Petition — Illinois v. Washington

Supreme Court, U. S,

FILED

JAN 3 1978 |

K, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-949

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

vs.

WALTER WASHINGTON, JE.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

WILLIAM J. SCOTT

Attorney General

State of Illinole

MELBOURNE A. NOEL

Assistant Attorney General

600 South Second Street

Springfield, Illinois 62706

(217) 782-1090

Attorneys for Petitioner

GERRI PAPUSHKEWYCH

Assistant Attorney General

Of Counsel.

De. ca SCHNEPP & BARNES PRINTERS, INC., SPRINGFIELD, ILL.

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TABLE OF CONTENTS

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Constitutional Provisions Involved ................. 2

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Proceedings on Motion to Suppress Statements .... 8

REASONS FOR GRANTING THE WRIT:

I. The Illinois Supreme Court erred in holding

that respondent’s waiver of his right against

self-incrimination and right to counsel was in-

sufficient where the record clearly shows that

respondent knowingly and voluntarily waived

Sy EE ou hadeenebensndeusdedodasecbaeess 10

II. The exclusionary rule should not be applied

where police conduct is non-egregious and rights

are waived knowingly and voluntarily by a fully-

PD wo vb aVnceseneessecnccess 13

TABLE OF AUTHORITIES

| Page

Brewer v. Williams, 430 U.S. 387 (1977) ............. 11

Johnson v. Zerbst, 304 U.S. 458 (1938) .............. 12

Miranda v. Arizona, 384 U.S. 436 (1966) ............. 10

Michigan v. Mosley, 423 U.S. 96 (1976) .............. 10

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

vs.

WALTER WASHINGTON, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The Attorney General of Illinois, on behalf of the State

of Illinois, petitions for a writ of certiorari to review the

judgment of the Supreme Court of Illinois in this case.

OPINIONS BELOW

The opinion of the Illinois Supreme Court is not yet

reported; it is attached in full as Appendix A. The opin-

ion of the Illinois Appellate Court is reported at 41 IIL.

App. 3d 475, 354 N.E.2d 501 and is attached as Appendix B.

2

JURISDICTION

The judgment of the Illinois Supreme Court was entered

on October 5, 1977. No petition for rehearing was filed

and this petition was filed within ninety days of the entry

of the judgment order.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1257 (3).

QUESTIONS PRESENTED

1. Did the Illinois Supreme Court err in holding that

respondent’s waiver of his right against self-incrimina-

tion and right to counsel was insufficient where the rec-

ord clearly shows that respondent knowingly and vol-

untarily waived those rights?

Should the exclusionary rule be applied where police

conduct is non-egregious and rights are waived know-

ingly and voluntarily by a fully informed defendant?

to

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

. [NJor shall any person . . . be compelled in any

criminal case to be a witness against himself, ... .’’

STATEMENT OF THE CASE

NATURE OF THE CASE

After a jury trial in the Cireuit Court of Winnebago

County Respondent was found guilty of Murder and Armed

Robbery. He was sentenced to concurrent terms of impri-

sonment of fifty to one hundred years for Murder and six

to twenty for Armed Robbery.

Prior to trial, respondent filed various motions, includ-

ing a motion to suppress certain statements he made to

Rockford city police while in custody. The motion was

denied after a hearing. Some of the statements made by

respondent were used against him at trial over his objec-

tion. It is the admissibility of these statements which is

at issue: both the Illinois Appellate and Supreme Court

held that the statements were improperly admitted at trial.

POST-ARREST PROCEDURES

Moments after Kappa Sharp was robbed at gunpoint at

the Pacemaker Store and 16 year old Henry Gregg was

fatally shot, respondent was arrested in a nearby garage

with the gun later determined to be the murder weapon

and large sums of currency in five and ten denominations

at his feet (Tr. 334).' After his arrest respondent was

twice advised of his rights by police officers: once at the

scene of arrest and once in the squad car enroute to the

police station. Respondent replied that he understood his

rights (Tr. 26).

Upon his arrival at the police station respondent was

questioned by Detective Cronk, who first advised him of

1. The designation Tr. now and hereinafter refers to the transcript

of the state proceedings in Indictment No. 2363 in the Circuit Court of

Winnebago County.

4

his rights by handing him a rights waiver form and having

him read it out loud. (Tr. 27, 28). Respondent stated he

understood his rights and signed the waiver form’ with the

name William Brown. (Tr. 28).

Respondent made a total of three oral statements that

evening. After making his original statement to Detective

Cronk he repeated it twice in the presence of other detec-

tives, the latter two statements containing minor variations

from the first. (R. 40-41). Respondent during this time was

photographed, placed in a lineup and a neutron activation

test was performed. At approximately 1:00 A.M., after

the lineup, respondent was brought back to the interroga-

tion room and asked if he wished to talk to the officers

any more. He indicated that he did not wish to do so. At

that time he was taken to the booking room at the police

department and asked if he wanted to make a phone call.

He replied that he did not and signed a telephone log to

that effect. (Tr. 42). At no time during the questioning

did the defendant ever ask to stop the questioning nor

did he ask for a lawyer. (Tr. 42). Defendant was ques-

2. The standard waiver forms used by Rockford city police were

signed by respondent. These forms contain two sections and read as

follows: “YOUR RIGHTS. Before we ask you any questions, you must

understand your rights. You have the right to remain silent. Anything

you say can be used against you in court. You have the right to talk

to a lawyer for advise [sic] before we ask you any questions if you wish.

If you cannot afford a lawyer, one will be appointed for you before any

questioning if you wish. If you decide to answer questions now without

a lawyer present, you will still have the right to stop answering at any

time. You also have the right to stop answering at any time until you

talk to a lawyer.” “WAIVER OF RIGHTS. I have read this statement

of my rights and I understand what my rights are. I am willing to

make a statement and answer questions. I do not want a lawyer at this

time. I understand and know what I am doing. No promises or threats

have been made to me and no pressure or coercion of any kind has been

used against me.” Following the waiver section are spaces for signatures

of the person being questioned and of witnesses.

5

tioned that evening for approximately one hour and a half.

(Tr. 47).

The next day, March 23, 1974, at approximately 9:30 A.M.

respondent was brought to the detective bureau. Detec-

tives Bland and Fagin first advised him of his rights and

asked if he uiderstood them. Respondent replied that he

did understand his rights, that he was willing to talk to

the police officers, and willing to sign a waiver. He then

signed the rights waiver form. (R. 60). After the rights

waiver was signed the officers had a conversation with re-

spondent about his activities on the preceding evening of

March 22, 1974. (R. 60).

Shortly thereafter respondent indicated that he wanted

to call an attorney, and that he wanted a public defender.

The detectives told him that they could not give him a

public defender because the court would have to determine

whether he was entitled to the services of a public defender ;

however, they told him he could call any lawyer he wanted

and gave him a telephone book with a listing of attorneys.

(R. 66). Defendant looked up the number of the public

defender and dialed it, but received no answer. (R. 61).

After he hung up the telephone, the detectives asked him

if he still wanted to talk to them even though he had not

talked to an attorney. Respondent said that he did, that

he wanted to get the truth out, but that first he wanted to

make another telephone call to talk to his mother. (Tr.

61-2, 105-6).

Respondent then made two telephone calls, one to his

mother, who he was unable to reach, and one to his girl-

friend. The officers later learned that the call to his girl-

friend had been taped by the radio operator (Tr. 106).

The officers and respondent went to the radio room and

listened to the recording of respondent’s call to his girl-

friend. They then returned to the detective bureau for

further questioning.

At approximately 1:10 P.M. in the afternoon, the inter-

view with respondent was concluded. Shortly before 1:00

P.M. respondent had been asked to take a lie detector test;

at first he had agreed and had signed a waiver to that effect.

Prior to taking it, however, respondent told detectives

Bland and Fagin that before he took the test he wanted to

consult with a lawyer. (R. 75). Respondent then attempted

to call the public defender, but received no answer. (Tr. 64).

All questioning then ceased and respondent was returned

to the jail cell.

At approximately 5:30 P.M. on March 23, 1974, respon-

dent asked to speak to ‘‘some detective’’ (Tr. 78, 86);

pursuant to this request he was brought to the detective

bureau. Detectives Cronk and Gessner first advised respon-

dent of his rights by reading the rights waiver form to

him. Detective Gessner asked respondent if he understood

his rights and he said that he did, that he had been advised

before. Respondent then read and signed the rights waiver

form.’ (Tr. 79, 91). When asked if he wanted to tell the

detectives about what had happened the previous evening,

respondent replied that he did not want to make a state-

ment at that time but that he wanted to speak to a priest

and a psychiatrist. Detective Gessner told respondent that

they could probably get a priest for him that evening, but

that a psychiatrist would be assigned once he got to the

county jail. (Tr. 79). Asked if he wanted to make a tele-

phone call, respondent indicated that he did; he then called

his mother and talked to her.

3. The same form quoted in n. 2, supra, was read and signed by

respondent; the original waiver form was entered into evidence as Peo-

ple’s Exhibit No. 28. (Tr. 408).

7

After respondent’s conversation with his mother, Detec-

tive Gessner asked him how he felt and he replied that ‘‘he

felt real bad about the dead boy, his family, and also his

family.’’ (Tr. 80). Detective Gessner then asked respon-

dent if he was alone the night of the robbery and respon-

dent replied that he was alone when he left Freeport and

had been alone all night long. Then the detective asked him

whose car he had the night of the robbery and he replied

by saying that he wanted to talk but wanted more time to

think about it. At this time respondent was taken back

to his cell. (Tr. 80-81).

At approximately 8:00 P.M. that same evening, Father

Wentig, a priest, spoke with respondent for approximately

forty-five minutes. Afterwards Detectives Cronk and Gess-

ner asked respondent whether it was necessary to advise

him of his rights, and he replied that it was not necessary

because he understood them. (Tr. 81). Detective Gessner

then asked respondent whether ‘‘other than last night,

was there any robbery or anything else he had been in-

volved in that he would want to tell me about.’’ (Tr. 423).

Respondent replied that there had been one other robbery

but that he got nothing out of it, and that is why he tried

again. He further stated that he wanted to tell the detec-

tives about it because he didn’t want an innocent person

going to jail. (Tr. 411, 423). When the detective asked

him whether the earlier robbery had taken place in Rock-

ford or Freeport, respondent replied: ‘‘I had better talk

to my attorney.’’ (Tr. 423). There was no further ques-

tioning. Respondent then called Craig Peterson of the

Public Defender’s Office and talked to him. (Tr. 86-91).

8

PROCEEDINGS ON MOTION

_ TO SUPPRESS STATEMENTS

Prior to trial respondent filed a motion to suppress the

statements made by him while in custody on March 23,

1974. He argued that his interrogation after he requested

to speak to an attorney was in violation of Miranda v.

Arizona, 384 U.S. 447 (1966) and that the police had ren-

dered the Miranda warnings nugatory by telling the defen-

dant that they could not appoint an attorney for him and

that he would have to wait until he went to court.

A hearing was held on respondent’s motion to suppress,

at which both respondent and the officers involved in re-

spondent’s arrest and questioning testified. After the hear-

ing the trial court denied respondent’s motion to suppress.‘

The court found that Detective Bland’s statement to re-

spondent that a public defender could not be appointed

for him until he went to court did not affect respondent’s

conduct because after this statement the detectives pro-

vided him with a phone book and phone to call an attor-

ney and because respondent did indeed attempt to call a

lawyer. (Tr. 208).

During respondent’s trial, none of the statements made

by respondent during the period of interrogation on March

23, 1974, from 9:30 A.M. to 1:10 P.M. were introduced into

evidence. Statements which respondent made during his

contacts with police officers between 5:30 and 8:30 P.M.

on the evening of March 23, after he had requested to see

a detective, were used in evidence against him over his

continuing objection.

After conviction, respondent appealed his conviction to

the Illinois Appellate Court on several grounds, one of

4. The trial court granted respondent’s motion to suppress the tele-

phone conversation between him and his girlfriend which had been taped

by the radio operator. (Tr. 20).

which was that the statements introduced at trial were ad-

mitted in violation of his Fifth and Sixth Amendment

rights. The Illinois Appellate Court, Second District, re-

versed respondent’s conviction and remanded the ease

for a new trial. Citing this Court’s decision in Michigan v.

Mosiey, 423 U.S. 96, 96 S.Ct. 321 (1975) the appellate court

held that all statements made by respondent after he re-

quested counsel were inadmissible because his right to eut

off questioning had not been ‘*serupulously honored.’’

(Appendix B).

The State filed a petition for leave to appeal to the IIli-

nois Supreme Court, which that court granted. In a four

to two decision’ the Illinois Supreme Court affirmed the

decision of the Appellate Court. The majority of that

court held that respondent had not effectively waived his

right to counsel and therefore his statements were improp-

erly admitted at trial.

The dissenting justices questioned the correctness of the

majority’s opinion that a Miranda violation oecurred, fo-

cusing on the fact that respondent had initiated the con-

versation which resulted in the challenged statements.

Even if the statements were erroneously admitted, how-

ever, the dissentors would have afiirmed the conviction

holding that the error was harmless beyond a reasonable

doubt because of the overwhelming evidence of respondent’s

guilt. Chapman v. California, 386 U.S. 18, 81 S.Ct. 824

(1967).

5. Mr. Justice Moran did not participate in the decision of this case,

as he had been a concurring member of the panel of the Appellate Court,

Second District, when that court had reversed respondent’s conviction

and remanded it for new trial.

10

REASONS FOR GRANTING THE WRIT

. I.

The Illinois Supreme Court erred in holding that respon-

dent’s waiver of his right against self-incrimination and

right to counsel was insufficient where the record clearly

shows that respondent knowingly and voluntarily waived

those rights.

In Miranda v. Arizona, 384 U.S. 436, 475 (1966) this

Court recognized that an individual in custody could vol-

untarily, knowingly and intelligently waive his rights to

remain silent and his right to counsel. That waiver is pos-

sible after an initial assertion of the right to remain silent

was made clear in Michigan v. Mosley, 423, U.S. 96 (1976)

which addressed the procedures permissible after an asser-

tion of the right to remain silent. Whether waiver is pos-

sible after an individual requests to see an attorney is a

question which this Court has not yet addressed.

In the instant case, the Illinois Supreme Court was

faced with the question of whether an individual in enstody

who initially indicates a desire for counsel can later waive

that right without having consulted with an attorney. The

Illinois Supreme Court held that waiver was possible in

such a situation, a result consistent with the holdings of

the majority of federal and state courts which have con-

sidered the issue.‘

6. Cases holding that waiver is possible include U.S. ex. rel. Foye v.

New Jersey, 547 F.2d 217 (3rd Cir., 1977), U.S. v. Grant, 549 F.2d 942

(4th Cir., 1977), Nash v. Estelle, 560 F.2d 652 (5th Cir., 1977), Lindsay

v. U.S., 542 F.2d 757 (8th Cir., 1976), U.S. v. Pheaster, 644 F.2d 353 (9th

Cir., 1976) cert. den. in Inciso v. U.S., 97 S. Ct. 1118 (1877), U.S. v. Lewis,

425 F. Supp. 1166 (D. Conn., 1977). There is some support for the posi-

tion that Miranda creates a per se rule prohibiting waiver after an asse-

tion of counsel: U.S. v. Flores-Calvillo, Docket No. 75-3785 (9th Cir., July

14, 1976) pending petition for rehearing en banc; U.S. v. Jakakas, 423

F. Supp. 564 (E.D.N.Y., 1976). See also concurring opinion of Justice

White in Michigan v. Mosley, 423 U.S. 96, 107, 109-110 (1975).

11

Having held that such a waiver is possible, however, the

court then decided that the State did not meet its burden

of showing that respondent knowingly and voluntarily

waived his right to counsel. It is obvious from the facts of

this case that the Illinois Supreme Court incorrectly read

the record when it failed to find waiver of counsel by

respondent.’

The facts show that respondent’s requests for an attor-

ney were made at approximately 9:30 A.M. and 1:30 P.M.

After the first attempt to call his attorney, respondent

affirmatively stated that he wanted to talk to the police

officers even though he had not talked to an attorney. After

his second attempt to call an attorney, all questioning

ceased until respondent himself requested to see some

detectives. At that time, prior to any questioning, respon-

dent was orally advised of his rights, and responded that

he understood them; he then read the rights waiver form

and signed it. Among other things the waiver form clearly

stated that ‘‘I do not want a lawyer at this time.’’

Having expressly waived his right to an attorney, re-

spondent did not negate the waiver of his right to an at-

torney in any manner. He did not request to see or talk

to an attorney or even to call one at any time prior to mak-

ing the statements the admissibility of which are in ques-

tion. When given an opportunity to make a phone call at

this time, he called his Mother and talked to her.

7. Although there is some suggestion in the opinion of the Illinois

Supreme Court that respondent’s request for counsel involved the Sixth

Amendment right to counsel, the assertion of the right to counsel in a

custodial situation is not based on the Sixth Amendment guarantee of

right to counsel at a critical stage of criminal proceeding (Brewer v.

Williams, 430 U.S. 387 (1977), but is based on effectuation of the individ-

ual’s Fifth Amendment right against self-incrimination.

12

Respondent’s statement following his waiver of rights

that he did not want to make a statement at that time can

arguably be construed as an assertion of the right to silence;

it is impossible to construe that statement as an assertion

of the right to counsel. That statement, however, raises

the question of whether respondent waived his right to

silence, an issue not addressed by the Illinois Supreme

Court.

In Miranda v. Arizona, 384 U.S. at 475 the court stated

that waiver of Fifth Amendment rights would be tested

under the standard of Johnson v. Zerbst, 304 U.S. 458, 464

(1938) to determine whether there was an ‘‘intentional

relinquishment or abandonment of a known right or privi-

lege’. Applying that test to the facts of this case, it is

clear that respondent waived his privilege against self-

incrimination.

There is overwhelming evidence in the record that re-

spondent fully understood what his constitutional rights

were and the consequences of their waiver. It is uncontre-

verted that respondent was properly advised of his rights

at least five times during the 23-hour custodial period under

scrutiny here. Each time respondent affirmatively indicated

that he understood his rights and then went on to demon-

strate his understanding by eutting off questioning when

he no longer wished to talk to officers.

Furthermore, there are no allegations that respondent’s

statements were involuntary or the result of coercion.

Petitioner was not isolated and had frequent access to the

outside via telephone. Respondent himself provided the

reason for his statements to the police, indicating several

times that he was talking to the police because he wanted

the truth to come out.

13

Thus, although the Illinois Supreme Court purportedly

applied the standard for waiver of constitutional rights in

reaching its decision, the above analysis shows that appli-

cation of that standard must result in the conclusion that

respondent knowingly and voluntarily waived his consti-

tutional rights and the Illinois Supreme Court erred in

holding that he did not.

IL.

The exclusionary rule should not be applied where police

conduct is non-egregious and rights are waived knowingly

and voluntarily by a fully informed defendant.

This case presents the Court with an opportunity to re-

view the per se exclusionary rule adopted in Miranda v.

Arizona, 384 U.S. 436 (1966) as applied to the standard to

be used in reviewing an individual’s waiver of his privilege

against self-incrimination after he has been fully and prop-

erly informed of his rights."

Although not the articulated basis for the decision of

the court, the Illinois Supreme Court’s reliance on and

quotations from Michigan v. Mosley, supra, indicate that

the court’s holding resulted from the application of the

prophylactic rule of Miranda v. Arizona, 384 U.S. at 436.

Rigid application of that rule requires that if a question

is improperly asked by authorities, the resulting statement

cannot be used in evidence against that person without re-

gard to the actual voluntariness of the statement. In effect,

Miranda creates an irrebutable presumption that such a

statement is coerced.

8. Review of the Miranda per se rule was not requested by either party

in Michigan v. Mosley, 423 U.S. at 100; although argued by the parties in

Brewer v. Williams, 430 U.S. at 438, that case was decided on the basis

of the Sixth Amendment right to counsel and arguments of the State oi

Iowa and others as amici curiae that the procedural ruling of Miranda

be re-examined and overruled were not considered.

14

Using a strict Miranda analysis on these facts, respon-

dent’s statement that he wanted a priest and psychiatrist

but did not want to make a statement at that time must

be read as an assertion of his right to remain silent. After

that assertion, any further questioning by the police officers

Was improper. Thus the question which the officer asked

after respondent’s call to his mother to which respondent

answered that he had been alone the past night was im-

proper and according to Miranda, the penalty for the im-

propriety is exclusion of the statement.

The second challenged statement was made after respon-

dent had spent approximately forty-five minutes with the

priest he had requested to talk to. The impropriety of this

questioning under strict Miranda analysis is less clear, as

the questions were asked after a period of time had elapsed,

after respondent had spoken to a priest as he had requested,

and after he was reminded of his constitutional rights and

indicated that he understood them. Michigan v. Mosley,

423 U.S. at 104. Further, as in Mosley, the question re-

spondent was asked at that time was directed to offenses

other than the one he was being held in custody for. As-

suming arguendo, however, that this questioning was im-

proper, application of the per se rule of Miranda would

require exclusion of those statements also.

Thus, under the formalistic analysis of Miranda both

of the challenged statements must be excluded. This is so

despite the factual demonstration of the knowing and intel-

ligent nature of respondent’s waiver, as discussed above.

Because there is no question of the voluntariness of the

statements, there is no risk of the evidence being unreliable

and no danger posed to the individual’s free will. Thus the

only justification for exclusion of reliable and probative

evidence is deterrence of unconstitutional police conduct.

15

The deterrent effect of exclusion of evidence in a situa-

tion such as this, where the improper conduct was clearly

non-egregious, is of uncertain value. The benefit of exclu-

sion is even less apparent where, as here, the uncertainty

of the proper application of constitutional principles has

been demonstrated by the various results reached by attor-

neys and courts judging the police actions in retrospect

with the benefit of current Fifth Amendment research.

Petitioner respectfully requests that this Court review

the rule which requires that reliable evidence voluntarily

given be suppressed because a ‘‘constable blunders’’ by

asking a question when he should not. Where the improper

police behavior sought to be deterred consists of an inabil-

ity to properly apply the mechanistic approach of Miranda

to a fluid situation aggravated by respondent’s constantly

changing desires with respect to his rights, any deterrence

value of exclusion is far outweighed by the cost of such

exclusion to the reliability of the factfinding process and

to society. Petitioner therefore urges that this Court re-

examine and overrule the per se rule of Miranda which re-

quires exclusion of statements voluntarily made by fully

informed defendants and adopt voluntariness as the stan-

dard by which to judge the waiver of the right to silence

by a properly informed defendant.

16

CONCLUSION

For the fpregoing reasons, petitioner The People of the

State of Illinois respectfully request this Court to issue a

Writ of Certiorari.

Respectfully submitted,

WILLIAM J. SCOTT

Attorney General

State of Illinois

MELBOURNE A. NOEL

Assistant Attorney General

500 South Second Street

Springfield, Illinois 62706

(217) 782-1090

Attorneys for Petitioner

GERRI PAPUSHKEWYCH

Assistant Attorney General

Of Counsel.

17

APPENDIX A

Docket No. 48972 — Agenda 13 — May 1977.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant,

v.

WALTER WASHINGTON, JR.,

Appellee.

MR. JUSTICE GOLDENHERSH delivered the opinion

of the court:

In a jury trial in the circuit court of Winnebago County,

defendant, Walter Washington, Jr., was convicted of the

offenses of murder and armed robbery. The appellate

court reversed and remanded (41 Ill. App. 3d 475), and

we granted the People’s petition for leave to appeal. The

facts are adequately stated in the appellate court opinion

and will be repeated here only to the extent necessary to

discuss the issues.

On March 22, 1974, shortly before 9 p.m., the Pacemaker

Grocery Store in Rockford was robbed by an armed man

wearing a woman’s plaid cape with a hood, and a ski mask

over his face. The robber left the store pursued by the

owner and two stock boys, one of whom was shot to death.

The other boy saw the robber jump over a fence and run

down an alley. Shortly thereafter the police arrived at

the scene, and cne of the officers followed, in the fresh-

fallen snow, a single set of tracks which led from the dead

boy’s body to a garage. Police officers surrounded the

garage aud upon entering found the defendant crouched in

a corner. A revolver and $1,270 in cash were found nearby.

18

The plaid cape, abandoned in the store by the robber, the

ski mask, and a pair of black trousers which were found

a short distance from the garage in which defendant was

hiding, were examined in the laboratory of the Federal

Bureau of Investigation. Fibers recovered from the cape

and from the black trousers showed the same microscopic

and chemical properties as the sweater and white trousers

worn by defendant when he was arrested. A firearms ex-

aminer employed in the Federal Bureau of Investigation’s

laboratory testified that the fatal bullet was fired from the

revolver found when defendant was arrested.

Defendant was taken into custody at approximately 9

p.m. and advised of his rights. En route to the police sta-

tion he told the police officers that he had been with another

person. Upon arrival at the station defendant was given

a ‘‘waiver of rights’’ form which he read aloud and signed

with a fictitious name. He then told the police that he had

been at the Bee Hive Club with a man named Jerry Wilson,

and had left there with Wilson in a 1964 or 1965 Mercury.

Wilson parked the car and told defendant that he was

going to see a friend. Approximately 15 minutes later, de-

fendant left the car and started walking down the street

when Wilson returned and handed him a gun and a large

amount of money. When defendant saw police cars in the

area he jumped a fence and ran into a garage. Shortly

thereafter he repeated this story, with slight variations, to

two other detectives. After he had been placed in a lineup,

photographed and given a neutron activation test, he told

the detectives that he did not want to talk anymore. He

declined the opportunity to make a telephone call, and at

approximately 1 a.m. was placed in a cell.

At 9:30 a.m. Detectives Bland and Fagin resumed the

interrogation. Defendant was advised of his rights, signed

a rights waiver form and, although he said that he was

19

willing to talk, stated that he wanted a public defender.

Detective Bland testified that ‘‘We stated we could not

give it to him, that it would have to be determined by the

Court whether he could have a Public Defender.’’ Officer

Fagin gave him the name of the public defender and a tele-

phone directory. His attempt to reach the public defender

by telephone was unsuccessful. Defendant was questioned

intermittently until approximately 1:10 p.m., when he again

attempted, unsuccessfully, to reach the public defender by

telephone. He was returned to his cell, and there is no

evidence of further questioning until approximately 5:30

p.m. No attempt was made to introduce into evidence any

of the statements made by defendant during the period from

9 :30 a.m. to 1:10 p.m.

At approximately 5:30 p.m. Detectives Cronk and Gess-

ner were told that defendant ‘‘wanted to talk to some

detectives.’’ Defendant was brought to an office on the

second floor of the detective bureau and warned of his

rights. He said that he understood, and signed the waiver

of rights form. Defendant told the detectives that he did

not wish to make a statement but wanted to speak to a

priest and a psychiatrist. He was told that they could prob-

ably get a priest for him that evening but he would not be

able to see a psychiatrist until he was taken to the county

jail. Defendant was permitted to call his mother by tele-

phone and spoke with her. He was then asked by Detective

Gessner how he felt and replied that he ‘‘felt real bad

about the dead boy, his family, and also his own family.’’

In response to further questions he stated that he was alone

that night and that he wanted to talk but wanted more time

to think about it.

At approximately 8 p.m. defendant was brought from his

cell in order to talk to Father Wentig, the police chaplain.

Following his conversation with Father Wentig, defendant

20

again talked with the police officers, who asked him if it

was necessary to advise him of his rights. He told them

that he understood them. In response to Detective Gess-

ner’s question he stated that he had been involved in one

other robbery, that he got nothing out of the first robbery,

and that was the reason that he ‘‘pulled the second one.”’

He stated that he told the officers about it ‘‘ because he did

not waut an innocent person to go to jail.’’

In reversing the judgment the appellate court held that

defendant’s right to cut off questioning was not ‘‘scrupu-

lously honored,’’ that the statements made after he re-

quested an attorney should have been suppressed, and that

the erroneous admission into evidence of those statements

required reversal of the judgment and remandment of the

cause for a new trial. The People contend that the appel-

late court erred in reversing the judgment for the reason

that the defendant had knowingly waived his rights prior

to making the statements, and that, assuming that the state-

ments were erroneously admitted, the error was harmless.

It is defendant’s position that the statements made during

the interrogation following the request for counsel were

inadmissible and that the judgment was properly reversed.

In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602, the Supreme Court said: ‘‘If * * * [the

accused] indicates in any manner and at any stage of the

process that he wishes to consult with an attorney before

speaking there can be no questioning.’’ (384 U.S. 436,

444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.) ‘‘[T]he

right to have counsel present at the interrogation is indis-

pensable to the protection of the Fifth Amendment privi-

lege * * *.’’ (384 U.S. 436, 469, 16 L. Ed, 2d 694, 721, 86

S. Ct. 1602, 1625.) ‘‘{[A]ny statement taken after the per-

son invokes his privilege cannot be other than the product

of compulsion, subtle or otherwise. * * * If the individual

21

states that he wants an attorney, the interrogation must

cease until an attorney is present.’’ (384 U.S. 436, 474, 16

L. Ed 2d 694, 723, 86 S. Ct. 1602, 1628.) ‘‘If the interro-

gation continues without the presence of an attorney and

a statement is taken, a heavy burden rests on the govern-

ment to demonstrate that the defendant knowingly and in-

telligently waived his privilege against self-incrimination

and his right to retained or appointed counsel.’’ 384 U.S.

436, 475, 16 L. Ed 2d 694, 724, 86 S. Ct. 1602, 1628.

In their brief the People state correctly that ‘‘the instant

case involves the right to counsel, as distinguished from

the right to remain silent.’’ The distinction, and its sig-

nificance, is elucidated by the opinion in Michigan v. Mosley,

423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321, relied upon by

the People in arguing that defendant knowingly waived his

right to counsel, wherein the Supreme Court said:

‘*7, The present case does not involve the proce-

dures to be followed if the person in custody asks to

consult with a lawyer, since Mosley made no such re-

quest at any time. Those procedures are detailed in

the Miranda opinion as follows: ‘If the individual

states that he wants an attorney, the interrogation must

cease until an attorney is present. At that time, the

individual must have an opportunity to confer with

the attorney and to have him present during any sub-

sequent questioning. If the individual cannot obtain

an attorney and he indicates that he wants one before

speaking to the police, they must respect his decision

to remain silent.

This does not mean, as some have suggested, that

each police station must have a ‘‘station house lawyer”’

present at all times to advise prisoners. It does mean,

however, that if police propose to interrogate a person

they must make known to him that he is entitled to a

lawyer and that if he cannot afford one, a lawyer will

be provided for him prior to any interrogation. If

22

authorities conclude that they will not provide counsel

during a reasonable period of time in which investiga-

tion in the field is carried out, they may refrain from

doing so without violating the person’s Fifth Amend-

ment privilege so long as they do not question him

during that time.’ [384 U.S. 436, 474, 16 L. Ed. 2d 694,

723-24, 86 S. Ct. 1602, 1608.]’’ 423 U.S. 96, 101 n. 7,

46 L, Ed. 2d 313, 320 n. 7, 96 S. Ct. 321, 325 n. 7.

‘10. The dissenting opinion asserts that Miranda

established a requirement that once a person has indi-

cated a desire to remain silent, questioning may be

resumed only when counsel is present. Post, at 116-

117. But clearly the Court in Miranda imposed no such

requirement, for it distinguished between the proce-

dural safeguards triggered by a request to remain

silent and a request for an attorney and directed that

‘the interrogation must cease until an attorney is pres-

ent’ only ‘[{i]f the individual states that he wants an

attorney.’ [384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86

S. Ct. 1602, 1628.]’’ 423 U.S. 96, 104 n. 10, 46 L. Ed. 2d

313, 321 n. 10, 96 S. Ct. 321, 326 n. 10.

‘*2. The question of the proper procedure follow-

ing expression by an individual of his desire to consult

counsel is not presented in this case. It is sufficient to

note that the reasons to keep the lines of communication

between the authorities and the accused open when

the accused has chosen to make his own decisions are

not present when he indicates instead that he wishes

legal advice with respect thereto. The authorities may

then communicate wich him through an attorney. More

to the point, the accused having expressed his own

view that he is not competent to deal with the authori-

ties without legal advice, a later decision at the authori-

ties’ insistence to make a statement without counsel’s

presence may properly be viewed with skepticism.”’

423 U.S. 96, 110 n. 2, 46 L, Ed. 2d 313, 325 n. 2, 96 §.

Ct. 321, 329 n. 2 (White, J., concurring).

Although we agree with the People that the right to

counsel may be waived (People v. Morgan, 67 Ill. 2d 1), we

23

conclude that the People did not meet the ‘‘heavy burden

*** to demonstrate that the defendant knowingly and

intelligently waived his privilege against self-incrimination

and his right to retained counsel.’’ (Miranda v. Arizona,

384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602,

1628). His requests for an opportunity to speak with a

priest and a psychiatrist cannot be construed to be such

waiver, nor did his conversation with Father Wentig an-

thorize the resumption of interrogation. The circuit court

erred in admitting the statements made after 5:30 p.m.

We consider next the People’s contention that the ad-

mission into evidence of the statements was harmless error.

The record shows that two of the employees of Pace-

maker Grocery Store were unable to identify the defer

dant at a lineup and testimony adduced at the trial appears

to corroborate defendant’s story that another individual

was present at the time. Under these circumstances we

find opposite the court’s observation in People v. Henen-

berg, 55 Til. 2d 5, 12: ‘*We have carefully reviewed the

evidence, and without deciding whether the admission into

evidence of a [statement] obtained in violation of Miranda

can ever be harmless error, we have concluded that the

admission of testimony concerning the defendant’s [state-

ments] was not harmless beyond a reasonable doubt. (See,

Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d

705, 87 S. Ct. 824.)”’

For the reasons stated the judgment is affirmed.

Judgment affirmed.

MR. JUSTICE MORAN took no part in the consideration

or decision of this case.

UNDERWOOD and RYAN, JJ., dissenting:

MR. JUSTICE UNDERWOOD, dissenting:

24

I am not at all certain that the circumstances here

even involye a Miranda violation (People v. Morgan, 67 Ill.

2d 1), for it was defendant, not the officers, who initiated

the conversation the evening following his arrest by indi-

eating he wanted to talk to the officers. He signed the

waiver of rights form and asked to talk to a priest and

psychiatrist. After being told a priest would be there et

evening but that he would have to wait until he was at tic

county jail to see a psychiatrist, he called his mother and

talked to her. When asked how he felt, he answered that

he felt ‘‘real bad’’ about the dead boy, his family and

defendant’s own family. He later indicated he wanted to

talk but needed more time to think about it, and the

statements which the majority holds improperly admitted

were made later that night following defendant’s conversa-

tion with the police chaplain. But even assuming that a

violation did oceur, it is entirely clear to me that any error

in admitting defendant’s statements into evidence was

harmless beyond a reasonable doubt. Chapman v. Calli-

fornia (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

The evidence of defendant’s guilt is overwhelming. It

is undisputed that shortly before the robbery, defendant

parked his girl friend’s car in front of Clarence Peterson’s

house near the Pacemaker store. Peterson saw a young man

get out of the car, remove a small object from the trunk,

put a hood over his head, throw something into the front

seat of the car, and walk towards the Pacemaker store.

The woman’s plaid cape worn by the robber was found

outside the store. Fibers on this cape had the same micro-

scopic and chemical properties as the fibers from the

white sweater defendant was wearing when arrested. A ski

mask and dark pants were found discarded between the

store and the garage where the murder occurred. The pants

were turned inside out. Fibers on these pants matched, in

——-

25

all respects, fibers from the pants defendant was wearing

when arrested.

Michael Cook and Henry Gregg were the two stock

boys who followed the robber’s footprints in the fresh

snow to a garage at 1919 South Fourth Street. Gregg was

shot in the head as he approached the garage. Cook ran

across the street and sought. help. On returning to the

murder scene, he saw a man in the backyard. This man ran

when he saw Cook, jumping over a wire fence into an

alley. He then pointed a gun at Cook, who ducked behind

the garage. Cook saw him run south down the alley. Police

officers, who arrived about 30 seconds after Gregg had

been shot, followed a single set of footprints from the

body through the alley and up to a partially opened garage

door. No other footprints were in the area. Defendant was

found crouching in the garage. The murder weapon and

robbery proceeds were found beside him. It is undisputed

that defendant is the man Cook saw fleeing from the

murder scene and that he had the gun and the money,

although defendant does deny pointing the gun at Cook.

The theory of the defense is that Jerry Wilson, to

whom defendant had given money to buy drugs, com-

mitted the crimes, gave defendant the gun and robbery

proceeds, and fled. But defendant has given three different

versions of this theory containing major inconsistencies.

First he told the police he had arrived in the area in

Wilson’s car with Wilson. Wilson, according to defendant,

left the car and returned in 15 minutes, handing defendant

the gun and money. Defendant got scared and ran behind

some houses into an alley, ultimately hiding in the garage.

When the police pointed out that this meant he had the

gun before the murder was committed, defendant changed

his story. He then admitted driving his girl friend’s car to

the area and said Wilson ran with him into the garage

26

where he was found and gave him the gun there, but

Wilson left before the police arrived. When informed only

one set of footprints was found near the garage, he

changed this story. All of the foregoing statements pre-

ceded the alleged Miranda violation.

Defendant testified at trial that he saw two boys fol-

lowing Wilson, so he circled a house and eventually met

Wilson behind a house. Wilson said he had robbed the

boys, gave defendant the gun and money, and ran. De-

fendant went towards the alley to head back toward his

car and while doing so ran by Gregg’s body. His testimony

is inconsistent as to whether he saw the body once or

twice.

The State’s evidence in this case, including that con-

cerning the matching fibers found on the robber’s cape

and on the discarded trousers, is well-nigh conclusive. In

contrast, defendant’s testimony is inconsistent with his

earlier statements, contradicted in part by other testi-

mony, and, it seems to me, simply devoid of probative

value. If the circumstances which the majority holds

constitute a Miranda violation are in fact a violation, which

I doubt, they could not have prejudiced a defendant whose

guilt has been so clearly established.

I would reverse the appellate court and affirm the judg-

ment of the cireuit court of Winnebago County.

MR. JUSTICE RYAN joins in this dissent.

27

APPENDIX B

NO. 75-166

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

SECOND DIVISION

PEOPLE OF THE STATE OF |

ILLINOIS,

Plaintiff-Appellee, Appeal from the

Circuit Court for the

v. r §=s«-€a7th Judicial Circuit,

Wi Cc , Illinois.

WALTER WASHINGTON, JR., papeeilt: sas oemnnanes

Defendant-Appellant.

MR. JUSTICE RECHENMACHER delivered the opinion

of the court:

The defendant, Walter Washington, Jr., was convicted

by jury verdict of armed robbery and murder. He contends

that (1) certain statements he made while in custody at

Rockford Police Headquarters, after he had requested an

attorney, should not have been admitted into evidence,

(2) the trial court abused its discretion in denying defen-

dant’s motion to exclude at trial his record of a 1965

conviction for burglary, and (3) certain evidence was

improperly obtained by the police in an automobile, and

therefore should not have been admitted into evidence.

(His third contention was raised in defendant’s supple-

mental pro se brief filed by leave of court.)

On March 22, 1974, about 8:50 p.m. Mrs. Kappa Sharp,

28

a cashier at the Pacemaker Grocery Store in Rockford,

was busy preparing for closing at 9:00 p.m. A man with a

gun came up behind her and told her to open the cash

register. She started to scream and he told her if she did

he would kill her. She opened the register at his direction

and he removed therefrom the five and ten dollar bills

($1270). She described the robber as 2 Negro who wore

a plaid woman’s cape with a hood, and a ski mask over his

face; the weapon held by him was a silver revolver. Mrs.

Sharp pressed a buzzer which caused the store owner, Mr.

Zagnoni, and 2 stock boys, Henry Gregg, Jr., age 14, and

Michael Cook, age 17, who were stacking milk cases in the

back, to come to her. Mrs. Sharp told them of the robbery

and the 2 boys ran out the front ‘‘OUT’’ door in pursuit.

They then picked up a set of running footprints in the

fresh-fallen snow and followed them a short distance to

the vicinity of the garage. Henry was about 10 feet in

front of Michael and about 25 feet from the corner of a

garage when Michael saw the barrel of a gun from behind

the corner of the garage. Michael’s warning to Henry to

‘*duck’’ came too late when the robber fired a shot, which

struck Henry in the head, causing his death. The robber

pointed the weapon at Michael but fled, jumping a fence

into an adjacent alley. By that time police arrived on the

scene and Police Officer Emigholtz followed a single set

of tracks in the snow to another garage. After receiving

re-enforcements he entered and found defendant ‘‘crouch-

ing’’ in a corner with what turned out to be the murder

weapon and with the robbery proceeds lying on the floor

at the defendant’s feet.

It was then about 9:00 p.m. Officer Emigholtz arrested

the defendant and advised him of his ‘‘rights’’ (under

Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d

694, 86 S. Ct. 1602). Defendant was ‘‘cuffed’’, led into a

i

29

squad car where officer Murphy advised defendant of his

rights; defendant stated he understood them. In response

to a question he told Officer Murphy that he was with

; another person in a 1963 or 1964 white }).«.cury. At the

police station Detective Cronk advised the defendant of his

rights by handing him a rights’ waiver form, which listed

his rights in detail followed by a ‘‘waiver of rig’ *s’’. De-

fendant read the form aloud, said he understood bL.s riguts

and signed the form using the name ‘‘ Will am Brown’’,

the name he had given the police. The d’ *» ~ ¢ then made

an oral statement in some detail in the , sence of Detec-

tive Cronk and Officers Emigholtz and Murphy. The sub-

stance of the statement was that he saw a fellow named

Jerry Wilson at the Bee Hive Club at about 7:30 p.m. and

defendant had a couple of drinks there; they left together,

got into Wilson’s 1964 or 1965 white Mercury; Wilson

then drove to Kishwaukee Street, drove down it, then

turned left about a block, thea turned right, and parked;

Wilson got out of the car and told defendant he was going

to see a friend; the defendant stayed in the car about

15 minutes and then got out and started walking down

the street; Wilson then came up to him and handed him

a gun and a large amount of money; the defendant then

saw many police cars in the area and started to run through

yards, jumped a fence, ran until he saw a garage was open,

went inside and hid in a corner until the police arrived

and took him into custody.

When Detective Salamone came into the interrogation

room defendant was asked to repeat his statement. He did

so but this time stated that after he got the gun and

money Wilson ran into the garage with him, stayed awhile

and then left. When Detective Palmeri came into the room

the defendant repeated this statement.

Defendant was then photographed, given a neutron ac-

30

tivation test and placed in a line-up. At about 1:00 a.m.

he was brought back to the interrogation room. The officers

talked to the defendant about the line-up and defendant’s

involvement in the crime, and defendant stated that he

did not wish to talk to them anymore. He was then taken

to the booking room and when asked if he wished to make

a telephone call said he did not wish to do so. There was

no further interrogation of the defendant until the follow-

ing morning and, defendant, not having indicated a desire

to consult with a lawyer, there is no claim that the pro-

cedures followed to that point did not fully comply with

the strictures of the Miranda opinion.

At about 9:30 a.m. on March 23 Detective Bland and

Officer Fagin brought the defendant from his cell to an

office in the Detective Bureau for resumption of interroga-

tion. Officer Fagin advised the defendant of his rights

again. The defendant said he understood them, was willing

to talk, and to sign the rights’ waiver form which he did.

Shortly after the officers began to speak with the defendant

he stated he wanted a public defender. Detective Bland

told him ‘‘they could not give it to him, that it would be

determined by the court whether he could have a public

defender’’. He told defendant the name of the Public

Defender — Peterson — and gave him the telephone

book. The defendant looked up the number, dialed,

but received no answer. Officer Fagin asked him if he

still wanted to talk to the officers about the case, not having

talked to an attorney, and the defendant said ‘‘yes’’,

that he wanted to get the truth out but first wanted to

talk to his mother. He dialed a number but the line was

busy. He then dialed again and had a conversation which

the officer later learned was with his ‘‘girl friend’’. Delores

Fair.

ap a rr aha

31

The officers later learned that the latter conversation

was tape recorded. When they learned about it they took

the defendant to the radio room where they had the tape

recording played twice for the defendant. (The transcript

of the hearing on defendant’s motion to suppress shows

that that conversation began at 9:44 a.m. and recites:

‘‘The tape recorded conversation was then played for the

; court but because of the unintelligible nature of a lot of it,

was not recorded or transcribed.’’ At the conclusion of

that hearing the trial court suppressed those tape record-

ings, and on motion in limine, by defendant’s counsel, Mr.

Peterson, the trial court barred at trial any testimony or

any reference in any manner to that telephone conversation

with Ms. Fair.)

The officers then took the defendant back to the office

and questioned him until about 1:10 p.m. The defendant

tried again to reach the Public Defender by telephone but

received no answer. Defendant was then returned to his

cell. (None of the statements made by the defendant during

the period from 9:30 a.m. to 1:10 p.m. were introduced

at trial.) There was no evidence of further questioning

of the defendant during the ensuing period until about

5:30 p.m.

At about 5:30 p.m. on March 23 defendant wanted to talk

to ‘‘some detective’’. Detectives Cronk and Gessner re-

sponded and brought the defendant to the office. Detective

Gessner warned defendant of his rights by reading the

rights’ waiver form to him. The defendant responded that

he understood his rights, having been advised before. De-

tective Gessner then had him sign the rights’ waiver form.

Defendant told them that he didn’t wish to make a state-

ment, and that he did want to speak to a priest and a

psychiatrist. Detective Gessner told defendant that they

could probably get a priest for him that evening but he

» BE el tr lhe, OD te Oe

32

would not be able to have a psychiatrist until he got to the

county jail. The defendant was then allowed to call his

mother and spoke to her. After this telephone conversation

Detective Gessner asked the defendant how he felt and

defendant replied that he ‘‘felt real bad about the dead

boy, his family, and also his own family’’. In response

to further questions by Detective Gessner defendant an-

swered that he was alone when he left Freeport and so

remained ‘‘all night long’’. When asked whose car he had

the night of the robbery he replied that he wanted to

talk but wanted more time to think about it. The defendant

was then returned to his cell.

At about 8:00 p.m. Detectives Gessner and Cronk brought

the defendant from his cell in order that he could talk to

Father Wentig, the police chaplain. After that private

conversation which lasted about 45 minutes the officers

spoke again with the defendant for about 5 or 10 minutes.

They asked him if it was necessary to advise him of his

rights. The defendant said he understood them. He then

told them, in response to Detective Gessner’s question,

that he had been involved in 1 other robbery and volun-

teered that he ‘‘got nothing out of’’ the first robbery, that

that was the reason he ‘‘pulled the second one’’, and

that he wanted to tell the officers about it because he did

not want an innocent person going to jail. To another

question about the other robbery, defendant finally re-

sponded that he had better talk to an attorney. Detective

Cronk ‘‘looked up’’ Mr. Peterson’s residence telephone

number, the call was placed and defendant conversed with

him. No subsequent statements of defendant were offered

in evidence by the State.

The defendant contends that all statements made by him

after he requested an attorney about 9:30 a.m. on March 23

should have been suppressed, and that the admission into

POD STE DOL SIS SP. ae

ntieeeteens

33

evidence of those statements violated his Fifth Amend-

ment privilege against self-incrimination under the doctrine

of the Miranda decision. We agree.

The procedures to be followed if the person in custody

asks to consult with a lawyer are detailed in the Miranda

opinion as follows:

‘‘Tf the individual states that he wants an attorney,

the interrogation must cease until an attorney is pres-

— >"

* * * Tf authorities conclude that they will not provide

counsel during a reasonable period of time in which

investigation in the field is carried out, they may re-

frain from doing so without violating the person’s

Fifth Amendment privilege so long as they do not

question him during that time.’’ 384 U.S. 436, 474, 16

L. Ed. 2d 694, 723-24.

Earlier in that opinion the court said:

‘‘The mere fact that he [the defendant] may have

answered some questions or volunteered some state-

ments on his own does not deprive him of the right

to refrain from answering any further inquiries until

he has consulted with an attorney and thereafter con-

sents to be questioned.’’ 384 U.S. 436, 445, 16 L. Ed. 2d

694, 707.

In the case at bar, while the statements made by the

defendant between 9:30 a.m. and about 1:10 p.m. were not

introduced at trial, the statements he made after 5:30 p.m.

on March 23, which were, should have been suppressed.

During that questioning the defendant stated he had been

involved in another robbery and that he ‘‘felt bad about the

dead boy * * °.”’

It is true, as the State emphasizes, that the defendant

was specifically advised of his Miranda rights on five dif-

ferent occasions and signed written waivers of those rights

34

on three of them. The State relies on People v. White

(1975), 61 Il). 2d 288, in which the Illinois Supreme Court

concluded that a confession was voluntary even though

the defendant confessed after having been questioned sub-

sequent to defendant’s request to see a lawyer. However,

in White the subsequent interrogations resulting in a con-

fession after a lapse of 36 hours subsequent to his request

to speak to an attorney, were with respect to unrelated

offenses, and there was an 8 hour lapse between the time

the defendant initially requested an attorney and tried to

reach him and the time he made his first admission.

In Michigan v. Mosley (1975), 423 U.S. 98, 46 L. Ed. 2d

313, 96 S. Ct. 321, the defendant who had been arrested

on robbery charges, was given the Miranda warnings, and

the detective immediately ceased interrogation when de-

fendant stated he did not want to discuss the robberies,

and did not try to resume questioning. After an interval

of more than 2 hours and again admonishing the defendant

of his Miranda rights another detective questioned defen-

dant solely about an unrelated murder, and defendant then

made an incriminating statement. The United States Su-

preme Court, after considering several possible interpreta-

tions of the Miranda case, concluded that under such cir-

cumstances the defendant’s right to cut off questioning

about the robberies was ‘‘scrupulously honored’’, and that

subsequent questioning about an unrelated homicide was

consistent with a reasonable interpretation of his earlier

refusal to answer questions about the robberies. In doing

so, the court said:

‘“‘This is not a case * * * where the police failed to

honor a decision of a person in custody to cut off ques-

tioning, either by refusing to discontinue the interro-

gation upon request or by persisting in repeated efforts

to wear down his resistance and make him change his

mind. In contrast to such practices, the police here

te Rat BDO PAB OLED NO 8 ee Ne tet hen. tet

35

immediately ceased the interrogation, resumed ques-

tioning only after the passage of a significant period

of time and the provision of a fresh set of warnings,

and restricted the second tape to a crime that

had not been a subject of the earlier interrogation.’’

(423 -".S. 98, _, 46 L. Ed. 2d 313, 322, 96 S. Ct. —,

327.)

In the case at bar, while the police officers provided a

‘fresh set of warnings’’ after the defendant requested

counsel, they resumed interrogation with respect to the

same crimes which had been the subject of the earlier

interrogation. The defendant’s right to cut off questioning

was therefore not ‘‘scrupulously honored’’ and the state-

ments made by defendant after he requested counsel should

have been suppressed and were inadmissible. See People

v. Parnell (1975), 31 Ill. App. 3d 627, 630.

The State argues that even if the statements introduced

as evidence against the defendant at trial were inadmissible,

their use as evidence in this case was harmless error and

does not require reversal. We have examined the evidence

and note that the circumstantial evidence of defendant’s

guilt of both offenses is very impressive. However, we are

unable to say that it is so overwhelming as to enable us

to determine beyond a reasonable doubt that the error

did not contribute to the jury’s guilty verdict. See People

v. Wilson (1975), 60 Ill. 2d 235, 242.

In view of our holding no purpose would be served in

considering defendant’s second contention for the reason

that in a new trial evidence of defendant’s 1965 conviction

may become inadmissible under the holding of the Illinois

Supreme Court in People v. Montgomery (1971), 47 Ill. 2d

510, which adopted the substance of Rule 609 of the Fed-

eral Rules of Evidence as the rule of law in Illinois.

We now consider the defendant’s third contention. He

36

argues that certain evidence obtained from an automobile

near the scene of the crime at about 19:00 a.m. on March

23 should have been suppressed because (1) it was the fruit

of an unlawful taping of defendant’s telephone conversa-

tion with Ms. Fair, (2) the seizure occurred at a time

too remote to have been incident to the arrest, and (3)

there were no exigent circumstances to justify a warrant-

less search and seizure. While the defendant may be pre-

cluded from raising this issue on review by failure to

present it to the trial court, our remandment of this case

for a new trial requires a statement of our views on this

question. The record discloses that defendant’s telephone

conversation with Ms. Fair began at 9:44 a.m. It does not

disclose the contents of that conversation or that the de-

fendant revealed therein to Ms. Fair the location of her

vehicle (which was near the scene of the crime). While that

conversation was recorded on tape and played twice at

the hearing on the motion to suppress the transcript recites

that ‘‘because of the unintelligible nature of a lot of it?’

it ‘‘was not recorded or transcribed’’. The trial court

suppressed it at the conclusion of the hearing on defen-

dant’s motion and later granted defendant’s motion in

limine barring at trial any testimony or reference thereto

in any manner.

Moreover, the testimony at trial was that the police were

at the location of the automobile in question by 10:00 a.m.

on March 23. The ignition keys were inserted in the ig-

nition lock and were visible. The car doors were unlocked.

Inside the car the police found defendant’s white boots

and a billfold containing a driver’s license belonging to

defendant in an envelope bearing the name of ‘‘ Andrew

Washington’’ and the police removed from the gear shift

knob of that car a latent fingerprint which was identified

as that of the defendant.

Beene.

37

The automobile in question was the property of Ms. Fair,

the defendant’s girl friend. The defendant, therefore, did

not have a ‘‘proprietary or possessory interest in the car’’

and is not in a position to challenge the legality of the

search on that basis. (People v. Henenberg (1973), 55 Ill.

2d 5, 13). The fact that the keys were in the car and the

possibility that defendant’s friends or family might remove

it provided exigent circumstances for the police to enter

the car and seize the evidence without a warrant. In

Cardwell v. Lewis (1974), 417 U.S. 583, 095, 41 L. Ed. 2d

325, 338, 94 S. Ct. 2464, __, where the defendant had been

arrested and after interrogation an awareness arose that

his car constituted incriminating evidence, the Supreme

Court observed that because of that, ‘‘the incentive and

potential for the car’s removal substantially increased’’.

The court stated:

‘“‘Exigent circumstances with regard to vehicles are

not limited to situations where probable cause is un-

foreseeable and arises only at the time of arrest. Cf.

Chambers [v. Maroney], 399 U.S. [42], at 50-51 * * *,

The exigency may arise at any time, and the fact that

the police might have obtained a warrant earlier does

not negate the possibility of a current situation’s neces-

sitating prompt police action.’’ (417 U.S. 583, 595-596. )

For the reasons stated in this opinion the judgment of

the circuit court of Winnebago County is reversed and the

cause is remanded for a new trial.

Reversed and remanded.

THOMAS J. MORAN, P.J. and DIXON, J., concur.