The opinion of the court was delivered by: Presiding Justice Gordon
Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna, Judge Presiding.
The defendant, Henry Smith, was found guilty after a bench trial of two counts of first degree murder and one count of burglary. He was sentenced to terms of imprisonment of 40 years on the murder conviction and 7 years on the robbery conviction, to be served concurrently. On appeal he contends that the trial court erred in denying his motion to suppress his statement because he did not initiate conversation about the murder while at the police station and, even if he had reinitiated conversation, he was not immediately readvised of his Miranda rights by the police officer. The defendant also argues that in addition to being given the Miranda warnings he should have been given an admonishment regarding the felony murder rule. Finally, he seeks correction of the mittimus to reflect one murder conviction. For the reasons discussed below, we affirm defendant's felony murder and burglary convictions, vacate defendant's knowing murder conviction, and remand to the trial court to correct the mittimus.
Carl Donner, Michael Ruth, and the defendant were convicted of the first degree murder of Carren Robinson and the burglary of Conrail boxcars. Briefly, the evidence against the defendant, during his simultaneous but severed trial, showed that Conrail police officer Kenneth Spiewak saw Donner and Ruth at the Conrail railroad yard at 63rd and Indiana streets in Chicago at about 5:00 p.m. on March 26, 1995. Spiewak saw Donner and Ruth running across 67th Street carrying boxes. He approached them in his vehicle; and when they saw him, Donner and Ruth dropped the boxes they were carrying and ran toward a car. They entered the car and drove away. Spiewak followed them, activating his siren and lights. The vehicle in which Donner and Ruth were riding sped down an alley between Wabash and State streets and between 69th and 70th streets. Their vehicle hit Carren Robinson, who was playing basketball in the alley, killing him instantly. Donner and Ruth ran from the car, evading capture at that time. Spiewak testified that he later examined the railroad yard and determined that one of the railroad boxcars had been broken into no more than 15 minutes before he saw Donner and Ruth in the vicinity of the railroad boxcar.
Chicago Police Officer Cornelius Spencer testified that on March 27, 1995, the Chicago Police Department received an anonymous tip regarding the hit-and-run automobile killing of Robinson. Spencer and three other officers then went to look for the defendant at about 1:00 a.m. When they found the defendant, he agreed to accompany them to the station for questioning. According to Spencer, the defendant was placed in an interview room and was advised of his Miranda rights. Spencer asked the defendant whether he understood his rights and the defendant stated that he did. The defendant then had a conversation with Spencer. Thereafter, the police went looking for Donner and Ruth.
Spencer further testified that, at approximately 3:30 a.m. on March 27, he had further contact with the defendant. Also present at that time was Assistant State's Attorney Charles Bell. Bell explained to the defendant his role in the investigation of Robinson's death and advised the defendant of his Miranda rights. The defendant then asked to see an attorney whereupon Spencer and Bell left the interview room. Approximately 15 minutes later, Spencer heard a knock on the interview room door. He opened the door, and the defendant asked to use the washroom. Spencer took the defendant to the washroom; and en route back to the interview room, the defendant told Spencer that he wanted to talk to Assistant State's Attorney Bell. Spencer did not say anything to the defendant. He located Bell and brought him to the interview room. According to Spencer, when Bell arrived, the defendant told him that "he wanted to do the right thing, get this off his chest, wanted to talk to him." Spencer testified that Bell immediately readvised the defendant of his Miranda rights and that the defendant indicated that he understood each one. The defendant then gave Bell an oral statement.
Spencer testified that Assistant State's Attorney Bell then prepared a written statement which the defendant reviewed, corrected and signed. (That statement was the subject of the motion to suppress which was denied.) In that statement, published to the court by Spencer, the defendant indicated that on March 26, 1995, at approximately 4:00 p.m. or 4:30 p.m., Donner, who was with another man named "Poem," asked him to "be a lookout while [they] hit some trucks" in return for the payment of money. The defendant got into Donner's car, a blue Buick, and drove to 6700 South Prairie. Donner let the defendant out of the car and told him to stand near the viaduct while he and "Poem" broke into the boxcars. The defendant watched as they went into boxcars and began walking back to the Buick with boxes. The defendant stated that he saw a police truck and yelled to Donner and "Poem" to look out. The defendant saw them drop the boxes they were carrying and run to the Buick. The defendant then turned and began walking to 220 East 63rd Street to meet Donner and "Poem" to get paid. According to Spencer, the defendant also indicated in his written statement that he had been advised of his Miranda rights by Bell; that he understood his rights; that he had requested an attorney at which time Bell left the room; that he (the defendant) initiated a conversation with Assistant State's Attorney Charles Bell, stating he wished to speak with him about why he was at the police station; and that, when Bell returned, he readvised the defendant of his constitutional rights. The defendant further stated that he had been treated well by the police and Assistant State's Attorney Bell.
I. Defendant's Initiation of Further
Discussion after Invoking Right to Counsel
The defendant first contends that the trial court should have suppressed his written statement because he did not clearly indicate a willingness and desire to initiate further Discussion about the March 26, 1995 incident and because, even if he had initiated further Discussion, the police did not readvise him of his Miranda rights before bringing Assistant State's Attorney Bell back to the interview room.
When during a custodial interrogation an accused invokes his right to counsel after being advised of his Miranda rights, interrogation by law enforcement authorities must cease until the accused has had an opportunity to confer with an attorney. E.g., Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 723 (1966); People v. Olivera, 164 Ill. 2d 382, 389-90, 647 N.E.2d 926, 930 (1995). The accused may not be subject to further custodial interrogation without the presence of counsel "unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981); People v. Woolley, 178 Ill. 2d 175, 197, 687 N.E.2d 979, 990 (1997). When determining whether the accused has initiated further communication in the absence of counsel, the following two-part inquiry must be made: (1) whether the accused, after invoking his or her right to counsel, initiated further conversation evincing a willingness and desire for a generalized Discussion about the investigation; and (2) whether the accused has subsequently knowingly and intelligently waived his right to counsel and his right to remain silent. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 402, 412-13 (1983); Woolley, 178 Ill. 2d at 198, 687 N.E.2d at 990; Olivera, 164 Ill. 2d at 389-90, 647 N.E.2d at 930. The latter inquiry includes consideration of the fact that the accused reopened Discussion with the police. Woolley, 178 Ill. 2d at 198, 687 N.E.2d at 990. The burden remains on the State to show, by a preponderance of the evidence and under the totality of the circumstances, that the events subsequent to the defendant's invocation of his right to counsel indicate a waiver of that right. Olivera, 164 Ill. 2d at 390, 647 N.E.2d at 930; People v. Allen, 249 Ill. App. 3d 1001, 1016, 620 N.E.2d 1105, 1115 (1993). The trial court's determination of this issue will not be disturbed unless manifestly erroneous. People v. Wright, 272 Ill. App. 3d 1033, 1042, 651 N.E.2d 758, 764 (1995); Allen, 249 Ill. App. 3d at 1016, 620 N.E.2d at 1115-16.
In the instant case, the trial court determined that the defendant initiated further Discussion, after invoking his right to counsel, by knocking on the interview room door and by telling Spencer that he wanted to speak to Bell. The court found that before Bell spoke to the defendant, Bell readmonished the defendant concerning his Miranda rights. The court thereupon denied the defendant's motion to suppress.
The defendant argues that the trial court's finding that he had initiated conversation was against the manifest weight of the evidence. He argues that his statement to Officer Spencer requesting that Assistant State's Attorney Bell be summoned cannot be construed as evincing a willingness and desire for a generalized Discussion about the investigation. He contends that such a request is qualitatively different from the statement found to have initiated further Discussion in Bradshaw ("Well, what is going to happen to me ...