Appeal from the Circuit Court of Boone County, the Hon. David
R. Babb, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 29, 1980.
In a five-count indictment the defendant, Curtis J. Brownell, was charged with the murder, aggravated kidnapping and rape of Louise M. Betts. Count I charged that the defendant "committed the offense of murder, in that he, without lawful justification and with the intent to kill Louise M. Betts, strangled" her and thereby caused her death. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1).) Count II charged that the defendant committed murder by strangling Louise M. Betts, knowing that "such act created a strong probability of death or great bodily harm." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(2).) Count III charged the defendant with felony murder in that he killed the decedent while attempting or committing the forcible felony of rape (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(3)). Count IV charged the defendant with committing the offense "of Aggravated Kidnaping, in that he, in committing the offense of kidnaping, in violation of Illinois Revised Statutes, chapter thirty-eight, section 10-1(a)(2), knowingly and secretly confined Louise M. Betts against her will and inflicted another felony, to wit: Rape, upon her." Count V charged that the defendant "committed the offense of Rape, in that he, a male person of the age of 14 years and upwards, had sexual intercourse with Louise M. Betts, a female not his wife, by force and against her will." Ill. Rev. Stat. 1977, ch. 38, par. 11-1(a).
On September 13, 1978, after a bench trial, the defendant was found guilty of counts I, III, IV, and V by the circuit court of Boone County. Count II was dismissed on the motion of the State. The judgment of conviction under count III was subsequently vacated. A final judgment of conviction was entered as to counts I, IV and V.
The State requested a sentencing hearing for the purpose of imposing the death penalty pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d)). The defendant waived a jury proceeding and elected to be sentenced by the court. The court sentenced the defendant to two concurrent terms of 30 to 90 years in the penitentiary for the offenses of aggravated kidnapping and rape. The court found that based on the evidence adduced at trial two aggravating factors had been established that the murdered individual was killed in the course of two other felonies, aggravated kidnapping and rape (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6)), and that the murdered individual was an eyewitness against the defendant (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(7)). After hearing evidence in aggravation and mitigation, the court found that the State had proved the two aggravating factors beyond a reasonable doubt but that the defendant had not established any mitigating factors sufficient to preclude the imposition of the death sentence. The court then sentenced the defendant to death for the offense of murder. The court set November 5, 1979, as the date for the execution of the sentence of death. The sentence was stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court pursuant to Rule 603 (73 Ill.2d R. 603; Ill. Rev. Stat. 1977, ch. 38, par. 9-1(i)).
Through a written statement made by the defendant and admitted at trial, it was revealed that on September 27, 1977, the defendant picked up the victim, Louise M. Betts, while she was hitchhiking on a road in Boone County. The defendant held a jack knife to the victim's throat and drove to a road with cornfields on either side. The defendant stopped the car and told the victim to get out and take off her clothes. He then engaged in sexual intercourse with her. The defendant thereafter attempted to strangle the victim, but she was able to get up and run an undetermined distance. The defendant caught her, strangled her again, and then stood or jumped on her stomach and neck. The defendant dragged the victim farther into the cornfield and left her. He said he felt her pulse before he left her but he did not know whether she was dead or not.
The defendant was arrested on another charge on February 2, 1978, by Winnebago County police. On March 31, 1978, Boone County detectives requested an interview with the defendant while he was still in custody in Winnebago County on charges, unrelated to the instant case, of attempted murder and rape. The defendant was interviewed on March 31, 1978, and again on April 1, 1978. Defendant requested counsel after the first interview on March 31, 1978, and was afforded the opportunity to consult with counsel several times beginning at 6:15 p.m. on March 31, 1978. On April 2, 1978, at approximately 2 a.m. the defendant requested to see the detectives. One of the detectives advised the defendant that he had the right to have counsel present and offered to call counsel. The defendant refused the offer, stating that his lawyer would not let him say everything he wished to say.
The defendant signed a rights waiver form and then gave a three-page statement inculpating himself with regard to the aggravated kidnapping, rape and murder of Louise M. Betts.
The defense made a motion to suppress the statement on the basis, inter alia, that he had been denied his right to counsel and his right to remain silent. The motion to suppress was denied. The defense also made motions to bar the imposition of the death sentence, to acquire funds for expert witnesses, to exclude questions on voir dire regarding the veniremen's convictions concerning the death penalty, and to hold the death penalty act unconstitutional. These and several other motions were denied, and are properly preserved for review.
The defendant attacks the written statement on two grounds: first, that its admission against him violated his right against self-incrimination under the fifth and fourteenth amendments to the United States Constitution and under article I, section 10, of the Illinois Constitution of 1970. The defendant argues that the written statement was taken from him in disregard of his right to counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 8, of the Illinois Constitution.
The State rejoins that the defendant made a knowing, intelligent and voluntary waiver of his right to remain silent and his right to counsel.
The State has a heavy burden to show that a defendant has waived his constitutional rights in a knowing, intelligent and voluntary manner. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L.Ed.2d 694, 724, 86 S.Ct. 1602, 1628.) We think that burden has been sufficiently borne here. A detailed review of testimony at trial concerning events leading up to the statement shows that the defendant was in the custody of the Winnebago County police on charges of attempted murder and rape on March 31, 1978. At approximately 2:15 p.m. on that day, Winnebago County detective Robert Ferger, accompanied by Boone County detective Joe Rollins, interviewed the defendant. The defendant interrupted Rollins during the reading of the Miranda rights to ask for his attorney to be present. Rollins did not call the defendant's attorney; instead he ceased questioning the defendant. Before he walked out of the interview room, Rollins placed a picture of Louise Betts, the murder victim, in front of the defendant and asked the defendant if he recognized the person in the picture. According to the testimony of the two detectives received during the hearing on a second motion to suppress, the defendant "jerked back slightly" and responded he did not know the person. The motion to suppress was granted so that the incident with the photograph and testimony of the two officers concerning it were kept from the jury during the trial.
By 6:15 p.m. on March 31, 1978, the defendant was represented by counsel. At that time the defendant appeared in a lineup, concerning the Winnebago County offense. The defendant met with counsel before and after the lineup. After the lineup, Gary Arbisi, a Winnebago County detective investigating the previously referred to offenses informed the defendant that he could speak to the police whether his attorney was present or not. The defendant stated he would follow counsel's advice. Arbisi started to say something else but counsel prevented him from doing so.
The next day, April 1, 1978, at approximately 6 p.m., Arbisi and another detective went to the defendant's home to speak with the defendant's wife concerning information they had received that the defendant had told Mrs. Brownell he was guilty of murder. Mrs. Brownell asked to speak with her lawyer. When counsel arrived he advised Mrs. Brownell not to speak to the detectives. Mrs. Brownell eventually agreed to talk to the detectives, but only if she could first speak with the defendant. The detectives then arranged a visit at the jail between the defendant and his wife. The defendant met separately with counsel, then with his wife and, later, again with counsel. Mrs. Brownell agreed to tell the police "everything" but, after a phone call with the defendant's stepfather, an attorney, she declined to make a statement.
The defendant's counsel, after his later meeting with the defendant, stated to a detective that he thought negotiations should begin with the State's Attorney to waive the death penalty in any ensuing proceeding. Counsel then met with the State's Attorneys of Boone and Winnebago counties and two assistant State's Attorneys until 10 p.m. An offer was made by the State's Attorneys that if the defendant made a written confession of murder, the death penalty would not be sought at trial. Thereafter the defendant, after conferring again with counsel, declined the offer.
A final conference took place among the defendant, defense counsel, and Detectives Arbisi and Rollins. Arbisi asked the defendant if he wished to speak to the detectives. Counsel advised the defendant not to do so. Arbisi then asked counsel for permission to speak to the defendant. Counsel granted permission. Arbisi told the defendant that while the defendant did not have to speak to the police, if he changed his mind and wanted to speak to the police, with or without counsel present, the defendant could do so. The defendant said he would follow counsel's advice. A few minutes later, on the way to his cell, the defendant was asked again by Arbisi whether he wished to talk. The defendant answered that he needed more time. Counsel informed the other attorneys that the defendant needed more time to consider their offer. It was approximately 1 a.m. on April 2, 1978, when all parties dispersed.
Approximately one hour later, the defendant told the jailer he wanted to talk to the police. Detectives Arbisi and Packard were summoned. When they met the defendant in an interview room, Arbisi asked the defendant whether the defendant desired to have counsel present. The defendant said he did not want counsel to be present. The defendant was advised of his Miranda rights. The defendant said he understood his rights and signed a statement to that effect. He then gave an incriminating written statement to the police.
The defendant argues that he did not waive either the right to remain silent or the right to counsel. He states that the right to remain silent was violated when the detectives did not "scrupulously honor" it at the initial interrogation session. Also, the defendant states that any subsequent statement by him was rendered inadmissible by the initial violation of his right to remain silent.
We agree that the detectives did not "scrupulously honor" the defendant's right to cut off questioning in the first instance. (Michigan v. Mosley (1971), 423 U.S. 96, 104, 46 L.Ed.2d 313, 321, 96 S.Ct. 321, 326.) The complete statement by the court in Mosley is "that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" (423 U.S. 96, 104, 46 L.Ed.2d 313, 321, 96 S.Ct. 321, 326.) We interpret that passage, however, to include only the statement obtained as a result of not honoring the defendant's right to cut off questioning. We do not think the court intended that all subsequent statements are to be excluded. Indeed, our view is amply supported by the following passage from Michigan v. Mosley:
"To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." (423 U.S. 96, 102-03, 46 L.Ed.2d 313, 320-21, 96 S.Ct. 321, 326.)
(Accord, People v. Aldridge (1980), 79 Ill.2d 87.) Therefore in the instant case, the trial court was correct in excluding evidence concerning the initial interrogation on March 31, 1978, on the basis that the defendant's right to cut off questioning had not been scrupulously honored. The trial court was also correct in finding that the admission of the written statement did not violate the defendant's right to remain silent. The written statement was made 36 hours after the initial interrogation, after the defendant had conferred with counsel several times, after the defendant had been informed of his Miranda rights, and after the defendant had expressly declined to remain silent or to have counsel present. The defendant's right to remain silent was not violated.
We also think that the defendant's right to counsel was properly observed. Before taking the written statement from the defendant, the detective offered three times to call his attorney. The defendant declined each offer. He expressly said the attorney would not permit him to say what he wished to say to the detectives.
Finally, we do not think that the defendant's waiver of the right to remain silent and the right to counsel was defective due to the "affirmative, repeated efforts" of the detectives to obtain a confession. The detectives did not coerce or threaten the defendant into speaking with them. Moreover, most of the attempts they made to persuade the defendant to confess were made in the presence of counsel. Lastly, it was one hour after the defendant was placed in a cell and after his last contact with the detectives that he decided to confess.
The finding of the trial court on the voluntariness of a confession will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence. (People v. Aldridge (1980), 79 Ill.2d 87; People v. Medina (1978), 71 Ill.2d 254, 258.) We think the weight of the evidence herein is that the defendant's waiver of the right to remain silent and the right to counsel was voluntary, knowing and intelligent. The trial court properly admitted the written statement.
The defendant next argues that the trial court erred in denying his motion to preclude questions during voir dire concerning the death penalty. The defendant asserts specifically that "death qualification" voir dire questions result in a jury biased in favor of the prosecution in violation of the defendant's right to an impartial trial. After the trial court denied his motion, the defendant waived his right to a jury trial. The defendant now argues that the court "improperly influenced" him to waive his right to a jury trial by denying the motion to preclude "death qualification" questions. The State argues in reply that the defendant, by waiving his right to a jury trial, has not preserved an issue for review.
We think that the defendant has preserved for review the question of whether the trial court properly denied the motion to preclude "death qualification" questions on voir dire. The defendant made the motion; it was denied; and he is raising the propriety of the court's denial on appeal. (See, e.g., People v. Duchant (1939), 370 Ill. 650, 652.) Where we agree with the State is that, in subsequently waiving the right to a jury trial, the defendant eliminated the need to conduct voir dire. The defendant cannot then assert that had voir dire been conducted, the court would have erroneously selected a jury, in contravention of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The defendant offers no factual basis whatsoever for this contention, and we reject any presumption that the court would err.
The defendant's concomitant contention is that the court "improperly influenced" him to waive a jury trial when it denied the motion. No act of the court prevented the defendant from having a jury trial. If error had occurred in voir dire, the defendant could have objected at that point and counsel could have drawn the court's attention to the error. If the error was not corrected, the defendant could raise the issue here. The defendant did none of this. Instead he argues that he was deprived of a jury trial because of error which might have occurred, but did not. We will not indulge in speculation as to what error the court might have committed, and we refuse to assume that the spectre of speculative error influenced the defendant to waive his right to trial by jury.
The defendant next contends that since his indictment did not specify any one of the seven aggravating factors which must be proved to impose the death penalty (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)), he was formally charged with "non-capital" murder and may not be sentenced to death. The defendant asserts that the imposition of the death penalty under these circumstances violates Illinois case law and principles of double jeopardy.
The case the defendant principally relies upon is People v. Ostrand (1966), 35 Ill.2d 520. The defendant's reliance on Ostrand is misplaced. Ostrand involved a conviction for unlawful use of weapons. The defendant argued there that the trial court erred when it permitted the indictment to stand because it alleged that he had committed a prior felony within five years of the date of the immediate offense. The unlawful use of weapons statute (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b)) provides that a person will be chargeable with a felony instead of a misdemeanor when a prior felony has been committed within five years of the immediate offense. Thus, this court held that it was not only proper, but also necessary, for the trial court to permit the allegation and, later, the proof of the prior felony conviction to be admitted. People v. Ostrand (1966), 35 Ill.2d 520, See also People v. Owens (1967), 37 Ill.2d 131; People v. Dixon (1970), 46 Ill.2d 502, 504; People v. Edwards (1976), 63 Ill.2d 134, 138.
The defendant bases the contention that the imposition of the death sentence violates double jeopardy principles upon the argument that the defendant has been tried twice, first in a trial for the lesser included offense of murder and then in the sentencing hearing for the offense of "capital murder." The solution, posits the defendant, lies in formally charging the defendant with all of the elements of the offense to be proved against him, particularly the statutory aggravating factor necessary to the imposition of the death sentence. Thus, argues the defendant, since he was tried a second time, without a formal charge for "capital" murder, the ...