

requiring difficult judgments as to course

to follow and even though defendant has

constitutional right to follow whichever

course he chooses, the Constitution does

not always forbid requiring him to

choose. )

Similarly, in People v. Bradley

(1976), 43 111. App. 3d 463, 357 N.E.2d

696, the court considered defendant's

claim that by reason of the State's lack

of diligence with his discovery requests,

he was compelled to elect between pro-

ceeding to trial unprepared and seeking

a continuance which would toll the 120

aha

day period for purposes of discharge.

The appellate court rejected defendant's

argument stating:

"This contention cannot be

sustained in light of People v.

Williams (1974),59 111.2d 402,

320 N.E.2d 849. There, it was

held that even a single day pre-

paration time before the expir-

ation of the 120-day limit is not

a denial of due process when the

defendant can, but fails to seek

a continuance. It follows that

the election to which the defen-

dant was put violates no consti-

tutional guarantee."(43 I11. App.3d

463, 467, 357 N.E.2d 696, 699-700;

Cf. People v. Hunter (1978), 61 111.

App.3d 588, 376 N.E.2d 1065;

-48-

People v. Lee (1975), 27 111. App.3d

712, 327 N.E.2d 574.)

We also note that the Criminal Code

has procedures which defense counsel

could have utilized to compel the State

to comply with his discovery requests

(111. Rev. Stat. 1975, Ch. 110A, par.

415(d), (e), (£), (g) and to obtain sanc-

tions against the State for refusal to

comply with a discovery order. (I11. Rev.

Stat. 1975, ch. 110A, par. 415(g).) In

cur opinion, defendant was not compelled

to agree to continuances to obtain dis-

covery material.

Accordingly, we hold that by agreeing

to these continuances rather than demand-

ing trial, defendant contributed to the

delay of the trial and the trial court

-49-

properly denied the motion for discharge

(People v. Criss (1977), 45 I11. App. 3d

973, 360 N.E.2d 543; See alsu People v.

Green (1962), 23 I11. 2d 584, 179 N.E.2d

644).

Likewise, we believe the trial court

correctly denied defendant's renewed

motions for discharge on February 3, 1977

and April 15, 1977. Since defense coun-

sel agreed to continue the case to Novem-

ber 24, 1976, the statute was tolled and

a new statutory period began to run on

that date. On December 28, 1976, defense

counsel requested a continuance to Febru-

ary 3, 1977. On February 14, 1977, de-

fense counsel again moved for a continu-

erce to February 25, 1977. Where the

cause is continued on motion of defendant

or his counsel, the motion for discharge

-50-

will not be allowed if trial is held with-

in four months of the date to which the

case was continued, even if it is more

than four months after the initial arrest.

People v. Rogers (1963), 26 I1l. 2d 599,

188 N.E.2d 22.

On February 25, 1977, defense counsel

indicated he was ready to proceed on a

motion to suppress defendant's statement

to police officers. The motion had been

filed February 16, 1977. After four

police officers testified, the parties

agreed to continue the case to March 18,

1977. On March 18, 1977 two more police

officers testified. The parties agreed

to examine two additional officers on

March 22, 1977. On that date, the State

moved to continue the case because the

officers were unavailable. On April 4,

aSi-

1977, after lengthy examination of two

more witnesses, the parties agreed to con-

tinue the case to April 13, 1977 and

again to April 15, 1977. On April 15,

1977, the court denied defendant's motion

to suppress and his renewed motion for

discharge.

We believe the trial court's ruling

was correct. Even if we do not consider

the various "by agreement" continuances,

defendant's new term commenced on Febru-

ary 25, 1977, the date to which the case

was continued on defendant's motion, and

his motion to discharge made on April 15,

1977 was premature. Further, the hearing

on defendant's motion to suppress between

February 25, 1977 and April 15, 1977, was

a delay attributable to defendant.

People v. Kemp (1977), 49 I11. App. 3d 270,

@52-

364 N.E.2d 944,

The law is clear that where a defen-

dant files a motion, such as a motion to

suppress, he is ordinarily chargeable

with the delay occasioned by the filing

of that motion. (People v. Donalson

(1976), 64 I11. 2d 536, 356 N.E.2d 776;

People v. Puyear (1977), 43 111. App.

3d 183, 362 N.E.2d 1113.) The often ex-

pressed rationale for this rule is that

the State is entitled to some time to

prepare for a hearing on the motion to

suppress and that the defendant has the

primary obligation to call the motion for

hearing and disposition. (People vy.

Donalson.) In resolving whether a delay

resulting from a motion to suppress is

attributable to defendant, much deference

must be given to the trial court's

~53-

judgment. (People v. Keagbine (1979),

78 111. App. 3d 1039, 396 N.E.2d 1341.)

As stated in People v. Thomas (1975),

25 Ill. App. 3d 88, 91, 322 N.E.2d 597,

599:

"Whether a motion falls into

the category of one which would

cause little delay or much delay

calls for the trial court's ap-

praisal of the motion, its need,

timeliness and complexity. It

calls for the court's appraisal

of the State's ability to answer

the motion immediately or the

merit of the State's reasons for

not doing so. The interpretation

of the motion and of the avail-

ability of the required informa-

tion, the reasonable time needed

-54-

to answer and whether the pro-

posed objections are genuine or

dilatory should rest in the judg-

ment of the trial court, and its

decision as to accountability for

the ensuing delay, if there is

one, should be sustained on appeal

unless it is clearly shown that

the court's discretion was abused."

We do not believe that the trial

judge abused his discretion in attri-

buting this delay to defendant. Thus, a

new term began on April 15, 1977 when the

trial court disposed of the motion

(People v. McKinney (1978), 59 I11. App.

3d 536, 375 N.E.2d 854), and it ended on

August 9, 1977, when the jury was selected

(People v. Williams (1974), 59 I11. 2d 402,

=$Sa

320 N.E.2d 849). Accordingly, we con-

clude defendant was not denied his statu-

tory right to a speedy trial.

We also hold that defendant was not

denied his constitutional right to a

speedy trial (U.S.C.A. amend. VI). The

right to a speedy trial "necessitates a

fundtional analysis of the right in the

particular context of the case * * *,

"It is consistent with delays and depends

upon circumstances * * *,'" (Barker vy.

Wingo (1972), 407 U.S. 514, 522.) In

Barker, the Supreme Court adopted a bal-

ancing test to determine whether the

right to a speedy trial has been denied.

The factors to be considered are (1)length

of delay; (2) reason for delay; (3) defen-

dant's assertion of the right; (4) pre-

judice to defendant. (407 U.S. 514,530.)

-56-

We will consider these factors in light

of the circumstances of the case.

Defendant's arrest and subsequent

incarceration occurred on July 7, 1976.

The trial began on August 9, 1977. A

total of nineteen continuances was

granted. The State moved for two con-

tinuances. The State's first continuance

was due to the unavailability of two

police officers for the motion to sup-

press hearing2/ and the second was due to

a conflicting trial date of one of the

prosecutors. We need not decide here

whether these reasons alone would justify

delay since we previously have decided

that aeferdant agreed to twelve continu-

ances and moved for two continuances.

Defendant was arraigned on July 29,

1977 and first demanded trial on December

-57-

8, 1977. On appeal, defendant argues he

was prejudiced but fails to assert speci-

fic details of prejudice. Defense counsel

agreed to the continuances because he was

not prepared for trial. In fact, the de-

lay provided defense counsel with time to

adequately prepare a defense. Under the

circumstances of this case, particularly

where defendant's acquiescence in the de-

lay of the trial is indicated, we find no

violation of defendant's constitutional

right to a speedy trial. See People v.

Young (1970), 46 111.2d 82, 263 N.E.2d 72.

Defendant nex contends that reversi-

ble error occurred when the trial court

permitted Police Officer Rochowicz to

testify about Oliver Holiday's statements

which implicated defendant. The defendant

-58-

argues that this testimony violated his

Sixth Amendment right (U.S.C.A. amend VI)

to confrontation in violation of Bruton v.

United States (1968), 391 U.S. 123.3/

Bruton holds that the introduction of an

out-of-court statement by one co-defen-

dant which implicates a second do-defen-

dant, violates the latter's right of con-

frontation when the co-defendant who made

the statement cannot be subjected to

cross-examination at trial.

Thus, the "Bruton rule" is violated

only where the out-of-court hearsay

statement is that of a declarant who is

unavailable at the trial for full and

effective cross-examination. (Nelson v.

O'Neil (1971), 402 U.S. 622; People v.

Davis (1976), 43 111. App. 3d 603, 357

N.E.2d 96.) A conviction, however, is

-59-

not automatically reversed upon the finds

ing of a Bruton violation. When properly

admitted evidence of guilt is overwhelming;

for example, when defendant has confessed

to committing the crime and the prejudi-

cial effect of the admission of the out-

of-court statement is insignificant by

comparison, the error is considered harm-

less error beyond a reasonable doubt.

$ b Flo (1972), 405 U.S.427;