APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants Zulina Fuller and Amos Chairs were tried separately, and were convicted of the robbery and murder of Luther Price. Each was sentenced to a term of 18 to 30 years in the Department of Corrections. Their separate appeals to this court have been consolidated. Defendant Fuller asserts as error the following: the trial court denied a pretrial motion to suppress her post-arrest statement to police; the trial court refused to instruct the jury on involuntary manslaughter; the prosecutor made remarks which prejudiced the jury and deprived her of a fair trial; there was insufficient evidence to support findings of guilty as to robbery and murder.
Defendant Chairs was found guilty after a bench trial, and he contends on appeal that the evidence did not prove him guilty beyond a reasonable doubt, and, even if properly found guilty, his case should be remanded for resentencing, since the trial court did not advise him fully of his right to elect sentencing under the "new" or "old" acts. Ill. Rev. Stat. 1979, ch. 38, par. 1008-2-4(b).
On August 19, 1977, Chicago police discovered the body of Luther Price in an upstairs bedroom of his townhouse apartment at 9120 S. Princeton. The body was found bound and gagged and covered by a mattress. The body showed early signs of decomposition, indicating that the victim had been dead for a few days. The apartment was in considerable disarray, and appeared to have been ransacked. Medical evidence indicated that the victim died of asphyxiation, probably resulting from the gag.
On August 22, 1977, defendant Chairs, having learned that the police were looking for him in connection with Price's murder, surrendered to police. Initially, Chairs accused his sister, Verna Harris, and her boyfriend, Richard Holms, of the killing. After police questioned Harris and Holms, defendant Chairs admitted that he hadn't told the truth, and offered another explanation. He stated that he had come to Price's apartment on the evening of August 16, 1977, and was admitted to the apartment by defendant Fuller, who informed him that she had tied up and robbed Price when he "got fresh" with her. Defendant Chairs then went upstairs and found Price bound and gagged. Chairs related that he was uncertain whether or not Price was still alive, since he heard no heartbeat but thought he saw the victim's stomach move. Chairs made no move to untie Price but instead returned to the first floor where, at defendant Fuller's direction, he loaded some items of Price's property into Price's car and drove off with Fuller.
Shortly after taking defendant Chair's statement, police arrested Zulina Fuller. Defendant Fuller was attending a party at the house of Willie Bailey when she was arrested at 8:10 p.m. on the evening of August 22. Bailey watched from his front door as the police led Fuller away. He testified at the hearing on Fuller's motion to suppress her statement that she appeared to be intoxicated. Billy Mallettle, a neighbor who had let Fuller use his phone a few hours earlier, also testified that she appeared to have been drinking heavily at that time. Bailey and Mallettle described themselves as "friends" of defendant Fuller. The two police officers who arrested Fuller, and another officer and an assistant state's attorney who spoke with her at the police station, stated that they saw no evidence of intoxication and detected no odor of alcohol.
Investigator Solecki, one of the arresting officers, read defendant Fuller the Miranda warnings at the time of her arrest, and again upon reaching the police station. He testified that she said she understood, and wanted to make a statement. Defendant Fuller then gave a statement to Solecki in the presence of two other officers. Later, she repeated her statement to Assistant State's Attorney Latherow. This statement was given in the presence of a court reporter at 10:30 p.m., after Latherow had read the Miranda warnings to Fuller. Fuller then read a transcript of her statement, initialed every page, made some minor corrections, and signed the statement.
Defendant Fuller's testimony at trial was more or less consistent with her oral and written statements. She testified that on the evening of August 16, she went to Luther Price's apartment. Price admitted Fuller. She had been introduced to Price the day before by Verna Harris, defendant Chairs' sister. Defendant Chairs arrived about 2 1/2 hours later. In the interim, Fuller had consumed three drinks and five or six depressant tablets. Price and Chairs began arguing about Verna Harris, and Price indicated he wanted Harris' clothing removed from his apartment. Price and Chairs then went upstairs, and Fuller shortly thereafter heard sounds of scuffling. Fuller went into the upstairs bedroom and found Price on the floor. Chairs had his knee on Price's chest, and was holding a cord around Price's neck. Chairs directed Fuller to tie Price's hands. Fuller was unsuccessful in this. Chairs then ordered her to take some money from Price's pocket, and place it in Chairs' pocket. Fuller acted as directed. Chairs next told Fuller to hold the cord around Price's neck while Chairs found something to tie him with. At trial, Fuller denied holding the cord, but her earlier statement admitted this act. Chairs then told Fuller to look for anything of value on the first floor. Fuller rummaged through Price's belongings and found some liquor. She wiped her fingerprints from areas where she had touched, and went upstairs, where she observed Chairs placing a gag on the bound Price. Fuller and Chairs then left in Price's car, taking the liquor and a sum of money exceeding $300, much of it in coins. The pair stopped to buy narcotics, and abandoned Price's car. Chairs informed her that he would exchange the coins for bills the next day at a bank.
At trial, the State offered the testimony of an employee of the Bensenville Bank, relating that on August 17, 1977, Amos Chairs opened an account, deposited $333.64, and then immediately withdrew all but $100. Chairs' passbook from this bank, supplied to the police by Chairs' wife, was also offered as evidence. Luther Price's car was later found in the vicinity where defendant Fuller said they had abandoned it.
• 1 Defendant Fuller's first contention on appeal is that the trial court erred in denying her motion to suppress her post-arrest statement. Defendant Fuller concedes that she was given the Miranda warnings; she contends that her waiver of the right to remain silent was ineffective because it was not a knowing and intelligent waiver, owing to her intoxicated condition at the time of her arrest and thereafter. While it is true that an arrestee's intoxicated condition can render a waiver ineffective (see People v. Roy (1971), 49 Ill.2d 113, 115-16, 273 N.E.2d 363), the question of whether Fuller's waiver was truly voluntary was an issue for the trial court, and its findings will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. (People v. Higgins (1972), 50 Ill.2d 221, 225, 278 N.E.2d 68, cert. denied (1972), 409 U.S. 855, 34 L.Ed.2d 100, 93 S.Ct. 195.) Two witnesses (Bailey and Mallettle) testified to Fuller's intoxication at the time of her arrest. Three police officers and an assistant state's attorney testified; each denied seeing objective signs of intoxication. Such contradictory evidence is best resolved by the trial court. (See People v. Scott (1948), 401 Ill. 80, 84, 81 N.E.2d 426.) Under the circumstances, there is no reason to believe that its resolution was contrary to the manifest weight of the evidence.
• 2 Defendant Fuller attempts to attach some importance to the fact that no officer asked Fuller if she was intoxicated or took steps to evaluate her objective capacity to waive her rights. We can find no authority to support any requirement that police evaluate the capacity of those waiving their Miranda rights. On the contrary, our supreme court has held that the question of voluntariness of a confession is one of evidentiary competence, and is properly a question for the trial court. (Higgins, at 225.) In the instant case, the question was properly presented to the trial court at the hearing on the motion to suppress.
Defendant Fuller would also have this court endorse a rule that no waiver is "knowing and intelligent" (see Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L.Ed.2d 694, 724, 86 S.Ct. 1602, 1628), unless the arrestee knows the ramifications of his waiver. Miranda requires that an arrestee know that he has a right to refuse to incriminate himself (see Miranda, at 475); it has not been construed to require that an arrestee know the difference between inculpatory and exculpatory voluntary statements.
• 3 Defendant Fuller's next contention on appeal is that the trial court erred in denying a jury instruction on involuntary manslaughter. In taking this position, defendant asserts that she was voluntarily intoxicated at the time of the crime, and therefore may have acted with recklessness, but not with the intent necessary to commit murder. This argument misconstrues some basic principles of law. Although voluntary intoxication can be a defense, its effect is to negate a defendant's mental state insofar as a mental state is an element of the offense charged. (Ill. Rev. Stat. 1979, ch. 38, par. 6-3.) The degree of intoxication must be "so extreme that it entirely suspends the power of reason." (People v. Huggy (1974), 19 Ill. App.3d 247, 252, 311 N.E.2d 355.) The statute makes no provision for a "diminished capacity" defense, whereby a state of intoxication that does not "entirely suspend the power of reason" acts to reduce the degree of an offense, e.g., from murder to manslaughter. On the contrary, case law holds that voluntary intoxication is no defense unless it makes impossible the existence of a mental state that is an element of the crime. (Huggy, at 252.) In the case at ...