Appeal from the Circuit Court of Will County, the Hon. Herman
S. Haase, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1984.
In a jury trial in the circuit court of Will County, defendant, Robin Wayne Owens, was convicted of the murder of George Kallai. At the death penalty hearing requested by the State pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)), defendant was sentenced to death by electrocution. The trial court stayed imposition of the sentence (87 Ill.2d R. 609(a)) pending direct appeal to this court. Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1979, ch. 38, par. 9-1(i); 87 Ill.2d R. 603.
Testimony from various Kankakee and Joliet police officers established that on December 19, 1980, Kankakee police arrested defendant based on information from the Joliet police department that the Will County circuit court had issued a warrant for his arrest on the charge that he had murdered George Kallai. The officers also had information implicating defendant in a December 18 Kankakee County murder. Defendant was informed of his Miranda rights and taken to the Kankakee police station, where police officers sought to interrogate him on several different occasions between December 20 and 22. While defendant indicated he did not want to answer questions, he did not request an attorney. Around midday on December 22, two Joliet police officers who were known to defendant arrived at the Kankakee station to question him. According to the officers' testimony at the pretrial hearing, one of them told defendant that they had a warrant for his arrest for a murder in Joliet. Defendant testified that the officers never informed him of this fact, but he stated that he knew he was being held on a charge of homicide. There was also conflicting testimony as to whether defendant signed a written waiver of his Miranda rights before or after police questioned him about the Kallai murder, but the trial court ruled that the waiver was signed prior to questioning. Defendant at first denied any involvement in the murder, but upon being informed that police had in their possession an eavesdrop tape of him admitting that he beat and robbed Kallai, and, according to defendant's pretrial testimony, after one of the interrogating officers informed him that Kallai had died of a heart attack instead of from the beating, defendant orally confessed to the robbery and beating of Kallai. He subsequently made the same confession twice more, once in writing and once in a tape recording.
Defendant's pretrial motion to suppress all of the confessions was denied, and they were admitted at trial. That evidence and testimony from defendant's girlfriend, Linda Knox, from the Crescent Lounge bartender, Cynthia Crite, and from the bar owner, Juan Munoz, established that defendant and Knox were at the Crescent Lounge, located at 567 East Jackson Street in Joliet, during the evening of December 9. Owens noticed that 71-year-old Kallai was buying drinks with, as defendant described it, "a handful of money." Defendant urged Knox to try to obtain money from Kallai, apparently in exchange for sexual favors, but Knox testified she did not understand what defendant wanted. Just before the Crescent Lounge closed at 1 a.m., defendant and Knox left, and Kallai left shortly thereafter. Defendant and Knox walked to the vacant house in which defendant stayed at 555 East Jackson, next door to the bar, and defendant pushed Knox inside, leaving her there alone. According to Knox' testimony before the grand jury, defendant was gone for approximately 15 minutes, although at trial she testified that he was absent for less than one minute.
The victim's brother, Louis Kallai, testified that he discovered the body about six o'clock the morning of December 10, near the home the two brothers shared at 324 Youngs Avenue, which was around the corner from the Crescent Lounge. He and a neighbor dragged the body into the Kallais' front yard. An evidence technician with the Joliet police force, Officer Louis Silich, testified that he was sent to the victim's address about 6:15 a.m. on December 10. He found Kallai's body there, dressed appropriately for winter, except that he wore no trousers, and he observed that Kallai's face was bloodied. Officer Silich also testified that upon further investigation that morning he found a blood-stained pair of trousers on a couch in defendant's residence. Louis Kallai identified these trousers as similar to a pair his brother owned. The forensic pathologist who testified at trial, Dr. Edward Shalgos, could not pinpoint the time of death, but was able to determine that Kallai died because he had received repeated beatings, which induced shock and an irregular heartbeat, eventually resulting in cardiac arrest. Dr. Shalgos stated that the victim's heart had been somewhat weakened by a previous heart attack.
David Toliver was a key witness for the State. Upon his arrest for burglary in Joliet on December 16, Toliver told police about a conversation he had had with defendant on December 12 in which defendant admitted murdering Kallai. The day after Toliver's burglary arrest, Joliet police took a statement to this effect from him and Toliver then agreed to wear an electronic eavesdropping device in defendant's presence in an effort to obtain evidence which would substantiate his statement. At trial Toliver testified as to the statements defendant made to him on December 12 and he also identified certain statements on the eavesdrop tape as defendant's. Toliver related that in his conversation with defendant on the 12th, defendant admitted to murdering Kallai, and he described in detail defendant's account of the robbery and beating that led to the victim's death. According to Toliver, defendant said that Kallai fell to the ground when defendant struck him; defendant then stomped on the victim and removed his trousers so that he could easily reach Kallai's wallet. Again, according to Toliver, defendant said that he then wiped the victim's blood from his hands with a rag, which he later took into the house at 555 East Jackson, along with the victim's trousers. In response to questions from the prosecutor, Toliver identified as defendant's a voice on the eavesdrop tape which spoke of stomping someone, removing his trousers, and taking his wallet. Toliver also testified as to his own criminal record, which included convictions for burglary, theft and forgery, as well as the burglary charge then pending.
Defendant's handwritten confession admits that he hit and kicked Kallai. In his testimony at trial, however, he denied that he was connected in any way with the murder. He also stated, contrary to his testimony at a pretrial hearing on a motion to suppress his statements to police, that he confessed to robbing and beating Kallai only after one of the officers struck him in the stomach. Defendant also insisted that the voice on the eavesdrop tape was not his.
As previously stated, the jury returned a verdict of guilty and defendant waived his right to a jury at the death penalty hearing requested by the State. Pursuant to our statute (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(b), 9-1(c), 9-1(h)), the hearing proceeded in two distinct phases. In the first or qualifying phase, which is concerned with determining whether the case is one which contains a section 9-1(b) aggravating factor, the court found that defendant had attained the age of 18 years at the time of the offense and that the State presented sufficient evidence to prove beyond a reasonable doubt the existence of the statutory aggravating factors contained in sections 9-1(b)(3) and 9-1(b)(6). To support a finding that the section 9-1(b)(3) multiple-murder aggravating factor applied, the State first introduced into evidence a certified copy of defendant's conviction in Kankakee County for the murder of Arfrazia Hodges. The State then requested that the court take judicial notice of the jury verdict entered in the instant case finding defendant guilty of murder and felony murder in order to establish the necessary second conviction and satisfy the section 9-1(b)(6) felony-murder aggravating-factor requirement.
The sentencing hearing then proceeded to the second phase under section 9-1(c), in which the court or jury considers both statutory and non-statutory aggravating factors, together with any mitigating factors, and determines what penalty shall actually be imposed. The State presented evidence of non-statutory aggravating factors at this phase of the hearing. An assistant Kankakee County State's Attorney elaborated on the brutality of the Kankakee County murder, and two Joliet police officers testified as to the violent nature of defendant's prior convictions for theft and battery. Also, two Menard Penitentiary corrections officers testified that defendant was one of four death-sentenced inmates involved in attacks on them. Certified copies of defendant's prior convictions were admitted, as was a copy of his adjudication as a juvenile delinquent. The State also offered the opinion testimony of a probation department caseworker in the defendant's juvenile case that defendant's problems did not result from a poor home life. The caseworker's testimony was apparently intended as a rebuttal of any similar evidence which defendant might offer in mitigation.
Defendant's evidence at the second phase of the sentencing hearing consisted of non-statutory mitigating factors. His girlfriend, Linda Knox, and her mother, Beatrice Knox, testified that during the three-year period defendant had lived with the two of them they had not observed any violent behavior on his part and that, in their opinions, defendant did not deserve the death sentence. Defendant also testified in his own behalf at this phase of the hearing. He stated that he had a ninth-grade education and that he had lived with a succession of relatives prior to his commitment to the juvenile corrections system when he was 16. From the time he was released in late 1979 until December 1980, defendant was unable to find regular work. He accepted gifts of cash from Linda Knox and also gambled to support himself.
The court noted that no statutory mitigating factors were present and that it had considered all of the testimony offered by defendant to determine whether any other mitigating factors existed. Defendant's evidence in the second phase of the hearing revealed a background of poverty, relatively little education, and unemployment. The court found that such evidence did not constitute a mitigating factor and interpreted the death penalty statute to mandate a death sentence because aggravating factors were proved beyond a reasonable doubt and no mitigating factors were found to exist.
Defendant argues here that the oral, written, and taped confessions which he gave at the police station on December 22 were obtained in violation of his fifth amendment privilege against self-incrimination and sixth amendment right to counsel and therefore should not have been admitted at trial. Although defendant does not dispute that he was advised of his Miranda rights prior to interrogation and that he signed a waiver of those rights, he contends that Miranda warnings alone were not sufficient to fully advise him of his constitutional rights. Without knowledge of the significance of the arrest warrant issued for him in Will County and without the information that a complaint for murder had been filed against him, defendant argues that he could not validly waive either his fifth or sixth amendment rights.
As a preliminary matter, we note that the right to counsel provided by the sixth amendment exists independently of the rights which Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, provides under the fifth amendment. (Edwards v. Arizona (1981), 451 U.S. 477, 480-82 n. 7, 68 L.Ed.2d 378, 383-84 n. 7, 101 S.Ct. 1880, 1883 n. 7; People v. Smith (1982), 93 Ill.2d 179, 185.) As to the latter, defendant asserts that this court's recent decision in People v. Smith (1982), 93 Ill.2d 179, supports his position that he could not validly waive his fifth amendment rights unless, in addition to receiving Miranda warnings, he was informed of the existence of the complaint against him and the specifics of his arrest warrant. In Smith, this court reversed the trial court's denial of defendant's motion to suppress a confession because an officer had denied his lawyer's request to see him, and although the defendant had thereafter been given Miranda warnings prior to making his statement, he had not been told that his attorney had attempted to visit him. Our decision that Smith's fifth amendment rights had been violated rested on the ground that he could not have knowingly and intelligently waived his rights absent the knowledge that his attorney had attempted to visit and confer with him. Here, there is no indication that any attorney attempted to confer with defendant prior to his confession. Since that factual difference was the key to the Smith decision, we find that case inapposite.
In the absence of any fact pattern aligning this case with Smith, the standard rule for determining the validity of a waiver of fifth amendment rights applies. An express written waiver is persuasive proof of validity, but will not be sufficient alone unless the waiver was voluntarily, knowingly, and intelligently made. (North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L.Ed.2d 286, 292, 99 S.Ct. 1755, 1757; People v. Dailey (1972), 51 Ill.2d 239, 241.) Here, defendant signed a typewritten form waiving all of his Miranda rights, and the trial court determined that he did this prior to making any of his three confessions. Defendant does not now contend that this waiver was obtained involuntarily or that he signed it without knowledge of its future implications. In fact, in his testimony during the suppression hearing, defendant admitted that he was familiar enough with Miranda warnings to realize a waiver meant that whatever he told the police could be used in court. It is, in our judgment, clear that defendant's waiver of his fifth amendment rights was effective.
The question of the validity of a waiver of defendant's sixth amendment right to counsel is more troublesome. The parties agree that the sixth amendment right to counsel does not attach until the commencement of adversarial judicial criminal proceedings (see Moore v. Illinois (1977), 434 U.S. 220, 227, 54 L.Ed.2d 424, 432, 98 S.Ct. 458, 464; Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1882; People v. Burbank (1972), 53 Ill.2d 261, 272). They devote considerable argument to the question whether that point has been reached with the filing of a criminal complaint. Although the State has not raised the issue, there is respectable authority that whether adversarial proceedings commence with the filing of a complaint depends on the degree of prosecutorial involvement. In State v. Johnson (Iowa 1982), 318 N.W.2d 417, 435, the court held that while the filing of a simple complaint by or at the direction of the prosecutor may constitute the commencement of adversary judicial proceedings, the filing of such a complaint by a police officer in order to secure an arrest warrant, as here, with no indication of prosecutorial involvement, does not necessarily have a similar effect. We note that, to date, neither the Supreme Court (see Edwards v. Arizona (1981), 451 U.S. 477, 480 n. 7, 68 ...