APPEAL from the Circuit Court of Cook County; the Hon. WARREN
WOLFSON, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
On February 27, 1976, two police investigators responding to a reported homicide searched a basement apartment at 5235 South Kilbourn in Chicago, Illinois, and discovered the body of Belinda Reyes. Based on an oral statement given to the police, Elizabeth Vaisvilas, the defendant and younger sister of the deceased, was indicted for Belinda Reyes' murder. Pursuant to the defendant's motion, the trial court ordered that the statements be suppressed. It is from this order that the State now appeals.
The State's sole contention on appeal is that even though the suppressed statements were made outside of the presence of her attorney, the defendant knew and understood her right to remain silent and to have her attorney present and that she freely and knowingly chose to make the suppressed statement. The State thus concludes that the trial court erred in allowing the motion to suppress.
The defense called three witnesses to testify at the hearing on the motion to suppress. The first of these witnesses, Tom Vaisvilas, the defendant's husband, testified that at the time of the incident he and the defendant lived together in Justice, Illinois. At about 8 p.m. on February 27, 1976, Mr. Vaisvilas received a telephone call from Mr. Bolan, an attorney. Mr. Vaisvilas explained to Mr. Bolan that he would need his services and Mr. Bolan told him to call when the police arrived. Mr. Bolan also spoke over the phone to the defendant, but Mr. Vaisvilas did not hear their conversation. Approximately five hours later, two police investigators arrived at the house. As instructed, Mr. Vaisvilas called Mr. Bolan who spoke over the telephone to one of the investigators. At this time, Mr. Bolan also spoke to Mr. Vaisvilas and instructed him that his wife should go to the police station with the investigators, but that she should not provide the investigators with any statement. Mr. Bolan also indicated that he would meet them at the police station. Mr. Vaisvilas relayed this information to his wife who then left for the police station accompanied by the investigators and Laurie Savage, the daughter of the deceased.
The next witness to testify, the defendant herself, indicated that she first spoke with Mr. Bolan over the telephone on February 26, 1976. Mr. Bolan explained to her that he had been retained by her husband to represent her and that if some officers came to her house, she should not talk to them and that he would meet her at the police station. The defendant further testified that in the early morning hours of February 28, 1976, two police investigators arrived at the defendant's house. Upon the investigators' arrival, her husband made a telephone call. Investigator Boyle also had a conversation on the phone at this time.
The officers escorted the defendant to the police station where they led her to an upper floor room. There, Officers Boyle and Ptak asked her to give a statement. The defendant refused and indicated that she wanted to wait for her attorney. The officers left the room and returned with another officer. During this visit, Officer Ptak stated that "they had the deceased's arrest record, knew what kind of person she was, and that whatever [the defendant's reason], * * * [the deceased] probably deserved it." When the defendant reiterated her desire to make no statements until her attorney arrived, Officer Ptak shouted "It doesn't matter if you say anything or not, because as soon as your attorney comes * * * he is going to be arrested." The officers then left the room. Officers Boyle and Ptak later returned. Officer Ptak accused the defendant of having a fight with the deceased the previous night and of feeling vengeful towards her. At Officer Boyle's request, Officer Ptak left the room. Officer Boyle then related to the defendant what "probably happened" the previous night between the defendant and the deceased. The defendant corrected him on several things as he related what he thought had transpired. These statements constitute the statements sought to be suppressed.
The defendant further testified that the officers then asked her if she wanted some coffee and informed her that her attorney was at the police station. She was permitted to see her attorney about 10 minutes after she made her statements.
On cross-examination, the defendant stated that the first time she spoke to Mr. Bolan was about 8:15 p.m. on February 27, 1976. She asked him to represent her and he advised her not to make a statement until he arrived at the police station. The police officers never told her she was under suspicion for murder. She said nothing in the car on the way down to the police station with the exception of telling Laurie Savage that she would probably be living with her grandmother.
The defendant did admit that Sergeant Boreczky advised her at the police station that she had the right to remain silent and that she, nevertheless, told police that she did not remember what happened on the day of the homicide. She also told the police that her deceased sister had mistreated the defendant's daughter. When the defendant met her attorney at the police station she told him that the officers had threatened to arrest him. The defendant also stated that prior to the night of the questioning she had been arrested for other offenses and had previously been questioned at a police station.
The third witness called by the defense was Michael Bolan, the defendant's attorney. Mr. Bolan testified that he first spoke with the defendant at approximately 8 p.m. the evening of February 27, 1976. During this conversation, he advised the defendant of her rights and told her not to make a statement to the police. When the police arrived at the Vaisvilas' residence, Mr. Bolan spoke over the telephone with one of the officers and told the officer that the defendant did not wish to make a statement.
Later Mr. Bolan arrived at the police station where, after a 15-minute wait, he was permitted to see the defendant. Upon identifying himself to his client, the defendant stated, "They are going to arrest you."
The first witness to testify for the prosecution, Officer John Boyle, testified that at 3:30 p.m. on February 27, 1976, he and his partner, Investigator Ptak, received a radio communication from Sergeant Boreczky that an attorney had reported a homicide victim at 5235 South Kilbourn. The officers searched the apartment and discovered the victim's body. They could not, however, locate the victim's daughter. Sergeant Boreczky then called Mr. Bolan, the attorney who provided the original information, but Mr. Bolan provided no additional information. The police then went to Philip Reyes' house who told police officers that the victim's daughter was at the defendant's house.
Officer Boyle further testified that he and Officer Ptak then went to the defendant's home where Officer Boyle had a telephone conversation with Mr. Bolan. During that conversation Mr. Bolan never informed Officer Boyle that he had conversed ...