APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN E. SYPE, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
During the early morning hours of August 4, 1975, Ms. Carol Adams was brutally beaten as she lay sleeping in her Rockford, Illinois, home. The investigation of the crime led to the arrest of the defendant-appellant, Ricky Walker, hereafter the defendant. On September 30, 1975, the Winnebago County grand jury handed down a four-count indictment against the defendant, charging him with the crimes of attempt murder, attempt rape, aggravated battery and burglary. Trial was before a jury who found the defendant guilty on all counts. He has appealed, raising six issues as grounds for reversing his conviction. Those contentions are: (1) That the trial court improperly denied the defendant's motion to suppress his confession; (2) That the trial court improperly instructed the jury on the charge of attempt murder; (3) That the imposition of consecutive sentences for burglary and attempt murder was improper; (4) That the defendant was improperly committed to the adult division of the Department of Correction; (5) That the defendant was improperly convicted of both aggravated battery and attempt murder; and (6) That the defendant's sentence was excessive.
After reviewing the record and weighing the arguments presented, we are of the opinion that the defendant's convictions must be reversed and the cause remanded to the circuit court of Winnebago County for a new trial.
In the early morning hours of August 4, 1975, the Rockford police received a report of a prowler at the home of Ms. Carol Adams. The investigation of the report resulted in Officer Charles White's discovering Ms. Adams lying on her living room floor in a pool of blood from a wound to her head. Her nightgown was disheveled and a pair of torn panties was lying at her side. Ms. Adams was transported to a Rockford hospital where she remained unconscious until August 14, 1975. Their investigation of the crime led the Rockford police to believe that the defendant might have some knowledge of the offense. During mid-August, Detectives Jesse Otwell and Roland Donnelli went to the defendant's home to question him, but were informed by his mother, Mrs. Bessie Young, that the defendant was visiting his grandparents in Cleveland, Ohio. The detectives asked Mrs. Young to have the defendant contact them when he returned to Rockford. Upon returning to Rockford on September 2, 1975, the defendant contacted Detectives Otwell and Donnelli and arranged to meet them that afternoon. At 1:30 the detectives arrived at the defendant's home to transport him to police headquarters for questioning. Before the questioning of the defendant began, he was given the warnings mandated by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The defendant also read and signed a waiver of rights form. When first questioned concerning the beating of Ms. Adams, the defendant denied any knowledge of the crime. After this initial round of questioning, the detectives suggested that the defendant be photographed and fingerprinted. The defendant consented. After the defendant had been fingerprinted and photographed, Detectives Otwell and Donnelli again questioned him about the beating of Ms. Adams. The defendant persisted in his denials of any knowledge of the crime. It was approximately 3 p.m. when the detectives received a call from the police identification bureau informing them that one of the defendant's fingerprints matched a fingerprint found at the scene of the crime. It was only after the defendant was confronted with this incriminating information that he confessed to the crime.
After the defendant had made his oral confession, Detectives Otwell and Donnelli began the process of reducing it to writing. It was during that process that the detectives first learned that the defendant had turned 17 on August 30, 1975. This, of course, meant that the defendant was a juvenile at the time of the offense. The detectives then summoned a juvenile officer who remained at the jail until 4:20 p.m. when the defendant's written statement was completed.
In his confession, the defendant revealed that he entered Ms. Adams' home on two separate occasions during the night of the crime. It was during the first entry, made with the apparent intent to commit a theft, that the defendant first observed Ms. Adams sleeping on her living room floor. After leaving the house with her purse, the defendant evidently decided to return and rape her. Armed with a baseball bat he found lying in the yard, the defendant entered Ms. Adams' home for a second time. While standing over her sleeping body for approximately 10 minutes, the defendant contemplated what he should do. Finally, he decided to hit Ms. Adams in the head with the bat so he could have sexual relations with her without getting caught. After striking Ms. Adams three times in the head with the baseball bat, the defendant raised up her nightgown and tore off her panties. However, the defendant found himself physically unable to perform his planned act. Before leaving the scene, the defendant wiped off the various surfaces he had touched in an effort to remove his fingerprints.
On September 30, 1975, a Winnebago County grand jury handed down a four-count indictment against the defendant. Count I charged the defendant with attempt murder; count II, with attempt rape; count III, with aggravated battery; and count IV, with burglary, in that he entered the home of Ms. Adams with the "* * * intent to commit therein a theft or felony * * *."
Prior to the commencement of his trial, the defendant moved to suppress his confession. At the hearing on that motion, the defendant's mother, Mrs. Young, testified that she went to the police station to see her son but was denied permission to do so despite the fact that she so requested. The police concede that Mrs. Young did visit the police station but deny she ever requested to see her son. They claim she limited her inquiries as to when her son would be released. Mrs. Young also claimed that she had previously informed Detectives Otwell and Donnelli that her son was only 16 years old. Detectives Otwell and Donnelli testified that they did not learn the defendant was 16 at the time of the offense until they began reducing the defendant's oral confession to writing, at which time they sent for the juvenile officer. At the close of the hearing, the presiding judge, John E. Sype, ruled the defendant's confession to be admissible.
At the close of the defendant's trial, the following jury instructions were given over his objection:
"A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The crime attempted need not have been committed.
A person commits the crime of murder who, without lawful justification, kills an individual if, in performing the acts which caused the death, he intends to kill or to do great bodily harm to that individual; or if he knows that such acts will cause death to that individual; or if he knows that such acts create a strong probability of death or great bodily harm to that individual.
To sustain the charge of attempt murder, the State must prove the following propositions: That the Defendant performed an act which constituted a substantial step toward the commission of the crime of murder and that the Defendant did so with intent to commit the crime of murder." (Emphasis added.)
The jury returned a verdict of guilty on all counts, and the trial judge sentenced the defendant to two to six years' imprisonment for burglary to be served consecutively with concurrent terms of 20-60 years' imprisonment for attempt murder and 5-15 years' for attempt rape. No sentence was imposed for the aggravated battery conviction.
The first of the defendant's six contentions is that the trial court erred by not suppressing his confession. The defendant argues that the State failed to demonstrate that the defendant had knowingly and intelligently waived his constitutional right to remain silent. In support of this argument the defendant cites the fact that he was 16 at the time of the offense and was thus entitled to protections of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701-1 et seq.) but was not informed of the possibility that he ...