The Honorable Justice Harrison delivered the opinion of the court: Chief Justice Bilandic, concurring in part and dissenting in part: Justice Heiple joins in this partial concurrence and partial dissent.
The opinion of the court was delivered by: Harrison
The Honorable Justice HARRISON delivered the opinion of the court:
In the circuit court of Cook County a jury convicted the defendant, Joel Olivera, of the first degree murder of Raphael Torres, for which a sentence of 35 years was imposed. Upon review the appellate court concluded not only that the trial court had erred by denying the defendant's motion to suppress his inculpatory statements but also that without these statements the evidence was insufficient to prove him guilty beyond a reasonable doubt. As a consequence the appellate court reversed the defendant's conviction without remanding the cause for retrial. We granted the State leave to appeal (145 Ill. 2d R. 315).
The issue presented concerning the defendant's motion to suppress is the relatively narrow one of whether, after having invoked his right to the presence of counsel during custodial interrogation, the defendant waived that right by initiating a conversation with the police in a manner evincing a willingness and a desire for a generalized discussion about the investigation and by knowingly and intelligently choosing to speak with law enforcement authorities in the absence of counsel. At the hearing on the motion to suppress, testimony disclosed that the defendant, who was 16 years old when Raphael Torres was murdered on July 29, 1988, had been sought as a suspect in an unrelated offense, namely, the aggravated battery or attempted murder of Rafino Cortez committed two days later on July 31, 1988. In the company of both his father and his attorney, defendant came to the police station at about 6:45 p.m. on August 9, 1988, and met with Officer Darryl Gilliam concerning the shooting of Rafino Cortez. It is not disputed that Officer Gilliam advised defendant of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and that defendant indicated in the presence of his attorney and his father that he did not wish to speak with the officer beyond providing background information for the arrest report.
Shortly thereafter defense counsel left the police station. Later in the evening, not long before Officer Gilliam went off duty, the officer turned the defendant over to Detective Christon Kato, advising the detective, according to the officer's testimony, that the defendant had surrendered himself with his attorney, that the officer had arrested defendant, that the officer had advised defendant of his rights pursuant to Miranda, and that defendant's attorney had instructed defendant to make no statement and to give the officer no information about the shooting of Rafino Cortez. A short time later a lineup was conducted in which two witnesses identified the defendant with respect to the shooting of Rafino Cortez.
Detective Kato testified at the suppression hearing that at about 9 p.m. on August 9, 1988, he had been assigned to investigate the shooting of Rafino Cortez. When he learned later that the defendant was in custody, he arranged for a lineup, which was conducted, he said, at about 10:45 that evening. Detective Kato testified further that after he had removed the other persons from the room where the lineup had been conducted, the defendant remained in the room "at which time he asked me what happened." Detective Kato responded, he said, by telling defendant that he had been "positively identified." Then, the detective testified, defendant "stated that he wanted to know what happens next. I told him I wanted to advise him of his rights, and I advised him of his rights at that time." After the defendant stated that he understood each right as the detective informed him of it, defendant said that he had not been alone when he shot Rafino Cortez.
Following a conversation of about 15 minutes' duration at which his partner, Detective Wayne Johnson, was also present, Detective Kato's lieutenant summoned Detective Kato to his office and apprised him of a gang-related shooting similar to that of Rafino Cortez that had occurred two days earlier in the same area and had involved a car of similar description. Prior to his conversation with the lieutenant, Detective Kato had no knowledge of the homicide. After reviewing the reports about it, Detective Kato returned to the room where defendant was being held, advised him of his rights, and inquired whether he had any knowledge of the shooting of Raphael Torres on July 29, 1988. The defendant stated that he understood his rights, and a conversation of about 15 or 20 minutes' duration ensued during which the defendant made inculpatory remarks about the homicide. Later, at about 3:30 a.m., Detective Kato had another conversation with the defendant at which an assistant State's Attorney and a youth officer were present and during which defendant made further inculpatory admissions with respect to the homicide. Still later, at 5:38 a.m., in the presence of these same three persons the defendant gave a court-reported inculpatory statement concerning the homicide. Detective Kato testified that the defendant never asked to speak to his attorney and that at no time had he told the defendant he could not talk to his attorney.
Detective Johnson's account of the conversation with defendant following the lineup differed dramatically from that of Detective Kato in certain important respects addressed during cross-examination. On direct examination by the State, Detective Johnson testified that, together with Detective Kato, he had conducted a lineup concerning the shooting of Rafino Cortez in which the defendant had been identified and after which the defendant had given a statement of about 10 minutes' duration concerning the shooting of Rafino Cortez, which was the subject of the lineup. Thereafter the witness and Detective Kato spoke with Lieutenant Phalon, from whom they learned about the homicide two days earlier. Following their return to the interview room where the defendant was being held, Detective Kato advised the defendant of his rights pursuant to Miranda. After the defendant stated that he understood his rights, he was asked whether he would speak to the detectives and was informed of the investigation into the homicide. A 15-minute conversation with the defendant concerning the homicide took place. On cross-examination Detective Johnson expressed the belief that following the lineup Detective Kato, rather than defendant, had been the first to speak when Detective Kato informed defendant, at about 11 p.m., that he had been picked out during the lineup as an offender. In response the defendant stated to Detective Kato that he had not been alone. Not until around midnight, Detective Johnson testified, prior to the initial conversation with defendant concerning the homicide, did Detective Kato advise defendant of his rights pursuant to Miranda.
Following the hearing on the defendant's motion to suppress, the circuit court expressed the belief that "what happened is as Officer Kato testified" and concluded that by asking "What happened?" the defendant had initiated an exchange with the detective and had thereby waived his rights after invoking them. The circuit court observed that thereafter the defendant had asked a second question, "What happens next?" that, in the words of the court, "flowed into the defendant's making some statements pertaining to the aggravated battery, that he was not alone when he shot the victim in [that] case." As a consequence of the defendant's waiver of his rights, the circuit court denied his motion to suppress.
If after being informed of the right to have counsel present, an accused states that he wants an attorney, interrogation must cease until an attorney is present, and at that time the accused must have an opportunity to confer with the attorney and to have the attorney present during any subsequent questioning. ( Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1628.) An accused who has expressed the desire to deal with police only through counsel is not subject to further interrogation by authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police. ( Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884-85.) Even if the accused initiates a conversation that takes place after he has expressed the desire to deal with the police only through counsel, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the fifth amendment right to have counsel present during the interrogation. ( Oregon v. Bradshaw (1983), 462 U.S. 1039, 1044, 77 L. Ed. 2d 405, 412, 103 S. Ct. 2830, 2834.) As this court observed in People v. Hicks (1989), 132 Ill. 2d 488, 492, 139 Ill. Dec. 486, 548 N.E.2d 1042, the Supreme Court defined in Oregon v. Bradshaw (1983), 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830, the approach courts should take when addressing the question whether a defendant has waived this right, once invoked. The court's preliminary inquiry is whether the defendant, rather than the police, initiated the conversation in a manner evincing a "willingness and a desire for a generalized discussion about the investigation." ( Bradshaw, 462 U.S. at 1045-46, 77 L. Ed. 2d at 412, 103 S. Ct. at 2835; Hicks, 132 Ill. 2d at 493.) If the court determines that the accused initiated the conversation in a way evincing a willingness and a desire for a generalized discussion concerning the investigation, it must make one other inquiry in determining whether a defendant has waived his right to the presence of counsel and his right to remain silent during custodial interrogation: whether the accused, by his or her initiation of such a conversation, coupled with the totality of the other circumstances, knowingly and intelligently waived this right. Bradshaw, 462 U.S. at 1046, 77 L. Ed. 2d at 413, 103 S. Ct. at 2835; Hicks, 132 Ill. 2d at 493.
In the instant case the defendant's question "what happened?" posed to Detective Kato immediately following the conclusion of the lineup cannot be said to evince on the defendant's part a willingness and a desire for a generalized discussion concerning the investigation. To ascribe such significance to this limited question would render virtually any remark by a defendant, no matter how offhand or superficial, susceptible of interpretation as an invitation to discuss his case in depth. To do so would amount to a perversion of the rule fashioned in Edwards and articulated more fully in Bradshaw.
We notice that when the defendant in Bradshaw asked, "Well, what is going to happen to me now?" the officer answered by saying, "You do not have to talk to me. You have requested an attorney and I don't want you talking to me unless you so desire because anything you say--because--since you have requested an attorney, you know, it has to be at your own free will." ( Bradshaw, 462 U.S. at 1042, 77 L. Ed. 2d at 410, 103 S. Ct. at 2833.) Here, by contrast, Detective Kato did not respond with any such warnings but, instead, answered the defendant's question. Although the detective did not interrogate defendant further at this juncture, the detective's response was one that could and did elicit further comment by the defendant and culminated in the incriminating statements defendant sought ultimately to suppress.
The safeguards of Miranda come into play whenever a person in custody is subjected not only to express questioning but also to its functional equivalent. ( Rhode Island v. Innis (1980), 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 307-08, 100 S. Ct. 1682, 1689.) The term "interrogation" under Miranda refers both to express questioning and to any words or actions on the part of the police, other than those normally accompanying arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. ( Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1689-90.) In determining whether a statement is one reasonably likely to elicit such a response, the focus is primarily upon the perceptions of the suspect rather than upon the intent of the police. ( Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1689-90.) The answer of Detective Kato was one that the detective should have known would be reasonably likely to elicit an incriminating response from the defendant. If a question by an accused who has invoked his right to the presence of counsel during custodial investigation is to be deemed an initiation of a conversation in a manner evincing a willingness and a desire for a generalized discussion concerning the investigation, the proper response of the police to such a question must be to advise the accused of his rights, as was done by the officer in Bradshaw, and not to provide an answer, in the absence of such warnings, that police should know is reasonably likely to elicit an incriminating response.
Inasmuch as we hold that the defendant did not initiate the conversation in a manner evincing a willingness and desire for a generalized discussion concerning the investigation, we need not make the further inquiry required by Bradshaw to be made after a court has determined that an accused has initiated such a conversation. Therefore, we affirm the judgment of the appellate court insofar as it ...