Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Teddy W. Ellison, was charged by indictment with the offenses of burglary, theft and possession of burglary tools. After a jury trial in the circuit court of Kane County he was found guilty of the burglary (Ill. Rev. Stat, 1981, ch. 38, par. 19-1(a)) and theft over $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1). He was sentenced to two concurrent four-year terms of imprisonment.
On appeal defendant presents three issues for review. First, he contends the trial court erred in refusing to suppress his statements to the police because he did not knowingly and intelligently waive his Miranda rights prior to making inculpatory statements. Defendant contends the finding that he had waived his rights was against the manifest weight of the evidence. Secondly, he contends that evidence of the theft of a CB radio was improperly admitted at trial. Defendant's final contention concerns the question of whether or not the jury was properly instructed.
The record shows that defendant filed a motion to suppress his statements to the police, urging that he did not knowingly and intelligently waive his Miranda rights. The motion, filed on November 10, 1982, was denied after a hearing. At the hearing, Arthur Weber, an Algonquin police sergeant, testified that he was on patrol on September 27, 1982, and responded to a call of a possible theft from a model home. He reported to the scene and spoke with David Trotter, who lived next door to the model home. Trotter told him that he had seen two men carry a stove and dishwasher from the home and load them into a white Ford station wagon with blue doors. Weber then heard, over his police radio, that Officer Svenningsen had located a station wagon matching that description.
Officer Svenningsen testified that when she approached the station wagon the defendant was sitting alone in the car and there were large appliances in the back. Defendant told her that the car belonged to his wife and he had been helping a friend move. When Sergeant Weber arrived on the scene, defendant repeated this statement to him and Weber arrested the defendant.
Defendant was informed of his rights under Miranda at the police station by Office Svenningsen. She gave defendant a copy of the Miranda form to read along with her as she read another form. This took above five minutes, and defendant then signed the waiver form. Officer Svenningsen testified that she spoke with defendant for about one-half hour, but she did not ask him any questions pertaining to the charges he had been arrested for.
Lieutenant Steven Schinkel came to the station shortly after 1 a.m. to interview the defendant. He reread the rights from the Miranda form to defendant, and the defendant told him that he knew his rights because he had "been arrested several times before." The defendant then told Lieutenant Schinkel that a friend of his by the name of Randy had come by his apartment and they had gone fishing. Randy told defendant he wanted to get some property from a house and told him how to get to this house. When they got there Randy went around the back and opened the garage door and asked defendant for some help carrying some of the property. Lieutenant Schinkel testified that the defendant's speech was coherent and his answers and statements were not unusual. The defendant did not request an attorney and did not ever refuse to answer a question. Defendant told Schinkel that he was just doing this as a favor for Randy. He admitted that both he and Randy had taken the dishwasher and stove and placed them in the back of the station wagon, and were taking them to Randy's apartment.
Lieutenant Schinkel returned the next morning, sat in the back of a squad car with defendant and advised him of his rights again prior to conversing with him. Lieutenant Schinkel tried to get some information about the defendant's friend, Randy. Defendant told Lieutenant Schinkel that he and Randy had been together the night before and were in his car driving around looking for a house they could get some property from. They entered the house in question through a basement window, went upstairs, unlatched the garage door, opened the garage and removed the dishwasher and stove. Defendant told Schinkel he had removed these items despite the fact that neither he nor his friend, Randy, knew the people there at the house. He said he was not going to get any money from this, he was just trying to help Randy out. Defendant appeared to be coherent. Defendant never requested an attorney.
The psychologist on staff at the Kane County Diagnostic Center, Roger Hughes, testified on behalf of the defendant. He indicated that the results of six hours of his testing of defendant showed defendant was illiterate. He determined the defendant's IQ to be 77, which indicates borderline mild mental retardation. Thus, the defendant would score better than only 2% of the population on these tests. Hughes testified that the defendant's verbal language disability was likely developmental in nature and that he had likely never been motivated to learn verbal material.
With regard to the Miranda rights form read and shown to the defendant, Hughes testified that defendant "definitely" could not read the form for himself and understand it. He indicated that if the form were read to him there would be parts that he could understand but that he could not understand it in its entirety. Specifically, he testified, defendant would likely not know what the word "appointed" means, or what the phrase "exercise these rights" means. Although someone may be able to explain the terms to him, it would be a very slow, arduous process in order for him to "get" the meaning of the words. He would not be able to derive the meaning of the words himself. On the other hand, Hughes testified, defendant was fit to cooperate with counsel and could understand the proceedings of the trial in a general way.
The defendant testified on his own behalf. He identified the Miranda rights form and could vaguely remember that he had signed it. He testified that when he and Lieutenant Schinkel were in the back of the car on the way to the bond hearing Schinkel told him that if he did not talk to him Schinkel would make sure he was not released on bond. When defendant was presented with the Miranda rights form he was able to read only the short and simple words on the form.
Defendant's motion to suppress the statements was denied and the court ruled that there was no coercion by the police.
At trial, on February 15, 1983, the defense filed a motion in limine to preclude the testimony of David Trotter, the individual living next door to the model home who had initially called the police. Trotter was expected to testify regarding the theft of his CB radio from his car parked next door to the model home. He discovered the theft the morning after defendant was arrested. The prosecutor argued that the evidence was relevant to show the absence of mistake. The motion was denied, and Trotter was allowed to testify.
Trotter testified at trial that he saw two men coming out of the garage of an uncompleted home next door to his house. He saw the men carrying appliances and loading them into a car parked in front of the house, but he could not see their faces. After they tied down the back door of the station wagon, the two men drove away slowly with their lights off. The next morning Trotter found that his car had been broken into and his CB radio had been cut out of the dashboard. Sergeant Weber and Officer Svenningsen testified and provided, essentially, the same details as they did at the suppression hearing.
Lieutenant Schinkel testified that the defendant had told him he stayed in the car while Randy went into the house. Schinkel recalled that defendant was ill in the car when he drove defendant to Elgin for the bond hearing and that defendant mentioned that he had been drinking. Following testimony as to the value of the stove and dishwasher, the prosecution rested.
For the defense, the defendant's ex-wife testified that the defendant and his friend, Randy, left the house around 8 p.m. to go fishing. Roger Hughes, the psychologist, testified to essentially the same ...