APPEAL from the Circuit Court of Coles County; the Hon. CARL
A. LUND, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant Randy Ruegger was indicted by grand jury for the offenses of burglary, forgery, and criminal damage to property. The Circuit Court of Coles County entered an order suppressing defendant's confession, and the State has appealed pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1)).
Defendant was arrested shortly after midnight on March 13, 1974, in the Goodyear Tire Store in Mattoon. The Miranda warnings were read to him at the scene. A few minutes later defendant was taken to the police station where he was given a written form explaining his rights. That form, which was signed by defendant, states that defendant understood his right to counsel and right against self-incrimination and did not wish to answer any questions at that time. Defendant was then placed in lockup.
At approximately 10 a.m. the same day, defendant was taken to the office of Captain Robert O'Dell of the Charleston Police Department, who is defendant's uncle. Detective Edward Kallis of the Charleston Police Department was present in the office with Captain O'Dell and advised defendant that he was investigating a burglary of the Post Seed House in Charleston. Defendant was again given a form explaining his rights, and he stated that he did not want to answer any questions until he had talked to his attorney. There then occurred a 20-minute conversation involving defendant and Detective Kallis and Captain O'Dell. At the end of the conversation defendant said he wanted to give a statement concerning everything he had been involved in. Whereupon defendant made a tape-recorded statement in which, in response to questions by Detective Kallis, he confessed to several burglaries and related offenses, including the burglary of the Post Seed House.
Detective Kallis, Captain O'Dell, and defendant all testified at the hearing on defendant's motion to suppress the confession. Although their testimony is in agreement that no definite promises were made to defendant in exchange for his confession, there is disagreement whether inducements were offered to defendant to encourage him to confess. Defendant testified that during the conversation he talked mostly with Kallis and that after defendant had refused to answer any questions Kallis said that he knew that defendant had committed the Post Seed House burglary and showed defendant some checks allegedly taken in the burglary and forged by defendant. Defendant also testified that Kallis told him that he (Kallis) had gotten probation for one of defendant's friends who had pled guilty and that other people who had made statements had received probation. Defendant recalled that Kallis had said that "if I would keep my nose clean that he couldn't really promise anything but he would go to bat for me." According to defendant, the officers showed him the statute book designating the penalties for various offenses and told him that if he confessed to everything he would be charged with only some of the offenses. They also told him they would help him get released on a recognizance bond. When asked by the court why he had given the statement defendant answered that "They offered to help me out, and that's what I wanted. I had a lot better chance not admitting to anything and keeping my mouth shut, but they said they would help me out * * * on aggravation and mitigation."
Detective Kallis testified that after defendant had refused to answer any questions, he told defendant that he (Kallis) could not talk to defendant any further. Defendant then asked Kallis what would happen if he made a statement. Kallis testified that he explained the court procedures and possible penalties to defendant, and Captain O'Dell gave defendant the statute book to refer to. Kallis, however, denied offering to help defendant or telling defendant that he had helped others in the past. After defendant indicated that he wished to make a statement Kallis again advised him of his rights. Kallis recalled that "I said, `you know if you were to call Mr. Tulin [defendant's attorney] now that he would tell you to shut your mouth and not say anything', and [defendant] said, `that's right', and he still wanted to go ahead and make this statement."
Captain O'Dell testified that the conversation was initiated by defendant after defendant had stated that he did not want to answer any questions. O'Dell recalled that most of the conversation was between Kallis and defendant and that defendant had asked about court appearances and what would happen to him if he were charged with other crimes. O'Dell also testified that he told defendant that he "couldn't do him any good." Although he testified that he could not remember all of the conversation, O'Dell did not believe that he had told defendant that he would help him get a recognizance bond. He could not recall whether or not Kallis had said anything about it. He also could not recall whether Kallis had said anything about "going to bat" for defendant.
The trial court granted defendant's motion to suppress on the basis that the State had not met its burden of showing that defendant's confession was not a product of compulsion exerted on him during the 20-minute conversation in the form of offers of assistance by the police officers.
• 1, 2 The State bases its contention that it was improper for the trial court to suppress defendant's confession on the argument that the record shows the confession was freely and voluntarily given after defendant's rights were fully explained and understood and on the alternative argument that the confession falls within the "volunteered statement" exception of the Miranda decision.
The basic guidelines for determining whether a statement has been given voluntarily were set forth in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. In Miranda the Court stated that a statement given freely and voluntarily without any compelling influence is admissible. However, the Court also made it clear that it was setting a high standard for determining voluntariness in the context of custodial interrogation without the presence of counsel and that "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." (Miranda, 384 U.S. 436, 475, 16 L.Ed.2d 694, 724, 86 S.Ct. 1602, 1628.) If a defendant challenges the voluntariness of his statement, the State must first show that the defendant was adequately warned of his right to counsel and his privilege against self-incrimination before being interrogated. Where this requirement has not been met, the statement is per se inadmissible. Where the warnings are found to be adequate or, as in the instant case, their adequacy is not disputed, the court "must make an ad hoc determination of the specific facts bearing on voluntariness since no per se rule has yet been adopted to govern this problem." (People v. Hill, 39 Ill.2d 125, 131, 233 N.E.2d 367, 371.) In determining whether the State has sustained its burden of demonstrating that the evidence as a whole shows that a statement was made voluntarily, the trial court need not be convinced beyond a reasonable doubt and its finding will not be disturbed on review unless contrary to the manifest weight of the evidence. Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619; People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601.
• 3 The Illinois courts have long recognized that offers of leniency are a factor to be considered in determining whether a statement is voluntary. In People v. Heide, 302 Ill. 624, 627, 135 N.E. 77, 79 (1922), the supreme court stated that it was the rule in Illinois that "a confession becomes incompetent whenever any degree of influence has been exerted by any person having authority over the charge against the prisoner or over his person, tending to cause duress or hope of leniency * * *." In the decision the court held that it was prejudicial error to admit the defendants' confessions where there was uncontradicted testimony that police officers had told the defendants that it would be better for them to tell the truth, that if they told the truth they would be taken to the state's attorney and allowed to make a statement, and that the state's attorney might show them leniency. The court concluded that although the police officers testified that they made no direct promises of leniency, their statements were such as to raise hopes of leniency in the defendants' minds.
• 4 Cases decided since Heide indicate that although in some jurisdictions the mere suggestion of the advisability of telling the truth is sufficient to render a statement involuntary, such is not the rule in Illinois. (People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; People v. Pugh, 409 Ill. 584, 100 N.E.2d 909; People v. Klyczek, 307 Ill. 150, 138 N.E. 275.)
"Mere exhortation to tell the truth will not make a confession afterward made inadmissible, but the statement that it is better to tell the truth may be made under such circumstances as to make a confession afterwards made incompetent. If there is coupled with the advice a suggestion of a benefit in the particular case, a confession by reason of such advice and suggestion is incompetent." 307 Ill. 150, 154, 138 N.E. 275, 277.)
In Hartgraves, the most recent of these decisions, the court stated that "a mere suggestion of the advisability of making a statement does not in itself render a confession involuntary." (31 Ill.2d 375, 381, 202 N.E.2d 33, 36.) There the court upheld the trial court's finding that a confession was voluntary where a police officer had commented to the defendant that "it would go easier on him in court if he made a statement" but there was no ...