People v. Eatherly

• Decision Date: 16 November 1979
• Docket Number: No. 78-74,78-74
• Citation: 34 Ill.Dec. 77,397 N.E.2d 533,78 Ill.App.3d 777
• Parties: , 34 Ill.Dec. 77 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas M. EATHERLY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 533

397 N.E.2d 533

78 Ill.App.3d 777, 34 Ill.Dec. 77

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas M. EATHERLY, Defendant-Appellant.

No. 78-74.

Appellate Court of Illinois, Second District.

Nov. 16, 1979.

Mary Robinson, Deputy State App. Defender, John Lanahan, Asst. State App. Defender, Elgin, for defendant-appellant.

Dennis P. Ryan, State's Atty., Waukegan, Phyllis J. Perko, William L. Browers, State's Attys. App. Service Commission, Elgin, for plaintiff-appellee.

NASH, Justice:

After a bench trial defendant, Thomas M. Eatherly, was convicted of theft of an automobile valued in excess of $150 (Ill.Rev.Stat.1975, ch. 38, par. 16-1(e) (1)) and criminal damage to property (Ill.Rev.Stat.1975, ch. 38, par. 21-1) and was thereafter sentenced to 3 to 9 years for theft and 364 days for criminal damage to property to be served concurrently.

On appeal defendant makes the following contentions: (1) that the trial court erred in denying his pre-trial motion to suppress his statement; (2) that the evidence did not establish he intended to permanently deprive the owner of his property or that it exceeded $150 in value and (3) that the trial court unduly restricted cross-examination of a juvenile witness.

From the evidence adduced in trial it appears that on the evening of July 8, 1977, defendant left a party in Waukegan, Illinois, with Laurie Chandler and David Olson. Chandler and Olson testified that they had all been drinking beer and smoking marijuana and Eatherly left them saying that he had to "get some transportation", returning about 10 minutes later driving a 1966 Volkswagen which he said he had hot-wired. Defendant and his two friends then drove around Waukegan for an hour or two during which time a part of the rear bumper of the car came off while defendant was making a turn. He tore off the rest of the bumper and they continued to drive until the car went into a swamp where they abandoned it. The police recovered the automobile several days later at which time it was in a severely damaged condition in that its roof and hood were caved in, its headlights and windshield broken out, and the rear seat, spare tire and battery were missing. There was evidence that some of the damage to the vehicle was caused by others after defendant left it in the swamp.

Peter Posemato, who was employed as a body and fender repairman in Barrington, Illinois, testified that the car belonged to him, having purchased it for $200 in December of 1976. He testified he had repaired and painted the vehicle and that its value at the time it was stolen was $600.

Defendant was arrested on July 27, 1977, and taken to the Waukegan Police Department where detective Walter Williams read to him the Miranda warnings from a preprinted form. Williams testified that defendant was advised of his rights in the following manner:

"I read to him he had the right to remain silent, I asked him if he understood that and he stated yes.

I read to him anything you say can and will be used against you in a court of law, I asked him if he understood that and he stated yes.

I advised him you have the right to consult with a lawyer before you answer any questions or make any statement and have him present during questioning, I asked him if he understood that and he stated yes.

I advised him if he could not afford a lawyer one would be appointed for you before questioning or at any time during questioning if you so desire, I asked him if he understood that and he stated yes.

I advised him if you answer any questions or make any statement without consulting a lawyer or without having a lawyer present during questioning, you will still have the absolute right to stop answering questions or making any statement until you consult with a lawyer or have a lawyer present during further questioning, I asked him if he understood and he stated yes, he did."

The officer then gave defendant a rights waiver form to sign and testified defendant looked it over and said he did not wish to sign anything at that time.

Officer Williams asked defendant about the damage to the Volkswagen and testified, "(a)t this time he (defendant) stated he would tell me but it would, you know, this is off the record, but I'll tell you what happened" and proceeded to state he had stolen the car because he had a drinking problem and was drunk that night and tired of walking and that he knows how to hot-wire Volkswagens. He further stated that while the three of them were in the car it became stuck in the mud and when they tried to pull it out the bumper came off and that was the only damage they had done to the car. Officer Williams further testified he then asked defendant to relate how he had stolen the car and defendant said he did not want to make any statement about that until he conferred with his lawyer. The questioning ceased and defendant was returned to his cell.

We must first consider whether defendant has waived review of the errors claimed by his failure to file a post-trial motion in the trial court as is required by section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 116-1(b)). (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) The State refers to People v. Schoo (1977), 55 Ill.App.3d 163, 13 Ill.Dec. 391, 371 N.E.2d 86 and People v. Stinnette (1977), 49 Ill.App.3d 134, 7 Ill.Dec. 24, 363 N.E.2d 945, as authority for application of the waiver rule in this case. Schoo and Stinnette, however, must be distinguished from the present case as there the errors deemed waived because not raised by a post-trial motion, or otherwise presented to the trial court for possible correction, did not relate to issues of the sufficiency of the evidence to sustain the findings of the trial court. It has been generally held by the Appellate Court that in a bench trial a post-trial motion is not necessary to preserve for review questions regarding the sufficiency of the evidence and that other claims of error will also be preserved for review after a bench trial if they were brought to the attention of the trial court. (See People v. Larsen (1st Dist.1977), 47 Ill.App.3d 9, 5 Ill.Dec. 390, 361 N.E.2d 713; In re Driver (4th Dist.1977), 46 Ill.App.3d 574, 576, 4 Ill.Dec. 827, 829, 360 N.E.2d 1202, 1204; People v. Papproth (5th Dist.1977), 56 Ill.App.3d 683, 14 Ill.Dec. 44, 371 N.E.2d 1097; People v. Guynn (3d Dist.1975), 33 Ill.App.3d 736, 338 N.E.2d 239.) As each of the issues which defendant presents for review in this case involve a question of the sufficiency of the evidence to sustain his conviction or alleged error specifically called to the attention of the trial court, they will not be considered waived although not properly preserved by a post-trial motion.

Defendant contends first that his inculpatory statement regarding the damage to the automobile must be suppressed as he did not knowingly and voluntarily waive his right to remain silent. (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) The thrust of his argument is that there was an additional duty imposed upon the investigating officer in these circumstances to advise him that his "off the record" statement could also be used against him.

It is well established in Illinois that an express waiver of those rights described by the court in Miranda is not required and if after a defendant has been informed of them and states he understands them he chooses to speak to an officer without requesting an attorney, sufficient evidence is presented that he knows his rights and has chosen not to exercise them. (People v. Brooks (1972), 51 Ill.2d 156, 164, 281 N.E.2d 326, 332; People v. Jenkins (1978), 67 Ill.App.3d 565, 568, 24 Ill.Dec. 190, 192, 384 N.E.2d 1348, 1350; People v. Riley (1977), 49 Ill.App.3d 304, 7 Ill.Dec. 145, 364 N.E.2d 306.) Defendant Eatherly was 20 years old with extensive experience in police investigative processes. He had been convicted of 11 separate prior offenses, including burglary in 1974, for which he was sentenced to 1 to 3 years, and intimidation in February 1977, for which he was sentenced to 1 to 1 1/2 years and paroled. He does not suggest he was inadequately advised of his right to remain silent as is required by Miranda nor did he testify that he either failed to understand those rights or that he had some basis to believe he had an additional right to make a statement "off the record" which could not thereafter be used against him. Defendant did not inquire of Officer Williams whether he could speak off the record but, instead, stated he would do so and proceeded to respond to the officer's question regarding damage to the vehicle. Neither Miranda or any other presently existing rule of law requires that a defendant be admonished that there is no "off the record" privilege (Cf., People v. Prude (1977), 66 Ill.2d 470, 476, 6 Ill.Dec. 689, 691-2, 363 N.E.2d 371, 373-4; People v. Smith (1977), 50 Ill.App.2d 320, 327, 8 Ill.Dec. 320, 325, 365 N.E.2d 558, 563), nor did defendant testify that he would not have made a statement to the officer had he known it could be used against him even though "off the record". Such a claim would be quite clearly inappropriate in the face of the warning given to him that "anything you say can and will be used against you in a court of law" which he said he understood.

Defendant's argument in this regard appears to be similar to that advanced and rejected in United States v. Frazier (D.C.Cir. 1973), 155 U.S.App.D.C. 135, 476 F.2d 891, where on appeal a defendant asserted the thought that only written, but not oral, statements could be used against him as the officer had failed to refer to both in his admonishment that anything he said could be used against him. Nor do we believe the formal Miranda requirements should be expanded beyond the clear advice that "anything you say" may be used against a defendant under the circumstances seen in this case where the officer...