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People v. Prim

OPINION FILED OCTOBER 2, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ANDREW

v.

PRIM, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 29, 1972.

This is an appeal from a conviction in the circuit court of Cook County. Defendant, Andrew Prim, was indicted with three co-defendants, Herman Ray Lockett, Grover C. Thomas, and James Williams. They were charged with three counts of armed robbery, attempted armed robbery of Mary Zelinski and murder of Mary Zelinski. Defendant was severed from his co-defendants and the jury found him guilty of each of the five charges. His sentence was from 35 to 70 years on each of the armed robbery charges, 35 to 70 years on the murder charge and 10 to 14 years on the attempted armed robbery charge, all sentences to run concurrently.

About 7 P.M. on November 22, 1968, defendant and the three co-defendants boarded a Chicago Transit Authority bus and took their positions in the various parts of the vehicle. One of them suddenly announced that it was a holdup and all of them started to move toward the front of the bus. Money was taken from some of the passengers, and the money changer and money pouch were taken from the bus driver. One of the men attempted to take Mary Zelinski's purse and as she resisted she was shot, from which wound she died. The four men fled from the bus. Guernsey Romaine, a passenger on the bus, had known the defendant for several years and spoke to him on the bus prior to the holdup. After the police arrived, they talked to him and then went to the apartment where the defendant lived. The defendant answered the door and was placed under arrest and taken to a police station. After being advised of his constitutional rights, he gave the police an oral statement admitting his participation in the bus holdup and accompanied the police in an attempt to locate the other three men. Early the next morning an assistant State's Attorney took a question and answer statement from the defendant in the presence of a court reporter.

Defendant's first contention is that prior to the giving of the oral statement at the police station, he was not given the full warnings of his constitutional rights as prescribed in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. At the hearing on the motion to suppress the statement the detective who had advised the defendant of his constitutional rights was not available to testify; however, the detective who was working with him on that night and who was in the room when the defendant was advised of his rights testified that the other detective "asked him if he was aware of his constitutional rights" and the defendant answered, "Yes." He further testified that the detective then told him that "he had a right to remain silent, that he had a right to an attorney, that if he didn't have money for an attorney the State would provide him with one, that anything he did decide to say could and would be used against him in a court of law." He was asked if he understood this and he said that he did. Defendant contends that these warnings were defective in that he was not informed that he had a right to have an attorney present at the interrogation.

The written question and answer statement which the assistant State's Attorney took from the defendant about 7 o'clock the next morning contains the following:

"Q. And you have been advised of your constitutional rights prior to this time, is that right?

A. Yes.

Q. The officer explained to you that you have a constitutional right not to give a statement, is that right?

A. Right.

Q. And they advised you that you have a constitutional right to have an attorney present?

A. Right.

Q. And if you cannot afford an attorney, that we would get one for you, is that right?

A. Yes.

Q. And you were' also told that anything you said may be used against you?

A. Yes.

Q. But knowing all these things you still want to discuss this with me, is that right?

A. Right."

These answers by defendant indicate that not only were the warnings that the detective recited given, but contrary to defendant's present contention the detective had also told him that he had the right to have an attorney present. We find that the defendant had been fully warned as required by Miranda prior to the oral statement made to the detectives.

Defendant also argues that the warnings which the assistant State's Attorney recited to defendant prior to taking his written statement were deficient. It is his contention that the question above quoted — "And if you cannot afford an attorney that we would get one for you, is that right?" — is insufficient to inform the defendant of his right to an appointed attorney supplied for the interrogation.

The testimony of the detective and the answers made by the defendant, as contained in the written statement, indicate that the defendant was properly advised that (1) he had a right to remain silent and did not have to give a statement, (2) that he had a right to have an attorney present, (3) that if he didn't have money for an attorney, the State would provide him with one, (4) that anything he did say could and would be used against him. We think it is clear that when the defendant had been informed that he had a right to remain silent and didn't have to give a statement followed by the advice that he had a right to have an attorney present, he was clearly told that he had a right to have an attorney present at the contemplated interrogation and not at some future time. When defendant was further told that if he could not afford an attorney "that we would get one for you" he was clearly told that an attorney would be provided at the interrogation and not at some future proceeding. Miranda does not specify the precise language to be used in conveying the warnings. Certainly the holding of that case does not contemplate a ritualistic recital of meaningless words. Rather it requires an intelligent conveying to the individual involved of the rights set forth in that decision. (See United States v. Cusumano (2d cir. 1970), 429 F.2d 378; United States v. Lamia (2d cir. 1970), 429 F.2d 373; Coyote v. United States (10th cir. 1967), 380 F.2d 305.) It would be a strained construction of the language used by the detective to say that it conveyed a meaning that an attorney would be furnished at some future time. All of the warnings related to the giving of a statement. One part thereof viewed by itself may be subject to a different interpretation but when viewed in the context of the entire discussion it can only refer to the right to have counsel provided for the defendant at the time of the interrogation.

Defendant contends that it was error for the court to deny him the right to testify, at the hearing on the motion to suppress, that he was not aware of his right to have an attorney appointed for him prior to any interrogation. Defendant made an offer of proof to this effect. We agree that the defendant should have been permitted to deny that he understood. We consider this, however, to be harmless error. When the issue of the adequacy of the warnings is raised, it is for the court to objectively determine whether under the circumstances the words used were sufficient to convey the required warnings. (Coyote v. United States (10th cir. 1967), 380 F.2d 305, 308.) We have above reviewed the language used and conclude that it clearly conveyed the warnings required. For the defendant to deny that he understood them does not weaken our conclusion. The defendant was 19 years old. He had gone to his third ...


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