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People v. Kelley

FEBRUARY 22, 1973.

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

v.

JIMMY L. KELLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Ogle County; the Hon. WILLIAM R. PHILLIPS, Judge, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

A jury found defendant guilty of the offense of murder in the drowning of a 12-year old girl in Byron, Ogle County, on June 29, 1970. On appeal, defendant contends that the trial court erred in denying his motion to suppress as involuntary two separate oral statements.

Defendant had been questioned at the time of the occurrence. (It was he who had reported "a drowning" to several people, including the police.) He was not then charged.

The first statement which defense sought to suppress was made to one Duane Bailey, Chief of Police of South Beloit, with whom defendant had a prior acquaintance.

On the morning of July 30, 1970, defendant telephoned Bailey and, as a result of the call, they met at the Viking Restaurant in the City of Rockford, Bailey being accompanied by Detective Markley. It is undisputed that at no time during this meeting was defendant informed of his right to counsel or against self-incrimination. Bailey testified that he initiated the conversation by asking defendant the purpose of the meeting. Defendant replied that he had killed the girl in Byron and wanted to "get it off his chest"; that he would voluntarily go to South Beloit to give Bailey a signed statement; that after three days time (during which he and his fiancee were to determine if they would marry) he would take Bailey to certain evidence in Byron; and that he did not want to go into Ogle County sooner, in fear that he would be arrested. Bailey further testified that he had detected the odor of alcohol, that defendant stated he had been drinking, but that he (Bailey) did not believe defendant to be intoxicated. Promising to return to the restaurant shortly, defendant left to consult with his fiancee. Bailey and Markley waited, but defendant did not return.

Markley testified to the conversation, corroborating Bailey's testimony on all significant aspects except to state that he did not notice an odor of alcohol emanating from defendant.

Defendant testified that he had a history of drug and alcohol use; that on the morning in question, he became "high" after consuming twelve to fourteen alcoholic drinks and ten pills (claimed to be barbituates); that while he had called Chief Bailey that morning, it was Bailey who requested to see him; that when Bailey brought up the topic of the drowned girl, he said he had been arrested on suspicion, but that the subject was not further discussed. Defendant was arrested on August 3, 1970.

Three women, the manager of the restaurant, defendant's fiancee and another, were called by the defense. The manager testified that defendant's manner at the time was somewhat unusual. The other two were of the opinion that the defendant was intoxicated.

Two expert witnesses were asked whether, under hypothetical facts, the mind of a person would be overborne by consumption of drugs and alcohol as testified to by the defendant. One concluded that the mind would be overborne, the other, that it would not.

• 1 It is contended that the conversation was not "the product of a rational intellect and free will" in that defendant's "will was overborne" by his prior consumption of drugs and intoxicating liquors. In support of this argument defendant relies on Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770 (1963), wherein the defendant, while in police custody, was given a drug having the effect of a "truth serum." There the Court remanded the case for the purpose of taking evidence on the issue of whether the will of the defendant was overborne by drugs. Here, evidence on this point was heard and it was conflicting. It therefore became incumbent upon the trial court to determine, on the basis of the conflicting evidence, whether the statements should be allowed to go to the jury. Having done so, the trial court's decision shall not be reversed unless it is found to be against the manifest weight of the evidence or a clear abuse of discretion. People v. Nemke, 46 Ill.2d 49, 56 (1970), cert. den. 402 U.S. 924 (1971); People v. Hicks, 35 Ill.2d 390, 397 (1966), cert. den. 386 U.S. 986 (1967); People v. Dogoda, 9 Ill.2d 198, 202 (1956); People v. Bryant, 101 Ill. App.2d 314, 319-320 (1968).

• 2 Defendant points out that Bailey did not apprise him of his constitutional rights as provided in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). He admits the facts herein do not present an in-custody situation but argues that the failure to give Miranda warnings is relevant as one of the circumstances to be considered in determining voluntariness. The Miranda decision applies only to cases of custodial interrogation. People v. Bey, 45 Ill.2d 535, 538-539 (1970); People v. Morehead, 45 Ill.2d 326, 330-331 (1970), cert. den. 400 U.S. 945 (1970); People v. Richards, 120 Ill. App.2d 313, 342-343 (1970).

• 3 The record shows that defendant and Bailey had been acquainted for some time prior to the events in question and considered themselves to be friends; the phone call and its resultant meeting were initiated by defendant; although Bailey was a law enforcement officer, the crime and the meeting took place without his jurisdiction and he at no time restricted defendant's freedom to terminate the interview or leave the premises. Under these facts, defendant's oral statements were given "freely and voluntarily without any compelling influence," and were admissible. People v. Hicks, 44 Ill.2d 550, 553-554 (1970), cert. den. 400 U.S. 845 (1970); People v. Howell, 44 Ill.2d 264 (1970), cert. den. 400 U.S. 846 (1970); In re Orr, 38 Ill.2d 417, 422-424 (1967), cert. den. 391 U.S. 924 (1968).

The second statement sought to be suppressed was made to arresting officer Robert Bales, a member of the State Police, after defendant was indicted, represented by counsel and incarcerated in the Ogle County jail.

On Sunday evening, August 23, 1970, Bales received a telephone call from the jailer informing him that defendant had requested to see him. Aware that defendant had been indicted and was represented by counsel, Bales went to the jail. On meeting, he asked defendant what he could do for him, to which defendant answered that he wanted to tell all about the drowning, wanted it written down, wanted to plead guilty to voluntary manslaughter and wanted a guarantee that Bales would not testify against him. At this point, Bales informed defendant that he would have to testify against him whether there was a written or oral statement, and asked if defendant had contacted his attorney about this meeting. Defendant responded, "I make up my own mind. I know what he wants and I know what I want. All he wants is my money and I want out of here * * *." As he began to explain his guilt more fully, Bales again informed him that he would have to testify to any confession, asked defendant not to confess and refused to write down defendant's admissions. Defendant continued to provide details of what had happened at the scene of the drowning. Bales then acquiesced to defendant's wishes by listening to his confession and ...


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