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People v. Braun

SEPTEMBER 13, 1968.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

RODGER BRAUN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Randolph County, Twentieth Judicial Circuit; the Hon. CARL H. BECKER, Judge, presiding. Reversed and remanded.

EBERSPACHER, P.J.

This is an appeal brought by the defendant, Rodger Braun, following his conviction for the offenses of reckless homicide, driving while under the influence of intoxicating liquor and driving without a valid operator's permit.

The defendant was tried before a jury in Randolph County, Illinois, which returned a verdict finding the defendant guilty of each of the three offenses. Judgment was entered on the verdict, and the court sentenced the defendant on each of the offenses with a further order that the sentences were to be consecutive. In his effort to reverse the judgment, the defendant alleges that the court erred in the admission of certain statements made by the defendant, and impropriety of the consecutive sentences.

From the record it appears that an automobile collision occurred on May 13, 1967, which resulted in the death of one individual, and the hospitalization of the defendant. Three days later, on May 16, 1967, four Illinois State Troopers visited the defendant in the hospital. The troopers entered the room and talked with the defendant in pairs. During the troopers' "interview" with the defendant, the defendant made statements, some inculpatory and some exculpatory, which were introduced into evidence at the trial over the objection of the defendant.

One of the troopers in the first pair advised defendant that he had a right to remain silent, that anything he might say might be used against him in open court, and "he had a right for an attorney if he so desires." The conversation took place before presenting defendant with a citation for violation of the Uniform Act Regulating Traffic on Highways, *fn1 but after defendant had been told that the troopers had a ticket for him. One of the troopers of the second pair advised defendant that he did not have to make a statement, that it could be used against him, and that he had "the right to an attorney."

There is no question that the investigation had focused on defendant, *fn2 and the defendant alleges, and the State candidly admits, that the statements of the defendant were the culmination of custodial interrogation within the meaning of Miranda v. State of Arizona, 384 U.S. 436, 16 L Ed2d 694, 86 S Ct 1602. The United States Supreme Court in Miranda stated that:

"By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. State of Arizona, 384 U.S. 436, at 444.

The fact that the defendant was interrogated in the hospital rather than the police station is of little relevance when it is clear that the defendant's injuries require his hospitalization.

The defendant was not specifically informed that prior to any questioning he had the right to the presence of an attorney, and that if he could not afford an attorney, one would be appointed for him prior to any questioning, in accordance with Miranda, 384 U.S. 436, at 479.

In answer to the defendant's argument, the State argues that there has been substantial compliance in the giving of the Miranda warning by the troopers, and that there was no indication that the defendant was indigent at the time of the interrogation. The State cites as authority a recent case of the Massachusetts Supreme Court, Commonwealth v. Wilbur, 231 N.E.2d 919, in which the warning complied with the requirements of Miranda in every detail, except the arresting officer's failure to inform the suspect that he had the right to appointed counsel if unable to retain his own. There the Massachusetts Court held that "it is the spirit more than the form that counts" as far as Miranda warnings apply.

In Miranda we find unequivocal language:

". . . an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. . . ." Miranda, 384 U.S. 436 at 471, 16 L Ed2d 694, 86 S Ct 1602, at 1626.

and at 384 U.S. 436, at 473, 16 L Ed2d 694, 86 S Ct 1602, at 1627:

"In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of ...


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