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People v. Smith

APRIL 7, 1969.




Appeal from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.


Hubert Dale Smith was found guilty of murder by a jury in the Circuit Court of Winnebago County and sentenced to imprisonment for a term of 30 to 50 years. On appeal, Smith alleges that the admission into evidence of certain written and oral statements made by him was a violation of his constitutional privilege against self-incrimination under the doctrine of Miranda v. State of Arizona, 384 U.S. 436, 86 S Ct 1602. He also contends that certain other evidence was improperly admitted against him.

Although we are not asked to review the weight of the evidence, some summary is necessary. On August 11, 1967, Smith lived in an apartment in Rockford with Elna Turner and her two-year-old son, Chipper Turner. At approximately 12:30 a.m. on that date Smith returned to the apartment from work. Chipper was home alone, asleep in the bedroom. Elna Turner and a girl friend arrived shortly thereafter but immediately left to purchase some cigarettes and soft drinks. Smith testified that shortly after Elna left, Chipper fell out of bed and started to cry. Smith picked Chipper up, put him back into bed, and returned to the living room to listen to records. When Chipper continued to cry, Smith returned to the room and "picked him up by . . . under his arms, and he squirmed and kicked out of my arms and landed on the floor." Again Smith replaced the child in bed and returned to the living room but when he heard Chipper breathing "real hard" he returned to the room. At this time, about 1:30 a.m., Elna and her friend returned and Chipper was rushed to the hospital where he died at 3:45 a.m. The evidence disclosed that Chipper died of severe multiple depressed skull fractures and that he had a broken leg and marked external bruising. Elna Turner testified that Chipper was in good health when she put him to bed at 11:00 p.m. on August 10.

At the pretrial hearing on the motion to suppress the confession and oral admissions, police officer John Hall testified that he went to the apartment at approximately 1:40 a.m. on August 11 pursuant to an emergency call. He and his partner rushed Elna Turner and Chipper to the hospital and Smith followed in another car with his brother. While Chipper was being treated in the emergency room, Hall went into an adjoining room to talk to Smith at approximately 2:00 a.m. Hall testified that he first took a card from his billfold and read the following to Smith:

"1. You have the right to remain silent and not answer any questions.

"2. Anything you say can and will be used against you in a court of law.

"3. You have the right to talk to a lawyer and have him present with you while you are being questioned.

"4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions, if you wish one."

Hall further testified that he then asked Smith if he understood the rights explained to him and, with those rights in mind, did he wish to talk to him. Smith answered "yes" to both question and after "him-hawing" around, stated that he had hit the child. Hall informed the defendant that he was arrested for "child abuse," handcuffed him and took him to the patrol car. Smith's brother came up to them outside the patrol car and at Smith's direction removed some money from his pants pocket. Hall overheard Smith tell his brother to "post bond or hire a lawyer." Smith was taken to the police station, booked for child abuse and after he indicated that he did not want to use the telephone, was placed in a cell at around 2:40 a.m.

At approximately 8:30 a.m., Smith was taken to the interrogation room of the Rockford jail with Captain Pirrello and detectives Anderson and Walt Smith. Pirrello asked the defendant if his rights had been explained to him and he replied that he had been advised the night before and that he understood those rights. Smith then told Pirrello that he had been baby-sitting with his girl friend's child and that somehow the child fell from the bed and injured himself. When Pirrello expressed disbelief that the child's injuries could result merely from a fall, Smith said that when the baby had started to cry he became "upset and nervous" and struck the boy with his fists. Detective Walt Smith then read to the defendant the same rights enumerated by Officer Hall from a card identical to that used by Hall and asked him if he would make a statement. When the defendant consented, Detective Anderson typed up the statement as dictated by the defendant that included the admission that the defendant had "become a little angry" and struck the child several times with his fist. The defendant then read the written statement, including a printed portion that again stated his rights (that he read aloud), and signed it. The trial court denied the defendant's motion and permitted the written and oral statements into evidence.

It is readily apparent, that the "card" used by the Rockford police includes those essential warnings required by the Miranda decision. Miranda v. Arizona, 384 U.S. 436. The defendant contends, however, that the statements were improperly admitted since his rights, as enunciated in Miranda, were violated in three ways. First, Miranda states that if "the individual states that he wants an attorney, the interrogation must cease until an attorney is present." The defendant takes the position that the police were aware that he "wanted" an attorney when they overheard his conversation wherein he told his brother to "post bond or hire a lawyer" and that therefore, all subsequent interrogation was improper. Under the circumstances, we do not feel that this remark vitiated the defendant's waiver of his right to have counsel present. On at least three occasions, Smith was advised of his right to have an attorney present and on all three occasions he indicated that he understood that right and wished to make a statement without one. At the police station he was asked if he wanted to make a telephone call, but declined. In the case of Narro v. United States, 370 F.2d 329, the accused informed her interrogator that her parents would obtain an attorney for her and then immediately made a confession. The court held that the defendant was obviously aware of her right to counsel and had voluntarily waived it. Here, Smith was repeatedly reminded of his right to an attorney and he at no time informed his interrogators of his wish to have one present but, on the contrary, indicated his willingness to make a statement without one.

Next, it is argued that the State failed to sustain its "heavy burden . . . to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. . . ." Miranda, supra. It is argued that Smith was only 19 years of age, had only 10 years of formal education at the time of his arrest, was unfamiliar with police procedures and did not possess sufficient mental capacity to waive his constitutional rights. In support of that argument the defendant cites the case of People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367, wherein a statement of a 17-year-old accused was admitted where it appeared that there was no evidence of substandard intelligence and the defendant was "no stranger to police investigations." There is no evidence in the record before us to show that Smith was of substandard intelligence. The only evidence concerning Smith's intelligence was his testimony that he dropped out of school because of scholastic difficulties. We are not inclined to extend the Miranda doctrine to require the police to conduct an examination of the mental capacity of an accused to determine his ability to understand his rights. The Hill decision states further at page 132:

"The factors present here, of interrogations for relatively short periods of time, unaccompanied by any semblance of coercion, have been deemed sufficient to support a finding of the voluntariness of a confession made to law enforcement authorities where the Miranda rights have been clearly explained."

Smith was questioned only briefly at the hospital and, the next morning, at the police station. On neither occasion was there any hint of coercion nor did his statements result from prolonged and oppressive interrogation. He was able to read and answered his interrogators cogently and clearly. We feel that the State sustained ...

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