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The People v. Schoeneck

SEPTEMBER 17, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

WILLIAM SCHOENECK ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of DuPage County; the Hon. L.L. RECHENMACHER, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 11, 1971.

The People of the State of Illinois bring this appeal of two orders of the Circuit Court of the 18th Judicial Circuit, DuPage County, which are here consolidated.

Two questions are raised: (1) whether statements of defendants were properly suppressed by the trial court; and (2) whether the defendants, who had been incarcerated for a period of more than 120 days, were properly discharged under the statutory provision for speedy trial. Ill. Rev. Stat. 1969, ch. 38, par. 103-5.

We consider first suppression of the statements. The two defendants, Schoeneck aged seventeen years, Robbins aged sixteen years, and a third defendant named James Fiene, were arrested in the Fiene residence by four police officers of the City of Elmhurst about 8:30 in the morning on August 30, 1969, the Saturday of Labor Day weekend. The youths were handcuffed and taken to the Elmhurst police station. During the course of the day, from about 9:00 o'clock that morning until the early evening they were variously interrogated by two other Elmhurst police officers.

During the early afternoon a complaining witness was present in the police station for the purpose of viewing the defendants through a one-way glass. In the course of a hearing on defendants' motions to suppress line-up identification, the witness testified he looked into a room containing only the defendants and saw someone else come in whom he did not know. There was testimony that an officer about ten years older than defendants was present in the room with them when defendants were viewed by the witness, and that although the officer was similarly clothed he was clean and well groomed in contrast to the disheveled appearance of defendants. Although the issue of line-up identification is not before us as the State agreed to its suppression by stipulation, a police officer told defendants, after the viewing, that they might as well confess as they had been identified, and one defendant was told that the other had confessed.

The arresting officers who allegedly advised the defendants of their rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, did not testify at the hearing on suppression of the confessions. Two officers who were present in the police station, but not at the arrest, did testify and made various references to advice of rights given to defendants by the arresting officers. This testimony is conclusional, obviously hearsay, and denied in substance by defendants. These interrogating officers variously stated that during the course of the day they warned the defendants of their rights but the testimony is not persuasive that adequate warnings were given. The challenged confessions were obtained at approximately 7:00 o'clock in the evening. The following colloquy is an example of one officer's testimony in this regard:

"A: Well, from time to time throughout the day he was advised of his rights under the Miranda decision and he was also advised before he made the written statement.

THE COURT: The question is, Lieutenant, just what did you say to him?

THE WITNESS: I advised him before he made a written statement that he could have his attorney or his father present.

THE COURT: Is that all?

THE WITNESS: Yes, sir.

BY MR. FITZSIMMONS: (State's ...


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