APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Jessie Delgado, was indicted by the Winnebago County grand jury on a charge of burglary. A motion to suppress certain oral statements given on the day of his arrest was denied. Defendant was subsequently found guilty at a jury trial and sentenced to 4- to 12-years' imprisonment. Defendant contends on appeal that it was error to deny his motion to suppress, that improper evidence was introduced against him at trial, that there was insufficient evidence of his guilt, that the closing argument of the prosecutor was prejudicial, and that his sentence is excessive. The first issue concerns the admissibility of defendant's statement.
Defendant was taken into custody by Rockford police pursuant to an arrest warrant. Two officers drove defendant to the police station and stayed with him for about 10 minutes until the two arresting officers arrived. The two arresting officers testified that they informed defendant of his Miranda rights and gave him a form with his rights on it, which form included a waiver of those rights. Defendant refused to sign the waiver, but did sign the form simply as an indication of having been advised of his rights.
Defendant was then questioned about the instant burglary and related certain facts tending to indicate his guilt. This admission was reduced to writing, but defendant refused to sign the writing, noting at the bottom thereof his refusal.
The following day a doctor saw defendant at the jail and testified that at that time defendant was suffering from a narcotics abstinence syndrome. Defendant was then placed on a methadone program to relieve the withdrawal symptoms.
Defendant testified that he had been taking heroin for 15 years. About an hour before his arrest he had taken an intravenous injunction of about 1 gram of heroin and a half gram of cocaine, getting "high" as a result. Defendant denied being advised of his constitutional rights. He said he had requested an attorney when he was shown the rights form, but was told he would get one when he got to court. He said that the police promised him an attorney if he made a statement. He stated that the statement he gave was false and he refused to sign it because the police did not keep their promise to get an attorney.
• 1 From a review of the record of the hearing on the motion to suppress, it is clear that the trial court did not err in finding that the statements defendant gave were the product of a rational intellect. Three officers at the hearing testified that defendant did not complain of being sick or needing a fix on the day of his arrest. One officer said that defendant appeared dopey or drunk. Three officers testified that defendant was acting normally. Defendant asked questions about the rights waiver. He refused to sign the waiver of his rights. When defendant began answering questions, he did so without hesitation.
On this particular issue the question is simply whether the statements defendant gave were the product of a rational intellect and a free will. (Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745.) Townsend also indicates that drug addiction is a circumstance to be considered. However, "When the statement is clear and lucid and witnesses testify that at the time defendant was alert and able to give a rational statement, prior medical treatment with drugs will not render the statement inadmissible." (People v. Pote, 5 Ill. App.3d 856. See also People v. Muniz, 31 Ill.2d 130; People v. Hulet, 66 Ill. App.2d 194.) The fact that defendant took heroin and cocaine of his own volition does not detract from the applicability of the above cases. There was sufficient evidence here, as detailed above, for the trial judge to find that defendant's having taken heroin and cocaine did not detract from his lucidity. Indeed, having had a recent fix it is likely the defendant was at his most lucid at the time he gave the statement to the police. There is also no question here of defendant having given the statement in order to get a "fix," as he would not have needed one at the time of the statement.
• 2 Defendant also argues that his conduct at the time he made the statement indicates that he did not knowingly and voluntarily waive his rights to counsel and to remain silent. At a motion to suppress, the voluntariness of a confession need only be proven by a preponderance of the evidence. (Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619.) The decision of the trial court on this matter will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Dailey, 51 Ill.2d 239.) There was sufficient evidence here for the trial judge to find that defendant had been informed of his rights, refused to waive them and then gave a statement which he refused to sign. In People v. Burbank, 53 Ill.2d 261, the defendant was advised of his rights and then, according to the officer's testimony, admitted his guilt and did not ask for an attorney. However, he refused to give a written statement. The defendant denied having been advised of his rights and argued that his refusal to give a written statement indicated that he did not intend to waive his constitutional rights. The statement was held admissible and the supreme court affirmed, saying, "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. Burbank, 53 Ill.2d 261, 266. See also People v. Starnes, 8 Ill. App.3d 709.) The instant case is analogous to Burbank. Defendant's statement was knowing and voluntary, hence properly not suppressed.
• 3 Defendant next argues that there is reversible error in the following answer to a question regarding what conversation took place as to defendant's name after he was brought to the police station:
"Well, at this time he then told us his name was not Quintero, that his name was Delgado, and we asked him if he also used the name of Jesse Sanchez, and he stated that everybody around the Rockford area that knew him knew him as Jesse Sanchez; that he had served time in Stateville ."
Defense counsel objected at this point on the grounds that evidence of other crimes was inadmissible. The trial judge sustained the objection and instructed the jury to disregard the answer. The general rule is that evidence of other crimes is inadmissible unless the prejudice resulting from an introduction of such evidence is outweighed by its relevancy in proving proximity of the defendant in relation to the offense, identity, design, motive or knowledge. People v. Cage, 34 Ill.2d 530.
It is clear that this evidence comes within none of the above mentioned exceptions, hence it should not have been mentioned. This reference to other crimes of defendant was not deliberately elicited by the prosecutor. However, that does not change the fact of the error. (See People v. Hughes, 11 Ill. App.3d 224, 231.) The evidence of defendant's former incarceration would usually require a reversal even though, as in Hughes, an objection to the testimony was sustained. (See People v. Stadtman, 59 Ill.2d 229, 319 N.E.2d 813, 815; People v. Smith, 12 Ill. App.3d 1037; People v. Clark, 12 Ill. App.3d 280.) It does not follow however that the judgment of conviction must be reversed and a new trial ordered.
The seriousness of any trial error must be considered in relation to the facts of each individual case to determine whether a new trial is warranted. (People v. Greeley, 14 Ill.2d 428.) It has been repeatedly held that a judgment of conviction need not be reversed because error has been committed unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. (People v. Tranowski, 20 Ill.2d 11; People v. Bridges, 28 Ill.2d 165.) The defendant's guilt was established beyond all reasonable doubt without regard to the matters complained of ...