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People v. Gilbert

OPINION FILED MARCH 3, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ELMO GILBERT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, JR., Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This matter was remanded by the Illinois Supreme Court (People v. Gilbert (1977), 68 Ill.2d 252, 369 N.E.2d 849) for the determination of issues not considered in our original opinion (People v. Gilbert (1976), 38 Ill. App.3d 816, 349 N.E.2d 609). The facts have been sufficiently set forth in those opinions.

Initially, we examine the contention of defendant that two statements he made to the police were improperly received in evidence. The first appears in the testimony of Officer Gulley, who testified that he had received a report of a shooting in an apartment and, upon arrival, he saw defendant standing next to a body in the hallway with a trail of blood from the kitchen to the body. In response to Gulley's inquiry, defendant replied that he had been in the living room and the victim in the kitchen when he heard a "wham." Defendant argues this response was inadmissible because at that time he was being questioned as a suspect, with the focus having shifted from one of general inquiry to one of accusation, and that Miranda warnings were not given.

It is now well settled that Miranda warnings are not necessary where the police conduct a general, on-the-scene questioning as to facts surrounding a crime. (People v. Parks (1971), 48 Ill.2d 232, 269 N.E.2d 484, cert. denied (1972), 404 U.S. 1020, 30 L.Ed.2d 669, 92 S.Ct. 692.) In Miranda v. Arizona (1966), 384 U.S. 436, 477-78, 16 L.Ed.2d 694, 725-26, 86 S.Ct. 1602, 1629, the Supreme Court stated:

"Our decision is not intended to hamper the traditional function of police officers in investigating crime. * * * General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present."

• 1 Here, only a single question was asked by Officer Gulley, and there appears little doubt that it was asked to obtain information as to what had occurred. Moreover, the inquiry was made in the family apartment in the presence of his parents and brother, and neither before nor immediately after the statement did Gulley place any charges against defendant or ask him to remain in the apartment. Under these circumstances, defendant could not be said to be in-custody or otherwise deprived of his freedom of action in any significant way. Furthermore, there is no indication of the compulsion, danger, intimidation or trickery which the Miranda rule was designed to eliminate, and we believe that to extend the rule to the type of inquiry made by Officer Gulley would serve to distort the purpose and plain language of Miranda.

The other statement complained of was taken from defendant after he was given the Miranda warnings. He argues, however, that this statement was the tainted fruit of the improperly elicited first statement; that the Miranda warnings as given were inadequate; and that the record fails to show a clear waiver of his right to remain silent. We disagree.

First, as we have found no taint in defendant's first statement, this aspect of his argument need not be discussed further.

• 2 Second, words which convey the substance of the Miranda warnings and the information which they require are sufficient without strict adherence to a ritualistic form. (People v. Walker (1971), 2 Ill. App.2d 1026, 279 N.E.2d 23.) Here, the following was read to defendant:

"Required Warnings — No. 1: You have the right to remain silent; No. 2: If you choose not to remain silent, anything you say or write can and will be used as evidence against you in Court; No. 3: You have a right to consult a lawyer before any questioning, and you have a right to have a lawyer present with you during any questioning; No. 4: You not only have a right to consult with a lawyer before any questioning; if you lack the financial ability to retain a lawyer, a lawyer will be appointed to represent you before any questioning; and you may have the appointed lawyer present with you during any questioning."

Defendant views these warnings as inadequate because he was not additionally asked whether he could, in fact, afford an attorney or whether he actually wanted an attorney during the interrogation. To the contrary, we believe the warnings as given were sufficient to apprise him of his right to the presence of an attorney during the instant interrogation and that this right could have been exercised even if he had no funds to retain private counsel. People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731; People v. Pagan (1972), 52 Ill.2d 525, 288 N.E.2d 102.

Third, an express waiver of the right to counsel is not required. (See People v. Hill (1972), 6 Ill. App.3d 746, 286 N.E.2d 764.)

"The test is that there be a showing of a knowing intent to speak without counsel. Once the defendant has been informed of his rights and indicates that he understands those rights it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them. [Citations.]" People v. Brooks (1972), 51 Ill.2d 156, 164, 281 N.E.2d 326, 332.

• 3 In the instant case, after each of the four Miranda warnings were read to defendant, he was asked whether he understood it and he replied that he did. After they were all read, he was asked, "Knowing this do you wish to give us any statement?" Whereupon, defendant rendered his account of the incident. As defendant has made no claim of mental deficiency or retardation, we believe his assertions that he ...


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