*1 сircuit reasons, judgment we affirm foregoing For the entry that court for cause to County and remand this St. Clair robbery). attempt (armed the conviction sentence on Affirmed and remanded. WINELAND, JJ., concur.
G. MORAN and J. ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF VINSON, ROBIN DALE Defendant-Appellant.
Fifth District No. 76-213 Opinion July filed 1978.
WINELAND, J., dissenting. Reid, Defender’s Appellate both State Rosborough H. Michael and John J. assistant, appellant. Office, Vernon, Seeberger, research for Terry of Mt. Keith P. Kuehn, (Bruce D. Irish and Attorney, Clyde L. оf Belleville Commission, of Dooren, Appellate Attorneys Service of State’s Vanden both counsel), People. for the
Mr. opinion delivered the of the court: JUSTICE JONES Defendant was indicted occurring for murder the course of an robbery. armed After a trial he was found guilty and sentenced to 14 years’ to 60 imprisonment. The nexus of the State’scase was a confession obtained from held, the defendant. A hearing suppress court deemed the statement to voluntary permitted be introduced at trial.
On appeal four arguments are raised defendant. The defendant contends that the confession should suppressed involuntary have been as police because the deceived his father into a belief that he was not under interrogation and subsequently interrogation excluded his father from the despite requests present. that he be Defendant at the time of his arrest interrogation just passed had birthday. his 18th No one who testified seemed sure precisely happened what at the police station. The record indicates confusion as to what actually time the father arrived station. He was informed telephone wife via that his son was in custody and went directly to the station house. He testified that the desk officer first told him that his son was not there. at his second request and insistence that his son was there the desk officer asked detective where the defendant was and the detective took the father to a room where the process defendant was in the giving a statement. He was allowed to talk with his son for a few moments but then told must *3 leave until the statement was finished.
It appear does not to us from evidence that any there was blatant attempt by police to “deceive” the father or that at the father’s first visit the desk officer was aware that defendant was the station. The Groleau, defendant cites People 1192, 44 App. N.E.2d court, 971, which the quoting Stiff, App. 619, In re 336 N.E.2d held that as a good “matter of practice” preferable it is that whenever possible, parent guardian a or should be present juvenile when a waives case, rights. his In instant the defendant juvenile, is not a but claims youth his present. entitled to have his father agree. We do not Here the defendant never asked for his father until his father entered the contrast, only speak room and then with him. In asked to defendant a juvenile repeatedly Groleau was who asked to present, father him, charges was deceived the nature of the police against as to present and factors is physical claimed abuse. None of these the instant case. Prim,
The State 289 cites N.E.2d and Rosochacki, People v. 41 as authority Ill. 2d 244 N.E.2d for the propоsition concerning interrogations that the in-custody protections are apply not intended to to a assistance seeking anyone defendant . lawyer. other than a Prim voluntary although request held a confession was denied. Rosochacki did the same parental though for presence priest. Although defendant the defendant’s father was had asked to see excluded in this case we find that this was interrogation process from the proper ground suppression not a sufficient for statement. general The rule is set forth in governing admissibility of confessions Hester, People v. 489, 497, which stresses “freely, voluntarily, compulsion confession must be made and without sort.” Hester any inducement emphasizes “totality Hester circumstances” test of voluntariness. Defendant cites support his contention that his voluntary. confession was not Hester situation in is readily distinguishable from instant In сase. Hester, 14-year-old defendant was held incommunicado for over hours, was not advised of his rights (this case was decided before Miranda Arizona, 384 U.S. 16 L. 1602) Ed. 2d 86 S. Ct. had no Here, counsel. defendant made his within one hour of his statement arrest, had telephone, access to a and was rights, informed of his according testimony to the arresting officer.
There was conflicting testimony concerning whether by Miranda v. Arizona. The rights informed of his as required arresting officer testified that the warnings given to the defendant both en police route to the police station and at the station and that the defendant read and signed the acknowledging warnings. form defendant testified that he never warnings received the but then stated that although he warnings had read the he did not understand them. The totality of circumstances in the instant supports case the trial court’s findings as to voluntariness. A finding of voluntariness the trial court is not to be appeal disturbed on against weight unless the manifest Prim; Pickerel, (People evidence. Further,
N.E.2d voluntariness need proved be Pickerel.) Judged by these preponderance of the evidence. tests, the confession of the instant voluntary defendant was and was properly admitted into evidence.
Defendant’s second is that improperly the trial court excluded regarding credibility to be confession sо as to deny defendant a fair trial. It is an accepted rule the defense can present evidence on the given a confession the court has voluntary found it and admitted it *4 Schwartz, v. (People People into 520, 121 758; evidence. N.E.2d Scott, v. 28 Ill. 749.) 2d that Defendant asserts his attempts place to before in jury police deception the understating charges against the in excluding and his father from the interrogation precluded by rulings the trial court. The State contends, and we agree, that the record does not that trial show the 688 made The record does show that defense counsel limited the defense.
so the weight the concerning effort to offer evidence no confession. prosecution, argument, also that the in rebuttal stated asserts
Defendant the jury was not to consider the circumstances under which that the it have read the record and find that confession was taken. We do not Any prosecutor the supports defendant’s assertion. remarks of might on the invited the remarks of bear issue of voluntariness were closing argument statement defense counsel who contended the involuntary. was it the jury
Defendant claims that not to instruct on next was error out, given as the points to the confession. State any a Generally, defense counsel tender instruction on this issue. did not it party request who desires instruction must offer the court specific a it its own give obligation to trial court has to instruct on no Nuccio, 487; (People People v. v. Parks, motion. N.E.2d cases, however, is 54 Ill. 294 In this rule 276.) 2d N.E.2d criminal has modified certain situations of a fair trial. It requirements held that a instructed seeing jury been court bears the burden of is charged, crime innocence presumption on the elements on the Parks; People proof. question and on the of burdеn French, 5 Ill. 284 3d N.E.2d 481. instruction, 3.07,
While the IPI Criminal properly No. could tendered, regard been if it not it error had been we do as reversible sponte. sua give for the court it have failed The Committee merely: Comments to the instruction state “If the trial receives evidence, may entirely disregard confession the confession. give bound as to consider confession such jury determines it is entitled to.”
Defendant’s third contention is that he was denied a fair wаs prosecutor’s closing that the case remarks uncontradicted. remarks Defendant claims that these were intended jury’s testify, especially direct attention to his failure to view only fact that defendant was the could have contradicted one who We It disagree. State’s evidence. is true that forbidden stand, but, reference to take the make direct defendant’s failure to fact may testimony refer of the State’s witnesses person who could even defendant is the uncontradicted 283; (People Hopkins, N.E.2d it. 284 have contradicted Norman, Mentola, 268 28 Ill. 2d N.E.2d People 47 Moreover, objection defense no made N.E.2d objection as a waiver of any which serves to the remarks counsel denied, Hanson, cert N.E.2d appeal.
689 Underhill, 937, 398, 2d 38 Ill. People U.S. 36 L. 2d 93 S. Ct. v. Ed. 837, 912, 651, 245, denied, Ed. 2d 88 S. Ct. 230 cert 391 U.S. 20 L. N.E.2d Further, 1803.) purportedly the decisions of the federal courts which such stringent prosecutоrial the evaluation followed more test for brief, this not binding the defendant in his are on argument, by cited 431. court. v. 268 N.E.2d Stansberry, closing argument, in argues prosecutor Defendant also that the that he misstated and distorted attempted proof, to shift the burden of These presented not trial. evidence commented on evidence the record. Certain may disposed examining contentions in proof remarks of the burden of prosecutor may have tended to shift minds if left these remarks were standing of the alone. closing offset he stated times in himself when several prove guilty State carried the burden Further, the beyond proper a reasonable doubt. received instructions on the burden are proof. Other remarks which the defendant asserts witnesses, prejudicial, concerning possible failure of the defense to call not where remarks improper they were invited of defense argument. 567, 304 counsel his Ill. Norfleet, App. own v. 15 3d (People N.E.2d 672.) Neither individually nor combination do the remarks complained of warrant reversal.
Defendant imposed, contends that the maximum 60 years, sentence is excessive in of his age, prior view lack of criminal record and potential. However, rehabilitative opinion we are trial of the did its not abuse judge discretion in this matter. trial is in the The position best to dеtermine the sentence based on circumstances individual 882.) case. 368 Perruquet, 2d N.E.2d Where the is statutory greatly sentence within limits and isnot at variance constitution, with purpose spirit not be our will disturbed appeal. (People Ill. McCullough, 19.) 45 2d The defendant must justify through reduction sentence substantial Nelson, evidence mitigation. (People 243N.E.2d In the instant presented only case the defendant from his church letter pastor. which his shows father The record that the court was unmindful of the criteria discussedin Murder sentencing the defendant. a crime of upheld unrivalled seriousness. Similar have been sentences cert, People Allen, denied, 419 U.S. N.E.2d Nicholls, 42 L. Ed. 2d S. Ill. years); 95 Ct. 120 200 44 (100 533,256 (100 People Newbury, N.E.2d 818 years); to 150 (50 N.E.2d 559 in the years). to 150 The instant case reflected both public protection by imposition concern for the 60- maximum, year but also concern for defendant and his rehabilitative potential imposition 14-year through of a sentence. judgment
The of the trial court affirmed.
Affirmed. MORAN, J.,
G. concurs. J. WINELAND, dissenting: Mr. JUSTICE in this case. opinion from the of the court respectfully I must dissent inflammatory argument of an over-zealous improper highly The respecting confessions Attorney disregard and the of the law a constitutional trial. deprive the court acted to this defendant of with the (emphasis supplied) linking defendant sole investigating a statement made to the officer crime involved here was *6 This investigating the officer was allowed to read into evidence. which who were implicated statement the defendant and three others pistol a certain into companions. People attempted The to introduce it could but it admitted because weapon evidence as the murder was not statement Under this set of facts the not be traced to the defendant. Moreover, vastly it importance. by defendant wаs of the utmost respect to in to such statement important strictly that the law be adhered the accused. irrespective guilt of the or innocence of allegedly given by the judge This does contend tha the statement it he voluntary. be Neither does contend defendant was not shown to correctly judge as evidence. The competent was not to admitted at the and did so right questions that he had the to determine such held However, hearing at latter suppress. this pretrial hearing on the motion to rule. of the evidence only by preponderance the court was bound this to be People concede (1962),23 Ill. 2d The (People v. Nemke true. involving every criminal case aspects there are at least two to to be competency question
a confession. One is the voluntariness merits of hearing on the prior determined the trial court alonе to in the aspect hearing stage presence is the the case. The second upon jury. opportunity pass This is to an give This right. has this alleged Every statement. accused credibility of the this defendant. right was denied his court through right attempted
The defendant to exercise This is shown in his efforts. but was unsuccessful appointed counsel Mr. transcript (questioning indicated plainly by the record as proceeded then Nold, defendant). Counsel fоr defendant counsel for Miranda): (speaking as follows inquire of Detective Stone Mr. Vinson Aguirre’squestions Mr. “Q. You stated and to the Miranda then described as rights you was read certain at station or way to him on Warnings. Were these read places? station or at both times A. Both initial him to actually asked you a is there form
Q. Okay, rights? has read his after he been Honor, my me renew Your let People. For the MR. AGUIRRE: already before is matter considеred objection. This a previous jury. of the province It is not within the court. Honor, they must look I think
MR. NOLD: Your the statement. circumstances any more. statement going are not into the
THE COURT: We signs.” a there is may (Emphasis You ask form if supplied.) itself, again to form counsel tried about the waiver questions
After several advised Stone had himself testimony regarding elicit whether Detective responded requesting rights. the defendant of his that at conference, mаy record. We infer however which is not of side-bar any concerning tighter inquiry closed this conference the door was to the officer questions put thereafter say statement. We this because wholly were almost innocuous. perfunctory to a clearly limiting erred in
The court
Detective Stone took
examination into the circumstances under which
objections
the State’s
statement.
it sustained
Apparently,
defendant’s
right
alоne who had
misconception
under
that was the
confession;
validity
admissibility
determine not
but
touching the
authority
pass upon any questions
and that the
had no
confession.
to be accorded the
*7
jury had no
instance was the
ruling
The result of the court’s
in this
to be
defendant’s
opportunity
pass
or
upon
A
surrounding
giving.
its
circumstances
alleged statement nor to hear the
by
wrong
in fact
tried
accused was
consequence
further
was that
i.e.,
by the
yardstick,
(applied
the evidence rule
preponderance
of
guilt beyond
a reasonable
judge)
requiring proof
the rale
and not
jury.
doubt
members of the
to be determined
of Officer
cross-examination
By restricting
right
the defendant’s
process
rights
Stone in
denied his
of due
this case the defendant was
129,
Amendment. Smith v. Illinois
U.S.
(1968),
under
the Fourteenth
956,
19 L. Ed.
As
has the
out
credibility of the same
evidence to the
affects
after
the trial
the same is admissible
judge has determined
v.
v. Schwartz
Scott
(1954),
(1963),
520),
it is
established
these cases that it is reversible error
deny
this right.
While it was true that counsel for defendant
proof,
made no offer of
requiring
rule
an
proof
offer of
is not absolute. It has not been universally
applied. There are
rights
matters and
so fundamental that they must be
considered,
initially
whenever
raised. (People
(1957),
v.
Burson
360, 370, 371;
Coop
(1956),
Here the trial fully understood the circumstances which defendant’s sought counsel to bring out reason having heard the testimony at the suppress. motion to An offer proof necessary where there is no satisfactory other indication to the trial judge, opposing counsel, and the reviewing court аs to the substance of proof to be made. (People 123, 140, 188 (1933), However, 354Ill. N.E. 186.) Hoffee an proof offer of is unnecessary whenever the trial understands the objection and character of the evidence but will not admit such evidence. (Gore 222, (1911), Henrotin 165Ill. App. 227.) We such is feel the case at bar. See also People (1975), 27 Ill. App. Moore 326 N.E.2d 420, to the same effect.
In People v. (1957), Burson 143 N.E.2d a case decided in before thе enactment of the Code of Criminal Procedure the court page said at 370: “We recognize that present counsel for defendant did not or argue point; and that general question rule is that where a court, where, raised or reserved in the trial or though raised court, the lower it urged is not argued appeal, or it will not be considered and will be deemed to have been waived.
this is a rule of jurisdiction administration and not of power, operate will not deprive an accused rights of his constitutional process. of due may, ‘The court as a in a grace, matter of case involving deprivation of liberty, life or take notice of errors appearing upon the record which deprived the accused of trial, substantial means enjoying impartial a fair and although no exceptions preserved question imperfectly or the * presеnted.’ 33;# Jur., 3 Am. page sec. In People McKinstray (1964),30 Ill. 2d the court quoted foregoing approval. with Code, since,
Under the we have a right to consider such errors our opinion, they deprived the of a fair trial. A impartial accused careful reading of the instant deprived case indicates that the of a defendant was *8 plain the trial, under doctine
fair and the case should reversed the rules of fundamental fairness. error rule and in particularly in the trial of reversible error occurred examples Other this that the plain It seems argument by prosecutor. the final the by resorting of his case attempted to bolster the weakness Attorney State’s piece mind only there was one “testimony.” his Bear own statement. the crime —the defendant’s linking defendant with evidence evidence, Yet, wholly other despite fact that was uncorroborated the itself, instrument evidence with prosecutor the аble to find within this was in his “self-corroborating” confession it. It which to corroborate was eyes. out do the representative was able to argument,
In the For might in what be termed the “battle of innuendo.” defense counsel instance, McGee jury might his well infer that Brenda argument from that she aspect shooting was at least a material witness to some That had she testified. incriminated the defendant would have inferentially she was not there becаuse she would believed her but is pointed As out counsel participant. was a sister of fellow Next, hiding with evidence. charging tantamount they and indicates that are proceeds participants to name the other argument Such Department Corrections. confined Juvenile at trial. objection no is raised reversible error even Smith People replete for the (1966), App. 458.) with such instances. to find the prone
In in this case the court seemed opinion adopted prosecutor to have errors of the trial court and those committed trial, the error was made or objection been waived where no was in this prone have not been so preserved. not otherwise Other courts Popely (1976), People App. respect. (For example, see particularly The latter case is Gilmer (1969), prosecutor’s to this that the comments very informаtive and similar incriminating that evidence impression there was conveyed to the testimony eyewitness presented particularly at the trial — confession; the defendant’s which would corroborate defendant’s case. confession direct evidence being v. Sullivan (1978), subject This same arose under the Court reviewed Sullivan Supreme N.E.2d 17. In the Illinois Stat. ch. 615(a) (Ill. Rule Rev. plain Supreme error doctrine of Court 110A, object. failed There trial counsel par. 615(a)), error to which the fact disclosed counsel stood mute as the charge pled guilty alleged accomplices previously defendant’s had noted supreme lodged against holding, the defendant. In so guilt the accused tried is entided to have separately who upon innocence determined against being without prejudged according to what happened to another. *9 prosecutor injected
Here the (not into his rebuttal fаcts based evidence) sought guilt to associate the defendant with the others, mainly untrustworthiness companions the defendant’s whom the unworthy labeled as of belief. The error in this case as in Sullivan was serious that so even trial object counsel failed to precluded court is not considering from the issue. crime,
A person innocent, accused guilty whether he is is entitled herein, to a fair trial. errors viewed separately or cumulatively, deprived Moreover, defendant of this right. fundamental in measuring tainted, the extent to which jury’s verdict has been we find significant that each of the errors elementary constitutes violation of an fair trial principle of proceedings. Such violations should not be tolerated. I would reverse and remand many for a new trial for pointed errors appellant. out here and counsel for ILLINOIS, Plaintiff-Appellee,
THE PEOPLE OF OF THE STATE MOORE, Defendant-Appellant. JAMES No. 76-548 Second District Opinion May Supplemental opinion rehearing August filed filed on 1978.
1978.