APPEAL from the Circuit Court of St. Clair County, the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for a murder occurring in the course of an armed robbery. After a jury trial he was found guilty and sentenced to 14 to 60 years' imprisonment. The nexus of the State's case was a confession obtained from the defendant. A hearing to suppress was held, and the court deemed the statement to be voluntary and permitted it to be introduced at trial.
On appeal four arguments are raised by the defendant. The defendant contends that the confession should have been suppressed as involuntary because the police deceived his father into a belief that he was not under interrogation and subsequently excluded his father from the interrogation despite requests that he be present. Defendant at the time of his arrest and interrogation had just passed his 18th birthday. No one who testified seemed sure precisely what happened at the police station. The record indicates confusion as to what time the father actually arrived at the station. He was informed by his wife via telephone that his son was in custody and went directly to the station house. He testified that the desk officer first told him that his son was not there. However, at his second request and insistence that his son was there the desk officer asked a detective where the defendant was and the detective took the father to a room where the defendant was in the process of giving a statement. He was allowed to talk with his son for a few moments but then told he must leave until the statement was finished.
It does not appear to us from this evidence that there was any blatant attempt by the police to "deceive" the father or that at the father's first visit the desk officer was aware that defendant was in the station. The defendant cites People v. Groleau, 44 Ill. App.3d 807, 358 N.E.2d 1192, in which the court, quoting In re Stiff, 32 Ill. App.3d 971, 336 N.E.2d 619, held that as a "matter of good practice" it is preferable that whenever possible, a parent or guardian should be present when a juvenile waives his rights. In the instant case, the defendant is not a juvenile, but claims that his youth entitled him to have his father present. We do not agree. Here the defendant never asked for his father until his father entered the room and then only asked to speak with him. In contrast, the defendant in Groleau was a juvenile who repeatedly asked to have his father present, was deceived by the police as to the nature of the charges against him, and claimed physical abuse. None of these factors is present in the instant case.
1 The State cites People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, and People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136, as authority for the proposition that the in-custody protections concerning interrogations are not intended to apply to a defendant seeking the assistance of anyone other than a lawyer. Prim held a confession voluntary although a request for parental presence was denied. Rosochacki did the same though the defendant had asked to see a priest. Although the defendant's father was excluded from the interrogation process in this case we find that this was proper and is not a sufficient ground for suppression of the statement.
The general rule governing admissibility of confessions is set forth in People v. Hester, 39 Ill.2d 489, 497, 237 N.E.2d 466, which stresses that the confession must be made "freely, voluntarily, and without compulsion or inducement of any sort." Hester emphasizes the "totality of circumstances" test of voluntariness. Defendant cites Hester in support of his contention that his confession was not voluntary. However, the situation in Hester is readily distinguishable from the instant case. In Hester, the 14-year-old defendant was held incommunicado for over 12 hours, was not advised of his rights (this case was decided before Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602) and had no counsel. Here, defendant made his statement within one hour of his arrest, had access to a telephone, and was informed of his rights, according to the testimony of the arresting officer.
2 There was conflicting testimony concerning whether the defendant was informed of his rights as required by Miranda v. Arizona. The arresting officer testified that the warnings were given to the defendant both en route to the police station and at the police station and that the defendant read and signed the form acknowledging the warnings. The defendant testified that he never received the warnings but then stated that although he had read the warnings he did not understand them. The totality of circumstances in the instant case supports the trial court's findings as to voluntariness. A finding of voluntariness by the trial court is not to be disturbed on appeal unless against the manifest weight of the evidence. (People v. Prim; People v. Pickerel, 32 Ill. App.3d 822, 336 N.E.2d 778.) Further, voluntariness need only be proved by a preponderance of the evidence. (People v. Pickerel.) Judged by these tests, the confession of the instant defendant was voluntary and was properly admitted into evidence.
3 Defendant's second argument is that the trial court improperly excluded evidence regarding the credibility and weight to be given to the confession so as to deny defendant a fair trial. It is an accepted rule that the defense can present evidence on the credibility and weight to be given a confession though the court has found it voluntary and admitted it into evidence. (People v. Schwartz, 3 Ill.2d 520, 121 N.E.2d 758; People v. Scott, 28 Ill.2d 131, 190 N.E.2d 749.) Defendant asserts that his attempts to place before the jury evidence of police deception in understating the charges against him and in excluding his father from the interrogation were precluded by the rulings of the trial court. The State contends, and we agree, that the record does not show that the trial court so limited the defense. The record does show that defense counsel made no effort to offer evidence concerning the weight and credibility of the confession.
Defendant also asserts that the prosecution, in rebuttal argument, stated that the jury was not to consider the circumstances under which the confession was taken. We have read the record and do not find that it supports defendant's assertion. Any remarks of the prosecutor which might bear on the issue of voluntariness were invited by the remarks of defense counsel who in his closing argument contended that the statement was involuntary.
4 Defendant next claims that it was error not to instruct the jury on the weight to be given the confession. However, as the State points out, defense counsel did not tender any instruction on this issue. Generally, a party who desires a specific instruction must offer it and request the court to give it and the trial court has no obligation to instruct on its own motion. (People v. Parks, 65 Ill.2d 132, 357 N.E.2d 487; People v. Nuccio, 54 Ill.2d 39, 294 N.E.2d 276.) In criminal cases, however, this rule is modified in certain situations by the requirements of a fair trial. It has been held that a court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof. People v. Parks; People v. French, 5 Ill. App.3d 908, 284 N.E.2d 481.
5 While the instruction, IPI Criminal No. 3.07, could properly have been given if it had been tendered, we do not regard it as reversible error for the court to have failed to give it sua sponte. The Committee Comments to the instruction state merely: "If the trial judge receives a confession in evidence, the jury may not entirely disregard the confession. The jury is bound to consider the confession and give it such weight as the jury determines it is entitled to."
6, 7 Defendant's third contention is that he was denied a fair trial by the prosecutor's remarks in closing argument that the State's case was uncontradicted. Defendant claims that these remarks were intended to direct the jury's attention to his failure to testify, especially in view of the fact that the defendant was the only one who could have contradicted the State's evidence. We disagree. It is true that a prosecutor is forbidden to make direct reference to a defendant's failure to take the stand, but, he may refer to the fact that the testimony of the State's witnesses is uncontradicted even though the defendant is the only person who could have contradicted it. (People v. Hopkins, 52 Ill.2d 1, 284 N.E.2d 283; People v. Mentola, 47 Ill.2d 579, 268 N.E.2d 8; People v. Norman, 28 Ill.2d 77, 190 N.E.2d 819.) Moreover, no objection was made by defense counsel to the remarks which serves as a waiver of any objection on appeal. (People v. Hanson, 53 Ill.2d 79, 289 N.E.2d 611, cert denied, 411 U.S. 937, 36 L.Ed.2d 398, 93 S.Ct. 1916; People v. Underhill, 38 Ill.2d 245, 230 N.E.2d 837, cert denied, 391 U.S. 912, 20 L.Ed.2d 651, 88 S.Ct. 1803.) Further, the decisions of the federal courts> which have purportedly followed a more stringent test for the evaluation of such prosecutorial argument, cited by the defendant in his brief, are not binding on this court. People v. Stansberry, 47 Ill.2d 541, 268 N.E.2d 431.
8 Defendant also argues that the prosecutor in closing argument, attempted to shift the burden of proof, that he misstated and distorted evidence and commented on evidence not presented at trial. These contentions may be disposed of by examining the record. Certain remarks of the prosecutor may have tended to shift the burden of proof in the minds of the jury if left standing alone. However, these remarks were offset by the prosecutor himself when he stated several times in closing argument that the State carried the burden to prove the defendant guilty beyond a reasonable doubt. Further, the jury received proper instructions on the burden of proof. Other remarks which the defendant asserts are prejudicial, concerning failure of the defense to call possible witnesses, were not improper where they were invited by the remarks of defense counsel in his own argument. (People v. Norfleet, 15 Ill. App.3d 567, 304 N.E.2d 672.) Neither individually nor in combination do the remarks complained of warrant reversal.
9 Defendant contends that the maximum sentence imposed, 60 years, is excessive in view of his age, lack of prior criminal record and his rehabilitative potential. However, we are of the opinion that the trial court did not abuse its discretion in this matter. The trial judge is in the best position to determine the sentence based on the circumstances of the individual case. (People v. Perruquet, 68 Ill.2d 149, 368 N.E.2d 882.) Where the sentence is within statutory limits and is not greatly at variance with the purpose and spirit of our constitution, it will not be disturbed on appeal. (People v. McCullough, 45 Ill.2d 305, 259 N.E.2d 19.) The defendant must justify a reduction in sentence through substantial evidence in mitigation. (People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225.) In the instant case the defendant presented only a letter from his church of which his father is pastor. The record shows that the trial court was not unmindful of the criteria discussed in sentencing the defendant. Murder is a crime of unrivalled seriousness. Similar sentences have been upheld in People v. Allen, 56 Ill.2d 536, 309 N.E.2d 544, cert. denied, 419 U.S. 865, 42 L.Ed.2d 102, 95 S.Ct. 120 (100 to 200 years); People v. Nicholls, 44 Ill.2d 533, 256 N.E.2d 818 ...