People v. Smith
| Decision Date | 24 March 1983 |
| Docket Number | No. 4-82-0236,4-82-0236 |
| Citation | 113 Ill.App.3d 305,69 Ill.Dec. 339,447 N.E.2d 556 |
| Parties | , 69 Ill.Dec. 339 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven E. SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Steven E. Smith, pro se.
Robert J. Barry, State's Atty., Lincoln, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Com'n, John N. Wood, Staff Atty., Springfield, for plaintiff-appellee.
Armed robbery at McDonald's.
Jury trial--guilty--9 years.
On appeal, we are faced with questions involving Miranda warnings, the prosecutor's examination of two witnesses, and whether those witnesses were court's or hostile.
In summa, we affirm.
Early in the morning on November 19, 1981, an armed robber took approximately $2,600 from the McDonald's restaurant in Lincoln, Illinois. Terry Logan, Greg Williams, and Karen Vale, all of whom were McDonald's employees, were eyewitnesses to the crime. The robber was masked and did not speak. None of the three were initially able to identify him. Subsequently, however, Logan identified the defendant, Steve Smith--whom Logan had known prior to the robbery--as the perpetrator. Williams also told police that the robber reminded him of his cousin, Steve Smith.
Based upon these statements, the police obtained a search warrant for Smith's residence. After completing the search, Smith was arrested and interviewed by Officers Vonderahe and Coombs of the Lincoln Police Department. The interview began as follows:
"Q Okay. Steve, I want to talk with you in reference to the armed robbery that took place at McDonalds restaurant on the morning of the 19th. Are you familiar with this?
A Yeah. My cousin Greg was.
Q Okay. But before I do that I must advise you of your rights. Okay? You have a right to remain silent. You do not have to talk to me unless you want to do so. Do you understand that?
A Uh. Chico told me to get my lawyer. Chico said you guys would railroad me.
Q Do you understand that as I gave it to you, Steve?
A Yeah.
Q If you do want to talk to me, I must advise you that whatever you say can and will be used as evidence against you in court. Do you understand that?
A Yeah.
Q You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned. Do you understand that?
A Uh, yeah. I'd like to do that.
Q Okay. If you want a lawyer and if you're unable to pay for one, a lawyer will be appointed to represent you free of cost. Do you understand that?
A Okay.
Q Do you wish to talk with me at this time without a lawyer being present?
A Yeah and no, uh, I don't know what's what really.
Q Well, you either have to agree to talk to me at this time without a lawyer present and if you do agree to talk with me without a lawyer being present you can stop any time you want to.
A All right. I'll talk to you then.
Q Okay. All you have to do is just tell me I don't want to talk to you anymore and that ends it. Okay?
A Okay."
Smith was then interrogated and admitted foreknowledge of the McDonald's robbery and that he had agreed to dispose of the plunder from the robbery for Terry Logan. Although he recounted in detail how the robbery was to take place, Smith strenuously denied that he was the robber. At one point in his statement, however, the following exchange took place:
Smith's motion to suppress these portions of his statement was denied.
On the day of trial, just prior to calling Logan and Williams as witnesses, the State's Attorney moved to have them declared hostile or court's witnesses (apparently using the name interchangeably). In support of his motion, the State's Attorney noted the vacillation in their pretrial statements. The court declared both Logan and Williams to be hostile witnesses.
Smith alleges that this ruling, the prosecutor's examination of Logan and Williams at trial, and the denial of his motion to suppress require reversal of his conviction.
We disagree.
Smith's argument for suppression is that under Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, once an accused requests assistance of counsel, the police must cease interrogation until counsel is present or the accused initiates further discussion. Smith contends that he requested counsel, none was provided, and he did not initiate further discussions.
Smith correctly states the holding of Edwards, but that case is inapplicable to the fact situation before this court. Smith never made an effective request for counsel so as to invoke the safeguards set forth in Edwards. Rather, he merely expressed an interest in obtaining counsel during the administration of the Miranda warnings and prior to the beginning of any interrogation. The interrogating officer completed the administration of the warnings and asked if Smith wished to speak without counsel. When Smith expressed some confusion about his rights, Officer Vonderahe explained that if defendant agreed to talk, the interview could be stopped at any time. At this point, Smith agreed to speak.
We find People v. Krueger (1980), 82 Ill.2d 305, 45 Ill.Dec. 186, 412 N.E.2d 537, controlling. There, defendant initially waived his Miranda rights, but later stated, "Maybe I ought to have an attorney." The court held that this was not sufficient to invoke defendant's right to counsel. The facts here are even more compelling. In Krueger, defendant was fully aware of his Miranda rights and had executed a waiver when he made mention of an attorney. Here, Smith had not even been given the full Miranda warnings when he stated that he would like an attorney. Although Smith's statement, taken out of context, appears clear and unequivocal, when it is considered with other statements--as it should be--it is clear that Smith was undecided about exercising his right to counsel.
Clearly, Officer Vonderahe did not consider any such request to have been made. He asked Smith for clarification of his statement. Under Krueger, an officer's subjective belief is entitled to some consideration in determining whether a request for counsel has been made. We think the interrogating officers' actions here were reasonable. Smith's statements were not a request for counsel during interrogation. Indeed, interrogation had not begun. There was merely an indecisive inquiry into the right to counsel. When Smith indicated a desire to cease interrogation once it had begun, his wishes were promptly complied with.
No error.
There was some understandable confusion below between these two concepts. This court recently held that a party seeking to call a witness as a court's witness must show that (1) he cannot vouch for the witness' credibility; (2) the testimony will relate to direct issues in the case; and (3) the testimony is necessary to prevent a miscarriage of justice. (People v. Church (1981), 102 Ill.App.3d 155, 57 Ill.Dec. 679, 429 N.E.2d 577.) In order to have a witness declared a hostile witness, it must first be demonstrated that (a) he is an occurrence witness; (b) he is being called in good faith; and (c) the party calling him is surprised by his testimony. (Church. ) Aside from this, Church indicated that the primary distinction between the two concepts is that a hostile witness may be impeached with prior inconsistent statements, while such impeachment of a court's witness is not permitted.
In view of the supreme court's more recent opinion in People v. Weaver (1982), 92 Ill.2d 545, 65 Ill.Dec. 944, 442 N.E.2d 255, the continuing validity of this latter distinction is doubtful. Weaver stated that a court's witness may be impeached with a prior inconsistent statement if he says something which affirmatively damages the party calling him. On the facts before it, the court found no affirmative damage and held impeachment was improper. Here, there was affirmative damage. Logan and Williams both stated that defendant was not the robber.
As the issue here is whether the State was properly allowed to impeach Logan and Williams with prior inconsistent statements, we will consider whether a proper foundation for calling Logan and Williams as either court's or hostile witnesses was presented. In short, we hold that there was a sufficient showing to declare them court's witnesses. Both Logan and Williams had made inconsistent statements prior to trial and it was uncertain how they would testify at trial. It is also readily apparent that their testimony would relate directly to the issues in the case. They were, after all, eyewitnesses to the armed robbery. And, for this same reason, their testimony was necessary to prevent a miscarriage of justice.
The foundation for calling the two as hostile witnesses was not present, however. Logan and Williams were, of course, occurrence witnesses. And there is no allegation that the...
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