Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Ogle County,
the Hon. L.E. Ellison, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1982.
Dan W. Smith, the defendant, was convicted of murder and armed robbery after a jury trial in the circuit court of Ogle County. He was sentenced to life imprisonment for the murder and to 50 years for the armed robbery. Before trial, the defendant had unsuccessfully attempted to have two incriminating statements, which he had given while in police custody, suppressed. The statements were admitted into evidence and read to the jury. The appellate court, holding that the trial court did not err in admitting the statements, affirmed. (91 Ill. App.3d 438.) We granted the defendant leave to appeal to this court under Rules 315 and 612 (73 Ill.2d Rules 315, 612).
Pursuant to an arrest warrant issued in Ogle County, the defendant was arrested in Winnebago County shortly before midnight on Friday, September 1, 1978. Mary Smith, who was living with the defendant at the time, was also arrested. The pair was taken to the Winnebago County sheriff's office. There, at about 5:30 a.m. on September 2, they met with attorney Joseph Spiezer, who, Mary Smith testified, agreed to represent them. Later that morning they were advised by a circuit court judge in Winnebago County of the charges against them and that in view of the murder charge bond would not be set. The defendant and Mary Smith were then transported to the Ogle County jail.
The first incriminating statement was taken in the afternoon of Sunday, September 3, during an interrogation of the defendant by an Ogle County sheriff's deputy. Police had attempted to question the defendant in the early morning hours of September 2, but he was incoherent. At the September 3 interrogation, however, he related that Mary Smith and he had driven to The Other Place Tavern in Mary Smith's automobile. Mary waited while he robbed the proprietor, Mrs. Clifty Davis. He took Mrs. Davis with him at gunpoint and drove off with her in her automobile. Mary Smith followed in her car. He said that he shot and killed the proprietor when she attempted to grab his gun. The defendant signed a transcription of the statement on Monday, September 4, while being questioned by the sheriff of Ogle County. He also made a handwritten statement, in which he told a history of heroin use and of being "high on heroin" at the time of the robbery and killing.
An information was filed on September 5. It charged the defendant and Mary Smith with murder and armed robbery.
The defendant raises several issues here, all of which were decided against him in the appellate court. First, he contends that the statements should have been suppressed as being violative of his right to counsel, on the ground that on September 2 the police had prevented his attorney and him from consulting. Too, he claims that the jury was biased in favor of the prosecution because pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, jurors who stated that they could not impose the death penalty under any circumstances were excused for cause. He argues that his life sentence was an abuse of discretion, and he says that the trial court violated the Constitution of Illinois by disregarding evidence of his rehabilitative potential in sentencing him. Our decision as to the statements given is dispositive of the appeal.
At the hearing on the motion to suppress, attorney Carol Ellerby testified that she was a partner of Spiezer. She said that on September 2, the day before the defendant gave the first incriminating statement, Spiezer called her from Rockford, in Winnebago County, and asked her to visit the defendant and Mary Smith. She arrived at the Ogle County jail at approximately 3 p.m. on September 2. The jailer, whom she thought was John Willard, told her that she could not see the defendant because he was going through heroin withdrawal and was "shaking so hard" that he could not stay on his bed. Ellerby then wrote upon one of her business cards that she was Spiezer's partner and that he should not make a statement without one of his lawyers being present. The jailer agreed to give the defendant the card, and allowed her to see Mary Smith. There was no evidence of any consultation by the defendant with a lawyer until after he had given the incriminating statements.
Willard testified that he was a jailer when Ellerby came to the jail on September 2, but he could not recall her asking to see the defendant. He said that he had never refused an attorney access to a prisoner, and he denied that he told her that the defendant was going through heroin withdrawal. He further testified, as did other officers, that the defendant was not going through withdrawal at the time in question. In fact, no reason was presented at the hearing that would have warranted preventing one from visiting the defendant.
The defendant testified too. He said that he did receive Ellerby's card sometime on September 2. There is no evidence in the record, though, that he was told that Ellerby had requested to see him.
The trial court, in its findings, accepted Ellerby's version of the conversation with Willard and found that at the time of her visit the defendant was represented by Spiezer's firm. Nevertheless, the court admitted the statements into evidence.
The court said that in the period from sometime in the afternoon of September 2 through September 3 and 4, the defendant was no longer represented by an attorney and found that law-enforcement personnel at the jail were aware of that fact. The findings were based upon testimony that at about 4 p.m. on September 2, Robert Thorsen, another partner of Spiezer, appearing before a different judge, told him that Spiezer had decided not to represent the defendant because he was without funds. At about 4:30 p.m., Thorsen also told Mary Smith that their firm was not going to represent the defendant. There is nothing in the record to show that the defendant was ever advised that Spiezer was not going to represent him. Spiezer did in fact enter an appearance as defendant's counsel on September 5. Spiezer represented the defendant at the hearing of the motion to suppress the confessions and at the defendant's trial.
In addition, the trial court concluded that at the time the defendant gave the statements he knowingly waived his right to have counsel present. The court found that he was given Miranda warnings and had freely decided to waive them. At no time, the court found, did he request counsel. Further, the court found that his decision to speak was voluntary, the court noting that the defendant was not without experience with the criminal justice system. The court found, too, that at no time immediately before or during the ...