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People v. Sizemore

OPINION FILED JUNE 30, 1981.

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

v.

DONALD SIZEMORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH GILLIS, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant, Donald Sizemore, was charged by indictment with burglary. (Ill. Rev. Stat. 1977, ch. 38, par. 19-1.) In a bench trial defendant was found guilty and was sentenced to serve 5 1/2 years in the Illinois Department of Corrections. On appeal defendant contends that the trial court erred in denying defendant's motion to suppress his confession and that he was not proven guilty beyond a reasonable doubt. For the reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.

Prior to trial defendant moved to quash his arrest and to suppress a two-page typewritten confession he gave to the police. In his confession defendant admitted his participation in the October 26, 1978, burglary at the Chez Paul restaurant located at 660 North Rush Street in Chicago.

In support of his motion defendant testified that between 9 and 10 p.m. on October 29, 1978, he was arrested in the lobby of the Ohio East Hotel, 19 East Ohio Street, by two plainclothes police officers whom he did not know. Defendant was transported in handcuffs to the police station at Belmont and Western. En route the officers, who did not advise defendant of his Miranda rights, asked defendant where he had obtained a stolen CB radio which he had in his possession. Upon arriving at the station, defendant's handcuffs were removed and he was locked into a small room where he fell asleep.

Defendant testified that he was kicked awake by burglary investigator James Biebel who said, "What do we have here?" Biebel's partner, James Jones, was also present. Defendant knew both officers from prior arrests and testified that they had beaten him on those occasions. The investigators moved defendant into a larger office where Biebel handcuffed defendant's right arm to a chair. According to defendant Biebel asked him if he wanted "to do it the hard way or the easy way." Defendant gave him the name, address and telephone number of his employer and asked Biebel to call and verify defendant's whereabouts at the time of the burglary (6:10 a.m., October 26, 1978). Biebel refused and told defendant, "We've been through this before and we can go through it again. Make it easy on yourself." At this point investigator Jones grabbed defendant by his shirt and said, "Let me take care of this. He's going to be a hard ass, I'll handle this, * * *." Biebel asked defendant to whom he wanted to talk — Biebel or Jones. Defendant persisted in asking the officers to call his employer.

Defendant testified that when he asked to speak with an attorney, Biebel said that he (Biebel) would act as his attorney and that any statements defendant gave probably could not be used against him. Jones, who was standing behind defendant, grabbed a Chicago telephone directory and started hitting defendant on top of his head. Defendant tried to ward off the blows with his one free hand but one of the officers immediately secured that hand to the chair. Defendant stated that Jones struck him four or five times.

One of the officers advised defendant that if he signed a statement the officer would take him downstairs to the lockup. Both investigators informed defendant that the other person arrested for the burglary, Engel Semesedinovski, had signed a statement implicating defendant. They showed the statement to defendant and he read it. Defendant pleaded with the officers to call his employer, but they refused.

Jones and Biebel then acted like they were having an argument. Biebel told Jones to leave the room. During the 15 minutes Jones was gone, Biebel suggested to defendant that he should "do it [i.e., confess] the easy way." Biebel advised defendant to talk to him or else Biebel would let Jones come back. According to defendant, Biebel said, "He [Jones] don't like you anyway." Biebel refused to call defendant's employer because he already had Semesedinovski's statement in which he implicated defendant. Semesedinovski had been defendant's co-arrestee in 1974.

Defendant stated that Jones came back into the room and asked Biebel how he was doing. Biebel said, "Looks like he wants to be a hard ass." Jones stepped behind defendant and hit him with the telephone book each time defendant gave the "wrong answer" to Biebel's questions. Defendant said he was struck more than 10 times. Biebel then reached down, grabbed defendant's testicles and started squeezing them until defendant hollered. Defendant kept asking Biebel to call his employer and said that he had three persons who could verify his whereabouts. Pointing to Semesedinovski's statement, Biebel said, "This is all the proof we need."

Defendant testified further that investigator Jones walked around to the front of defendant, pulled a knife out of his right coat pocket and held it to defendant's neck. Jones said, "I'm not going to play all the games Jim [Biebel] is going to play with you. You're going to do it my way because I'm not going to be here all night long." Defendant then agreed to give a statement. Biebel left and returned 10 to 15 minutes later with a statement he told defendant to sign. Defendant's handcuffs were removed from the chair so that he could sign. Defendant pretended to read it and then signed the second page. Two other police officers came into the interview room and Biebel said, "There you go," throwing the signed statement onto a desk. As Biebel and Jones left, Biebel told the other officers, "If you have any more problems we'll be back." Defendant testified that he signed the statement at 2 a.m. on October 30, 1978.

On cross-examination defendant admitted that in his signed motion to suppress there was no mention of investigator Jones holding a knife to his throat. Defendant also admitted that on the prior occasions when Jones and Biebel had beaten him with their hands, he made no complaint and did not move to suppress the statements given. Defendant expressed familiarity with his Miranda rights.

Defendant testified further that when he was at the station and before he was beaten, he went through a large number of burglary files and pulled out 11 case reports. Defendant told Biebel and Jones that he and Semesedinovski were responsible for those 11 burglaries. All involved taverns or restaurants and all occurred at approximately the same time of day.

Defendant did not complain of the beating to either of the two officers who came into the room after defendant signed his statement. Nor did he complain to anyone at the jail. He was not hospitalized. Defendant did not name the attorney with whom he wanted to speak. Defendant stated that Biebel had squeezed defendant's testicles 10 or 15 times. In court defendant identified Semesedinovski's statement as the one which had been shown to him during his interrogation.

On redirect, defendant testified that no officer signed his name as a witness to defendant's statement in defendant's presence. Biebel and Jones brought in a large number of burglary case files and asked defendant to pick out ones with the same method of operation defendant and his partner, Semesedinovski, had been known to use. Biebel said he wanted to clean up his files. Defendant selected a number of files and claimed responsibility for the burglaries even though some had occurred while he was in the penitentiary. From prior experience, defendant thought that this would satisfy Biebel so that he would not beat him. Defendant testified that he told his parole officer, Shelby Rowe, what had happened to him. He then rested on the motion.

The State called five witnesses in opposition. Officer Michael Cronin testified that he and Lieutenant Wadnicki arrested defendant at the Ohio East Motel for burglary. Cronin said that he advised defendant of his Miranda rights, then drove him to Belmont and Western where defendant was placed in a small 12 foot by 8 foot room on the second floor.

Investigator Biebel testified that on October 28, 1978, he and investigator Jones worked from 4:30 p.m. to 1 a.m. Toward the end of his shift, Biebel received a call to report to the station. Upon arrival, Lieutenant Wadnicki informed Biebel that defendant was in his office. Biebel knew defendant from previous burglary investigations and testified that in 1974 he had agreed to help defendant get a sentence of probation in return for defendant's cooperation in reviewing Biebel's open burglary files and identifying those which he had committed. Biebel denied that either he or Jones ever beat defendant on those occasions.

According to Biebel, defendant was not handcuffed when he spoke with him on October 29. In response to a question from Biebel, defendant stated that he had been advised of his constitutional rights. Defendant related certain details about the burglary to Biebel and Jones and agreed to give a statement to the officers who worked the midnight shift. Biebel stated that he did not know all the particulars of the Chez Paul burglary and did not question defendant at length. Investigator Raymond Gawne came into the station, and Biebel told him that defendant would make a statement.

Biebel stated that he did not kick defendant or grab his testicles and that he never saw Jones strike defendant with a telephone book or threaten him with a knife. Defendant did not ask Biebel to call his employer because defendant had told him that he had not been working for a week. Biebel never took a statement from defendant and did not prepare a written report because he was not assigned to the case. Defendant went through a burglary "MO" ...


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