Appeal from the Circuit Court of Kane County; the Hon. Michael
O'Brien, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, John Longoria, was indicted in Kane County for the attempted murder and aggravated battery of a child, four-year-old Tracy Mays. (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 12-4.3(a).) He was found not guilty of attempted murder and guilty of aggravated battery of a child in a bench trial, and sentenced to the Department of Corrections for an extended term of 12 years.
The defendant contends (1) the court erred in refusing to strike testimony of a witness regarding statements he made due to (a) his illegal arrest, (b) failure of the police to give him his Miranda rights, (c) allowing the State to re-open its case and re-call a witness to testify regarding the Miranda rights given to the defendant, and (d) refusing to strike the witness' testimony as being inherently incredible; (2) he was not proved guilty beyond a reasonable doubt because venue was not proved; and (3) the court considered improper factors when imposing sentence.
Additionally, in a motion ordered taken with this case, the defendant asks this court to take judicial notice of the geographical boundaries of Kane County, Illinois.
On June 17, 1981, the defendant, his girl friend Mary Mays and her four-year-old daughter, Tracy, were at the defendant's residence at 608 Jay Street in Elgin. Mrs. Mays testified the defendant took Tracy to Lord's Park in Elgin at 7:30 p.m. She said she thought Lord's Park was in Cook County; but she was not sure. When they left, Tracy was healthy but she had a cut lip from an accident on a swing, and several other marks because she had fallen off her new "Jungle Gym." Mrs. Mays said she had known the defendant since November 1980 and that Tracy called him "Daddy." At 9 p.m., the defendant called her and said the car keys were locked in the car and that they would either get a ride home or walk. Tracy and the defendant returned from the park at 10 p.m. with the defendant's brother, Rick. Tracy was pale, semiconscious, and her hair and clothes were damp. Mrs. Mays and Rick took Tracy to St. Joseph's Hospital in Elgin.
An Elgin resident, Cheryl Moose, 607 South Liberty Street, located about a mile south of Lord's Park, testified she observed Tracy, barefoot, walking south on Liberty about 9:40 p.m. Mrs. Moose said it was dark and about 55 to 60 degrees outside, so her husband went out to see if the little girl was lost. He brought her into the house. Mrs. Moose said Tracy was shivering, her clothes and her hair were damp, her lips were swollen, bloody and purple, her shirt torn, her legs scratched and dirty. She wrapped Tracy in a blanket and sat in a rocking chair with her. Mr. Moose went back outside and returned about a minute later with the defendant, who was barefoot and wearing only shorts. He said he and Tracy were swinging at Lord's Park, that she had lost the car keys for the second time that day, and that she was "in big trouble." Mrs. Moose told Tracy to go with the defendant; Tracy was holding onto Mrs. Moose's leg. Tracy and the defendant left, walking southbound on Liberty. Mrs. Moose said she thought Lord's Park was in Kane County, but she thought there was a Cook County dividing line there.
Emergency room personnel at St. Joseph's Hospital testified Tracy was in shock and very slow to respond when she was brought in by her mother and defendant's brother. Her skin was mottled, she had extensive bruises on the back of her head, her forehead and her inside upper thighs; there was a claw-like abrasion on her abdomen; her lip was cut and there was a laceration on the side of her tongue; there was hair missing from the back of her head; she vomited blood and there was blood in her urine.
Tracy did not respond to any of the nurses' or the doctors' questions about what happened until later when the questions were repeated after Mrs. Mays was asked to leave the room so they could X-ray Tracy. Tracy told the doctor who was treating her, Dr. Meenalochani Rengarajan, "My Daddy, * * * my Mom's friend hurt me. He kicked me, and he pushed my head. He pulled me in the pond, and he asked me to put out my tongue and then he closed my mouth." Tracy stated to Nurse Lisa McCarthy that her father pushed her into the pond and pulled her out of the pond, that he kicked her in the tummy and the head, and that "My Daddy told me to stick out my tongue and to bite down." Nurse Wilma Zimmerman said Tracy told her "My Daddy hit me with a stick this time and last time, too." The hospital personnel contacted the Elgin police, and the Department of Children and Family Services.
Detective Mark Brictson and Detective Sergeant Cull went to the defendant's residence at 1:40 a.m. and talked with him. Also present there was a person named Lawrence Hearly. The officers told the defendant they needed additional information with regard to Tracy's injuries, and the defendant agreed to go with them to the police station. Detective Brictson said the defendant was not placed under arrest, was not handcuffed, and was not a suspect.
Over defense objection that the defendant had not been advised of his Miranda rights and that the defendant's statements were not voluntary, Brictson was permitted to testify as an offer of proof that the defendant began speaking in the car on the way to the police station. The defendant related that Tracy had lost the car keys at Lord's Park and that he was upset about that. He said they had been playing in the park and that they had to walk home from the park. He said he never had occasion to spank Tracy or any of his children (he had two children by his ex-wife), although he did yell at Tracy. Detective Brictson testified Lord's Park is located in Kane County.
When they arrived at the police station, the defendant related that a week prior he had been bouncing Tracy on a bed, unaware there was a toy beneath the sheet that was hurting her, because she tolerated the pain. Detective Brictson then advised the defendant of his Miranda rights in the presence of Detective Sergeant Cull. He orally advised the defendant he had a right to see a lawyer and to have the lawyer present during questioning; that anything he said would be used against him in court; and that he had a right to cease answering questions. Defense counsel did not then object to the sufficiency of the warnings given. The court determined it would withhold its ruling on the above offer of proof subject to cross-examination, and allowed the State to proceed.
Detective Brictson then testified the defendant was shown color photographs of Tracy which were taken at the hospital. The defendant said the large bruises on the insides of Tracy's thighs were because he had a tendency to play too roughly with her and to tickle her in that area. He related that she had been playing in the creek area at the park and that she threw his tennis shoe into the water. He lowered her into the water so she could get the shoe out, and that is how she got wet. He said he had been playing in the mud and Tracy, who did not like to get messy or dirty, began crying and asked him "Why are you making me eat this mud?" He stated the bruises on Tracy's chest were from the bed-bouncing incident and that the injuries to the back of her head were caused when he grabbed her hair and pulled it back. After looking at the pictures of Tracy, the defendant stated that if he caused those injuries to her, he should seek professional help and stay away from her. The defendant, age 26 at the time, was then booked and processed. On cross-examination, Detective Brictson testified the defendant did not appear to be on medication of any sort at the time he was being questioned.
The State offered numerous exhibits for admission into evidence, primarily photographs of Tracy's injuries, and the court accepted them over defendant's general objection thereto. The State then rested, and defense counsel moved to strike Brictson's testimony because the Miranda rights given to the defendant by Detective Brictson were incomplete, and because Miranda rights were not given to the defendant before he made the statements in the police car on the way to the station at which time defense counsel contended he was under arrest. The State countered the defendant was not under arrest on the way to the police station and, therefore, no Miranda warnings were necessary. Further, that the Miranda warnings that were given to the defendant were sufficient.
Defense counsel pointed out Brictson did not testify that he advised the defendant he had a right to remain silent or that if he could not afford an attorney, one would be provided to him. Consequently, there was no showing the waiver was knowing and voluntary. Further, defense counsel asserted an additional reason to suppress the defendant's statements was that there was no probable cause to arrest him. If there was probable cause to arrest, defense counsel asserted the State could not then claim that no Miranda warnings were required. The State responded the officers had probable cause to arrest the defendant when he admitted at the police station that he played too roughly with Tracy. With respect to the Miranda rights that were given the defendant, the State asked to be allowed to reopen its case to ask Detective Brictson specially which rights he had advised the defendant of.
The court stated that it would not allow the State to reopen that portion of the proof, and withheld its ruling on the adequacy of the Miranda warnings pending its review of a case cited by the State. (No citation was included in the record.) With regard to the statements made prior to the giving of the Miranda warnings, the court stated it did not believe the defendant was in custody at the time he made the statements and they were admitted. The defendant moved for a directed finding as to both counts; the court reserved its ruling until the close of the case.
The court then read the case cited to it by the State and stated:
"[The Court]: It's my conclusion that the Miranda warning as suggested by the officer does not meet with the requisite [sic] of either the State of California case or the earlier cases cited to this court, because of two critical items that were not listed.
MR. SPENCE [Prosecutor]: Judge, could I interrupt you just for a moment, ask the officer leave while we * * *
The court then ruled that all comments and discussions held after the "purported Miranda warning" were stricken.
Citing section 114-11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-11), the State pointed out the statute provides for a hearing on the motion to suppress. The State noted the earlier offer of proof related only to the question of whether the defendant was in custody, and it had no notice that the sufficiency of the warnings would be an issue. The State requested to be allowed to reopen its case, and the court allowed its request over objection.
Detective Brictson was recalled, and testified he advised the defendant of his right to remain silent, that anything he said would be used against him in court, that he had a right to a lawyer and to have the lawyer present during the questioning; that a lawyer would be appointed for him if he could not afford one, and that he could exercise the above rights at any time. On cross-examination, Detective Brictson stated he inadvertently omitted the fact he told the defendant a lawyer would be appointed for him if he could not afford one, and remembered that omission upon reviewing his testimony after he left the courtroom. He could not recall which other specific parts of his testimony he also reviewed, although it was his practice to review "what I say on the witness stand each time I testify." Detective Brictson testified over objection that after he left the courtroom, he did not speak with anyone who had been in the courtroom during his earlier testimony. The court ...