APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN SYPE, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This is the second appeal in this case and results from a second conviction for murder and armed robbery. The defendant was convicted of armed robbery and murder in his first trial; however this court reversed his conviction and remanded for a new trial because of a violation of the defendant's right, pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, to remain silent and not be further interrogated by the police after he had requested the assistance of counsel. (People v. Washington (1976), 41 Ill. App.3d 475.) Upon appeal our supreme court affirmed the decision of this court. People v. Washington (1977), 68 Ill.2d 186, cert. denied (1978), 435 U.S. 981, 56 L.Ed.2d 72, 98 S.Ct. 1631.
It is clear that both this court and the supreme court placed the decision to grant a new trial on a violation of the Miranda right to be free of questioning by the police after expressing a desire to consult a lawyer. This court said:
"In the case at bar, while the police officers provided a `fresh set of warnings' after the defendant requested counsel, they resumed interrogation with respect to the same crimes which had been the subject of the earlier interrogation. The defendant's right to cut off questioning was therefore not `scrupulously honored' and the statements made by defendant after he requested counsel should have been suppressed and were inadmissible." 41 Ill. App.3d 475, 480-81.
Our supreme court, in affirming the decision, said:
"Although we agree with the People that the right to counsel may be waived (People v. Morgan 67 Ill.2d 1), we conclude that the People did not meet the `heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained counsel.'" 68 Ill.2d 186, 194.
The basis of the decision in the appeal of the first trial is here emphasized because the tactical situation in the second trial and the appeal therefrom was entirely altered. Although the decision of the United States Supreme Court in Harris v. New York (1971), 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (allowing the use of a statement taken in violation of Miranda strictures for impeachment purposes) was rendered before the first Washington trial, the State did not invoke that case. It relied apparently on the decision in People v. White (1975), 61 Ill.2d 288, where the court held that there was no Miranda violation in a case involving a somewhat similar situation except that the questioning of the suspect after he expressed a desire to see a lawyer was with regard to unrelated crimes and there was a longer period of time between the defendant's expressed desire for counsel and the ultimate confession. In any event, at the second trial, which is the subject of this appeal, the State, accepting the guidelines laid down by the supreme court, did not attempt to introduce the defendant's inculpatory statements in its case in chief. However, prior to commencement of trial, the defendant made a motion in limine seeking a ruling that the State could not introduce the statements made to the police for any purpose, including impeachment of defendant if he took the stand in his own behalf. The trial court ruled the statements would be suppressed in the State's case in chief, but could be introduced for purposes of impeachment. The defendant did not take the stand. The defendant, with his post-trial motion, submitted an affidavit to the effect that he had not testified in his own behalf because of the threat of impeachment if he did. We may reasonably believe this contention since, while the defendant had one previous felony conviction, it was more than 10 years before the second trial and under People v. Montgomery (1971), 47 Ill.2d 510, would not have been admissible to impeach his credibility.
In this appeal from his second conviction the defendant contends that the inculpatory statements to the police were made by the defendant under such circumstances as to render them involuntary and inadmissible for any purpose whatever; therefore the threat to use such statements for impeachment purposes, resulting in his failure to testify in his own behalf, deprived him of a fair trial. Thus the strictures of Miranda are not controlling as to the issue raised.
We must determine if the trustworthiness of the evidence satisfies legal standards. When the evidence in question consists of inculpatory statements, then the critical issue of trustworthiness is determined by whether the inculpatory statements were voluntary. To determine the voluntariness of the inculpatory statements, we must consider the total circumstances under which they were made to the police.
The defendant contends (1) that the statements made by Washington to the police which gave rise to the threatened impeachment were coerced and involuntary because of prolonged interrogation and psychological tricks and pressures intended to induce a confession; (2) that the statements in question were inadmissible because taken in violation of the defendant's sixth amendment right to counsel both (a) in failing to cut off questioning after the defendant indicated a wish to consult with counsel at a critical stage of the proceedings and (b) in the persistent and prolonged questioning which resumed after the police knew the defendant was seeking the assistance of counsel; (3) that the defendant's fourth amendment rights were violated when the police seized and used physical evidence from an automobile in which the defendant had a possessory interest, without a search warrant and (4) the defendant's fifth amendment rights were violated when the prosecutor, in the presence of the jury, commented on Washington's failure to testify in his own behalf.
We first consider the voluntariness of the statements made by Washington to the police during the course of their interrogation. Under the "totality of the circumstances" test set out in the decisions of the United States Supreme Court to determine whether an accused has been subjected to such coercive treatment — physical or psychological or both — as to overbear his will and produce a confession which is essentially involuntary, several facets of police conduct, no single one of which is sufficient, may, when combined, act together to create such pressure on the accused as to amount to coercion and produce a confession which is not "voluntary" in that it is not the product of a free will. See Clewis v. Texas (1967), 386 U.S. 707, 18 L.Ed.2d 423, 87 S.Ct. 1338 (prolonged questioning without counsel); Davis v. North Carolina (1966), 384 U.S. 737, 16 L.Ed.2d 895, 86 S.Ct. 1761 (accused isolated and held incommunicado); Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336 (prolonged interrogation and threats, denial of counsel and isolation); Fikes v. Alabama (1957), 352 U.S. 191, 1 L.Ed.2d 246, 77 S.Ct. 281 (person of low mentality isolated and threatened); Reck v. Pate (1961), 367 U.S. 433, 6 L.Ed.2d 948, 81 S.Ct. 1541 (19-year-old mental defective — prolonged questioning — evidence of physical abuse).
Our own supreme court has followed the concept of the totality of the circumstances in evaluating the voluntariness of a confession. (See People v. Simmons (1975), 60 Ill.2d 173; People v. Prim (1972), 53 Ill.2d 62.) In reviewing the cases where the totality of the circumstances rather than any single aspect or instance of police misconduct was held to have produced an impermissibly coercive effect on the accused and to have overborne his will, we do not find those circumstances present in this case.
The defendant was arrested at approximately 9 p.m. on March 22. He was interrogated by several police officers from approximately 9:30 p.m. until about 1:20 a.m. During this time he was required to appear in a lineup and to be photographed without his clothing. He was also subjected to a neutron-activation analysis test. At around 1:10 a.m., after he had expressed a desire to discontinue the questioning, he was taken back to his cell. Detective Cronk testified that the defendant did not request to see a lawyer at that session of the interrogation, which ceased shortly after 1 o'clock on March 23. While the total time from defendant's arrest until he was returned to his cell was about four hours, Detective Salamone, one of the interrogating officers, estimated that only about 2 1/2 hours of this time was spent in actual interrogation of the defendant, the rest of the time being used in taking pictures, administering the neutron-activation test and conducting a lineup. The defendant was served with a complaint about 1:30 a.m., after he was returned to his cell following his interrogation. (It is the defendant's theory, however, that even before the serving of the complaint, any police interrogation should be deemed a "critical" part of the proceedings against him.)
The next morning, about 9:25 a.m., the defendant was again questioned, after again being given his rights under Miranda. After signing the waiver form, he was briefly questioned and he then asked to make a telephone call to a lawyer. He was handed a telephone and a telephone directory and attempted to call the public defender, Craig Peterson, but did not get through to him. After some further questioning, following the attempted telephone call, the defendant requested to make another telephone call and he then called his girl friend, although in requesting permission to make the call he had said that he wished to call his mother. Unknown to the defendant, this telephone call was monitored. After some further questioning, the defendant was taken to another room where his taped telephone conversation to his girl friend was played back to him. The defendant was then questioned for two or three hours, and he then again made a request to call a lawyer and he attempted again to call the public defender but again there was no reply. The defendant was asked to take a lie detector test, to which he agreed, but said he wanted to talk to a lawyer first. He then again attempted to call Mr. Peterson and again got no reply. The defendant was then returned to his cell shortly after 1 p.m. According to Detective Gessner of the Rockford police force, he received an assignment to question the defendant about 5:30 p.m. that same day (March 23). He was told by Sergeant Lindquist that Walter Washington "wanted to talk to some detective." He and Detective Cronk then advised Washington of his Miranda rights and the defendant signed the waiver form. However, the defendant then said that he did not wish to give a statement but wanted to talk to a priest and a psychiatrist. He was told he would have to wait for a psychiatrist until he got to the county jail but he could probably see a priest that night. The defendant then called his mother. After the defendant talked with her the detective asked him how he felt and the defendant, according to Detective Gessner, hung his head and replied that he felt real bad about the dead boy, his family and his own family. Following this, according to Detective Gessner, the defendant was again briefly questioned and he admitted he had been alone on the night of the robbery, rather than being with another man who had actually held the gun and committed the robbery, as the defendant had claimed originally. The defendant then stated, according to Detective Gessner, that he would talk to him later but wanted more time to think about it, at which time the defendant was returned to his cell. This interview, according to Detective ...