Appeal from the Circuit Court of Du Page County, Eighteenth
Judicial Circuit; the Hon. PHILIP LOCKE, Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. Certificate of importance and rehearing denied December 1, 1969.
The defendants, Frank J. and Lydia P. Vlcek, were charged with arson. They filed a motion pursuant to section 114-11 of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, par 114-11), to suppress certain of their statements on the ground that they were not voluntary. The trial court granted the motion and the State has appealed.
The defendants' motion alleged that John Kennedy, a representative of their insurance carrier, asked them to come to his office relative to settling their fire insurance claim against the carrier; that Kennedy intimidated and threatened them while at his office, denied their request to see a lawyer, and advised them that they better answer his questions if they expected to collect on their insurance; that the intimidation confused the defendant, Frank J. Vlcek; that there may have been a tape recording of the conversation; and that any statements obtained by Kennedy from the defendants were involuntary and in violation of their constitutional rights.
Section 114-11 of the Code of Criminal Procedure relates to motions to suppress confessions and provides in part:
"(a) Prior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary.
"(b) The motion shall be in writing and state facts showing wherein the confession is involuntary.
"(c) If the allegations of the motion state facts which, if true, show that the confession was not voluntarily made the court shall conduct a hearing into the merits of the motion.
"(d) The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of the voluntariness of the confession must be made in the trial court."
This matter proceeded before the trial court in a somewhat bizarre manner. Neither the defendants nor the State observed the usual trial procedures designed to specify and limit the issues under consideration. The defendants' motion charged that the statements obtained by Kennedy were involuntary and in violation of their constitutional rights in that they were denied the right to talk to a lawyer and be advised of and concerning their rights. However, the motion did not allege that Kennedy was a law enforcement official of any type, but rather asserted that he was a representative of their fire insurance carrier.
At the beginning of the hearing, counsel for the defendants orally asserted that the foregoing grounds constituted a denial of the defendants' constitutional rights under Miranda v. Arizona, 384 U.S. 436, 16 L Ed2d 694 (1966). The State's Attorney advised the trial judge that the motion presented a legal question whether statements made to a nonlaw enforcing official can be suppressed under Miranda on the theory that the defendants were not advised of their constitutional rights. The judge indicated that Kennedy had appeared before the grand jury, and he believed that this was a sufficient connection to bring the case within the Miranda decision. Counsel for the defendants stated that he wanted to put the defendants on the stand. The judge replied that this met with the approval of the court and asked the State's Attorney if he had any objection to this procedure. The State's Attorney said that he had no objection but stated that following the testimony he would want to submit some law, and that he would not object to the defendants amending their motion if they wanted to allege that Kennedy was acting as a law enforcing officer.
Counsel for the defendants also related that he thought he had better amend his motion, although this was never, in fact, done. He advised the trial judge that there would be some evidence that Kennedy had said he was a fire marshal. The court indicated that a fire marshal was a law enforcement officer of the State. To this, counsel for the defendants replied that "He wasn't the Fire Marshal but he purported to act as such."
The defendants were then placed on the stand and testified concerning their interrogation by Kennedy in regard to their insurance claim, his intimidation of them, his refusal to permit them to talk to any attorney, his failure to advise them of their rights, and his representation that he was with the fire marshal's office. At the conclusion of the testimony, the State's Attorney reiterated that there remained before the court the legal question of whether the absence of the allegation that Kennedy was a law enforcement officer, or of evidence other than that he represented that he was, was sufficient to sustain a motion to suppress; and he indicated that absent the legal argument then before the court, he would subpoena Kennedy.
With the case in this posture, the trial judge stated that the matter was then before him for decision, and entered an order finding that Kennedy held himself out to be connected with the fire marshal's office and was clothed with the apparent authority of that office; that the defendants were not advised by Kennedy of their right to remain silent or not be interrogated, of their right to consult an attorney, or that anything they said might be used against them; and that the statements were, thus, inadmissible under Miranda.
Presently, the Supreme Court has not held that a person other than a law enforcement officer must advise one interrogated of his constitutional rights before any statement made by the latter can be admissible against him. In Miranda (384 US, p ...