Appeal from the Circuit Court of Du Page County; the Hon.
Helen C. Kinney, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Ben Tom Jones, was found guilty in a jury trial of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)). His motion for a new trial was denied, except that the court reserved its ruling on defendant's contention that the court previously had erred in denying his pretrial motions to suppress his confession. After sentencing the defendant to a term of imprisonment of six years plus 180 days, the trial court immediately thereafter vacated the sentence and judgment of conviction, granted a new trial, and granted the defendant's pretrial motions to suppress his confession. The State filed a certificate of impairment and appeals pursuant to Supreme Court Rule 604(a)(1) from that portion of the order suppressing defendant's confession.
The issue raised on appeal by the State is whether the trial court's determination that defendant had not knowingly and intelligently waived his right to counsel during a police interview was against the manifest weight of the evidence.
The procedural posture in which we receive this case is somewhat unusual. For purposes of this appeal, it is necessary to relate only the proceedings on the motion to suppress defendant's confession and certain portions of the trial evidence, as most of the trial evidence is not essential for review purposes in view of the trial court's vacation of the judgment of conviction and grant of a new trial.
Defendant's several pretrial motions to suppress his confession alleged, inter alia, that prior to his interrogation he had not been given the Miranda warnings, and that he had invoked his right to counsel but the police nevertheless interrogated him without obtaining a waiver of his right to counsel. At a hearing on these pretrial motions, the following testimony relevant to the issue on appeal was adduced.
Thomas E. Vosburgh, a detective with the Du Page County sheriff's office, testified that Ben Jones brought his son, defendant Ben Tom Jones, to the sheriff's office in response to a prior telephone call in which he, Vosburgh, wanted to talk with defendant about an armed robbery in Woodridge. The three went to an interview room, and Vosburgh read defendant the Miranda warnings verbatim from a card. Defendant said he understood each right and agreed to answer the questions. He did not ask for a lawyer at any time and did not refuse to answer any questions. The questioning took about 40 minutes. Vosburgh determined defendant was not involved in that armed robbery, and then advised defendant that other officers wished to talk with him. After introducing defendant and his father to Detective Herb Hogberg from the Elmhurst police department and to Detective James Romani from the Oakbrook police department, he went to his office and did not participate in any further questioning of defendant. He had not informed defendant's father previously that other officers would question defendant about other offenses.
Detective Hogberg testified that he advised defendant from memory that he had a right to remain silent and a right to an attorney during any questioning, that anything he said could be used against him in a court of law, that if he could not afford an attorney, one would be appointed by the court but couldn't be appointed that night "at a later date if he was ever charged with anything." He never specifically told defendant he could have an attorney during this particular interrogation. Defendant either nodded his head or stated he understood after each statement and at the end. Defendant's father also said he understood, as he was a police officer in Bellwood. Only Romani, defendant and his father, and Hogberg were there throughout the questioning. Hogberg advised defendant he was investigating an armed robbery in Elmhurst. At first defendant denied knowledge of the incident, but then gave incriminating statements. At no time did defendant ask for a lawyer or indicate he wished the questioning to stop. After the incriminating statements were made by defendant, his father asked whether he should get an attorney and Hogberg said it was up to him. Later, the defendant said he had better get an attorney, and the questioning ceased.
Detective Romani testified, in pertinent part, that Hogberg advised defendant of his rights before questioning him, maybe from a card, but he was not certain, and that defendant acknowledged orally that he understood the rights and never asked for an attorney. Defendant's father had once inquired whether he should get an attorney and was told that was his decision. Later, defendant's father said he should get an attorney, and the questioning stopped. The interview took approximately 30 minutes. Defendant did not execute a written waiver of his rights.
Defendant's father testified that he was a part-time policeman, that during the first questioning by Vosburgh defendant was not advised of his rights until defendant said, "Hold it, we wants a lawyer." Then Vosburgh told defendant of his right to remain silent and that anything he said could be used against him. Vosburgh did not recite from a card. His son denied involvement, and was then questioned by the other two detectives. He told them that they were not answering any questions and they wanted a lawyer. The officers just went on talking, and his son then made statements. Defendant himself did not testify at the hearing.
The trial court denied the motion to suppress the confession, stating that it was difficult to resolve the conflicting testimony, but did so on the basis of the "reasonableness of the conflicting stories." The court found Vosburgh accurately admonished defendant from the rights card. However, the trial judge felt Hogberg's explanation of the presence of a lawyer that night might have been misleading, and his difficulty in recalling gave her trouble. She concluded that the State had met its burden on the issue because of Vosburgh's credible testimony regarding his reading of the rights and Romani's testimony that Hogberg also gave the rights accurately.
At trial, Hogberg's testimony pertinent to his questioning of defendant was that he orally advised defendant of his rights, that defendant nodded or said he understood after each right was explained, and although he did not specifically tell defendant he had a right to an attorney during that particular questioning, he thought defendant understood he had the right to an attorney during any questioning. He did not give defendant a rights waiver form to sign. Romani gave testimony similar to that at the pretrial hearing regarding Hogberg's advising defendant of his Miranda rights. To his recollection the defendant responded at the summation of the admonitions. He didn't recall Hogberg telling defendant he had a right to have an attorney present for that particular interrogation or that defendant could stop any time and refuse to answer and request an attorney.
After the defendant had been found guilty by the jury and immediately following her sentencing of the defendant, the trial judge vacated the sentence and judgment, granted a new trial, and suppressed the confession. As we can best summarize, the trial judge remarked that she had not ruled on the credibility of the witnesses at the pretrial hearing, that she was not doing so now, and she was reassessing her ruling on the "reasonableness" of what happened. The judge stated that "[t]he narrow ground of my ruling is not that the defendant wasn't warned, but that I do not believe there is the requisite showing that he knowingly and intelligently waived his right to counsel. It is the single issue of my ruling." Nevertheless, the judge went on to remark that although the pretrial hearing testimony of Romani convinced her that the State had met its burden, there was some difference in the trial testimony concerning whether Hogberg paused after each Miranda warning, and she now felt the State had not met its burden to show a knowing and intelligent waiver of defendant's right to counsel.
We first note that, although the issue is not before us on appeal, there was some question raised below whether defendant was in custody during the second questioning when he gave the confession. The court below found defendant was not free to leave and, considering this record and the State's failure to seek review of this question, we do not consider the point further.
• 1, 2 The relevant inquiry before us is whether the defendant knowingly and intelligently waived his fifth amendment rights and, in particular, his right to counsel. Certain well-established principles are involved. The State bears the burden of demonstrating that a defendant has been warned of his constitutional rights under the fifth amendment and has waived them. (People v. Hebein (1982), 111 Ill. App.3d 830, 845, 444 N.E.2d 782.) The trial court must initially determine these questions and, in making its decision, the court does not have to be convinced beyond a reasonable doubt; its findings will not be disturbed unless they are against the manifest weight of the evidence. (People v. Martin (1984), 102 Ill.2d 412, 426, 466 N.E.2d 228.) In order to establish a valid waiver of the right to counsel, the State must prove an intentional relinquishment or abandonment of a known right or privilege. (People v. Aldridge (1980), 79 Ill.2d 87, 93, 402 N.E.2d 176.) The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. People v. Martin (1984), 102 Ill.2d 412, 425, 466 N.E.2d 228.
The trial court expressly found at the time of the hearing on the motion to suppress and later at the new trial motion hearing that defendant was given his Miranda warnings. The record supports this conclusion. Hogberg's explanation to defendant that if defendant could not afford an attorney one would be appointed for him by the court, but at a later date if he was ever charged, was not entirely accurate. However, neither defendant nor his father testified that defendant was misled by the erroneous reference to appointed counsel if he was ever charged or that the warning was explained in this fashion. Moreover, Romani did not testify that this misstatement was made by Hogberg when advising defendant of his rights. In fact, he testified that Hogberg told defendant an attorney would be appointed by the court to represent him, if he wished, and told defendant he could exercise his rights at any time and not answer any questions. Nor did Hogberg use the inaccurate phraseology when testifying on cross-examination at ...