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05/26/88 the People of the State of v. Wayne Rogers

May 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

WAYNE ROGERS, APPELLANT



SUPREME COURT OF ILLINOIS

528 N.E.2d 667, 123 Ill. 2d 487, 123 Ill. Dec. 963 1988.IL.824

Appeal from the Circuit Court of Lake County, the Hon. John L. Hughes, Judge presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

In the circuit court of Lake County, defendant, Wayne Rogers, was indicted for murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1) through (a)(3)), attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)), armed violence (Ill. Rev. Stat. 1983, ch. 38, pars. 12-4(a), 33A-1, 33A-2), conspiracy to commit murder (two counts) (Ill. Rev. Stat. 1983, ch. 38, pars. 8-2(a), 9-1(a)(1)), and conspiracy to commit armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 8-2(a), 18-2). The indictment alleged that defendant conspired with Milton Muntaner and Kristine Locascio to rob and kill Steven McNaulty. The indictment further alleged that defendant committed these crimes and also attempted to kill John Grant.

Following a jury trial defendant was found guilty of murder, attempted murder, conspiracy to commit murder (two counts), conspiracy to commit armed robbery, and armed violence. The jury also found that defendant qualified for the death penalty because he murdered the victim in the course of an armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)), and that no mitigating circumstances existed sufficient to preclude imposition of the death penalty.

We shall first briefly summarize trial testimony regarding the offenses, and then more fully set forth certain testimony as pertinent to Discussion of the various issues. At trial defendant testified on his own behalf. The People introduced (over objection) defendant's tape recorded confession taken two days after the offenses, on the evening of defendant's arrest. The People also called John Grant (a shooting victim) to testify regarding the pertinent events on the night in question.

This testimony revealed that on December 6, 1985, defendant and Locascio drove to Muntaner's house to meet him. Muntaner joined them in the car, loaded a pistol and gave it to defendant. The three then proceeded to carry out a plan which they had discussed the evening before. The details of this plan are subject to dispute but it involved defendant's telling McNaulty that he (defendant) would sell him one-half ounce of cocaine for $900. Defendant would make no such sale, but would instead kill McNaulty, take his money, and kill the individual accompanying McNaulty (Grant). Defendant would then split the $900 with Muntaner.

Defendant, Muntaner and Locascio proceeded to "Jake's" bar, where defendant had arranged to meet McNaulty. McNaulty was not there (having just left), but defendant reached him by telephone and McNaulty agreed that he and Grant would meet defendant at the entrance of a nearby Holiday Inn in Mundelein.

All five then met at the Holiday Inn. McNaulty left the vehicle in which he, Muntaner and Locascio (the driver) had been riding, and instructed Grant (the driver of the van in which Grant and McNaulty were riding) to follow Locascio and Muntaner. Defendant rode with Grant and McNaulty. (The record does not reveal what, if any, explanation defendant gave Grant and McNaulty to get them to follow the other vehicle.) The five then traveled to a road where Muntaner, Locascio and defendant had determined that the robbery and shootings would occur. Locascio and Muntaner then pulled off the road, and Grant pulled up behind them. As the van came to a stop, defendant emptied his pistol. He fired three bullets at McNaulty's head and three bullets at Grant. Defendant then opened the left front door, and either pulled McNaulty or let him fall from the vehicle. Defendant then dragged him about four feet to the side of the road. Defendant then took McNaulty's wallet and coat. Grant then drove away and defendant started running. Locascio and Muntaner had left in the other vehicle by this point.

Defendant first submits that his tape-recorded confession detailing the planning and commission of the crimes should have been suppressed because the statements were involuntary and also because they were not made following a knowing waiver of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602). More specifically, he contends that because he was under the influence of drugs and also because of a combination of threats and promises by the police, he did not voluntarily and knowingly waive his Miranda rights and did not voluntarily confess to the crimes.

It is well settled that to use a confession the People must prove that a defendant knowingly waived his Miranda rights. (North Carolina v. Butler (1979), 441 U.S. 369, 60 L. Ed. 2d 286, 99 S. Ct. 1755.) However, the circuit court need not be convinced beyond a reasonable doubt on whether the Miranda rights were properly waived. (People v. Torres (1973), 54 Ill. 2d 384, 393.) Moreover, while not dispositive, "[a]n express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver . . .." (North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.) Further, the circuit court's findings regarding waiver of Miranda rights and voluntariness of a confession will not be disturbed unless they are against the manifest weight of the evidence. People v. Burbank (1972), 53 Ill. 2d 261; People v. Torres (1973), 54 Ill. 2d 384.

We first address the contention that drug use impaired defendant's ability to knowingly and intelligently waive his rights. Defendant testified that up to the time of his arrest he was a chronic drug user. He testified regarding his extensive use of LSD, PCP, cocaine, opium, marijuana, amphetamines and alcohol. He stated that he had begun using drugs in the eighth grade and continued until his arrest. This testimony was buttressed by numerous acquaintances of defendant, all of whom testified that defendant had for years extensively used drugs, including marijuana, cocaine, LSD and alcohol. Defendant also testified that on the Saturday prior to and the Sunday of his arrest he had taken substantial amounts of drugs. He stated that on Saturday night he used marijuana, cocaine and alcohol, and took four "hits" of LSD. He also testified that on Sunday he took one hit of LSD and smoked marijuana throughout the day.

Defendant's expert witness, Dr. Sidney Schnoll, a physician specializing in chemical dependency and psychopharmacology, testified at the pretrial suppression hearing regarding the effect of the drugs which defendant stated he had taken. Dr. Schnoll diagnosed defendant as suffering from a continuous multiple drug dependency at the time of the offenses and at the time of the confession. He explained that this disorder afflicts people who on a regular basis take many different types of drugs. He testified that this condition deprived defendant of the capacity to make rational decisions, including the decision to waive his rights. Dr. Schnoll stated that due to the duration and the amount of drugs which defendant had taken, his cognitive functions had been impaired. He further stated that when an individual is coming down from drugs (as defendant's testimony indicates he could have been), the impairment to the person's cognitive functions could be as severe as if the person were still intoxicated. In speaking of various impairments which resulted from drug usage the expert did not always distinguish whether an impairment was a residual effect of drugs which might no longer be present in defendant's system or the result of having recently taken certain drugs which were still in his system at the time of his confession.

The circuit court rejected the contention that defendant's drug use impaired his ability to knowingly and intelligently waive his Miranda rights. We believe that the circuit Judge acted well within his discretion in making this finding. The circuit Judge was in the better position to evaluate the credibility of the defendant and his acquaintances, upon whose statements the expert relied in making his evaluations. The circuit Judge's statements indicate that his lack of belief in the defendant was the primary reason for discounting the physician's testimony. The circuit Judge stated, "I personally do not believe that the defendant himself has been that credible in his statement."

The circuit court also indicated a more general lack of confidence in the expert witness' analysis. There were good reasons for this. One reason was the articulate manner in which defendant expressed himself during the confession. As the circuit court observed, it is apparent from listening to the taped confession that defendant was speaking intelligently and clearly and seemingly understood the questions posed to him. As the court noted, defendant "even corrected the interrogating officer on one or two occasions, which showed his mental capacity to understand what was being talked about and correct what he considered a misstatement . . .."

We are not persuaded that this apparent coherence is of no probative value in determining whether defendant was impaired by the presence of drugs. It is true that the physician indicated that one cannot be certain whether a person is under the influence of LSD by listening to a recording of his voice. However, the doctor also indicated that different people can react differently to the drug, and some of defendant's friends indicated that when defendant took LSD he would be "more hyperactive," would "laugh a lot" and "when someone would get on his bad side, he would be quick to become hostile." Witnesses also testified that when defendant was on LSD he would get angry if someone challenged him. Considering this testimony, we cannot say that listening to the tape recording was of no legitimate value, and we note that the expert did not even listen to it.

Another reason for discounting the testimony of the expert is that the testimony was in many respects highly speculative. This is particularly true to the extent that he based his opinion on defendant's long-term drug use rather than on the effect of the drugs which defendant had supposedly ingested within the several days prior to his arrest. For example, the expert acknowledged that with respect to LSD use, "in terms of long term post-use consequences, we really don't have any hard information as to what those might be." He also gave such speculative testimony as, "with respect to Mr. Rogers, probably with his continuous use over a period of time there was potential buildup of the drug in his system . . .."

In sum, the testimony of the expert was questionable because its validity depended in part on the credibility of defendant and his friends, and the testimony regarding the effects of prolonged drug use was even more questionable because of its somewhat speculative nature. We conclude that the circuit court's finding that drugs did not invalidate defendant's waiver and confession is not against the manifest weight of the evidence.

We next turn to defendant's contention that his waiver of his Miranda rights was rendered involuntary by certain promises and threats of police officers, threats which the officers denied having made. Defendant testified that an interrogating officer told him that he would be locked up in a cell and raped by other inmates if he failed to cooperate. Defendant also testified that he was told that if he failed to cooperate he would likely get the death penalty. An officer purportedly said that he had given three or four people the death penalty and that he "would definitely push it in this matter." The officer allegedly also said that if defendant did cooperate, the officer would see to it that defendant received a less severe sentence. Defendant attempted to bolster his testimony in this regard by offering testimony of several family members. These family members testified that defendant relayed these threats to them shortly after he made the confession. The court properly excluded on hearsay grounds this particular testimony of the family members but allowed defendant to submit the testimony as an offer of proof.

Detectives Blazincic and Jarzembowski, the two interrogating officers, testified at the suppression hearing. Blazincic stated that the interrogation began at 4:30 p.m. on the day of defendant's arrest and that defendant Rogers initially denied involvement in the crimes. Blazincic stated that, for reasons unknown to him, defendant changed his mind and confessed to the offenses. Both officers testified that defendant was not threatened or given assurances of leniency in return for his inculpating statements and that he only briefly denied his involvement before beginning his self-incriminating explanations. The officers indicated that they continued to get more information from him before the taping began and that only Blazincic and defendant remained in the interview room when the confession was taped. Blazincic stated that he began taping defendant's confession at 7 p.m.

What transpired during the 2 1/2-hour period between when the interrogation commenced and when defendant's confession was taped? Only the two interrogating officers and defendant could provide the Judge with eyewitness accounts to assist him in this determination, a determination which obviously turned largely on an evaluation of the credibility of the witnesses. After reviewing the record we have concluded that the circuit court's finding that the alleged threats and promises were not made is not against the manifest weight of the evidence. We do not believe that certain inaccuracies in the officers' testimony (such as with regard to the number of times the tape was stopped during the interview) render the officers' testimony less than credible.

Defendant asserts as a separate argument that the confession itself was involuntary. However, under the circumstances of this case, we find (as did the circuit court) that the issues of whether the waiver was valid and whether the confession was voluntary are inseparably intertwined. Defendant's grounds for asserting that the confession was involuntary are the same grounds used in arguing that the waiver was invalid, namely, drug impact, threats and promises. As we have already indicated, we cannot say that the circuit court erred in refusing to believe defendant's and the expert's testimony regarding these issues. Accordingly, we cannot say that the circuit court's finding that the confession was voluntary was against the manifest weight of the evidence.

Defendant next submits that the circuit court erroneously precluded his counsel from referring to the intent requirement during the opening statement and that therefore the jury might have failed to give due consideration to whether defendant had an intent to kill. At the outset of his opening statement, defense counsel told the jury:

"The prosecution must prove Mr. Rogers is guilty, primarily of the offense of murder, and that the others as well, beyond a reasonable doubt. And in dealing with that, we expect the evidence to show that there will be issues raised concerning certain of the elements of what constitutes the crime of murder. One of the issues, one of the issues is the question of intent."

At this point the People objected, and an in-chambers conference was held. The prosecutor argued that reference to an intent requirement was improper since "as the defendant is charged in the indictment, it is not intent. The requisite mental state is knowledge." When the prosecutor made this assertion, he failed to consider (and defense counsel failed to point out) count I of the indictment, whereby defendant is expressly charged with murder on the basis that defendant shot decedent "without lawful justification and with the intent to kill." The court, erroneously relying on the People's assertion that intent was not in issue, stated:

"I will sustain the objection as to the word 'intent' but certainly you would be able to establish what your defense is in relation to the mental state of the defendant, and since the indictment reads in the word 'knowledge' rather than 'intent,' then I think you should proceed possibly that way."

Defense counsel then continued his opening statement referring to knowledge rather than intent.

We believe it is clear that, had the circuit Judge considered count I in making his ruling, he would have permitted defense counsel to mention "intent" in his opening statement. The People argue that the court would still have been required to exclude reference to an intent requirement in the opening statement, since only the court, not counsel, can issue jury instructions. However, from our review of the record it appears that defense counsel was not attempting to instruct the jury but was merely trying to apprise the jury of what he intended to prove through expert testimony.

It is therefore apparent that the court erred in precluding reference to intent in the opening statement. While the scope and latitude of an opening statement are subject to the circuit court's discretion, the accused has the right to have his attorney summarize in an opening statement, without unreasonable restrictions, the facts which he intends to prove. People v. McDowell (1918), 284 Ill. 504.

Although we find that the circuit court erroneously restricted defense counsel's opening statement, we are convinced beyond a reasonable doubt that the error was harmless, for several independently sufficient reasons. First, it is clear that the jury understood that intent was one of the many issues to be considered in the case. Defense counsel was not precluded from using the term "intent" when examining the expert and other witnesses at trial. He instead chose, however, to use the expression "mental state" when examining the expert, an expression obviously meant to fairly encompass both knowledge and intent. The jury would reasonably have understood from the examination of the expert that intent was a consideration. Moreover, any conceivable ambiguity in this regard was clarified by the jury instructions, which articulated the various elements of the alternate murder charges, including (with respect to the first indictment) the intent requirement.

The other reason that the error was harmless is that, although the jury returned a general verdict on the murder charge and thus did not specify the basis upon which it found the defendant guilty of murder, it is clear that the jury would have found defendant guilty of murder regardless of its Conclusion about defendant's intent to kill. The reason is that the jury was convinced beyond a reasonable doubt that defendant committed the killing in the course of an armed robbery and was guilty of murder on this basis. This is evident from the fact that, during the first stage of the sentencing hearing, the jury, having no more evidence regarding armed robbery than it had during the trial, found beyond a reasonable doubt that defendant committed the killing in the course of an armed robbery.

Defendant next submits that the circuit court erroneously restricted defense counsel's examination of the expert witness concerning the impact of drug usage upon defendant's mental state. Defendant submits that as a result of this restriction he was unable to adequately present his statutory defense of voluntary intoxication.

Section 6-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 6-3) provides, in pertinent part, that "[a] person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition . . . [n]egatives the existence of a mental state which is an element of the offense . . .." (Emphasis added.)

Our review of the record indicates that defense counsel was not unfairly restricted in his cross-examination of the expert regarding negation of mental state. The record indicates that at trial defense counsel on several occasions asked the expert whether defendant's mental state was negated. During direct ...


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