Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. IRWIN N. COHEN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Pursuant to a petition filed on behalf of the defendant, the trial judge, after a pretrial bench hearing, suppressed the defendant's written confession. The State appeals from this order.
At the outset we are confronted with the contention by the defendant that the State has no right to appeal from an order suppressing a confession. We see no merit to this contention.
Supreme Court Rule 27 (Ill Rev Stats 1965, c 110, § 101.27) headed Procedure in Criminal Appeals provides in part:
(4) In criminal cases the State may appeal from an order or judgment, the substantive effect of which results in dismissing an indictment, information or complaint; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence (Emphasis added.)
The courts of this state have repeatedly defined a confession as the highest type of evidence known to law. People v. Green, 17 Ill.2d 35, 41, 160 N.E.2d 814. We hold that the State under this rule clearly has an absolute right of appeal from the order suppressing such evidence.
We summarize the evidence. John Motzny, a detective assigned to the homicide unit at the Shakespeare Avenue Police Station, proceeded with a fellow police officer to the apartment of the defendant, Herman Raddatz, on January 14, 1966. They arrived at the defendant's apartment at approximately 2:00 p.m. and found a Miss Nancy Jurkowski present in the apartment along with the defendant. The officers were seeking out the defendant in connection with an investigation they were making of several robberies and a shooting that had recently taken place. In furtherance of their investigation Officer Motzny and his partner took the defendant to the Shakespeare Avenue Station. The officers arrived at the station at about 3:00 p.m. They left the defendant in the custody of other officers at the station and departed; arriving back at the station between 3:30 and 4:00 p.m. They brought with them Nancy Jurkowski and several items they had found in Miss Jurkowski's apartment. Matzny showed the items to the defendant and began to question Raddatz concerning his participation in the robberies and shooting then under investigation. After a short period of interrogation the defendant orally confessed to having committed a particular theft and shooting. Prior to his oral confession at the station Raddatz was not warned by the police concerning his constitutional rights to remain silent and to the presence of an attorney.
Shortly after the defendant had confessed, Officer Motzny took Raddatz to the office of the State's Attorney, arriving there at approximately 4:30 p.m. Motzny then accompanied the defendant to the office of John J. Stamos, an Assistant State's Attorney. At the hearing, on the motion to suppress, Stamos testified that he received a phone call from the defendant's attorney, Julius Sherwin, and that Sherwin had inquired whether Raddatz was in the custody of the State's Attorney for the purpose of giving a statement concerning a homicide. Stamos then called the defendant into his office and handed the phone to Raddatz so that the defendant could talk to his attorney. Stamos further testified that after the defendant had concluded his conversation with Sherwin he inquired of Raddatz whether he still wished to make a statement, warning Raddatz that he didn't have to make a statement and that anything he said could be used against him. Raddatz stated that he understood that he didn't have to make a statement. The defendant then made a statement that was taken down by a court reporter and signed by Raddatz. This written confession, substantially the same as the oral one, previously given at the police station, was the subject of the defendant's motion to suppress.
Officer Motzny testified that he stood alongside of Raddatz during the defendant's conversation with his attorney. He further testified that the conversation lasted about three minutes, and that he heard the voice at the other end state in a loud manner that Raddatz shouldn't tell the State's Attorney anything. Officer Motzny stated that when Stamos warned the defendant that anything he said could be used against him Raddatz answered that he wanted to tell the truth.
Edward Horsky, an Assistant State's Attorney, testified that he was present at the transcription of the defendant's written confession; and that prior to the transcribing of the confession he had asked Raddatz whether Sherwin had told him that he didn't have to say anything, and the defendant had answered affirmatively.
Julius Sherwin, testifying on behalf of the defendant, denied that he had participated in a phone conversation with the defendant on January 14, 1966. He said he didn't recall any conversation with Stamos. He said the first knowledge he had that Raddatz, whom he had previously represented, was in custody, was at 5:30 p.m. of that particular day when he received a phone call from Nancy Jurkowski. The defendant denied that he had talked to his attorney while he was at the office of the State's Attorney. The defendant further testified that he had no idea why he was taken to the office of the State's Attorney because he had already confessed at the police station, and he thought ". . . that would be it."
The State, at the pretrial hearing, in its brief, and again at oral argument, conceded that the oral confession given by the defendant at the police station would not be admissible in evidence against the defendant because it was given in circumstances which failed to comply with the warnings enunciated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966). The State contends, however, that the trial judge erred when he concluded that a prior inadmissible confession in and of itself renders any later confession, constitutionally obtained, inadmissible. The State argues that the Supreme Court in Miranda and other cases has clearly rejected such an analysis.
We have been favored by careful findings of fact and conclusions of law made by Judge Irwin N. Cohen. In summing up the evidence, the trial judge found that the confession given at the Shakespeare Avenue Police Station was not surrounded by the warnings required by Miranda. The trial judge concluded that even if Stamos' recollection was correct, that the defendant had talked to his attorney prior to giving the written confession and had also been warned of his constitutional rights, the written confession still should be suppressed. The trial judge concluded that the warning had come too late to dissipate the effects of the earlier interrogation at the police station. The judge rejected the State's theory that the defects of the original confession were cured by the defendant's conversation with his attorney and by the giving of the correct warnings. The judge reasoned that the warnings would be of little use after the defendant had already confessed at the police station because Raddatz might well feel, "`What use is a lawyer? What good is a lawyer now? What benefit can a lawyer tell me? I have already told the police everything?'" The trial judge further concluded that what happened in the State's Attorney's office ". . . was merely a formalizing, a setting down almost as a scrivener does, what had already taken place at Shakespeare Avenue Station."
In Miranda the United States Supreme Court announced certain basic guidelines for the use of procedural safeguards to secure the Fifth Amendment rights of a suspect subject to custodial interrogation: "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." 384 US at Page 444. The court further held that a heavy burden rests upon the State to demonstrate that the defendant has knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. A suspect must make an intelligent decision to waive his constitutional privilege not to talk to the police, and to make such a decision the suspect must be fully apprised of the extent of his Fifth Amendment rights. The suspect must be made aware of the privilege so that a subsequent confession becomes an expression of free choice rather than a product of the inherent pressures of the ...