APPEAL from the Circuit Court of Montgomery County; the Hon.
BILL J. SLATER, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 15, 1977.
This is an appeal by the State from an order of the circuit court of Montgomery County suppressing certain incriminating admissions made by defendant, William Petty. The issue on appeal is whether defendant effectively waived his constitutional rights, especially his right to the presence of counsel, prior to his making these admissions so as to make these statements admissible.
A five-count information was filed October 8, 1975, charging this 81-year-old defendant with various acts of sexual misconduct involving an eight-year-old girl. The exact nature of these charges is unknown to this court since the information was not made a part of the record on appeal. From the docket minutes of the trial court, it appears that defendant was arrested shortly thereafter pursuant to an arrest warrant also issued on October 8. Defendant appeared in court the following day and the public defender was appointed to represent him. Defendant was released on bail on October 10 and arraigned October 14.
On October 17, 1975, defendant was driven to Springfield by the Chief Deputy Sheriff of Montgomery County, William James Moore, for the purpose of submitting to a polygraph examination to be administered by an employee of the Illinois Bureau of Identification. After the test was concluded, defendant made the admissions in question in the presence of Deputy Sheriff Moore in response to questioning by the examiner. Deputy Sheriff Moore testified concerning these admissions at the preliminary hearing. After hearing this testimony, as well as that of the child, the court found probable cause as to three of the counts of the information and indicated that the matter should go before the grand jury. On April 28, 1976, the grand jury returned a two-count indictment charging defendant with indecent liberties with a child and contributing to the sexual delinquency of a minor (Ill. Rev. Stat. 1975, ch. 38, pars. 11-4(a)(3) and 11-5(a)(4)). Defendant subsequently filed a motion to suppress confessions, admissions or statements which was allowed after a full evidentiary hearing.
Defendant's motion to suppress asserts that the instant statements and admissions were obtained in violation of his constitutional rights and were not made voluntarily, knowingly and intelligently. It recounted the factual situation surrounding the giving of these incriminating statements to support its assertion. From our examination of the motion, defendant's argument at the suppression hearing and the brief filed in this court, we understand defendant's position to be that in view of the fact that defendant knew that there was an agreement that the polygraph results would not be used against him in court and that he was not advised again of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602) when the nature of the inquiry changed from a polygraph examination to an interrogation for evidentiary purposes, his choosing to answer the questions was not a waiver of his right to the assistance of counsel. The trial court apparently agreed. The court's order states: "Motion to suppress allowed because defendant was not advised of right to counsel and counsel was not advised when examination was made in presence of deputy after the polygraph exam."
The State, on the other hand, contends in this appeal that under the facts and circumstances of this case, as revealed by the evidence at the suppression hearing, the defendant must be found to have waived his right to the assistance of counsel and to have made voluntarily the incriminating statements, and that, therefore, the trial court's order is against the manifest weight of the evidence.
At the suppression hearing, in order to meet its burden to prove the voluntariness of the statements (see Ill. Rev. Stat. 1975, ch. 38, par. 114-11), the State presented the testimony of two witnesses, IBI polygraph examiner, Mr. F.A. Paoletti, and Deputy Sheriff Moore. It also offered two exhibits which were admitted without objection.
Mr. F.A. Paoletti testified that he worked for the Illinois Bureau of Identification and that he came in contact with defendant on October 17, 1975, at the Bureau's crime lab in Springfield. He stated that prior to having any conversation with defendant or conducting the polygraph examination he gave him a Miranda constitutional rights form which defendant read in his presence. Mr. Paoletti recounted that he explained each right from memory and testified more specifically that he advised defendant that he had a right to remain silent, that he had a right to have an attorney present and that anything he said could be used against him in a court of law. In his estimation, defendant appeared to understand these rights. Mr. Paoletti further stated that defendant placed his initials after each segment of the Miranda form and signed at the bottom to indicate he understood his rights. Mr. Paoletti signed as a witness. People's Exhibit 1 was identified as the form to which this testimony referred. Mr. Paoletti indicated that in his presence defendant at this time also read and signed a form consenting to the polygraph examination, identified as People's Exhibit 2. According to the remainder of Mr. Paoletti's testimony on direct examination, no one threatened or used any physical force or other form of coercion on defendant. He was neither promised anything nor told that he had to talk with Mr. Paoletti or submit to the examination. Defendant never indicated that he desired to see his attorney, to discontinue a conversation or stop any questioning. Mr. Paoletti testified that after being advised of his Miranda rights, defendant volunteered a statement to him which he later repeated in the presence of Deputy Sheriff Moore.
People's Exhibit 1, the rights and warnings form, fully complies with the procedural safeguards dictated by the Miranda decision to assure that one is accorded his privilege against self-incrimination. In addition, it informs the reader that he can refuse to answer any questions or stop giving a statement at any time he wishes. The exhibit corroborated Mr. Paoletti's testimony relative to the initialing and signing of the form to signify defendant's understanding of his rights. People's Exhibit 2 also bears defendant's signature.
On cross-examination, Mr. Paoletti agreed that the purpose for his appointment with defendant was the taking of a polygraph examination. He also stated that when an examination is conducted no one but the subject and the examiner is allowed in the room, including the subject's attorney. His cross-examination testimony clearly reflected the timing of defendant's admissions. He testified that defendant initially made incriminating statements after receiving the warning but prior to the polygraph examination; these statements were repeated after the examination in the presence of Deputy Sheriff Moore. Mr. Paoletti testified that he called the deputy sheriff into the room for the purpose of witnessing the statements and further stated that he has incriminating statements made during the course of examinations witnessed by a police officer if the statements are relevant to the issue upon which the person is being examined. Mr. Paoletti did not believe that Deputy Moore repeated any Miranda warnings prior to his listening to defendant's answers.
Deputy Sheriff Moore testified that he was present in Mr. Paoletti's office when defendant made incriminating statements in response to Mr. Paoletti's questioning. He agreed with Mr. Paoletti that there was no force, coercion, threats or promises made to induce the statements. He also agreed that defendant never indicated any reluctance to speak or a desire to consult with his counsel. In response to the question whether defendant appeared to be under the influence of any intoxicant or narcotic, he stated that he had conversed with defendant during the drive to Springfield and that he had seemed perfectly normal. Defendant did not appear to the deputy sheriff to be suffering from any learning disability or retardation.
On cross-examination, Deputy Sheriff Moore testified that he transported defendant to Springfield for the purpose of his taking a polygraph examination. The deputy sheriff was not allowed in the room during the course of the examination, but he entered the room later on Mr. Paoletti's request that he come in to hear something. At this time, Moore did not read any Miranda warnings to defendant or advise him of his right to remain silent.
The hearing concluded with defendant's attorney, the public defender, arguing in support of the motion. He made clear that the motion was directed only at the statements made in the deputy sheriff's presence. Counsel stated that prior to defendant's going to Springfield, counsel and the State's Attorney had agreed that the polygraph results would not be used in court absent some later stipulation. The public defender sent his client to Springfield for the purpose of taking a polygraph examination, not for the purpose of an interrogation in the presence of the deputy sheriff. The defendant believed that any information given would not be used against him. Defendant's attorney further argued that in his opinion, under these circumstances, defendant could not distinguish between what was a waiver of rights for a ...