APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM M. CARROLL, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of McHenry County found the defendant, Frank Alex Henenberg, guilty of the armed robbery and murder of Martin Zlogar and recommended that he be sentenced to death. The death penalty was imposed, and the defendant has appealed.
On the morning of December 13, 1969, a badly decomposed body with a plaster cast on the left arm and with the right forearm missing was found by hunters in the northern part of McHenry County. An autopsy determined that the cause of death was a bullet wound in the head and that the deceased had been dead for about three months. A .32-caliber bullet was recovered from the deceased's skull. From the clothing found, and by comparison of X rays of the teeth and left arm, the body was identified as that of Martin Zlogar, an aviation radio technician employed by North Central Airlines, who had had a cast on his fractured left arm when he had been reported missing on September 18, 1969.
The defendant was arrested in St. Louis, Missouri, on December 30, 1969, upon unrelated charges. At the time of his arrest he was driving Martin Zlogar's automobile, which he told the arresting officers he had stolen in the St. Louis area in September. Five days later two officers from the McHenry County sheriff's office questioned the defendant in St. Louis about Zlogar's death. At the trial both officers testified that during this interrogation the defendant confessed to shooting Zlogar, who had picked him up as a hitchhiker. One of them, as well as the McHenry County sheriff, also testified that the defendant confessed a second time while being transported to McHenry County after he had waived extradition to Illinois.
In addition, prosecution witnesses testified that the defendant had stolen a .32-caliber revolver from his cousin's tavern in St. Louis on September 2, 1969; that he had visited a friend in River Falls, Wisconsin, in September, and left there on September 14, 1969, with a gun in his possession. A Wisconsin State trooper issued him a warning ticket on September 14, 1969, for walking on Interstate 94, a main highway between Minneapolis, where the deceased had been on business, and Chicago. The defendant's automobile was found abandoned outside of River Falls, Wisconsin, in early October, 1969. An FBI handwriting expert testified that some invoices for purchases at gas stations made with Martin Zlogar's credit card between September 13, 1969, and October 25, 1969, in Rockford and Normal, Illinois, as well as St. Louis, Missouri, were signed by the defendant, and that others contained significant similarities to the defendant's handwriting. The defendant was driving Martin Zlogar's automobile, and had Zlogar's gasoline credit card, credit card case, and wallet in his possession when he was arrested in St. Louis.
The defendant testified in his own behalf. He admitted that he had stolen the car and used the credit card on occasion, but denied that he shot Zlogar.
The defendant's primary contention on appeal is that the trial court erred in denying his pretrial motion to suppress the confessions that he made to the McHenry County officers. At the hearing on that motion the State's Attorney and defense counsel agreed that the admissibility of the first confession controls the admissibility of the second. The defendant contends that his first confession was obtained through interrogation that was continued after he had requested counsel and for that reason should have been suppressed under the holding in Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Alternatively, he argues that the confession was coerced.
The interrogation which resulted in the defendant's first confession took place from approximately 2 P.M. to 3 P.M. on January 4, 1970, in a room in the headquarters of the St. Louis Police Department. The room was approximately 4 feet by 8 feet and contained a small table and four chairs. A large window was on one wall and a "two-way mirror" on another wall. The questioning was conducted by Lieutenant Madsen and Detective Hendle of the McHenry County sheriff's office. Milford Rohr of the St. Louis Police Department was present during the initial stages of the interrogation, and observed much of the remainder through the two-way mirror.
The entire interrogation was tape-recorded and transcribed. The tape recording was tendered to the trial judge at the hearing on the motion to suppress, but the judge was of the opinion that it would serve no useful purpose. The transcript of the confession was not offered in evidence. The substance of the confession was put before the jury through the testimony of the two McHenry County officers as to what was said by the defendant.
It was uncontradicted that the first thing Lieutenant Madsen did when the defendant was brought into the room was introduce himself and Detective Hendle as police officers and read him his constitutional rights from a Miranda warning card. The defendant responded that he understood those rights. It was brought out upon cross-examination that the defendant asserted his desire to see a lawyer four different times during the interrogation, before he confessed that he had shot Zlogar. He first said, "I would rather see a lawyer, you know, you know what I mean, because I believe you can see my standpoint," to which Lieutenant Madsen replied, "Yes, we can see your standpoint. Like I say, we can take you apart." Later the defendant again said, "I ain't talking about nothing else unless without a lawyer, you know what I mean, because ." Later on in the interrogation the defendant said, "I would rather see a lawyer, you know." And finally he stated, "I believe it would be better on my part to see a lawyer because ." On none of these occasions did the officers cease their interrogation of the defendant, and each time he answered questions subsequently put to him.
We may dispose at once of the defendant's contention that his confessions were coerced. That contention is not sustained by the record. The statement of the officer to the effect that "we can take you apart" did not refer to physical violence but rather to the fact that law-enforcement agencies had uncovered accurate information as to the defendant's conduct and movements before and after the crime was committed.
The contention that the confessions should have been suppressed under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, however, stands upon a different footing. In that case the Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities he must be warned of his constitutional rights prior to any questioning. The court also held:
"The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." (Emphasis added.) 384 U.S. at 444-45, 16 L.Ed.2d at 707, 86 S.Ct. at 1612.
Numerous cases have held that a confession or statement obtained from a defendant by interrogation which continued after the defendant had requested an attorney was a violation of Miranda. In discussing a situation similar to the present one, the ...