APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Ronald Burbank was convicted of murder after a jury trial in the circuit court of Cook County. He was sentenced to a term of from 100 to 150 years and has appealed directly to this court.
At about 4:30 P.M. on July 30, 1968, three girls from 13 to 15 years of age were walking on Ashland Avenue in Chicago. They saw defendant walk across the street, pass them and enter a shoe repair store. They stated that their attention was attracted to him because he was "cute" and "good-looking." They loitered in front of the store for awhile waiting for him to come out. They heard shots following which the defendant hurriedly emerged from the store. Two of the girls stated that they saw him put a gun in his pants or under his belt, and as he was fleeing he bumped one of the girls.
On investigating, the police learned that the proprietor of the shoe repair store had been killed. A policeman took a description of the defendant from the girls. The next morning at about 10:30 defendant was arrested at his mother's home and put in the squad car. He was 20 years old. The officers testified that the defendant was advised of his rights and that he stated that at the time of the murder he had been in a nearby pharmacy having a prescription filled. He was then taken to the police station. On checking at the pharmacy, it was learned that his story was false. The defendant was again advised of his rights at the station, following which he made an oral statement to the effect that he and Romell Wilson had agreed to rob the shoe repair store. Wilson went in first and the defendant came in later. Both were armed. When Wilson announced the robbery the proprietor started throwing shoes and Wilson shot him. When Wilson was arrested and brought to the police station he too made an oral statement to the police. Defendant and Wilson were placed in a lineup with three other Negro boys and the defendant was identified by the three girls.
The defendant and Wilson were indicted together for murder. Defendant filed a motion to suppress his oral statement. Following an evidentiary hearing the court denied the motion. The defendant also filed a motion to suppress the identification testimony, which motion was denied following a hearing. The defendant moved for a severance, which was denied, and defendant and Wilson were tried together. Neither testified. However, the officers testified as to the oral statements that both had made.
Defendant first contends that he did not waive his constitutional rights before the interrogation which led to his oral statement. He also contends that the oral statement was a result of coercion. At the hearing to suppress the oral statement, two police officers and the defendant testified as to the circumstances of the giving of the statement.
The defendant contends that the record does not disclose that he knowingly waived his constitutional rights. In support of his contention he calls to our attention the language of the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." 384 U.S. at 475.
Both officers stated that when advised of his rights in the squad car after his arrest the defendant said that he understood his rights. One of the officers testified that he further stated that he had nothing to hide. The officers stated he was again advised of his rights at the police station and again the evidence is that he stated he understood. He then told the officers of his involvement in the crime. The officers testified that he did not ask for an attorney nor did he ask to be permitted to call one. After the defendant had given the oral statement, he was asked if he would give a written one and he refused to do so.
The defendant testified that he was never advised of his constitutional rights. He stated that he had asked if he could call a lawyer but was not permitted to do so until after the questioning. He also denied making oral admissions. The defendant also argues that his refusal to give a written statement indicates he did not intend to waive his constitutional rights.
The preliminary inquiry as to whether the defendant has been properly warned and whether he knowingly waived his rights is for the trial court. In making its determination the court need not be convinced beyond a reasonable doubt and its findings will not be disturbed unless it can be said that they are against the manifest weight of the evidence. Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619; People v. Dailey, 51 Ill.2d 239; People v. Higgins, 50 Ill.2d 221.
On both occasions when advised of his rights defendant acknowledged that he understood them, and he subsequently discussed the case with the officers. There was also evidence that after having been given his warning in the squad car he stated that he had nothing to hide. All of this supports the trial court's determination. Once an accused has been advised of his rights and indicates that he understands them, his choosing to speak and not to request a lawyer is evidence that he knows his rights and chooses not to exercise them. People v. Brooks, 51 Ill.2d 156; People v. Higgins.
At the hearing on the motion, defendant stated that the officers told him the murdered man was the father of a policeman and unless he told them what they wanted they would turn him over to the deceased's son. The officers stated that they may have told the defendant that the deceased was the father of a policeman but denied the alleged threats and denied telling defendant that the son was in the police station. The trial court heard this evidence and found that the statement was voluntarily given and not coerced. We do not find this determination to be against the manifest weight of the evidence. People v. Johnson, 44 Ill.2d 463.
Defendant also attaches importance to the fact that the police officers took no notes of their conversation with the defendant, thereby leading him to believe that his statements would not be used against him. We see no merit to this contention in light of the testimony and the finding by the court that the defendant had been fully warned as prescribed by Miranda.
Since the State used Wilson's statement as evidence against Wilson, who did not testify, defendant contends the court erred in not granting his motion for a severance.
In Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065, the Supreme Court held that the right of cross-examination is included in the sixth-amendment right of an accused to confront the witnesses against him. In Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934, 85 S.Ct. 1074, and Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, the Supreme Court held that the use of a co-defendant's statement implicating the accused in the crime where there was no opportunity to cross-examine the declarant denied the accused his right of confrontation.
We agree that a severance should have been granted. By the use of the statement the non-availability of Wilson for cross-examination denied defendant his constitutional right to confront the witness against him. However, the Supreme Court has recently considered a case similar in important respects. In Schneble v. Florida (1972), 405 U.S. 427, 31 L.Ed.2d 340, 92 S.Ct. 1056, defendant and a co-defendant were tried jointly for murder. Neither took the stand at the trial but police officers testified as to statements made by each implicating both in the crime. Defendant's statement admitted that he had strangled the deceased and gave the details of the crime. He stated that when the victim still showed signs of life co-defendant shot her. Defendant's statement was consistent with and not contradicted by other evidence in the case. Co-defendant's statement was not as comprehensive as defendant's and at most tended to corroborate certain details thereof. The Court held that the mere finding of a violation of the Bruton rule does not automatically require the reversal of a conviction. The Court felt that it must determine on the basis of its own reading of the whole record and on what seems to have been the probable impact on the minds of the jury whether the co-defendant's admissions were sufficiently prejudicial to require reversal. The Court concluded that the minds of the average jury "would not have found the State's case significantly less persuasive had the testimony as to [co-defendant's] admission been excluded." 405 U.S. 427, ___, 31 L.Ed.2d 340, 345, 92 S.Ct. 1056, 1060.
In our case defendant's confession stated that he and Wilson met at a pool hall. They decided to rob the shoe repair store because they knew the proprietor would be alone. Defendant had been in the store previously and was afraid he would be recognized so it was agreed Wilson would go in first. He stated that both were armed. Wilson went in first as planned and defendant followed. He stated that when Wilson announced the holdup the proprietor started throwing shoes and Wilson shot him. He further stated that as he was leaving the store he ran into a little girl.
Wilson's statement said that he had gone to the shoe store to have his shoe sewn, that the defendant accompanied him, and that as he walked in the proprietor started throwing shoes and he shot him. This statement does nothing more than place the defendant in the store. It does not involve him in the murder. It is the defendant's confession that he and Wilson had entered the store to rob the deceased and that they were both armed which involves defendant in this crime of murder. (Ill. Rev. Stat. 1967, ch. 38, par. 9-1(3).) The testimony of the three girls that they saw the defendant enter the store shortly before the shots were fired and that he bumped into one of them as he left corroborates the defendant's confession. In view of the confession and the identification by the three girls the jury "would not have found the State's case significantly less persuasive had [Wilson's testimony] been excluded." (Schneble v. Florida, 405 U.S. 427, ___, 31 L.Ed.2d 340, 345, 92 S.Ct. 1056, 1060.) We find the admission of Wilson's statement was harmless error beyond a reasonable doubt.
During cross-examination of a police officer by the defendant, the court sustained an objection to a question concerning the deceased's family. At a conference in chambers defendant stated he wanted to show that the deceased's son was a police officer and that the defendant had been told by the officers during interrogation that if he did not give them the information they wanted, the son would blow his brains out. At the pretrial hearing on the motion to suppress the confession the officer had denied threatening the defendant in this manner. At the conference in chambers the prosecutor informed the court of the previous denial and that the only way to prove such an assertion would be for the defendant to testify. The defendant now contends that he was put to the choice of either foregoing his right to cross-examine this witness or waiving his fifth-amendment right not to testify, which he contends was held to be reversible error in Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967. We do not agree that the sustaining of the objection to defendant's question constituted reversible error. This line of interrogation could be pursued for impeachment purposes or for the purpose of showing the facts and circumstances surrounding the giving of the confession. If the defendant was attempting to impeach this witness by showing a prior inconsistent statement he first had to lay the foundation by asking if the threats had been made and securing a denial from the witness. This denial must then be followed by proof that the witness made the threats.
This court has held that it is error for the prosecutor to ask a defense witness such questions for the purpose of laying the foundation for impeachment unless he is prepared to follow up a denial of the question with proof of the inference contained in the question. (People v. Wallenberg, 24 Ill.2d 350, 353; People v. Sanders, 357 Ill. 610, 622.) The same standard must be applied to the defendant's cross-examination of prosecution witnesses. ...