People v. Riley

• Decision Date: 17 May 1977
• Docket Number: No. 76-230,76-230
• Parties: , 7 Ill.Dec. 145 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas RILEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 306

364 N.E.2d 306

49 Ill.App.3d 304, 7 Ill.Dec. 145

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

No. 76-230.

Appellate Court of Illinois, First District, Second Division.

May 17, 1977.

James Geis, Deputy State App. Defender, Chicago (Allen L. Wiederer, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Laurence J. Bolon, Mary Ellen Dienes, Wendy Paul Billington, Asst. State's Atty., Chicago, of counsel), for plaintiff-appellee.

DOWNING, Presiding Justice:

Following a jury trial, the defendant, Thomas Riley, was convicted of two counts of murder and one count of involuntary manslaughter. He was sentenced to a term of not less than 75 years nor more than 225 years in the penitentiary for each count of murder and not less than three years nor more than ten years for the involuntary manslaughter count, all sentences to run concurrently. In this appeal, defendant contends that the trial court erred when it denied his motion to suppress a confession he gave to police following his arrest, and that the sentences imposed are excessive.

Shortly after 5 p.m. on February 27, 1974, the shotgun-riddled bodies of Larry Foster, Marvin Foster, Jr., and William Todd were found on the grounds of Burr Oak Cemetery in south suburban Alsip, Illinois. Police reporting to the scene interviewed two youths who had seen two male negroes, one tall and one short, running from the cemetery shortly after the sound of gunshots was heard.

Shortly thereafter, a police officer observed two black youths answering the descriptions attempting to hitch a ride in an industrial area a few blocks from the cemetery. At that moment, a car stopped, and the two youths got in. The police officer stopped the car and ordered the occupants out of the car. When they got out, the officer observed that the two youths had mud on their shoes and on the bottoms of their trouser legs. One of them also had a number of "cockleburrs" on his trouser legs. Earlier, when he had reported to the scene of the killings, the officer had observed that the cemetery grounds were quite muddy and that cockleburr plants grew there in abundance. He also observed that there was no mud in the area where he stopped the youths. The officer then arrested the two youths, the defendant and his older brother.

Defendant and his brother were returned to the scene of the killings and detained in a police car for a period of approximately one and one-half hours, while the police investigation continued. Two weapons were found on the cemetery grounds, a sawed-off shotgun and a long-barrelled shotgun. A yellow stocking cap, which it was later determined belonged to defendant, was also found.

Defendant and his brother were then taken to the Alsip police station where they were held in adjoining cells for questioning. Their outer clothing (shoes, trousers, and shirts) were removed by police evidence technicians. They were given blankets to cover themselves. They were each fed a chicken dinner. Their constitutional rights were read to them. Defendant was asked his age, and he responded that he was 17 years old. On further inquiry, he revealed that he was going to be 17 in about a week. To ascertain his correct age, police then called defendant's parents. Both informed police defendant was 17.

Defendant's father arrived at the police station at approximately 7:30 p.m. There is conflicting testimony as to whether he asked to see his sons. In his testimony, the father maintained that he had made repeated requests to the police to see his sons, but was refused. Several police officers testified that the father did not ask to see his sons. One also testified that he specifically asked the father if he wanted to see his sons, and that Mr. Riley had declined.

At about 8:30 p.m., after he had once again been advised of his constitutional rights and indicated his understanding of those rights, defendant gave an oral statement to police investigators, admitting the three killings. Sometime later that same evening, he was, for the third time, advised of his rights and repeated his statement before an assistant state's attorney and a court reporter. After the statement was transcribed and signed by defendant, his brother also gave a statement.

Briefly, defendant's confession related that he had gone to the cemetery with his brother to look for a job (defendant's brother and father had both previously worked at the cemetery). They went into a small house on the cemetery grounds where they met their friends Larry Foster and Marvin Foster. The four then smoked marijuana and consumed amounts of brandy, whiskey, and beer. At some point, defendant's brother and Marvin Foster left the room. Then Larry aimed a sawed-off shotgun at defendant. Defendant asked him not to do that. Larry then put the gun down and went into the next room. Defendant then picked up the gun. When Larry returned, the gun accidentally discharged, killing Larry.

After the shooting, William Todd entered the room. Seeing defendant with the sawed-off shotgun, Todd fled to the cemetery office next door to the house and locked himself inside. Defendant picked up a long-barrelled shotgun which was leaning against a wall in the house, and pursued Todd with both weapons. He shot the lock off the door of the office where Todd was hiding, and shot him to death. At that moment, Marvin Foster, Jr. entered the office and, seeing what had occurred, also fled. Defendant pursued Marvin Foster out onto the cemetery grounds and ordered him to stop. Foster stopped, turned around, and was then shot to death by defendant. Defendant's brother, who had been driving around the cemetery grounds in a car, rejoined him and saw what had happened. Defendant used his hat to wipe both weapons clean of fingerprints, and hid the weapons in some bushes. The Riley brothers than ran from the scene.

Defendant was subsequently indicted for the murders of the three men. Prior to trial, defense counsel moved to suppress defendant's confession, alleging that the defendant had not knowingly and intelligently waived his constitutional rights and had, in effect, requested counsel prior to giving any inculpatory statements. It was urged that the defendant's desire for legal counsel was manifested by a request that he be allowed to speak with his father. Following a lengthy hearing, the motion was denied. Defendant was then tried by a jury which found him guilty of the murders of William Todd and Marvin Foster, Jr., and guilty of the lesser- included offense of involuntary manslaughter in causing the death of Larry Foster.

I.

The foremost issue raised by defendant in this appeal is whether the trial court erred in denying his motion to suppress the confession. The defendant contends that subsequent to being advised of his rights under the Miranda doctrine (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and prior to his giving his confession, he effectively asserted his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel by making a request to the police that he be permitted to speak with his father, who was present in the police station. Defendant argues that the request of a juvenile defendant to see a parent is tantamount to an adult's request for an attorney, and that under Miranda, once such a request has been made, the interrogation must cease until the defendant has been afforded the opportunity to consult with counsel. The evidence in the record on the issue of whether or not the defendant actually made such a request is in conflict.

In Miranda, supra, the United States Supreme Court held that where one who is the focus of a criminal investigation is subjected to an in-custody interrogation, and indicates in any manner, at any time, prior to or during questioning that he wishes to remain silent, or that he wants to consult with an attorney, the interrogation must cease until an attorney is present (384 U.S. at 473-74, 86 S.Ct. 1602). However, Miranda also holds that if the interrogation continues without the presence of an attorney and a statement is ultimately taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel.

In his briefs and arguments before this court, defendant has failed to cite, nor has our own research discovered, any authority that in Illinois the request of a juvenile in police custody to see a parent is per se tantamount to an adult's request to consult with an attorney. The only case cited by defendant in support of this proposition is People v. Burton (Cal.1971), 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, in which the California Supreme Court held that when a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning must, in the absence of evidence to the contrary, be construed to indicate that the minor suspect desires to invoke his constitutional rights and that the interrogation must then cease. We are satisfied that the record in this case, and the findings of the trial court in its ruling denying defendant's motion to suppress his confession amply demonstrate that defendant was not, by requesting to see his father, asserting his constitutional rights.

The rule in Illinois is that, in determining whether a defendant has knowingly and intelligently waived his constitutional rights, the state bears the burden of demonstrating, by a preponderance of the evidence (In re Bizzle (1st Dist. 1976), 36 Ill.App.3d 321, 325, 343 N.E.2d 633; People v. Sweet (1st Dist. 1974), 17 Ill.App.3d 85, 91, 307 N.E.2d 615; People v. Jackson (1968), 41 Ill.2d 102, 109, 242 N.E.2d 160), that the statement was made freely, voluntarily, and without...