APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN COVEY, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 28, 1982.
Defendant, Johnnie Lee Savory, was convicted following a jury trial in the circuit court of Lake County of two offenses of murder and was thereafter sentenced to concurrent terms of 40 to 80 years imprisonment. He appeals, contending (1) his statements to police were elicited in violation of his Miranda rights; (2) the State was improperly allowed to introduce evidence and comment upon defendant's exercise of his right not to make a statement to police; (3) evidence suggesting defendant had previously committed another crime was admitted; and (4) defendant's trial attorney failed to provide him effective assistance of counsel.
Defendant's first conviction of the January 18, 1977, murders of James Robinson, Jr., and Connie Cooper in Peoria County was reversed on appeal and remanded for a new trial (People v. Savory (1980), 82 Ill. App.3d 767, 403 N.E.2d 118). The Illinois Supreme Court denied leave to appeal ((1980), 81 Ill.2d 598), the United States Supreme Court denied certiorari ((1981), 449 U.S. 1101, 66 L.Ed.2d 827, 101 S.Ct. 896) and the cause was transferred to Lake County for retrial.
Defendant was 14 years of age at the time of these offenses. On January 25, 1977, one week after the victims' bodies were discovered (they had been killed by stabbing between 8 and 9 a.m. on January 18), two police officers met with defendant at 3:30 p.m. at his school in a room adjacent to the principal's office. The officers told defendant they wished to speak to him in regard to the deaths of Connie Cooper and James Robinson, and defendant first responded he did not want to talk to them or give any statements. The officers persisted and advised defendant he may have been one of the last persons to see the victims while they were still alive and might give the police some leads as to the perpetrator of the murders. He then agreed to give an account of his activities on the day prior to the murders.
Defendant informed the officers he had met James Robinson at school on January 17 around 3:30 p.m.; the pair had gone to the Robinson residence arriving at 7 p.m.; they had taken some corn and hot dogs out of the refrigerator, prepared and ate this meal and after finishing they placed a television set on the floor and practiced Kung Fu in the living room. The two left the Robinson residence for a few hours but returned to practice Kung Fu and defendant told the officers he left at 11 p.m., walked home and later spoke to Robinson on the telephone until around 1:30 a.m. Defendant said Robinson asked him to return at 8 the next morning but that he did not do so. Defendant also indicated to the police that he and Robinson were close friends and he had known him and Miss Cooper for many years.
At approximately 4 p.m. at the school, the officers asked defendant to return with them to the police station for a meeting with other officers working on the case, and he agreed. Defendant was not placed under arrest or handcuffed, nor was there a show of weapons or force at this or any later time. On the drive to the station, defendant suggested they stop at his father's house so he could show them a knife that was similar to one owned by Robinson and the officers agreed. Defendant was allowed to enter the home alone, and he returned without the knife saying his father must have it with him and was not at home. At 5 p.m. defendant was brought into an interrogation room at the police station and he repeated his previous story in the presence of four officers until about 5:30 p.m.
Following this second interrogation defendant was given two sodas and ate part of a candy bar and was allowed to go to the restroom unaccompanied. One of the officers returned to defendant's home and retrieved a knife from defendant's father, who told the officers that it was his knife and that defendant had commited no crime. The officers noted certain discrepancies between other information received relating to the case and defendant's story; one officer testified he knew at this time that defendant was not being truthful with them. At 6 p.m. defendant was again interviewed by officers in the police station. In this 45-minute session the officers called to defendant's attention certain discrepancies between known facts and defendant's statement to them: (1) that defendant had stated he and Robinson were very close friends and he had known Robinson and Cooper for years; (2) that he and Robinson had cooked a meal on the evening of January 17; and (3) that he had telephoned Robinson and talked to him until 1:30 a.m. on January 18. When confronted with information challenging these portions of his story, defendant admitted he had been lying to the officers during some parts of the earlier interview. Thereafter, from 10 p.m. until 11 p.m., defendant was questioned by a polygraph examiner and, after the results were made known to the police, they arrested him for murder and first advised him of his Miranda rights.
At defendant's first trial his motion to suppress the statements made by him on January 25, and a confession given by him on the following day, was denied. On his first appeal defendant sought review of the denial of his motion to suppress, but only as to the confession given on the second day of his interrogation, and the appellate court reversed on grounds it should have been excluded as involuntary. On retrial, defense counsel urged that evidence of the first day's conflicting statements should also be suppressed, but the trial court declined to do so, finding defendant was not in custody when those statements were made.
At trial, in addition to the January 25 statements to the officers, three acquaintances of defendant testified that he had told them on the day of the murders that he had stabbed the victims and they were dead. These admissions by defendant were made at a time when the bodies had not yet been discovered and included descriptions of the victims' multiple stab wounds consistent with those depicted in photographic and other evidence of the crime scene. Evidence was also presented that defendant had a knife (which he had with him when he admitted his complicity to one of the witnesses), and that type A blood matching that of one of the victims, but not defendant, was found on a pair of pants from defendant's residence. Defendant did not testify in trial but presented evidence of an alibi and sought to blame the victims' step-father for the murders.
We consider first defendant's contention that his motion to suppress his statements to the police on January 25 should have been granted because the officers failed to comply with the requirements of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.
• 1, 2 The State initially points out that defendant's similar motion was denied in his first trial and, as he did not seek review of that portion of the order of the trial court, it became res judicata and the law of the case and he has waived or is collaterally estopped from doing so now. We must disagree. It is true that these doctrines bar relitigation of an unappealed order denying a motion to suppress, but they only do so in the absence of exceptional circumstances. (People v. Armstrong (1973), 56 Ill.2d 159, 161, 306 N.E.2d 14, 15; People v. Eckmann (1978), 60 Ill. App.3d 300, 302, 376 N.E.2d 751, 752.) Here such circumstances were present inasmuch as the January 25 statements which defendant sought to suppress in the second trial were not relied upon by the prosecution in the first trial and, necessarily, the issue of suppression of evidence which could not have contributed to his first conviction would have been considered moot on review in the first appeal. See People v. Hopkins (1972), 52 Ill.2d 1, 284 N.E.2d 283.
• 3-5 The trial judge, in denying defendant's motion to suppress in his second trial, determined Miranda was inapplicable to defendant's January 25 statements because he was not in custody when they were given. Custodial interrogation, which the Miranda decision governs, means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (384 U.S. 436, 444, 16 L.Ed.2d 694, 706, 86 S.Ct. 1602, 1612; People v. Brownson (1982), 103 Ill. App.3d 476, 431 N.E.2d 744.) In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of police. People v. Wipfler (1977), 68 Ill.2d 158, 166, 368 N.E.2d 870, 873; People v. Cart (1981), 102 Ill. App.3d 173, 183, 429 N.E.2d 553, 562; see also People v. Kennedy (1978), 66 Ill. App.3d 267, 383 N.E.2d 713.
Numerous factors are to be considered in this inquiry: the location (e.g., People v. Hentz (1979), 75 Ill. App.3d 526, 394 N.E.2d 586), time (Cummings v. State (1975), 27 Md. App. 361, 341 A.2d 294), length (State v. Skiffer (1969), 253 La. 405, 218 So.2d 313), mood and mode (People v. Bailey (1973), 15 Ill. App.3d 558, 304 N.E.2d 668 (including extent of knowledge of facts possessed by police)) of the interrogation; the number of police officers present (United States v. Kennedy (9th Cir. 1978), 573 F.2d 657; People v. Szerletich (1980), 86 Ill. App.3d 1121, 408 N.E.2d 1098) and the presence or absence of friends or family of the accused (People v. Bryant (1967), 87 Ill. App.2d 238, 231 N.E.2d 4); any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest (see People v. Burris (1971), 49 Ill.2d 98, 273 N.E.2d 605); the manner in which the person questioned got to the place of interrogation, i.e., voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion (see State v. Cassell (Alas. 1979), 602 P.2d 410); whether he voluntarily assists police in their investigation (see People v. Cart (1981), 102 Ill. App.3d 173, 429 N.E.2d 553); whether the subject is allowed to walk within and from the ...