Appeal from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding. Order reversed and cause remanded for
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Irwinna Weinstein and Richard Mattox were indicted for the murder of Harvey Weinstein, husband of Irwinna Weinstein. She was granted a severance. She appealed from a judgment entered on a verdict finding her guilty of murder and sentencing her to a term in the State Reformatory For Women. We affirmed the judgment. People v. Weinstein, 66 Ill. App.2d 78, 213 N.E.2d 115.
The Supreme Court granted defendant's petition for leave to appeal. In an opinion filed September 23, 1966, the Supreme Court said: "Because of our conviction that the closing argument of the People deprived the defendant of a fair trial, the judgment of the trial court is reversed and the cause remanded for a new trial." People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432.
The cause was reinstated upon the trial docket. The defendant thereupon filed a petition to suppress any confessions, statements, or admissions made while she was in custody on the ground that they were involuntary. The People appeal from an order sustaining defendant's motion to suppress certain statements she gave to the police while at the police headquarters. In the trial of the case previously appealed the defendant did not move to suppress any evidence. On the present appeal there is no contention that the motion to suppress or the ruling thereon contravenes the mandate of the Supreme Court. See Jackson v. Glos, 249 Ill. 388, 392, 94 N.E. 502.
Defendant asks that the appeal be dismissed on the ground that the People's brief waives the only issue to be determined. She says that the brief does not argue that the statements were voluntary and does not cite cases that in any conceivable way could be persuasive on the issues. She further urges that the sole issue of voluntariness of the statements can only be resolved by consideration of the totality of the facts and circumstances and that the People's brief barely touches on the facts bearing on this issue. She also insists that the People's abstract is not sufficient to present fully the error relied upon. We are satisfied that the People's brief sufficiently presents the issue of the voluntariness of the statements. Supreme Court Rule 342(e)(5) provides that the abstract will be taken as sufficient unless the appellee files an additional abstract with his brief. The appellee did not file an additional abstract. Rule 342(g) provides that omission of any relevant portion of the record from the excerpts shall not prejudice a party unless the reviewing court finds that there has been no good-faith effort to comply with the rule. We think that the People's abstract adequately covers the record of the error urged and that the appeal should not be dismissed.
The People maintain that the failure of the police to give certain warnings did not amount to a denial of defendant's right to counsel, that the absence of counsel's physical presence during the interrogation did not amount to a denial of defendant's right to counsel and that the defendant's right to counsel is not determinative of the question whether or not the statement made was voluntary. The defendant answers that the decision of the trial judge that defendant's statements were involuntarily made, was not against the manifest weight of the evidence or a clear abuse of discretion, that considering the totality of the circumstances, the judgment was proper, that the promise of release from arrest was sufficient to exclude the statements, that the absence of counsel's physical presence during the interrogation was a factor to be taken into consideration and that whether defendant's right to counsel or the absence of counsel during the interrogation were "determinative" depends upon what is meant by the word as used in the trial judge's opinion.
The facts brought out at the hearing on the motion to suppress certain statements are as follows.
Testimony of Commander Francis Flanagan of the Chicago Police Department.
As part of his investigation of the death of Harvey Weinstein, he and Lieutenant John Cartan went to defendant's home at about 7:45 p.m. on September 30, 1963. There were several persons present on the premises, including her mother, aunt, sister, a maid and a physician. After he had a conversation with some of these persons, the defendant appeared. Lieutenant Cartan and he talked to her alone in the T.V. room, but they had not excluded the other members of the family. They did not tell defendant that she had a right to the presence of an attorney, court-appointed or otherwise, nor did they tell her that she had the right to remain silent. However, he allowed her to call an attorney if he could also talk to the attorney. The defendant's father appeared during the questioning, and an attorney was called. Both the witness and the defendant talked to the attorney on the telephone, and the attorney was informed by the witness that the defendant was to be taken to headquarters. Defendant was given her choice of being accompanied to headquarters either by a female member of her family or by a policewoman. The defendant, her sister and the police left the home about 9:00 p.m. and arrived at headquarters about 9:30 p.m. Defendant was taken to a conference room at the headquarters, and at some point during the questioning a suitcase was brought into the room. At that point, the defendant answered certain questions asked by the witness. Prior to the production of the suitcase defendant had not answered these questions. The attorney, who had been contacted earlier, arrived at headquarters about 11:00 p.m. The defendant did not repeatedly ask for the presence of her attorney, nor did the attorney complain that he was kept waiting downstairs for hours. The witness did not tell defendant that she could not go home until she made a statement, or that she would not be allowed to attend her husband's funeral unless she gave a statement. Defendant was released at about midnight.
Testimony of Lieutenant John Cartan, called by defendant.
His testimony was substantially similar to that of Commander Flanagan. They arrived at police headquarters at about 10:00 p.m., and defendant's attorney entered the conference room at about 11:15 p.m. or 11:30 p.m. Neither he nor any other officer told the defendant that she could not go home or attend her husband's funeral unless she gave a statement.
Testimony of Marion Slatin, called by defendant.
She is defendant's sister, and was present when the police arrived at her sister's home on September 30 at about 7:30 p.m. When they arrived, the defendant who had taken a sedative was asleep. The two officers took the defendant into the den and would not let anyone else enter. Some member of the family called an attorney on the telephone, and Commander Flanagan talked to him. The witness and defendant went with the police officers to headquarters, arriving about 8:45 p.m. She was present while her sister was being questioned. Defendant refused to make a statement and requested the presence of her attorney. However, the police would not permit her to call the attorney, and informed her that if she did not make a statement she would be placed in jail and not allowed to attend her husband's funeral. A ...