APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Following an October 23, 1978, bench trial in the circuit court of McLean County, defendant John Woodburn was convicted of burglary and sentenced to a term of 6 years' imprisonment. On appeal, he contends that the State failed to prove that a confession given by him and introduced at trial was voluntary and that he was denied due process at his sentencing hearing because of an unfulfilled promise by the State.
The evidence reveals that defendant and his brother were apprehended by police at approximately 12:20 a.m. on June 27, 1978, near a Normal car wash which had been the subject of a burglary. The two individuals were found to be in possession of coin boxes taken from the car wash and were shaking the money out of those boxes. Upon being confronted by a police officer, defendant threw the box he held and ran, only to be later apprehended. The thrown box struck the arresting officer.
A pretrial hearing was conducted on defendant's motion to suppress his written statement implicating himself and others in the car-wash burglary and several other similar offenses. At the close of the hearing, the trial court found the statement to have been voluntarily given. The statement was also later introduced by the State in its case in chief.
Charles Crowe, a detective with the Bloomington Police Department, testified at the hearing to having received the statement at issue from defendant. According to Crowe, after giving the defendant his Miranda warnings and defendant's agreeing to talk with him, he asked defendant if he, defendant, would answer some questions regarding past crimes in the Bloomington-Normal area, and defendant responded affirmatively. Thereafter, defendant discussed various burglaries with Crowe including the underlying offense here, implicating himself and others. Crowe asked defendant questions concerning these offenses and reduced the questions and defendant's answers to a typewritten statement consisting of three pages. Defendant did not sign the statement because, according to Crowe, he did not want those he implicated therein to see his name on the statement.
Crowe testified that after the giving of the statement, he took copies thereof to the State's Attorney who, after reviewing the same, decided to file no charges in addition to the burglary charge against the defendant, largely because additional convictions would likely result in concurrent sentences. Crowe stated that at no time did he make any promises to defendant concerning the latter's agreement to give the statement and also stated that he had not told defendant that because he made the statement he would not be charged with aggravated battery stemming from the incident during which the arresting officer was struck. He stated that he had only told defendant that he, Crowe, would present the facts to the State's Attorney and it would be up to the latter as to what charges would be brought against defendant.
Defendant's testimony at the suppression hearing directly contradicted that of Crowe in several regards. He stated that Crowe had initially offered to help him in return for his aid in clearing up some past burglaries. Later, according to defendant, after Crowe had told him that he would be charged with burglary and assault and battery, the detective spoke of the possibility of dropping the latter charge, left the room momentarily to make a telephone call, and, upon his return, stated that if defendant agreed to give a statement, he would be charged with neither assault and battery nor any other crime that might be mentioned in the statement. Defendant stated that he would not have given Crowe the statement but for the promise to drop the assault and battery charge.
On rebuttal, Crowe again denied making any promise to defendant in return for the latter's statement.
1 An out-of-court statement by an accused may be used by the State only upon proof of its voluntary nature. (People v. Lefler (1967), 38 Ill.2d 216, 230 N.E.2d 827.) Statements induced by promises of leniency or immunity have been held to be thereby rendered involuntary. (People v. Martorano (1935), 359 Ill. 258, 194 N.E. 505; People v. McCue (1977), 48 Ill. App.3d 41, 362 N.E.2d 760.) However, even in cases involving threats or promises, where the evidence as a whole establishes the voluntary nature of an accused's statement, those statements have been held to be admissible. (People v. Slaughter (1978), 59 Ill. App.3d 159, 376 N.E.2d 33; People v. Jones (1972), 8 Ill. App.3d 849, 291 N.E.2d 305.) The voluntariness of such a statement need only be proved by a preponderance of the evidence (People v. Jackson (1968), 41 Ill.2d 102, 242 N.E.2d 160), and a trial court's finding of voluntariness will be upheld on review unless contrary to the manifest weight of the evidence. People v. Daily (1968), 41 Ill.2d 116, 242 N.E.2d 170; Jones.
2 As noted by the State, the determination of voluntariness by the trial court hinged largely on that court's assessment of the credibility of Detective Crowe and the defendant. Both could not have been believed. Determination of that credibility was a question for the trial court.
Defendant argues that while cross-examining him during the suppression hearing, the prosecutor admitted that promises had been made by Crowe to defendant in return for his statement and that such lends support to the conclusion that the statement given was involuntary. The verbatim account of this cross-examination, in context, is as follows:
"Q. Isn't it a fact that you were told by Detective Crowe that you would be released from custody that day if you told him all about these burglaries?
Q. Isn't it a fact that Detective Crowe told you that you would never go to the penitentiary if you tell him things, and ...