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02/09/88 the People of the State of v. Terald A. Smith

February 9, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TERALD A. SMITH, A/K/A TERRY SMITH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

518 N.E.2d 1382, 165 Ill. App. 3d 603, 116 Ill. Dec. 402 1988.IL.161

Appeal from the Circuit Court of Randolph County; the Hon. Jerry D. Flynn, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. HARRISON, P.J., and KARNS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Defendant, Terald A. Smith, was convicted after a jury trial in the circuit court of Randolph County of armed robbery, armed violence and attempt (murder). He was sentenced to two concurrent 12-year terms of imprisonment for armed robbery and armed violence, and a concurrent term of 17 years' imprisonment for attempt (murder). Defendant was also ordered to pay court costs and restitution to the victim's insurance company in the amount of $1,500. Defendant appeals his convictions and sentences. We affirm.

On the evening of March 19, 1985, the victim, Bryan Heck, was working at Sonny's Conoco gas station near Evansville, Illinois. Sometime prior to 8:30 p.m. he observed a red Ford Courier pickup truck drive by the station several times. The truck pulled through the station lot on one occasion and Heck recognized the driver, defendant, as someone with whom he had gone to school.

At approximately 8:30 p.m. defendant walked into the station, said that he had run out of gas, and asked for a gas can. Heck said that he had one out back and started for the back door. Defendant then began stabbing Heck from behind. Heck fell to the ground and defendant turned to leave; however, when defendant saw Heck move he returned to stab him a few more times. Heck was stabbed approximately 34 times. Defendant then went inside the station and Heck ran to a neighbor's house for help. Heck identified defendant as his assailant immediately after the crime and at trial.

The station cash register was found to have been emptied of money, and when defendant was arrested a bloodstained roll of money was found in his jacket. The money totaled $255. Defendant also signed a full written confession which was admitted into evidence at his trial.

Defendant presented the defense of insanity at his trial. A psychiatrist testified on defendant's behalf that defendant was neither feigning nor malingering, that he had the mental disease of major depression aggravated by mixed substance abuse, and that this disease prevented defendant from appreciating the criminality of his conduct and from conforming his behavior to the requirements of the law., Defendant was convicted on all three counts. He raises five issues on appeal.

Defendant first argues that the trial court erred in failing to suppress his confession because his assertion of his right to remain silent was not scrupulously honored. Defendant was arrested at approximately 9 p.m. on March 19, 1985, by the Sparta, Illinois, police department. Illinois State trooper Ivan Castens, who was investigating the crimes, met defendant at the Sparta police department and advised defendant that he was being detained pursuant to an armed robbery investigation. Trooper Castens provided defendant with a written copy of his Miranda rights and read them aloud to defendant from an identical form. Defendant acknowledged that he understood each of his rights and signed the form, indicating that he understood his rights, at approximately 9:55 p.m. Defendant did not appear to be under the influence of alcohol or narcotics. Defendant told Trooper Castens, "I have nothing to say" and he was not questioned. Randolph County Sheriff's Deputy Leifer was present during these exchanges.

Defendant was then transported to the Randolph County jail by Deputy Leifer. Defendant was "booked" and required to change from his own clothing into jail clothing. His clothing was searched by the sheriff and a roll of bloodstained money was found in his jacket. Defendant was then brought into a room with the sheriff, Trooper Castens and Deputy Leifer. The sheriff showed defendant the roll of money and said, "Look what I found in your coat." Defendant then indicated that he was ready to talk and said, "I did it." Trooper Castens immediately informed defendant again of his Miranda rights, which defendant indicated he understood. This occurred at approximately 11:40 p.m. on March 19, 1985. Defendant signed a waiver of rights form and confessed to the crime. Trooper Castens reduced the confession to writing and defendant signed the written confession.

Defendant argues on appeal that he asserted his right to remain silent at the Sparta police department, but that this right was not scrupulously honored when Sheriff Currat confronted him with the roll of money. He argues that Sheriff Currat intended to elicit a response from defendant, and thus violated defendant's right to silence. Consequently, his confession should have been suppressed at trial.

If an individual indicates, in any manner, either prior to or during questioning, that he wishes to remain silent, the interrogation must cease. (Miranda v. Arizona (1966), 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28.) However, there is no per se proscription against renewed questioning by, and at the initiation of, the police once the person in custody has indicated a desire to remain silent. Instead, the admissibility of subsequent statements depends upon whether the defendant's right to terminate questioning was scrupulously honored. Michigan v. Mosley (1975), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.

In determining whether a defendant's right to remain silent was scrupulously honored, a number of factors must be examined. Two of the most crucial are whether there was a significant period of time, during which there was a complete cessation of questioning, between the defendant's exercise of his right to remain silent and the reinterrogation, and whether the reinterrogation was preceded by a fresh set of Miranda warnings. (People v. Pleasant (1980), 88 Ill. App. 3d 984, 988, 411 N.E.2d 132, 135.) Additional factors to be considered are whether a different officer conducted the second questioning, whether a completely different subject matter was involved in the second questioning, and whether ...


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