Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit
MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:
Is a statement inadmissible in a criminal proceeding when made by a defendant who initially desires the advice of counsel before making it, but who subsequently voluntarily makes it without the aid of counsel? This is the question we decide here.
Defendant, Alfred Morgan, and four other persons, Cecilia Walker, Ollie Lee, James Wilkerson (also known as James Wilkens), and Mae Lisa Lee, were jointly indicted in Cook County for the murder and armed robbery of Theodore Fletcher. Defendant obtained a severance. After a bench trial he was convicted on each charge and was sentenced to serve concurrent terms of 20 to 25 years. The appellate court affirmed the conviction, but reduced each sentence to a term of 14 to 20 years (39 Ill. App.3d 588). We granted the defendant's petition for leave to appeal pursuant to Rule 315 (58 Ill.2d R. 315).
The testimony is set out in detail in the opinion of the appellate court and need only be summarized. Fletcher was murdered in Robbins, Illinois, the morning of September 9, 1972. Defendant was arrested later that day and taken to the Robbins police station. An assistant State's Attorney, preparatory to interrogating defendant, advised him of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602). Defendant at first said that he would give a statement without a lawyer. After further discussion with the State's Attorney, defendant said that he desired an attorney. The interrogation accordingly did not proceed.
Defendant was placed in another room, where he remained alone for about half an hour while the assistant State's Attorney attempted to contact the public defender's office in order to obtain counsel. While the State's Attorney was so engaged, a police officer visited the room where defendant was, and defendant then asked if he could finish his statement. At this juncture the officer told defendant that a statement from him was no longer wanted since Mae Lisa Lee, who had also been arrested in connection with the robbery and murder of Fletcher, had given a statement implicating defendant.
The officer relayed to the State's Attorney defendant's desire to make a statement, and defendant was brought in. The State's Attorney again advised defendant of his constitutional rights. Defendant stated that he did not want an attorney, because the latter might get him confused. Defendant then gave an inculpatory statement. After a hearing, his pretrial motion to suppress that statement was denied, and the statement was introduced at his trial.
Defendant contends that his statement was inadmissible, because it was made without the presence of counsel which he had earlier requested.
The appellate court rejected this contention, on the basis of Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321. There Mosley had been arrested in connection with several robberies. While in police custody, after being given Miranda warnings, he said he did not wish to answer any questions about the robberies, and the interrogation ceased. Two hours later he was taken to a different bureau of the police department, where he was questioned by a different officer about an unrelated murder. He was again given Miranda warnings, and, in addition, was told that another person had made a confession to the murder which implicated him. On this occasion Mosley did not exercise his right to remain silent, and gave an inculpatory statement.
The Supreme Court held that the second interrogation was not proscribed by Miranda, notwithstanding a comment in Miranda that if an individual "indicates * * * that he wishes to remain silent, the interrogation must cease." (384 U.S. 436, 473-74, 16 L.Ed.2d 694, 723, 86 S.Ct. 1602, 1627.) The court held that the quoted passage could not be interpreted as barring all statements by one in custody.
"Another possible construction of the passage would characterize `any statement taken after the person invokes his privilege' as `the product of compulsion' and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. * * *
* * * [A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests." 423 U.S. 96, 102, 46 L.Ed.2d 313, 320, 96 S.Ct. 321, 325-26.
The defendant in Mosley made no request for counsel, so that the precise point involved here was not decided. In principle, however, the reasoning in Mosley is applicable. If a defendant may waive his right to silence after initially claiming it, his initial request to have an attorney present may also be voluntarily withdrawn. An initial request for counsel is not irreversible, absent a showing that the expressed desire to make a statement without the presence of counsel was made under the force of continued impermissible interrogation. Here, of course, there was no further interrogation, since defendant stated on his own that he wished to make a statement without having counsel present.
Our conclusion is also supported by a further comment in Miranda, which follows the excerpt quoted in the preceding paragraph, where the court remarked:
"This does not mean, as some have suggested, that each police station must have a `station house lawyer' present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the ...