APPEAL from the Circuit Court of Saline County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Richard Vincient Toth was charged by information with murder for the May 8, 1979, killing of Carole Cooley. He was convicted by a jury of murder on November 27, 1979. He was sentenced on January 31, 1980, to a term of life in prison. On appeal from the conviction and sentence he raises a number of issues. We affirm the trial court.
Richard Toth called the sheriff's department of Saline County on the afternoon of May 8, 1979, to report that he had been mugged near Karel Park in rural Saline County. Chief Deputy Norman Wilson drove out to investigate and was struck by some oddities in the report, but searched for over an hour in the neighborhood for a van and occupants as described by Toth.
Wilson returned to the jail where he received a report of an apparent drowning near Raleigh, about two miles from Karel Park. He went out to investigate and determined that it was a possible homicide because of marks on the body. Wilson told Sheriff George Henley, who was investigating the death, about the mugging report and his suspicions about it. Henley sent Wilson to Toth's house to see if Toth would come to the scene and talk with the sheriff. Wilson and Reserve Deputy James Dunn drove to Toth's house in a squad car. Wilson told Toth that he had something that might interest him and asked whether he would mind going with them. Toth went back into the house to get shoes, then came out and accompanied the officers to the Cooley farm. Toth sat in the back of the squad car, since the radio console only permitted space for two in the front seat. The rear of the car had been adapted for transporting prisoners, with a screen between the front and back and no inside door handles. On the way to the farm Wilson and Toth talked about general subjects such as the weather and "how everything was going." There was conflicting testimony at a hearing on a motion to suppress regarding the subject of a red baseball-type cap. Both Wilson and Toth agreed that they talked about Toth's owning one and having lost it that day, but they disagreed about who initiated the subject. Wilson testified that he did not say anything to Sheriff Henley about the discussion of the cap.
When they reached the Cooley farm, Toth remained in the back of the squad car. Reserve Deputy Dunn stood outside, near the car. Deputy Wilson went to tell Sheriff Henley that Toth had arrived. Toth was not told that he was under arrest. He asked Dunn if he could get out of the car since it was getting hot. Instead, Dunn rolled down the front window to let in cooler air.
Some minutes after Toth had arrived at the scene, Sheriff Henley asked Eldorado Police Chief Glen Barrall to take the defendant to the courthouse. Because of the confusion at the investigation scene, the hot weather, and the delay before he could discuss the "mugging" with Toth, the sheriff thought it better that Toth be taken back to the courthouse. When Barrall asked the sheriff whether the defendant should be jailed, Henley said that he should not. Barrall was to ask Toth to wait in the dispatcher's room or in the booking room, and to tell Toth that the sheriff would be up soon.
When Barrall asked Toth to go with him to the county jail, the defendant said that he would. Toth blurted out to Barrall that a cap lying 75 to 100 feet away at the scene was his cap. Both Chief Barrall and the defendant agreed that the comment was not prompted by Barrall, but was volunteered, or in Toth's words, "out of the blue." Barrall reported the remark to Sheriff Henley, then drove Toth to the courthouse. Sheriff Henley testified later that he was surprised by the remark. As he thought it over, and the fact that it seemed to place Toth at the scene, he decided that Toth should be arrested. He telephoned the jail and instructed the jailers to place Toth in a cell when he arrived at the courthouse.
That evening, about 7 p.m., Sheriff Henley and Special Agent Jack Nolen from the State Department of Law Enforcement, talked with Toth in the Saline County jail. Nolen advised Toth of his rights under Miranda (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602), and Toth agreed to talk to the two officers. He made a statement which indicated he killed Carole Cooley, but that she had started an altercation which got out of hand by trying to seduce him.
On appeal the defendant challenges the court's denial of his motion to suppress. In his motion he alleged that he was under arrest from the time he was transported from his home to the Cooley farm (approximately 5:40 p.m.), and that he was not given his Miranda warnings until 7 p.m. at the Saline County jail. In addition Toth alleged that Wilson started the conversation about his hat in the car before they got to the farm. His position is that the information about the hat was self-incriminating and led to his making the statement, therefore both the admissions regarding the hat and the statement should be suppressed.
A review of the events leading up to the defendant's arrest at the jail makes it apparent that he was not placed under arrest, as he contends, either when Deputy Wilson gave him a ride from his house to the homicide scene, or when he arrived at the scene. Neither Deputy Wilson nor Reserve Deputy Dunn regarded himself as going to arrest the defendant. Wilson's suggestion that the defendant return to the Cooley farm was couched in language appropriate to a request rather than a command and the defendant was free to refuse. As the trial court noted, had the deputies intended to arrest Toth for murder, it seems unlikely that they would have waited calmly outside while he disappeared into the house "to get his shoes" and closed the door behind him. Deputy Wilson testified positively that he would never have permitted the defendant to do so had he been under arrest, and further testified that if Toth had been arrested for murder, Wilson would have read him his rights, searched him, and hand-cuffed him. None of this was done.
• 1, 2 It must be remembered that the defendant initiated the first contact with police authorities on May 8, 1979, when he called in the report of the "mugging." He testified at the hearing on the motion to suppress that he thought the police would think the muggers did the killing of Carole Cooley. It is entirely consistent with that thought that he agreed to accompany the officers to help them with their investigation in answering questions, not because he believed he was under arrest. Toth was entitled to be warned of his right to remain silent when he was arrested, but not before. (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L.Ed.2d 694, 706-07, 86 S.Ct. 1602, 1612.) Even if he were under arrest, volunteered statements are not covered by Miranda.
"Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona (1966), 384 U.S. 436, 478, 16 L.Ed.2d 694, 726, 86 S.Ct. 1602, 1630.
• 3 At the hearing on the defendant's motion to suppress confession the trial court heard conflicting testimony regarding the first conversation about the cap. Also, the defendant testified that he was not given his Miranda warnings until after he made an oral statement. Sheriff Henley testified that Jack Nolen gave Toth the Miranda warnings at the jail before any questioning began. The trial court had the advantage of being able to observe the demeanor of the witnesses and to weigh their testimony and assess their credibility. "Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact." (People v. Akis (1976), 63 Ill.2d 296, 298-99, 347 N.E.2d 733, 735.) We will not substitute our judgment for that of the trial court and therefore affirm the denial of the motion to suppress.
Defendant maintains that the court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense. The defendant tendered instructions on voluntary manslaughter under two theories, both that he acted under a sudden and intense passion resulting from serious provocation by the deceased (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(a)), and that he believed that circumstances existed ...