APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendant, Eutues White, was convicted of murder on a jury verdict in the circuit court of St. Clair County and sentenced to the Illinois State Penitentiary for a minimum term of 199 years and a maximum term of 200 years. On direct appeal this court remanded the cause to the trial court for a second evidentiary hearing to determine whether the defendant's confession was properly admitted into evidence and to resentence the defendant pursuant to the new Code of Criminal Corrections. (People v. White, 10 Ill. App.3d 914, 295 N.E.2d 300.) Subsequently, the trial court held a second evidentiary hearing to determine the admissibility of the defendant's confession. After determining that the confession was properly admitted into evidence, the trial court entered a new judgment of conviction and imposed a sentence of 66 to 198 years in the penitentiary. The defendant appeals therefrom.
The defendant raises two issues in this appeal: first, that the trial court erred in denying defendant's motion to suppress the confession and second, that the sentence imposed upon him by the trial court was excessive.
The defendant's first allegation of error is in two parts. The defendant contends first that the trial court erred in not suppressing defendant's confession because the evidence introduced at the second hearing on the motion to suppress establishes that the defendant attempted to exercise his right to remain silent and to have the advice of an attorney and that such attempt was frustrated by the investigating officers. Next, it is asserted that the trial court erred in denying the motion to suppress the confession of the defendant because the State failed to call all material witnesses to the confession.
Only two witnesses testified at the second hearing on defendant's motion to suppress, Detective William Stanis and Captain William Johnson of the East St. Louis Police Department. Detective Stanis testified that the defendant was arrested on May 24, 1969, and that he was advised of his rights at that time. According to Detective Stanis, the defendant did not make a statement on May 24, 1969. Detective Stanis interrogated the defendant on two occasions on May 25, 1969, and he allegedly informed the defendant of his rights on each occasion. When Detective Stanis was asked how the defendant responded when he was informed of his rights for the first time on May 25, the detective stated, "In essence, he waived his rights, that he would talk to me." Next, Detective Stanis answered affirmatively to the question: "At that time did he [defendant] state to you that he wished to make a statement?" The witness then identified "People's Exhibit No. 1" as the statement made by the defendant on the morning of May 25, 1969. The witness testified that the defendant wished to make another statement on the afternoon of May 25, 1969. The witness identified "People's Exhibit No. 2" as that statement.
The two statements made by the defendant on May 25, 1969, pertain to the alleged murders other than the murder charged in the instant case. Detective Stanis stated that the defendant did not make a statement on May 24, or 25, concerning the alleged murder in the instant case.
Detective Stanis questioned the defendant for the third time on May 26, 1969. Detective Stanis testified that the Miranda warnings were given, and the defendant then made a statement concerning the charge in the instant case. He stated that the defendant seemed to understand his constitutional rights, that he knowingly chose to waive those rights, that no force, threats or promises were used to induce the defendant to confess and that the defendant never expressed a desire to stop the questioning or to consult an attorney.
Captain William Johnson, Detective Stanis' superior, testified that he talked with the defendant briefly on the day of his arrest, May 24, 1969. Captain Johnson informed the defendant of his rights and asked if he wished to talk. Captain Johnson testified that the defendant said, "he didn't want to talk about it; he would rather see a lawyer." The witness stated on three other occasions on direct examination that the defendant informed him, Captain Johnson, that he would rather talk to a lawyer. After the defendant said that he did not wish to talk, he was placed back in a cell. Captain Johnson did not know whether the defendant made a phone call or talked to an attorney. Captain Johnson testified that he then turned the case over to Detective Stanis.
After Johnson had been excused as a witness, counsel approached the bench and an unrecorded colloquy took place, the defense counsel then informed the court that the defendant did not wish to testify. The State's Attorney then recalled Captain Johnson to the stand. Captain Johnson then gave the following testimony:
"Q. If someone asked for a lawyer it is the practice of your department to see that they are able to get a lawyer?
A. If he had asked for a lawyer I would have given him the phone there on my desk and let him use the phone.
Q. When you said that he wanted to speak to a lawyer, do you mean that he asked, that he wanted to retain a lawyer?
A. Well, I am not sure this is what the words that he said but he didn't want to talk, so therefore I had him put back in the cell block.
Q. Well, could it have been that you just assumed when you were seeing him that he wanted a lawyer, ...