Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Logan County,
the Hon. John T. McCullough, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
This appeal requires us to determine whether the defendant was deprived of his right to counsel pursuant to the sixth amendment to the United States Constitution (U.S. Const., amend. VI). More specifically, we are asked to determine whether the defendant's confession should have been suppressed because he invoked his right to counsel before his confession was made. We are also asked to determine whether the defendant's conviction must be reversed because it is allegedly founded on hearsay statements of Terry Logan and Greg Williams which identified Steven Smith as the perpetrator. These statements were admitted as evidence and argued to the jury by the State's Attorney.
The defendant, Steven Smith, was arrested on November 30, 1981, and charged with the armed robbery of a McDonald's restaurant in Lincoln, Illinois. A Logan County jury found Smith guilty as charged, and Smith was sentenced to nine years in prison on April 20, 1982. A divided appellate court affirmed the defendant's conviction (113 Ill. App.3d 305), and we granted defendant's petition for leave to appeal (87 Ill.2d R. 315(a)). We now affirm the appellate court.
A reading of the testimony reveals the following facts. Shortly before 4 a.m. on November 19, 1981, Terry Logan and Greg Williams arrived at the McDonald's restaurant in Lincoln. Logan and Williams normally arrived for work at this early hour to prepare the restaurant for business. Logan and Williams entered the restaurant and were confronted by an armed male who wore a ski mask and brandished a large revolver. The armed man was standing inside the restaurant when Logan and Williams entered. He remained silent, and he used gestures to direct Logan to bind Williams' hands, feet and mouth with tape. He then forced Logan to bind his (Logan's) mouth shut with the tape, and the three men waited in silence for the arrival of another worker. Logan and Williams did not have the keys to open the store safe.
Karen Vale, another McDonald's employee, entered the restaurant and found Logan and Williams sitting on the floor near the safe. The masked man was standing near Logan and Williams. Vale was directed to open the safe, and approximately $2,600 was placed in a shake-mix box. Logan was ordered to tape Vale's hands together. The tape and store telephone were placed in the shake-mix box, and Logan was directed to take the shake-mix box to his car in the parking lot.
Logan and the intruder walked to the parking lot, and he directed Logan to enter the car and drive the two men to a deserted area near Lincoln. Logan testified that the intruder then spoke for the first time, saying: "If you say anything to anyone, I will kill you. I will leave you $200 for your trouble. McDonald's is stupid." He left the $200, which was later recovered by the police. When they stopped at the designated area, he exited the vehicle, pulled Logan out of the car, and hit him in the forehead. Logan woke up later in the back seat of the car with his hands taped behind his back. None of the three initially identified the robber, but subsequently Logan identified the defendant, Steven Smith, whom Logan had known prior to the robbery, as the perpetrator. Williams also told the police that the robber reminded him of his cousin, Steven Smith.
Steven Smith was arrested on November 30, 1981, and taken to the police station. Smith was questioned by Detective Coombs and Detective Vonderahe. The tape transcript was admitted into evidence over the objection of Smith's attorney, and it included a passage at the beginning of the tape:
"Q. Steve, I want to talk with you in reference to the armed robbery that took place at McDonald's Restaurant on the morning of the 19th. Are you familiar with this?
A. Yeah. My cousin Greg was.
Q. Okay. But before I do that I must advise you of your rights. Okay? You have a right to remain silent. You do not have to talk to me unless you want to do so. Do you understand that?
A. Uh. She told me to get my lawyer. She said you guys would railroad me. [The court reporter recorded the name as `Chico' rather than `she' when the tape was played to the jury. The transcript of the interrogation that was admitted into evidence referred to `she.' The apparent discrepancy in names has not been discussed by the litigants, and is not germane to the resolution of this appeal.]
Q. Do you understand that as I gave it to you, Steve?
Q. If you do want to talk to me I must advise you that whatever you say can and will be used against you in court. Do you understand that?
Q. You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned. Do you understand that?
A. Uh, yeah. I'd like to do that.
Q. Okay. If you want a lawyer and you're unable to pay for one a lawyer will be appointed to represent you free of cost, do you understand that?
Q. Do you wish to talk to me at this time without a ...