APPEAL from the Circuit Court of Madison County; the Hon.
VICTOR J. MOSELE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for the robbery of Anne Warfield on April 11, 1974. He was tried before a jury and found guilty of this offense. Thereafter he was sentenced to a term of imprisonment of 2 to 6 years. From the judgment of conviction and sentence, he brings this appeal.
On the night of April 11, 1974, Anne Warfield was doing some laundry in a laundromat in Collinsville, Illinois. Besides Mrs. Warfield, Patrick Tognarelli (the teenage son of the proprietor), and his friend, Patrick Cox, were also present. A young man, who was identified as defendant by Mrs. Warfield, Tognarelli, and Cox at trial, walked into the laundromat. He went to the rear of the laundromat, stopped briefly to speak to Tognarelli and Cox, and then walked over to Mrs. Warfield. He grabbed Mrs. Warfield around the waist and began pulling on the neckline of her dress. As Mrs. Warfield resisted he tried to pull her dress over her head and shoved her against a table and some washing machines. Mrs. Warfield shouted for Tognarelli and Cox to help her. Cox ran out of the laundromat to get Patrick Tognarelli's father, who was present in his apartment nearby. Tognarelli shouted that he would call the police and proceeded to do so. At that point defendant reached for Mrs. Warfield's purse. As he grabbed the purse, she grabbed the strap of the purse. Defendant pulled on the purse, trying to break Mrs. Warfield's grip, and in the process pulled her out the door of the laundromat and down to the ground. The strap broke and defendant ran away with the purse. Mrs. Warfield sustained cuts and bruises on her head, hand, hip, and back during the struggle. Her dress was torn and muddy and had blood on it from one or more of the cuts.
On August 15, 1974, defendant was arrested because of the incident described above. The following morning he was taken into court for a preliminary hearing. The court informed defendant that he was charged with robbery and attempted rape. Defendant, who was not represented by counsel, made an inculpatory statement during the hearing, which was the subject of a later suppression hearing and which is the subject of the first issue raised in this appeal. On September 12, 1974, the grand jury indicted defendant for robbery but, apparently, did not indict defendant for attempted rape. At any rate, defendant was brought to trial for robbery only.
Defendant's first contention in this appeal is that the trial court erred in admitting the inculpatory statement made by defendant during the preliminary hearing. On August 15, 1974, defendant was arrested on the charges of attempted rape and robbery. At the time of the arrest a police officer advised defendant of his "Miranda rights." The next morning defendant was brought into court for a preliminary hearing pursuant to section 109-1 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1975, ch. 38, par. 109-1.) (Although no transcript was made at this hearing, what transpired during the hearing was described by several witnesses, including the judge who had presided and defendant, at a later suppression hearing and at trial.) The judge presiding at the preliminary hearing read the robbery complaint and explained the elements of the offense and possible dispositions for a conviction of that offense. The judge then proceeded to read the complaint charging attempted rape. Defendant, apparently surprised that he was charged with the latter offense, interrupted the judge's reading of the complaint by asking "how he was supposed to rape somebody in the laundromat." As the judge was explaining the elements of the offense of attempted rape and the possible dispositions for a conviction of such offense, defendant blurted out a statement to the effect that "I admit I took her purse, but I didn't attempt to rape anybody." The judge then admonished defendant that he "ought to keep his mouth shut," finished his explanation of the offense, and advised defendant of his rights. A hearing was later held on the motion to suppress this statement; however, the motion was denied, and the statement was thereafter used at trial.
The cases upon which defendant relies with respect to this issue are People v. Jackson, 23 Ill.2d 263, 178 N.E.2d 310, and People v. Rue, 35 Ill.2d 234, 220 N.E.2d 457. In Jackson the Supreme Court held:
"[W]here an accused is unattended by counsel and does not become a witness of his own volition, a judicial confession made at a preliminary hearing may not be properly introduced into evidence at the subsequent trial, unless the proof affirmatively shows (1) that the accused had independent knowledge or was advised by the court of his right to refuse to testify; (2) that he was advised or knew that any statements made could be used against him, and (3) that he knowingly and intelligently waived his constitutional privilege against self-incrimination." (Emphasis added.) (23 Ill.2d 263, 268, 178 N.E.2d 310, 313.)
The court reiterated this statement in Rue and applied it to find that an inculpatory statement made by the defendant at the preliminary hearing in that case had been improperly admitted at trial.
That Jackson and Rue are inapplicable to the instant case is apparent from a number of considerations. First of all, as the emphasized portion of the above quotation clearly indicates, the holdings in Jackson and Rue do not apply when a defendant makes an inculpatory statement or a confession of his own volition. In both Jackson and Rue the defendants, being without counsel at the preliminary hearing, were questioned by the State's Attorney, and it was that questioning which elicited the inculpatory information. The court in Jackson distinguished the situation in the case before it from the situation in People v. Farrell, 349 Ill. 129, 181 N.E. 703, and in Powers v. United States, 223 U.S. 303, 56 L.Ed. 448, 32 S.Ct. 281, in which the defendants had been voluntarily sworn and gave testimony in their own behalf. In contrast to the situations in Jackson and Rue, in the instant case, the defendant was not called to testify nor was he asked any questions by the State's Attorney or the court. His statement was voluntarily and spontaneously made at a time when it was unanticipated that he would make any inculpatory remark.
1 As former Chief Justice Warren pointed out, the privilege against self-incrimination is fulfilled "when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.' Malloy v. Hogan, 378 U.S. 1, 8, 12 L.Ed.2d 653, 659, 84 S.Ct. 1489 (1964)." (Emphasis added.) (Miranda v. State of Arizona, 384 U.S. 436, 460, 16 L.Ed.2d 694, 715, 86 S.Ct. 1602, 1620.) Of course Miranda was concerned with custodial interrogation, that is, with "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (384 U.S. 436, 444, 16 L.Ed.2d 694, 706, 86 S.Ct. 1602, 1612.) The ruling in Miranda was specifically aimed at confrontations between the police and the accused. Nevertheless, most of the discussion in Miranda is applicable to the claim of defendant in this case that his privilege against self-incrimination was violated. For example, in Miranda the former Chief Justice pointed out that although there is probably a greater need for protection of the accused's fifth amendment privilege while in the setting of a police station than there is in a court, nevertheless, a spontaneous statement made in the police station by the accused may be used against him at trial.
"As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. * * * In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. * * * There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." (Emphasis added.) 384 U.S. 436, 461, 478, 16 L.Ed.2d 694, 716, 726, 86 S.Ct. 1602, at 1621, 1630.)
And as Mr. Justice White pointed out in his dissenting opinion in Miranda, it is not every statement which is protected by the fifth amendment, but only those which are "compelled."
"That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned." 384 U.S. 436, 536, 16 L.Ed.2d 694, 759, 86 S.Ct. 1602, 1660.
Full consideration of this matter requires further comment, however. For, as pointed out in the opinion of the court written by Mr. Justice Fortas in In re Gault, 387 U.S. 1, 55, 18 L.Ed.2d 527, 561, 87 S.Ct. 1428, 1458, we must be sure that an inculpatory statement, such as we are dealing with here, was not only uncoerced, but also that it was not the product of ignorance of rights.
"If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product ...