APPEAL from the Circuit Court of Macon County; the Hon.
ROBERT J. STEIGMANN, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Were the strictures of Miranda violated?
We must reverse and remand.
In the early morning hours of October 24, 1976, the defendant (Holmes), the victim (Jones), and several other persons were present at the home of Josie Wilder who ran a gaming house each weekend. At one point in the evening although no one could remember the exact time defendant and the victim got into a fight in the Wilder backyard. They were separated and at some point thereafter each left the party. The victim was the only white person present. There was testimony that the partygoers were semi-intoxicated on either alcohol, marijuana or both. In fact, the victim admitted he had consumed six cans of beer and some marijuana.
On his way home, the victim (Jones) was accosted by the defendant (Holmes), pistol whipped and further physically abused, commanded to strip, to throw his clothes over a fence and to run away. But before having Jones throw his clothes away, the defendant took from Jones' pants pocket the keys to the service station where Jones was employed and the combination to the safe located at the station. Jones ran to a nearby house where the occupants summoned the police and gave the victim something to wear.
At the police station following his arrest, the defendant was given the Miranda warnings by Officers Studebaker and Moore. This was at 10 a.m. on the same day. After the Miranda rights were read by the officers, Holmes refused to sign the form acknowledging he had been given the warnings. One officer said that defendant failed to answer when asked if he understood the warnings, but the other officer testified that Holmes indicated that he understood them. However, defendant then talked to the officers and asked questions about the charges against him. After telling him about the charges, the officers asked defendant if he had been at the Wilder's house the night before to which Holmes said no, claiming he was at the VFW and if he was in any fight, it was there and not at Wilder's. Then he said he would answer no more questions. He was then returned to his cell in the jail.
Some 10 1/2 hours later at about 8:30 p.m. that evening defendant was again questioned by different police officers, this time by Officers Hannon and Pittinger. Again the Miranda warnings were given and this time defendant said he understood them, but refused to sign the acknowledgement. The officers inquired if he wished to talk, and he responded with a question as to the charges against him. This query was answered and the officers then asked if he had been to the Josie Wilder house the night before. He said that he had not.
The record is clear that upon both in-custody occasions the complete and entire Miranda advice was read to defendant. Holmes testified at the hearing on the motion to suppress his statements that he twice asked for an attorney during the morning interview. But Officers Studebaker and Moore did not so testify, although no questions on this point were asked of them on either direct or cross-examination. Following defendant's testimony at the suppression hearing, the police officers were not called for rebuttal evidence on this question. The trial judge who presided at the suppression hearing (a different jurist than the one who presided at the subsequent jury trial) recited on the record at the conclusion of the hearing that "* * * it is undisputed that the defendant asserted his right, by the People's evidence, that he would not sign the waiver and didn't want to pursue the first interrogation; and by the Defendant's testimony that he demanded an attorney before he would sign People's Exhibit 1. Any question on that? (No response.)" To this statement by the judge presiding, there was no objection, no question, no request for clarification of this statement, no response of any kind by the State's Attorney. Subsequently, the court entered a written order denying the motion to suppress, in which the following findings were made:
"3. It is undisputed that after he was advised of his rights, the defendant asserted certain rights, such as, he would sign no written waiver and that he would not talk without his attorney.
4. It is undisputed that after he said he wouldn't sign or talk without an attorney, that the conversation between the defendant and the authorities continued, wherein the defendant asked questions as to the offense and why he was charged.
6. It is without question that the defendant made no questions [sic] or admissions of guilt, but only in discussing the offense and the charges, made exculpatory statements as to his whereabouts on the night of the occurrence.
The court finds the defendant was advised of his rights and has reason to believe that he understood the same. The court finds no basis to ...