Appeal from the Circuit Court of Winnebago County; the Hon.
John S. Ghent, Jr., Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendant, George Simmons, was found guilty by a jury in the circuit court of Winnebago County of two charges of murder and sentenced to two concurrent terms of 30 to 60 years in the penitentiary.
Defendant, 16 years of age, was one of several boys living on Rockford's west side, who over a period of approximately a week had engaged in a running dispute with some boys from Freeport, who were visiting in Rockford. On at least two occasions shots had been fired. On July 8, 1970, 11 to 16 shots were fired from a rooftop across the courtyard from an apartment in a public housing project where the Freeport boys were visiting, killing two of them.
Although it is undisputed that defendant fired the shots, the testimony of the defendant, and of the boys who were on the rooftop with him when the shots were fired, is to the effect that defendant did not intend to hurt the Freeport boys, but intended to frighten them by shooting over their heads or at their feet. Defendant's companions, who were not indicted, were called as witnesses by the People.
The only testimony that defendant intended to shoot the victims was that of the operator who had administered a polygraph examination to defendant. He testified that defendant had told him that he intended to shoot at the boys because "it was either them or me."
Defendant contends first that the circuit court erred in denying his motion to suppress the oral statement made to the polygraph operator and that in admitting the statement into evidence the circuit court committed reversible error.
The evidence taken at the hearing on defendant's motion to suppress shows that at approximately 8 a.m. on July 27, 1970, two Winnebago County sheriff's detectives went to defendant's home. In the presence of defendant's mother, Detective Meyers told defendant that they wanted to question him concerning the killings, and defendant went with them to their car. En route to the sheriff's office, defendant was given Miranda warnings, and upon arrival at the sheriff's office was again advised of his rights. He signed a printed form headed "Voluntary Statement" which purported to acknowledge that he had been fully advised of his rights. He was questioned for four hours, during which time he denied any involvement in the shooting. At noon Captain Iasporro, of the sheriff's office, called defendant's mother on the telephone in order to verify a portion of defendant's story; defendant, aware of this telephone conversation, then changed his story, saying that on the night in question he had seen Mike Thomas with a gun near the scene of the shooting. At approximately 1:30 or 2 p.m. Detective Coots picked up defendant's mother at her place of employment and brought her to the sheriff's office. In her presence, defendant repeated his story concerning Mike Thomas. Defendant was then asked to take a polygraph examination, and both he and his mother signed a consent form. Defendant's mother had had a fifth grade education in Mississippi. A psychiatrist testified that defendant had an I.Q. of 80 on the Wechsler Adult Intelligence Scale, a score classified as "borderline, mentally retarded" and which placed him in the lowest 20 percentile of the population. Tests also revealed that his comprehension of social situations, ability to think abstractly, and general information were quite low.
At about 2:15 p.m., defendant was taken to the State's Attorney's office. After being again advised of his rights he made a statement that was recorded by a court reporter, in which he denied involvement in the shooting. At 3 p.m. after agreeing to meet with the detectives at 6:30 the following morning to go to Chicago to take the polygraph examination, he was released. He and his mother were then driven home by Detective Meyers. The next morning Meyers and Coots waited for defendant from 6:10 until 8 a.m., but he did not appear.
Approximately a year earlier defendant had been committed to the Illinois Youth Commission and at the time in question was on parole. After defendant failed to appear for the polygraph examination an unidentified deputy sheriff called his parole officer, who authorized defendant's arrest for a parole violation. The parole officer described the violation as "acting out a little" and not being home evenings. He admitted to having no direct knowledge of such parole violations.
At 8 p.m. that evening Detectives Coots and Meyers arrested defendant for the parole violation. He was also charged with driving without a valid operator's license. The detectives took defendant to the county courthouse where he was questioned, not about the parole violation or the traffic offense, but about the July 8 shootings. The testimony is conflicting as to the length of the interrogation, and the opinions of the witnesses range from 30 minutes to two hours. The defendant testified that on this occasion he asked for a particular attorney, but was told that the public defender would be appointed by the court. Although juvenile detention facilities were available, defendant was placed in the county jail for the night.
The next morning, July 29, defendant was brought before a circuit judge on the traffic violation; the court transferred the matter to juvenile court. The court was not advised that defendant was being questioned on a murder charge, and defendant was returned to the county jail.
At 10 or 11 that morning, defendant was brought to the detective bureau where two detectives, his parole officer and an assistant State's Attorney were waiting for him. He was again given Miranda warnings, and he then spoke alone for about 20 minutes with his parole officer, who urged him to submit to the polygraph examination. Defendant then spoke with the detectives again, and this time admitted that he had been on the roof at the time the fatal shots were fired, but stated that Mike Thomas had done the shooting. After defendant was again advised of his rights, a question and answer statement in which defendant repeated what he had told the detectives was taken and transcribed by a court reporter. The transcript shows that the parole officer was present when the statement was taken. Defendant testified that he did not want to take the polygraph examination, that he was asked several times to take it, and that the captain of detectives convinced him that he had to take it because he had signed for it earlier. The detectives testified that defendant had never indicated an unwillingness to take the polygraph test. At 12:30 p.m. defendant was returned to the jail and his mother was called and asked to come to the station with his brother Sam, aged 36. At 2:45 p.m., the defendant, his brother, and the two detectives drove to Chicago to the offices of Reid & Associates, arriving there at 5:05 p.m.
The examiner at Reid & Associates gave defendant a modified form of the Miranda warnings and informed him that he was not required to take the test. The defendant was with the examiner in a 10-foot-by-10-foot windowless room for one hour and 10 minutes, after which time he was informed that he had failed the test. It was at this time that defendant made the statement in which he admitted the shootings of July 8 and admitted that he had intended to kill the victims. At 7 o'clock the detectives, defendant, and his brother left Chicago, and arrived at the sheriff's office in Rockford at 9 p.m.
Defendant's mother was called by the detectives, was told that her son had admitted the killings and that a statement would be taken from him that evening. Asked if she wanted to be present during the taking of the statement, she responded negatively, and stated that she would come down in the morning. After again being advised of his rights under Miranda, defendant, in response to interrogation by an assistant State's Attorney, made a formal statement which was admitted into ...