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In Re Bizzle

OPINION FILED FEBRUARY 26, 1976.

IN RE TERRY LEE BIZZLE, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

TERRY LEE BIZZLE, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND C. SODINI, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Terry Lee Bizzle (respondent), 16 years of age, was adjudicated a delinquent minor (Ill. Rev. Stat. 1973, ch. 37, par. 702-2) after an adjudicatory hearing in the juvenile division of the circuit court of Cook County on a charge of murder. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1 (a)(1).) He was sentenced to commitment to the Department of Corrections, Juvenile Division.

On appeal respondent does not challenge the sufficiency of the evidence but urges error because of (i) the failure of the court to suppress certain statements made by him prior to his being charged with murder; and (ii) the court's denial of his motion for a new evidentiary hearing on the motion to suppress made at the close of the State's evidence.

Mrs. Wilma Wright, respondent's aunt and legal guardian, was discovered murdered in her home between 2 and 3 p.m. on October 30, 1974. At the time respondent was living with his aunt. His mother was dead, and his father was either dead or his whereabouts were unknown. Shortly after the discovery of the deceased, a City of Chicago police officer, Ralph Storck, arrived at the scene to investigate. He then talked to the respondent on the back porch of the home. Later, about 6 p.m., the respondent was questioned by Storck at the police station and gave information leading to the arrest of Orlando Trimble. Around 8 p.m., after the police talked with Trimble, respondent was arrested and charged with the murder of Wilma Wright.

Prior to trial, respondent filed a motion for discovery which was answered by the State on November 27, 1974. On December 4, 1974, respondent filed a motion to suppress any and all confessions, statements or admissions he made prior to, during, or after his arrest. Prior to trial, after a hearing on the motion, it was denied. The case proceeded to trial and the State presented its evidence, including the testimony of the investigating officer regarding statements made to him by respondent during the investigation and the testimony of the co-respondent, Orlando Trimble, incriminating respondent. At the close of the State's evidence, respondent moved for dismissal and for a new evidentiary hearing on the motion to suppress in light of the facts allegedly uncovered during the State's case which had not been known at the pretrial hearing. The court denied both motions. In his defense respondent presented only one witness, the investigating officer, and rested his case.

The trial evidence indicated that initially (at 3:30 p.m.) respondent told Storck he came home in the afternoon and, not being able to gain entry to the home, went to a nearby school to inform his cousin, Vernon Wright, Jr., who then rode respondent's bicycle home and respondent walked home, at which time the police were there. Later (about 6 p.m.) at the police station, respondent told Storck he wished to tell everything he knew, and then said he had seen Trimble leaving the house when he arrived home; that about two weeks before the incident, he and Trimble had discussed robbing and killing his aunt, but that he thought Trimble had forgotten. Respondent then accompanied the police officers to locate Trimble. Trimble, 15 years of age, was located, and upon being brought to the police station, admitted his part in the incident, that the respondent had asked him to help him kill his aunt whom he hated and offered Trimble half the money his aunt had, plus two pistols. Trimble testified that on the day of the incident the boys drank wine and beer and smoked marijuana; and that he could not perform the act, but did hit her on the head with a metal bar, and that respondent, with a knife, stabbed his aunt.

On December 23, 1974, the juvenile court found respondent to be delinquent based on his commission of the offense of murder. After a hearing held on January 8, 1975, respondent was committed to the Department of Corrections, Juvenile Division. Respondent's post-trial motions for a new trial and in arrest of judgment were denied.

I.

Respondent contends that for the following reasons the court erred in failing to suppress the statements made by respondent prior to, at the time of, or subsequent to his arrest: (a) that a 16-year-old orphan could not knowingly and voluntarily waive his rights due to his age, level of understanding, and status as an orphan; and (b) that the absence of a parent, guardian or trusted attorney was in violation of the law.

In his written pretrial motion, respondent alleged that he was arrested in the afternoon hours of October 30, 1974, at his home and taken to the police station, and during the entire time he and others were in custody and interrogated; that prior to his interrogation he was not given his Miranda warnings, nor was he informed that he could not be questioned without the presence of a parent or guardian; that "any statement or confession or test * * * were the direct result of either physical or mental coercion"; and that the overall manner in which he was arrested, taken into custody and interrogated violated the guarantees of the "Illinois Juvenile Court Act and the Code of Criminal Procedure, and of the Constitutions of the State and of the United States * * *."

At the pretrial hearing on the motion, Officer Ralph Storck, called by the State, testified he was an investigating officer, that he was assigned to investigate the homicide of Wilma Wright on the afternoon of October 30, 1974, and about 3:15 p.m. spoke alone with respondent on the porch of that home, and that he did not give respondent any Miranda warnings at that time; and that Vernon Wright, Sr. and Vernon Wright, Jr. (the husband and son of the deceased) were both present.

Storck further testified that about 4:30 p.m. — on the day of the crime — he asked two Chicago police officers to bring the respondent to the Chicago Police Station, at 2138 North California, so that he could question him regarding some inconsistencies in the statements made earlier that afternoon; and that he did not charge or suspect respondent of the murder at that time. He testified that about 6 p.m. he talked with respondent alone at the police station; that he called respondent's uncle (the husband of the deceased) to inform him respondent was being questioned at the police station and requested the uncle come there; and that the uncle informed Storck he would call respondent's brother. Storck testified he advised respondent that he had a right to remain silent, and that anything he said could be used against him in a court of law. He also was advised of his right to have an attorney present, and of the State's obligation to provide an attorney if he and his family could not afford to pay one. Finally, he was informed that if he decided to tell the officer anything, he could stop at any time. Storck said that respondent affirmed that he understood each of these rights as they were explained to him, and then indicated that he would make a statement to the officer. Thereafter respondent accompanied Storck and Officer Melchiori in a police car to point out the house where Orlando Trimble could be found. According to Storck, respondent made no incriminating statements while in the car.

Storck further testified that a juvenile officer and an assistant State's attorney arrived at the police station some time after 7 p.m.; that about 8 p.m., in the presence of the juvenile officer and respondent's brother, the assistant State's attorney advised the respondent of the Miranda rights, and at this time the respondent was not willing to make any statement; that he placed the respondent under arrest at about 8:30 to 9 p.m., although he acknowledged on cross-examination that his police report indicated the arrest was about 4:30 p.m. at the home of the deceased.

In support of the motion to suppress, the parties stipulated that respondent was questioned at his home about 3 p.m. and was given no Miranda warnings. Respondent testified he was later taken to the police station where he was questioned in a room with several police officers and was again given no warnings; and that he was at the station from about 4 p.m. to midnight. He testified the only person to advise him that day of his right to remain silent was the State's attorney. Based on the testimony of witnesses ...


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