Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. J. Earl Strayhorn, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
After a bench trial in the circuit court of Cook County, Billy Martin and co-defendant, Melvin Burnett, were found guilty of murder, attempted armed robbery, conspiracy to commit armed robbery, and armed violence based on the murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 9-1(a)(3), 8-4, 8-2, 33A-2). This appeal involves the defendant, Billy Martin. He was sentenced to concurrent terms of 75 years for murder, 10 years for attempted armed robbery, 10 years for armed violence, and 7 years for conspiracy. The appellate court, by order, affirmed the judgment of the circuit court, with the exception of the armed-violence conviction, which it vacated. (113 Ill. App.3d 1164.) We granted leave to appeal.
Two issues are raised on appeal: (1) whether defendant's sixth amendment right to counsel had been violated; and (2) whether defendant made a voluntary, knowing and intelligent waiver of his fifth amendment privilege against self-incrimination prior to making his statements.
Defendant, while in police custody for a prior unrelated offense, gave incriminating statements with regard to the offenses involved herein. Prior to the instant trial, he moved to suppress those statements.
The following facts were revealed at the suppression hearing. The defendant testified that he was arrested and taken into custody on August 30, 1980, on an unrelated charge of rape. Assistant Public Defender Koivun was appointed to represent him at the preliminary hearing on September 2, 1980. The defendant further testified that on November 15, 1980, while in custody on the rape charge, he was taken from his cell to another area of the Cook County Correctional Complex, where he was questioned by Investigators Carroll and Kajari and Assistant State's Attorney Norek, regarding a murder. When asked if he knew Melvin Burnett or anything about a murder, defendant responded in the negative. He testified that he was then shown several photographs, including one of co-defendant Burnett, as well as a written statement made by Burnett. After reading only a portion, the statement was taken from him. He stated that he was told that the statement named him as the "triggerman" in the homicide under discussion. His testimony also reveals that a copy of his "rapsheet" was read to him with the investigator indicating that, based on this record, he believed that defendant was not the "shooter." At this point, defendant described what happened during the shooting incident, admitting his participation in the offense and implicating Melvin Burnett as the "shooter." Following this oral statement, defendant was moved to a second room where the assistant State's Attorney gave him his Miranda rights and proceeded to take a written statement.
When asked, on direct examination, about his mental state at the time of interrogation, defendant replied that he was "scared" and "breaking down" because of the rape charge and the accusation that he was the "shooter." In addition, he stated that no one suggested that he contact the lawyer who had been appointed on the rape charge and it did not occur to him that he could do so. Defendant also testified that he was not informed of his Miranda rights prior to the initial interrogation. During cross-examination, he was impeached with his written statement taken during the second interview. In that statement, the defendant acknowledged that Investigator Carroll had advised him of his constitutional rights in the earlier interview. Defendant stated, however, that he could not remember making such an admission.
The State called Assistant State's Attorney Norek as a witness at the suppression hearing. He testified that he was called to Area 6 Homicide in the morning of November 15, 1980, where he met with the police officers investigating the homicide. After reviewing the police reports and the written statement of Melvin Burnett, which implicated defendant, he accompanied the officers to the Cook County jail to question the defendant. Norek was present during both interviews and was able to verify that defendant had been fully advised of his constitutional rights, by Investigator Carroll, prior to the first interview. Norek testified that the defendant was asked if he understood those rights and replied affirmatively. Norek also stated that the defendant never asked to speak to an attorney or indicated that he wished to remain silent.
Norek admitted, during cross-examination, that the defendant was told that Burnett had "fingered him as the triggerman" in spite of the fact that the interrogators knew that this was not true. Although Norek was aware that the defendant was in custody at the time of the interrogation, he could not recall if he knew why defendant was in custody, and he denied any knowledge that counsel had been appointed for defendant on the rape charge. Norek testified that he gave the defendant his Miranda rights prior to taking the written statement and felt there was no need to inquire whether a lawyer had been appointed in the other case. While Norek stated that the defendant was "surprised" at being identified as the "shooter," he described the defendant's emotional state, during questioning, as "calm and collected."
Investigator Kojari, who was present during both interviews, was called, in rebuttal, on behalf of the defendant. His testimony merely corroborated the testimony of Norek that Investigator Carroll advised the defendant of his Miranda rights at the first interview.
The defendant argued that the statements sought to be suppressed were obtained in violation of his fifth amendment right against self-incrimination since they were the product of mental coercion, trickery and deceit and further that he had been denied his sixth amendment right to counsel. The trial court denied the motion to suppress, stating that defendant's right to counsel was not violated because the interrogation did not occur during a critical stage of the prosecution. Additionally, the court found no fifth amendment violation, concluding that the State had met its burden of demonstrating that the statements were made knowingly and voluntarily. As such, the incriminating statements were later admitted into evidence at the defendant's trial.
The appellate court concluded that the trial court did not err in refusing to suppress the confession. It found that the defendant had voluntarily waived his fifth amendment rights before giving the oral and written statements. Further, it held that defendant's sixth amendment right to counsel had not been violated since this right had not yet accrued.
We turn first to defendant's argument that he was denied his sixth amendment right to counsel. (U.S. Const., amend. VI.) This right is separate from the right to have counsel present during interrogation, which is guaranteed to a defendant pursuant to his fifth amendment privilege against self-incrimination. (U.S. Const., amend V.) Unlike the fifth amendment right of counsel, which is guaranteed during custodial interrogation, the right to counsel assured by the sixth amendment does not attach until adversary judicial proceedings have been initiated. (Kirby v. Illinois (1972), 406 U.S. 682, 688, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881; People v. Burbank (1972), 53 Ill.2d 261, 271, cert. denied (1973), 412 U.S. 951, 37 L.Ed.2d 1004, 93 S.Ct. 3017.) The various methods for initiation of adversary judicial proceedings have been described as "formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1882.
It is undisputed, in the instant case, that adversary judicial proceedings regarding the murder charge had not been initiated at the time the defendant was interrogated. The defendant contends, however, that his sixth amendment right to assistance of counsel had already attached, because at the time of questioning he had been charged with the unrelated offense of rape for which counsel had been appointed. In support of this contention, defendant cites Massiah v. United States (1964), 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199, and Brewer v. Williams (1977), 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232. We find these cases ...