APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Robert Anthony, was convicted of armed robbery after a jury trial in Williamson County and sentenced to from 4 to 20 years. On appeal he contends that the court erred in denying his motion to suppress a post-indictment statement taken by police and also contends that the maximum sentence of 20 years is excessive.
No allegation is made about the sufficiency of the evidence and thus no discussion of the facts of the case is necessary here. The offense occurred on February 27, 1974, in Marion, Illinois. On March 11, 1974, before defendant was in custody, an indictment was returned charging defendant and another man with the offense. Defendant was arrested on September 2, 1974, and thereafter appeared in court and was advised of the nature of the charge and the available penalties. Bail was set and the public defender was appointed to represent defendant. After defendant was returned to the jail, he was interrogated by a Marion police officer, Roger Rich. Eventually a written confession was taken which was later admitted into evidence. At trial, Rich related an oral statement given by defendant prior to the written statement. Both statements were substantially the same.
At the hearing on defendant's motion to suppress the oral and written confessions, Rich testified that before the interrogation he advised the defendant of his rights in the form dictated by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). In addition, Rich advised the defendant that he could halt the questioning at any time, that he need not make any incriminating statements and that no threats or promises would be made. Defendant then gave Rich an oral statement admitting participation in the offense. Rich testified he then asked defendant to write the statement and defendant responded that he would rather have counsel present and inquired who would be appointed to represent him. Rich stated that he told defendant that the public defender would be appointed and that whether he wanted counsel present was up to him, apparently attempting to indicate that he would not press for the written statement. Rich then asked defendant how he intended to plead. Defendant stated that he intended to plead guilty and Rich told him that the written statement would make no difference. At that point defendant agreed to give the written statement.
Rich testified that he did not know counsel had been appointed and was under the impression that defendant was not aware that counsel had been appointed. Rich stated that had he known, he would not have attempted to procure a written statement and would not have questioned defendant if he wished to have counsel present. Rich stated that defendant appeared healthy and alert, understood the questions and answered them intelligently. No coercion was used.
On cross-examination, Rich testified that defendant did not inquire about counsel until after he gave the oral statement. Rich said that he told defendant that if he intended to plead guilty the written statement would be to his benefit.
Defendant testified that he was first approached by Rich in the anteroom of the jail. He stated that Rich informed him that Anthony's co-defendant had made a statement inculpating defendant. At that point defendant told Rich that he wanted to speak with his counsel. Rich went to the phone and upon his return told defendant it would not matter whether he spoke to his lawyer because Rich and the public defender were "good friends" and "all drink coffee together." Defendant then told Rich that he would give the statement since it was all right with his attorney. Defendant denied admitting that he was guilty or intended to plead guilty but admitted making and signing the confession though he said he could not read it "too good." Rich did not read the statement to him.
On cross-examination, defendant admitted that Rich had informed him of his rights and that he had understood them, although he denied being told that he could stop the interrogation at any time. Defendant again stated that he had asked to see his lawyer, but admitted that it was his decision to go ahead without him based upon Rich's statement that he could not come and that it was all right to give the statement.
Officer Rich was called in rebuttal and testified that he had attempted to contact the public defender at the time defendant requested the presence of counsel, after the oral statement was given. Upon his return, Rich told the defendant that the public defender was out of his office. It was at this point that Rich asked defendant how he intended to plead. After that time defendant did not request counsel and proceeded voluntarily to give the written statement.
After taking the matter under advisement, the court ruled that the statement was freely and voluntarily given, that defendant was informed of his rights and voluntarily waived his right to the presence of counsel and that no threats, promises, or coercion were employed to procure the statement. The motion to suppress was denied. At trial, Rich related the oral statement given by defendant and the written statement was admitted into evidence and presented to the jury.
The trial court in the instant case ruled that the defendant had voluntarily waived his right to counsel and that the confession was therefore admissible. Although the court did not specifically state that it believed the testimony of Rich over defendant, this fact is implicit in the court's ruling. We must accept its determination of the facts and will not disturb the ruling unless it is against the manifest weight of the evidence. (People v. Pittman, 55 Ill.2d 39, 302 N.E.2d 7 (1973); People v. Johnson, 55 Ill.2d 62, 302 N.E.2d 20 (1973).) Certain facts must therefore be accepted as true. Defendant was arrested after the indictment was returned and was in custody at the time the statement was taken and counsel had been appointed to represent him, although defendant had not yet consulted with counsel. Defendant was fully advised of his constitutional rights prior to the taking of the oral statement. Although there is some contradiction in the testimony, the record when read in its entirety indicates that defendant made no attempt to exercise his right to counsel until after he gave the oral statement. At that point he inquired who would be appointed to represent him and indicated that he wished to speak with counsel before giving a written statement. Officer Rich then attempted to contact the public defender and was unable to reach him. Upon Rich's inquiry, defendant indicated that he intended to plead guilty and Rich advised him that a written statement could not harm him and would be to his benefit.
We are confronted, therefore, with two issues. The first is whether the fact that defendant had been previously indicted and was represented by counsel required, in and of itself, the presence of counsel prior to interrogation. The second question is whether Rich was required to halt the interrogation when defendant asked who would represent him and indicated his desire to have counsel present
1 Defendant relies in part upon Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), which held inadmissible statements made by defendant to a co-defendant and surreptitiously overheard by government officials where defendant previously had been indicted and his counsel was not present. Illinois has expanded this doctrine substantially. In People v. Lagardo, 39 Ill.2d 614, 237 N.E.2d 484 (1968), the court, relying on dictum in People v. Milani, 39 Ill.2d 22, 233 N.E.2d 398 (1968), stated that Massiah required the exclusion of "all post-indictment incriminating statements obtained in the absence of counsel, even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception." (39 Ill.2d 614, 616, 237 N.E.2d 484, 486.) The court specifically noted, however, that Lagardo had not waived his right to counsel, thus leaving open the possibility of knowing and intelligent waiver. (See also People v. Halstrom, 34 Ill.2d 20, 213 N.E.2d 498 (1966).) In People v. Smith, 42 Ill.2d 479, 248 N.E.2d 68 (1969), the defendant was informed of his right to counsel in a post-arraignment interrogation and offered the opportunity to contact counsel; although, counsel had not been appointed. On appeal from his conviction, defendant challenged the admissibility of the statement made on Massiah grounds. The court did not discuss the Lagardo and Milani interpretation of Massiah, but held that by failing to request counsel, defendant had waived the right. The appellate court for the second district relied in part upon Smith in holding that defendant had waived the presence of counsel in a post-indictment interrogation where defendant knew of his right to counsel and expressly rejected the presence of counsel and overcame the stated reluctance of the police officer to take his statement. (People v. Kelley, 10 Ill. App.3d 193, 293 N.E.2d 158 (1973).) A similar situation occurred in United States v. Crisp, 435 F.2d 354 (7th Cir. 1970), where the court held that even though defendant had refused to sign a form containing a waiver of constitutional rights, his post-indictment statement made without the presence of counsel was admissible where defendant had "persisted in his expressed desire to pass information" to governmental authorities. The court stated that Miranda and Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964), indicated that "formal indictment is no longer the determinative event upon which constitutional safeguards hinge. By the same token, formal indictment does not absolutize constitutional rights or inexorably rigidify adversary postures." (435 F.2d 354, 358.) The court thus recognized that waiver could occur even after indictment and distinguished the "crucial feature" of Massiah as the "deliberate acquisition of information by police from a suspect under circumstances preventing his effective exercise or waiver of his rights to counsel at a time when those rights had clearly attached by virtue of his formal indictment." 435 F.2d 354, 358.
In United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), the court was faced with the argument that once the government has or should have knowledge that counsel has been appointed, it cannot obtain information from the defendant except in the presence of counsel. In the alternative, defendant contended that in such a situation, the government bears a greater burden to show effective waiver. The court rejected the first argument, citing Crisp and other cases. The court, however, agreed "in principle" with the second contention, though stating that each case must be determined upon its facts. The court found ten separate factors present before it which supported its finding of effective waiver. Among those factors was an atmosphere devoid of pressure or coercion on the defendant when the statement was taken, a full evidentiary hearing before the trial court on the question of waiver of counsel, clear indication that defendant had been informed of and had understood his Miranda rights, no clear indication of record that the agent conducting the interrogation knew that counsel had been appointed or that defendant had appeared before a judicial officer, and evidence in the record that defendant had not been concerned about representation by counsel. The court relied heavily on the adjudication of the voluntariness of the confession and found "substantial ...