People v. Bell

• Decision Date: 24 June 1977
• Docket Number: No. 76-317,76-317
• Citation: 7 Ill.Dec. 918,365 N.E.2d 203,50 Ill.App.3d 82
• Parties: , 7 Ill.Dec. 918 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Elvis L. BELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 203

365 N.E.2d 203

50 Ill.App.3d 82, 7 Ill.Dec. 918

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Elvis L. BELL, Defendant-Appellant.

No. 76-317.

Appellate Court of Illinois, Fifth District.

June 24, 1977.

Michael J. Rosborough, Deputy State Appellate Defender, Randy E. Blue, Asst. State Appellate Defender, Fifth Judicial District, Mount Vernon, for defendant-appellant.

Clyde L. Kuehn, State's Atty., St. Clair County, Belleville, Robert L. Craig, Asst. State's Atty., for plaintiff-appellee; Robert M. Kincaid, Third Year Law Student, St. Louis University, of counsel.

KARNS, Justice:

Defendant Elvis L. Bell appeals from an order of the Circuit Court of St. Clair County revoking his probation. He contends that because the only evidence of any violation of the conditions of his probation was an involuntary and improperly admitted confession, the revocation of his probation must be reversed. We agree.

On November 25, 1975, defendant entered a guilty plea to an information charging him with the offense of burglary, and he was subsequently placed on five years' probation. A petition to revoke probation was filed on February 23, 1976, alleging that he had violated a condition of his probation by committing the offense of theft.

At the hearing on the petition, held March 24, 1976, Norman Collins testified that a Sears Die Hard battery, which he had bought new for $30 to $35 six or eight months earlier, was stolen from his automobile in the early morning hours of February 3, 1976. Sergeant Darryl Raymer of the Caseyville police department testified that he participated in the investigation of the theft of the battery from Collins. He testified that he obtained a statement from defendant after informing him of his Miranda rights. Defendant stated that he understood his rights. Raymer said that he did not force defendant to sign the form waiving his rights, nor promise him anything, nor did he see anyone else do so.

On cross-examination of Sergeant Raymer, it was brought out that the last question on the waiver form asked whether defendant wanted to make a statement. This question was answered "No." The sergeant testified that "(a)fter he signed this one here, he sat there for I don't know how long and then he went ahead and made a statement. He talked to the Chief." The sergeant testified that he said nothing to defendant between the time that he answered the question and his subsequent giving of an inculpatory statement. Asked the extent of Chief Donald Paulik's participation in obtaining the statement, Sergeant Raymer said: "Mr. Bell didn't want to give a statement originally and then the Chief talked with him and had Patrolman Lynn of Washington Park to come out and talk with him also." Raymer testified that he was present "99% Of the time" that defendant was being questioned by the other officers. Asked if he knew what patrolman Lynn said to defendant, the sergeant answered: "No, sir, but he didn't promise him anything." Neither Chief Paulik nor Patrolman Lynn were called as witnesses. Defense counsel objected to the introduction of the statement taken from defendant because of these officers' absence, but the objection was overruled and the statement was introduced. In it, defendant confessed that he and two companions stole eight batteries, including the one from Collins' car, and sold them the next day for $40.

Defendant took the stand on his own behalf. He testified that he answered "No" to the question at the end of the waiver form: "Having these rights in mind, do you wish to talk to us now?" After he gave the negative response,

"* * * I was taken back into another room; I suppose an interrogation room and when I went back there a sergeant sat down and wanted to know why I wouldn't fill out a statement and wanted to know if I thought it would help if I didn't fill out one and he asked me several questions and I don't remember all of them and Mr. Lynn came up, Officer Lynn came to the police station and talked to me for a few minutes and wanted to know if I would fill out the statement and I said I didn't and I don't think Sergeant Raymer was present then.

Q. So it was only Officer Lynn that was present?

A. I believe so because I remember the sergeant stepped out for a phone call and I don't remember if it was when Officer Lynn was there and Officer Lynn told me he wanted me to go ahead and fill one out and I told (him) I really didn't want to really fill one out.

Q. When you say he wanted you to ?

A. He said it would be best for me if I filled it out.

Q. And what did you take that to mean?

A. Well, I had given Officer (Lynn) some information before which he had responded to and I know he made a bust on it and he said I better have some good information.

Q. Did you receive any compensation for giving him this information; not this incident here, but on the prior occasion?

A. Yes sir.

Q. So you expected well, just give me your expectations of your giving him this information. What did you expect from Officer Lynn if anything?

A. Well, before I had given him some information and he had given me some money for it and I insinuate (sic) that if I had given him this statement he might be able to get the charges dropped. The Caseyville Police Department did say they will be willing to drop charges if I would help them bust a certain person.

Q. These charges here?

A. Yes.

Q. Was this deal presented to you by anyone specifically?

A. The Sergeant. He told me, his exact words were he would be willing to drop the charges for Harris Brown."

On cross-examination, the following exchange occurred:

"Q. Why did you give this statement?

A. Because Officer Lynn wanted me to. He insinuated that I would get the charges dropped.

Q. You said Officer Lynn didn't promise you anything, didn't you?

A. No, I am sorry. I meant the sergeant.

Q. So you gave this statement, right?

A. Yes.

Q. And that's your signature that appears on the bottom of these sheets?

A. Yes.

Q. And that statement is true?

Q. Is it true?

Q. Yes. You didn't tell them a lie, did you, to get the charges dropped?

A. I don't have to answer that.

Q. Yes you do.

COURT: Do you want to take the Fifth Amendment?

A. Yes sir.

MR. ENGLISH (assistant state's attorney): Alright, take the Fifth. I have no further questions."

Sergeant Raymer, recalled by defendant, testified that he knew nothing about any promises to defendant that the charges against him would be dropped if he gave police information about another person's criminal activities. Under questioning by the court, Raymer testified that "no deal was ever talked about" in his presence, and that he was out of the room where the statement was taken only two or three times for three or four minutes each time.

Defense counsel renewed his objection to the admission of the statement into evidence on the grounds that all the witnesses to its taking were not present. The assistant state's attorney argued that "defendant by his own admission said Sergeant Raymer was the officer who offered him the deal which he has denied * * *."

Decision on the petition to revoke was held in abeyance pending receipt and consideration of a psychological evaluation of defendant. When the matter came on for decision, on March 30, 1976, the public defender informed the court that defendant's family had retained counsel to represent him in the remainder of the proceedings. However, the court refused to allow retained counsel to enter the proceedings. The court then found that the State had proved that defendant had violated the terms of his probation, and sentenced him to two to six years in the penitentiary on the underlying burglary charge. This appeal followed retained counsel's entry of appearance and denial of his post-trial motion.

On appeal, defendant contends that his confession was involuntary and should not have been admitted into evidence at the hearing because the State failed to call all the material witnesses to its taking. (See People v. Armstrong, 51 Ill.2d 471, 282 N.E.2d 712 (1972), and cases cited therein.) He also contends that the statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because of our disposition of the former issue, we need not reach the latter.

The requirement that the State produce all material witnesses to an allegedly involuntary confession, or satisfactorily explain their absence, long antedates Miranda. The purpose of the requirement, simply stated, is to safeguard against improperly induced confessions. (People v. Smith, 56 Ill.2d 328, 333, 307 N.E.2d 353, 355 (1974).)

"* * * As was stated in People v. Wright (1962), 24 Ill.2d 88, 92, 180 N.E.2d 689, 691, 'The burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden. (People v. Dale, 20 Ill.2d 532, 171 N.E.2d 1.) In an unbroken line of cases originating with People v. Rogers, 303 Ill. 578, 136 N.E. 470, this court has enforced this rule. (Citing 14 cases.) * * * ' " (People v. Armstrong, 51 Ill.2d at 476, 282 N.E.2d at 715; see also People v. Delk, 36 Ill.App.3d 1027, 345 N.E.2d 197 (5th Dist.1976).)

The State argues that the material-witness rule should not be applied here because there was no written motion to suppress the confession; defendant did not allege or prove physical coercion; his testimony at the hearing was uncorroborated and contrary to that of Sergeant Raymer, and, by his failure to specify it as error in his post-trial motion, he has waived the issue for purposes of appeal.

The absence in the post-trial motion of any specification of error based on the State's failure to produce Chief Paulik and Patrolman Lynn at the hearing is likely attributable to the fact that the motion was filed by an attorney other than...