APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 28, 1980.
James was found guilty by a jury of murder and armed violence. Judgment was entered only on the murder charge and a sentence of 40 years' imprisonment was imposed. (This sentence is to be served consecutive to a 30-year sentence imposed on an attempt murder conviction which is now on appeal to this court in case No. 15306.) Defendant challenges his murder conviction, arguing that the trial court erred in denying a motion to suppress his confession and further erred in admitting evidence as to certain telephone calls that defendant made after the victim's death.
Prior to trial, defendant moved to suppress certain statements he made to police officers following his arrest. A review of the evidence presented at the suppression hearing, where Judge Paul M. Wright presided, shows that defendant was arrested in a rural area of Vermilion County at approximately 5 p.m. on May 17, 1978. During the evening hours of the day before, the defendant had been involved in an altercation with Samuel Cartwright and defendant knew the police were looking for him in connection with this incident. When the arresting officer, Terry Carey, arrived at defendant's location, defendant held out his hands and said, "I did it." Defendant was then searched, handcuffed, and placed in Carey's squad car. Carey did not question defendant other than to ask his name.
While en route to the public safety building in Danville, Officer Carey radioed headquarters to request that the sheriff and an investigator meet him. Defendant asked Carey if he would be allowed to make a phone call at the jail to which Carey responded affirmatively. About a minute later, defendant requested that Carey inform him of his rights and Carey did so. Shortly thereafter, defendant asked if he could make a second phone call if necessary and Carey said he could. After another minute or two passed, defendant said that "he would like to talk to an attorney." Carey told him he would be allowed to do so. Carey did not attempt to question defendant during the trip to Danville.
Later, while still traveling in Carey's squad car, defendant asked how seriously the man was injured. Carey responded, "Who?" Defendant then told Carey he was referring to the incident the night before and Carey did not respond. Defendant then asked how long he would get and Carey asked, "For what?" Defendant again stated he was referring to the incident on the previous night. Carey did not reply but once again told defendant he would be allowed to use a phone at police headquarters.
When they arrived at police headquarters, Carey told police investigator William Hartshorn that defendant had been advised of his rights, had asked to speak to an attorney and to use the telephone. Carey also told Hartshorn that he had advised defendant that he could do so. During this conversation, defendant was in an interview room in the public safety building.
Shortly after his conversation with Carey, Hartshorn and investigator Larry Rollins went to the interview room to talk to the defendant. Defendant requested the presence of a certain police officer he was familiar with and this officer was summoned to the room.
At approximately 6:20 p.m. one hour and 20 minutes after his arrest the defendant was advised of his rights by investigators Hartshorn and Rollins. He initialed a written form to indicate he understood his rights and then (according to Hartshorn) agreed to answer questions without the presence of an attorney. Hartshorn and Rollins then questioned the defendant about the Cartwright incident until 8:55 p.m. During this period, however, the questioning was interrupted several times. At 6:58 p.m. it was interrupted until 7:24 p.m. and during this time the defendant was served supper. The interview again halted from 8:21 p.m. until 8:53 p.m. At the end of this break, defendant asked to make a phone call and the officers took him to another room where he called his employer. After this phone call, the defendant was asked if he wanted to make another call and he declined the offer. (The defendant did not ask his employer to contact an attorney but he did ask the officers when he would be taken to court. This question came after defendant was overheard discussing the possibility of bail with his employer. Defendant was told he would be taken to court at 1:30 p.m. on the following day.)
From 9:05 until 11 p.m. defendant was questioned by police officers Robert LeConte and Gene Woodward regarding the shooting death of David Holler which occurred on May 8, 1978. Prior to this interview, defendant was again advised of his rights and he signed another waiver form. At 11 p.m. he was allowed to speak to his mother and stepfather. They were together until 11:50 p.m. when defendant was placed in a cell. The statements which defendant had made to the officers on May 17 were basically exculpatory.
Investigator Rollins testified that at 11 a.m. the following day, May 18, he and Hartshorn went to defendant's cell and asked him if he wanted to talk with the officers. Defendant agreed, and he was then taken to the interview room where he was once more advised of his Miranda rights and again waived them. As was previously done, each paragraph of the form was read to defendant and he was asked if he understood his rights or had any questions. He responded that he understood the form and had no questions. After this ...