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People v. Noe

OPINION FILED JULY 30, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAIRD NOE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

In cause No. 79-497 defendant Jaird Noe was tried without a jury of two counts of indecent liberties with a child, Kelly Jean Foster, and sentenced to two concurrent 15-year terms of imprisonment. After a second bench trial, he was convicted in cause No. 79-862 of indecent liberties with another child, Sherry Gagnon, and was sentenced to a 15-year term of imprisonment to run consecutively to the sentences in No. 79-497. In this consolidated appeal defendant challenges the voluntariness of certain confessions which were introduced as evidence in the trials.

One hearing was conducted on defendant's motion to suppress the confessions in both cases. Evidence at that hearing and at the subsequent bench trials established that defendant was taken into custody on February 2, 1979, and was questioned about the Sherry Gagnon case by two Peoria police officers. At the beginning of the interview defendant was advised of his Miranda rights. He indicated he understood his rights, but wanted to talk to the officers. After discussing the Sherry Gagnon case for about 1 1/2 hours, defendant was taken to the county jail.

Defendant was interviewed by police a second time on February 4, 1979, when he was again advised of his Miranda rights at the beginning of the interview, and he again indicated he understood those rights and wanted to talk. The interview lasted 2 hours, during which time defendant gave police a written statement. During this interview Officer Krueger advised defendant that he felt defendant had problem, and the question was how deep it was. Krueger told defendant he would possibly need some help, but in order for the police to make an evaluation of any kind, they had to know everything that defendant had done. On cross-examination, when Krueger was asked exactly what he said to defendant regarding professional help, he replied:

"I said that it was a possibility. It was beyond our area of responsibility or judgment to make any recommendations or anything. But before anybody — and I was referring to the Court or State's Attorney's office — could make any judgment, they would have to know the whole truth about the incident."

At 9 a.m. on February 6, 1979, defendant was taken to the office of Dennis Jenkins, a polygraph examiner. Before any questions were asked, defendant signed a form waiving his Miranda rights, and following the 1 1/2 hour examination, defendant was taken to the Peoria Police Department and given lunch. Police first became aware of defendant's involvement in the Kelly Foster case from the results of the polygraph examination.

After defendant ate lunch, he was interviewed by three police officers. At the beginning of this interview, defendant was again advised of his Miranda rights, and he again indicated he understood them and wanted to talk. Officer Brown testified that during the course of the interview, which lasted from noon until 2:45 p.m. she told defendant that she felt he needed psychiatric help, and that "it was best that he be honest * * * to possibly get him [such] help." According to Brown, defendant said he would be honest and did want psychiatric help. Brown testified that she had no intention of getting defendant psychiatric help, and that she had used the same tactic to elicit the truth from other people in similar cases. Officer Layman also mentioned professional help and advised defendant to tell all the details.

At the end of the interview Layman took a written statement from defendant which was subsequently introduced as evidence at the trial in No. 79-497. The statement begins with yet another waiver of Miranda rights. In the statement defendant admitted having anal intercourse with Kelly Foster, the 7-year-old daughter of his brother-in-law, three times at defendant's residence in the summer of 1977. After the written statement was taken, defendant was returned to the county jail.

A final interview was conducted the following day. Prior to questioning defendant was again advised of his Miranda rights and agreed to waive them. During the course of the interview the police mentioned defendant's need for psychiatric help and encouraged him to discuss what had happened. At 1:30 p.m. Brown took another written statement from defendant which was subsequently introduced as evidence in No. 79-862. The statement, like that taken the day before, began with a waiver of the Miranda rights. In this statement defendant admitted having sexual intercourse with Sherry Gagnon, his 3-year-old stepdaughter, at his residence on February 2, 1979.

A stipulation was entered into that Dr. Beck would testify that defendant had an IQ of about 70, and that his achievement level was between the first and second grade level. Several of the police officers who interviewed defendant, however, testified that he did not indicate any difficulty understanding questions they asked or statements they made.

At the suppression hearing defendant testified, inter alia, that at the interview on February 2, he was told that he did not have to talk to the police. When asked why he talked to them, he replied that he was afraid his wife might find out about it, or maybe divorce him. At the trial in No. 79-862 defendant was asked why he confessed to having sexual relations with his stepdaughter, and he replied:

"I was afraid I'd lose my wife and I just couldn't take that chance."

In view of our holding in this case, the evidence presented at the bench trials which corroborated defendant's confessions need not be summarized.

• 1-3 The constitutional right of an accused to due process of law is violated by the admission into evidence of a confession not voluntarily made. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336.) In determining whether a confession is voluntary, it must be ascertained whether the defendant's will was overborne at the time he confessed or whether the confession was made freely, voluntarily, and without compulsion or inducement of any sort. (Haynes; People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731.) Such a determination must be made by considering the totality of the attendant circumstances. (Haynes; People v. Walden (1976), 43 Ill. App.3d 744, 357 N.E.2d 232.) Consideration should be given to the details of the interrogation and the characteristics of the accused. (People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870.) Confessions induced by promises or suggestions of leniency have been held involuntary. (People v. Heide (1922), 302 Ill. 624, 135 N.E. 77; People v. Ruegger (1975), 32 Ill. App.3d 765, 336 N.E.2d 50.) However, even where promises or suggestions of leniency have been made, the confession is not necessarily inadmissible. The ultimate question is whether, considering the totality of the attendant circumstances, defendant's will was overcome at the time he confessed. (People v. Hartgraves (1964), 31 Ill.2d 375, 381, 202 N.E.2d 33, cert. denied (1965), 380 U.S. 961, 14 L.Ed.2d 152, 85 S.Ct. 1104; People v. Baine (1980), 82 Ill. App.3d 604, 403 N.E.2d 57; People v. Houston (1976), 36 Ill. App.3d 695, 701, 344 N.E.2d 641, 646, cert. denied sub nom. Gibson v. Illinois (1977), 429 U.S. 1109, 51 L.Ed.2d 562, 97 S.Ct. 1143.) Moreover, mere exhortations to tell ...


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