APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the Circuit Court of Cook County finding the defendant, Richard J. Schutz, guilty of murder and sentencing him to not less than 35 nor more than 100 years in the Illinois State Penitentiary. On appeal, the defendant contends first that his oral and written confessions were coerced and therefore should not have been admitted into evidence and second that the trial court should have been required to find beyond a reasonable doubt, rather than by a preponderance of the evidence, that his confessions were voluntary. With respect to this second contention he argues that use of the lesser standard is constitutionally impermissible in cases where the only evidence of guilt is the defendant's confession.
At about 11:00 A.M. on November 24, 1967, the body of seventeen year old Cheryl Lyn Littlejohn was found in a wooded area in Niles, Illinois. An autopsy performed by the Cook County Coroner's office revealed that the cause of her death was an "extensive fragmented fracture of the skull with resulting laceration of the brain." Subsequent testimony established that Miss Littlejohn had arrived in Niles at about 6:00 P.M. on November 23, 1967, to spend the Thanksgiving weekend with her cousin. She went out for a walk at about 8 o'clock that evening and was not heard from again. Her relatives notified the police that she was missing at about 11:00 P.M., and her body was discovered the next morning.
One or two days after the body was discovered, Gene Gargano, a detective of the Cook County Sheriff's Police, had two conversations with the defendant concerning Miss Littlejohn's death. The record does not reveal the exact substance of these conversations, but it appears that the defendant volunteered some information about the crime. It also appears that the defendant was employed at a service station near where the body was discovered and that his name was mentioned by some fellow employees who were questioned by the police.
On September 17, 1969, Charlotte Schutz, the defendant's wife, who was then separated from the defendant and living with her parents, called the Cook County Sheriff's Police and complained of a prowler near her parent's home. Donald Shaw, a detective who was investigating the Littlejohn killing, responded to the call. At the residence Charlotte Schutz told Shaw that she was concerned because she was in the process of being divorced from the defendant and she believed that the prowler was her husband. She also mentioned that the reason for the divorce was that she thought her husband to be a homosexual. On November 11, 1969, Detective Shaw responded to a call from Charlotte Schutz's mother concerning a possible tap on the family telephone. On that occasion Detective Shaw, Charlotte Schutz and Charlotte's mother had a conversation about the defendant in which it was revealed that while in high school the defendant had been examined by a psychiatrist and had been told that he had a "schitzophrenic personality." Shaw testified at trial that this statement first caused him to link the defendant with the murder, as he had been informed by a psychiatrist that the Littlejohn killing was the work of a person with a "schitzophrenic homosexual personality."
On November 12, 1969, Charlotte Schutz gave a formal statement to detectives Shaw and Gargano in which she stated that in 1967 she and the defendant had resided in an apartment building which was about five blocks from the scene of the murder. They had a Thanksgiving dinner at his grandmother's house in Bellwood, Illinois, on November 23, 1967, and returned home around 9:00 o'clock that night. November 23 was also the defendant's birthday, and he left the apartment about 9:30 to pick up a present from a friend who lived in Chicago. The defendant returned some time between 2 and 3:00 o'clock the following morning. He woke up Charlotte and asked if she had heard about a girl being murdered in the area, saying that he had heard about it on the car radio while driving to his friend's house. A few days later, the defendant showed Charlotte the place where the girl's body had been found. When she asked how he knew so much about the crime, he stated that a police officer had come into the service station where he worked and had told him about it.
The foregoing events led the officers to detain the defendant for questioning on November 22, 1969. This questioning ultimately resulted in the confessions. As the defendant contends that his oral confession was coerced, we believe it necessary to set forth the circumstances surrounding his detention and the events following it in some detail.
Detectives Shaw and Gargano met the defendant in the parking lot of the Golf Mill Shopping Center at about 6:00 P.M. on November 22. Gargano recognized the defendant from their conversation in 1967. The officers identified themselves and asked if they could speak to him about the Cheryl Littlejohn murder. They stated that some new facts had come to light which they wanted to "straighten out" and asked the defendant if he would be willing to come to the station to discuss them. The defendant said that he would. Gargano then read to the defendant his constitutional rights from a card which the officers carried in their squad car. The card contained the following warnings:
"Number 1: You have a right to remain silent.
Number 2: If you choose not to remain silent, anything you say or write can and will be used as evidence against you in court.
Number 3: You have a right to consult a lawyer before any questioning and you have a right to have the lawyer present with you during any questioning.
Number 4: You not only have a right to consult with a lawyer before any questioning but, if you lack the financial ability to retain a lawyer, a lawyer will be appointed to represent you before any questioning, and you may have the appointed lawyer present with you during any questioning."
Both Shaw and Gargano testified that after each warning the defendant was asked if he understood, and he indicated that he did. This occurred in the parking lot alongside of the squad car. After the warnings had been given the officers drove the defendant to the police station.
Upon arriving at the station, Shaw and Gargano immediately took the defendant to the Detective Bureau where Shaw read to him his constitutional rights a second time. This time Shaw read from a printed form referred to by the officers as an "oral warning sheet." The substance of this form was the same as that of the card used on the first occasion. After Shaw had read the warnings, the defendant signed the sheet to acknowledge that he had heard them. The defendant asked if he could telephone his girl friend to tell her that he would be late ...