APPEAL from the Circuit Court of Sangamon County; the Hon.
JOSEPH P. KOVAL, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Lester Ronald Aldridge was convicted of murder and was sentenced to a term of imprisonment of not less than 90 nor more than 120 years. Upon appeal, we affirm his conviction.
It is unnecessary to detail the brutal facts of the offense. A young woman was shot to death in a rural area of Sangamon County. Some time after her death, this defendant was arrested for an unrelated offense but was not held. In connection with that arrest, defendant's weapon was seized and it was subsequently determined to be the gun which had killed the victim here.
On April 30, 1976, defendant was stopped on the street by sheriff's officers and interrogated. His home and car were searched with his consent. The defendant was taken to the scene of the homicide for which these charges were subsequently brought. While at the crime scene, defendant was warned that should he attempt to flee, he would be stopped with force, the implication being that he would be shot. Upon the group's return to the sheriff's office, questioning of the defendant continued. Defendant's attorney appeared later in the evening at the sheriff's office and demanded access to his client. The questioning ceased after defense counsel advised his client not to cooperate further. Defendant was then released. There is no evidence that the admonitions required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, were given to defendant on this date or that any evidence was obtained by this interrogation.
The investigation of the homicide finally resulted in defendant's arrest on June 14, 1976. The chronology that follows is essential in understanding the subsequent issue raised on appeal concerning the confession made by defendant.
On June 28, 1976, according to defendant's testimony, he was taken to a room in the jail for questioning by sheriff's officers. Upon defendant's request for his attorney, rather than ceasing the interrogation as should have happened under Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321, the questioning continued. The sheriff's officers repeatedly urged defendant to confess, but with no success. Defendant was moved to the deadlock area of the jail the next day, allegedly for observation because of problems defendant was having with other inmates. In deadlock, defendant, segregated from the other prisoners, was placed in a cell about six or seven feet square, not given a sheet or blanket for his mattress, and limited to three cups of coffee and one pack of cigarettes a day. Up to that time, defendant had been consuming large quantities of both cigarettes and coffee.
On July 1, 1976, defendant's attorney filed a petition for an injunction against the sheriff's department to prevent sheriff's officers from questioning defendant outside the presence of his counsel. At the hearing held on that petition, the sheriff explained his reasons for placing defendant in deadlock. Defendant testified he had no desire to talk to the sheriff nor his deputies outside the presence of his attorney. The petition for an injunction was denied. However, before he did so, the trial judge stated:
"They [sheriff's office] now know in open court he has a lawyer. They now know he has said he doesn't want to talk to them about the case without his lawyer."
On July 26 and 27, 1976, the defendant was examined by Dr. Philip Bornstein, a licensed psychiatrist, to determine whether he was fit to stand trial. Dr. Bornstein concluded and so indicated in his testimony at the suppression hearing that the defendant was at that time unfit to stand trial, unable to cooperate fully with his attorney, and that he did not appear to fully appreciate the gravity of the charges against him.
Defendant was formally charged with murder on July 28, 1976. On August 2, 1976, defendant approached a jailer and expressed his desire to confess the crime with which he had been charged. He signed a waiver of rights form and was also orally advised of his Miranda rights. One detective testified that defendant specifically waived the presence of his counsel when that detective offered to call the attorney. Defendant then made a statement to sheriff's officers, signing the transcript of that statement. During this interrogation, defendant several times indicated a desire not to continue describing the details of the offense, but the officers continued to question him.
A motion to suppress this confession was filed on September 8, 1976, and that motion was denied. The trial court found defendant to have freely and knowingly waived his right to counsel in making the confession. That ruling came upon evidence showing not only the chronology described above, but also that upon release from deadlock, defendant was not put back into the general jail population but rather was placed into the detention area of the jail. Defendant was moved from the detention area four days after he confessed to the crime, and returned to the jail proper.
At the suppression hearing, the trial court also heard evidence from a psychiatrist that, upon the basis of two interviews, it was his opinion that defendant was unfit to stand trial, and that at the time of the confession, was unable to knowingly waive his Miranda rights. The State, in opposition, elicited testimony from members of the sheriff's department that defendant was well oriented at the time he gave his confession. The psychiatrist reversed his judgment and pronounced defendant fit to stand trial after additional interviews which followed this hearing.
1 There is no question that a defendant may waive the presence of counsel at an interrogation even though the police know defendant has retained counsel and that counsel is not notified of the interrogation. (People v. Morgan (1977), 67 Ill.2d 1, 364 N.E.2d 56; People v. Kelley (1973), 10 Ill. App.3d 193, 293 N.E.2d 158.) However, in arguing that defendant waived his right to the advice of counsel, the State carries a heavy burden to prove that waiver was the product of a knowing, free, and intelligent choice. People v. Washington (1977), 68 Ill.2d 186, 369 N.E.2d 57, cert. denied (1978), 435 U.S. 981, 56 L.Ed.2d 72, 98 S.Ct. 1631.
Members of the sheriff's office badgered defendant to confess to this offense before and after his arrest. Prior to the arrest, defendant was threatened with violence if he gave an indication of flight. After arrest, defendant was removed for whatever reason from the general jail population when he declined to be interrogated without his attorney being present. This combination of punitive treatment and constant pressure, together with the possibility of defendant's unfitness to stand trial, renders his waiver of the right to have the advice of counsel more than suspect.
Two New York cases are instructive. In United States v. Wedra (S.D.N.Y. 1972), 343 F. Supp. 1183, the court held the failure of the authorities to call the defendant's attorney prior to questioning was tantamount to a denial of a request for an attorney even though the request to be called was made by defense counsel and not by defendant. In People v. Hobson (1976), 39 N.Y.2d 479, 384 N.Y. Supp.2d 419, 348 N.E.2d 894, it was held that a defendant could not waive his right to counsel in the absence of his attorney. We do not adopt the rule of those cases, but do find them analogous to the situation here which presents a more crystalline example of abuse by the State of the notion that once counsel is in place, he must be allowed to accompany his client into meetings ...