APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
KAPLAN, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Defendant, Henry A. Laurant, was indicted for aggravated battery and attempt murder. After a trial by jury, he was found guilty of both offenses and was sentenced to the Illinois State Penitentiary for not less than ten nor more than fifteen years.
On appeal, the defendant contends that the court improperly instructed the jury as to the offense of attempt murder and, further, that the defendant's written confession was improperly admitted into evidence because the defendant did not knowingly and intelligently waive his right to have an attorney present during interrogation by the police.
At approximately 1:30 A.M. on June 15, 1967, Henry Cross and his wife, Sara, were returning home after having seen a movie in downtown Chicago. They resided in a second floor apartment at 1550 West 69th Street, Chicago. The first floor of the building was occupied by a tavern, the Golden Angel Lounge. Mrs. Cross was the owner of the tavern and Mr. Cross was employed as a Police Officer for the City of Chicago. Mr. Cross was not on assigned duty at the time.
After arriving at 1550 West 69th Street, Mr. Cross met some friends in front of the tavern and stopped to converse with them. Mrs. Cross went into the lounge. A short time later, one of the tavern patrons came outside and informed Mr. Cross that Mrs. Cross was having difficulty with a customer. Cross proceeded into the tavern and asked his wife what had happened. She indicated that she had served the defendant, who was sitting at the bar, a bottle of beer and he had smashed his glass against the bar and cursed at her.
Cross then approached the defendant and, after giving the defendant forty cents for the beer he had purchased, asked him to leave. Cross picked up the broken glass and the bottle and put them on the inner edge of the bar. Cross then walked outside and the defendant followed. At no time did Cross raise his voice or put hands upon the defendant.
When the two men were outside, the defendant mumbled something to Cross and then walked away. The defendant crossed the street, paused to lean on a parking meter for a few minutes and then walked east on 69th Street.
A short time later, while Cross was still speaking with two friends in front of the tavern, the defendant approached from the west. Cross did not readily recognize the defendant as he approached because the defendant had changed his outer garment. When the defendant had advanced to within a few feet of Cross, he pulled a small caliber revolver from his pocket, said something like "I'm back" or "I'm ready" and shot Cross in the chest. The defendant then ran diagonally across the street. After being shot, Cross ducked into the tavern, drew his service revolver, came back outside and fired five shots at the fleeing defendant. None of these shots struck the defendant. Cross was treated at the Billings Hospital for a gunshot wound to the chest. The bullet itself was lodged in Cross' back and was not removed.
About three o'clock the next afternoon, detectives of the Chicago Police Department proceeded to 7002 S. Laflin Street, the defendant's address. There they were admitted into the second floor apartment by Bob Sanders, who shared the apartment with the defendant. The officers found the defendant sleeping in a rear bedroom, awakened him and announced themselves as police officers. The defendant asked if the officers were there about the man he shot the night before in the vicinity of 69th Street and Ashland Avenue. The officers replied that they were and the defendant informed them that the gun he had used was in the closet. One of the officers recovered a .22 caliber pistol from the closet. Another officer put handcuffs on the defendant, informed him that he was under arrest and advised him of his constitutional rights. The defendant was then taken to the Area 3 Homicide Office at 3900 S. California Avenue. There, about four o'clock and after again being advised of his constitutional rights, the defendant gave a written confession.
Prior to trial, the deendant moved to suppress the written confession. As grounds for his motion, the defendant alleged that he had not been advised of his constitutional rights prior to his interrogation by the police and, further, that his confession was the product of coercion by the police.
At the pretrial hearing on the defendant's motion to suppress the confession, Detective Leo Wilkosz testified that he conducted the interrogation of the defendant. Present during the interrogation were Detective Wilkosz; Margaret Sea, a police stenographer; Dolores Champ, an employee of the Golden Angel Lounge; and, the defendant. Officer Wilkosz stated that he gave the defendant the four Miranda warnings and the defendant indicated that he understood his rights. The officer further testified that the defendant expressed a desire to give a statement and at no time requested the services of an attorney. The statement consisted of questions and answers which were recorded by the stenographer and subsequently transcribed into four typewritten pages. The statement was then read back to the defendant and, finding no error, he signed each page. Officer Wilkosz also testified that the defendant was at no time subjected to physical abuse, threats or coercive promises.
During the pretiral hearing, Detective Paul Parizanski testified concerning the defendant's arrest. Officer Parizanski stated that he placed the defendant under arrest at the defendant's apartment and gave the Miranda warnings. After giving the warnings, Officer Parizanski asked the defendant: "Do you understand it"? According to Parizanski, the defendant replied: "Yes, I have been through all this before." The officer further testified that the defendant was in no way abused and was not interrogated concerning the shooting incident until they arrived at the detective office. Officer Parizanski did not participate in the interrogation at the office.
Dolores Champ testified that she was present during the interrogation of the defendant at the detective office. She indicated that the interrogating detective advised the defendant of his constitutional rights and, in response to a question asking her if she remembered what the officer said, replied:
"First of all, he had a card and he gave him the card and he asked if he could read, and he said, well, `this is your constitutional rights that you don't have to answer any questions, or if you don't have a lawyer, or can't afford a lawyer, the court will get you a lawyer,' and two or three other questions he asked him. He asked him did he know what he was talking about, and he said `Yes.'"
Mrs. Champ further testified that the defendant told the officer that he had never been to school but could read and write "a little." She indicated that the defendant's statement consisted of questions and answers which were recorded and subsequently transcribed by a stenographer. Concerning what had occurred after the stenographer returned with the four page transcription, Mrs. Champ testified:
"The detective took a copy of it and gave a copy to the defendant and he told him to read along with him, and he read out what he had said, and he asked him `Did you understand what,' you know, `what is on the paper?' He ...