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People v. Byrd

OPINION FILED JANUARY 10, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIE BYRD, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendant, Willie Byrd, Jr., was convicted, after a bench trial in the circuit court of Jackson County, of armed robbery. He was sentenced to 20 years' imprisonment.

On appeal defendant claims (1) the court erroneously admitted evidence of statements defendant made to a police officer, (2) the uncorroborated testimony of an accomplice did not prove him guilty beyond a reasonable doubt, (3) the court erroneously admitted hearsay testimony of a police officer, and (4) his sentence was excessive. We affirm in part, vacate in part, and remand.

Defendant and the State stipulated that four witnesses, if called to testify, would state that an armed robbery was committed at Don's Jewelry Store in Carbondale at approximately 9:30 a.m. on July 1, 1983. These witnesses would have testified two men entered the store, one holding a gun, and that they took money and jewelry.

The State's primary witness was William Moore, who testified that he had already pleaded guilty and been sentenced to two concurrent 10-year sentences for two separate armed robberies, one being the robbery at the jewelry store. He stated that as part of the plea agreement, he was to testify against defendant, and to assist authorities in certain undercover drug investigations. Moore also testified that his family received $1,000 from the State to help them relocate so they could live near the prison where Moore was to serve his time.

Moore testified that on June 30, 1983, he went to the apartment where defendant was staying in Carbondale to ask defendant if he wanted to help commit a robbery. He stated that defendant agreed to drive the getaway car but not to participate more directly in the robbery. Moore and another man, Kerwin Jones, left Mount Vernon on the morning of July 1 and picked up defendant at the apartment between 9 and 9:30 a.m. It was not until this time that Moore informed defendant of where the robbery was to take place. According to Moore, the three proceeded to an area near the jewelry store. Moore and Jones got out of the car and walked to the store while defendant drove the car to a nearby alley where he parked. Moore, who was armed with a gun, and Jones committed the robbery, left the store and met defendant, who had driven from the alley into the street where he was waiting for them. Defendant drove them out of town to Mount Vernon, and after a few hours there, the three men went to Chicago. They returned to Mount Vernon late in the evening on July 2 after selling the jewelry in Chicago.

Further evidence for the State came from Detective Michael Dismore of the Carbondale police department. Detective Dismore testified that on July 6, 1983, he interviewed defendant while at the Murphysboro police department. Dismore stated that he advised defendant of his Miranda rights, and that defendant said he understood his rights but would not sign a waiver form. Detective Dismore testified, however, that defendant agreed to talk with him. Defendant at first strongly denied any knowledge of the robbery. Dismore then told defendant Moore had implicated him in the crime. According to Dismore, defendant then said that on June 30 Moore had asked him if he knew a back way out of Carbondale and if he would drive the car. Defendant said he told Moore he knew a way out of town but refused to drive the car. However, defendant told Dismore that Moore and Jones came to the apartment on the morning of July 1, and that he knew they had committed an armed robbery and at that point he agreed to drive them out of Carbondale. Defendant told Dismore he drove to Mount Vernon and to Chicago. Dismore also testified that some time later, defendant asked him, "If I tell you how it really went down, what can you do for me?"

Defendant testified at trial that when Moore came to the apartment on June 30 to ask him if he would drive his car, he told him no. Defendant did admit giving Moore a route to get out of Carbondale. Defendant on direct examination stated that when Moore talked to him in the night before the robbery, he was not aware Moore was planning to commit an offense. Defendant testified also that Moore came back to the apartment around 10 a.m. on July 1, and asked defendant if he would drive the car using the route he had suggested the night before. Defendant testified that he refused to do so and Moore left. Defendant denied having told Dismore he had driven the car to Mount Vernon.

Defendant also presented two witnesses who testified he was at the apartment during the time in which the State alleges he was driving to Mount Vernon and Chicago.

• 1 Defendant first claims evidence of the statements he made to Detective Dismore should not have been admitted because there was no showing he knowingly and intelligently waived his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, at the time he made the statements. He relies on the fact he refused to sign a waiver of rights form before talking to Detective Dismore.

Defendant filed no motion to suppress the statements made to the police. He made no objection at trial to Detective Dismore's testimony attacking the voluntariness of the statements. Consequently, defendant has waived the issue of the voluntariness of his statements. People v. Thomas (1981), 98 Ill. App.3d 852, 854, 424 N.E.2d 985, 988, cert. denied (1982), 456 U.S. 993, 73 L.Ed.2d 1289, 102 S.Ct. 2276.

• 2 We next consider whether admission of the statements amounted to plain error. We note first that because defendant failed to put the voluntariness of the statements into issue at trial, we do "not know what further evidence the State might have adduced if called upon to prove the voluntariness of defendant's statements." (People v. Conley (1983), 118 Ill. App.3d 122, 131, 454 N.E.2d 1107, 1115.) However the record is sufficient here for us to conclude no plain error exists.

• 3 It is clear that waiver of one's constitutional rights under Miranda can be inferred from the actions and words of the accused and it need not be an express waiver. (See People v. Smith (1982), 93 Ill.2d 179, 186, 422 N.E.2d 1325, 1328, cert. denied (1983), 461 U.S. 937, 77 L.Ed.2d 312, 103 S.Ct. 2107, citing North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L.Ed.2d 286, 292, 99 S.Ct. 1755, 1757.) The question of waiver is determined from the particular facts and circumstances of each case. 441 U.S. 369, 374-75, 60 L.Ed.2d 286, 293, 99 S.Ct. 1755, 1758.

Defendant relies on United States v. Heldt (9th Cir. 1984), 745 F.2d 1275, where the defendant refused to sign a waiver of rights form but was still questioned. The court held that this at least created an ambiguous situation, and that in the face of such circumstances, the police "should clearly inform the accused that his failure to sign the waiver does not prevent statements he makes from being used against him." (745 F.2d 1275, 1278-79.) The court in Heldt found the statements made in that case inadmissible. However, the court relied on two circumstances not involved in the present case. The defendant in Heldt, in addition to refusing to sign the waiver form, initially indicated he did not want to answer any questions. Further, the ...


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