dissenting:
As the majority opinion points out, the question of the voluntariness of a confession is for the trial court to determine, and a reviewing court will not disturb that decision unless it is manifestly against the weight of the evidence. People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). And in determining the character of a confession, the trial court is not required to be convinced beyond a reasonable doubt. People v. Spencer, 27 Ill2d 320, 189 NE2d 270 (1963).
Since the case was commenced prior to the effective dates of Escobedo v. Illinois, 378 US 478 (1964) and Miranda v. Arizona, 384 US 436 (1966), failure to inform defendant that she had the right to the presence of an attorney and the right to remain silent did not per se render the statements inadmissible. Johnson v. New Jersey, 384 US 719 (1966). However the United States Supreme Court has held that even in pre-Miranda interrogations, the fact that a defendant was not given the proper warnings must be considered as a significant factor in considering the voluntariness of statements later made. Davis v. North Carolina, 384 US 737 (1966). See People v. Kirk, supra; People v. Hester, 39 Ill2d 489, 237 NE2d 466 (1968).
Certain facts are undisputed. Defendant was not advised by the police of her right to the presence of an attorney, nor was she advised by them of her right to remain silent. At defendant’s home, some member of her family suggested contacting an attorney, and the police commander consented as long as he could talk to the attorney. The attorney was contacted, and the police informed him that they were taking defendant to headquarters. Some time during the evening the attorney arrived at the room where the interrogation was taking place. The trial court, in finding that the statements thereafter made were involuntary and thus inadmissible, stated:
“The fact that Commander Flanagan had personally corresponded and talked to the attorney, advising him as to where the defendant was being taken, and the fact that the attorney subsequently appeared, indicates that it was the purpose of the phone call and the purpose of the defendant, as well as the attorney, for the attorney to be present during such time as she was in custody for whatever purposes might have been indicated.”
Accordingly, the trial court found that defendant had requested the presence of counsel and that the officers were aware of her request. It further found that her right to the presence of counsel during interrogation was violated and that she was denied her constitutional rights. I do not believe that these findings were against the manifest weight of the evidence, nor did they constitute an abuse of the trial judge’s discretion. Clearly the undisputed testimony reveals that defendant and her attorney both expected and desired that he be present during interrogation. Just as clearly, the evidence indicates that there was no waiver of that request on the part of the defendant. Under those circumstances, the trial court could properly conclude that the statements were involuntarily made.
In stating that the defendant was advised of her constitutional rights by her own attorney prior to interrogation and that she was aware of her right to be silent, the majority are accepting the argument made by the State, because the record does not reveal any such advice or awareness.
While the court properly found that the deprivation of counsel was determinative of the issue of voluntariness, there was also testimony by the defendant and her sister that the statements were obtained after she had been told that she would be released only after making a statement. They further testified that the defendant was informed that she would be jailed and not be allowed to attend her husband’s funeral unless she made a statement. The State argues that since the trial judge did not comment on those charges made by the defense, he did not consider them in making his finding that the statements were involuntary. I do not agree. The trial court in rendering its opinion stated that it was “considering the totality of the circumstances,” and added that “under the circumstances in this case the court finds that the statements made by the defendant were not voluntary.” It is evident that, the trial judge considered all the factors in determining whether the statements were voluntary.
While the majority opinion properly states that the trial court did not make a finding that the attorney was kept waiting at police headquarters as charged by defendant and her sister, it should be noted that the trial judge simply found that the attorney arrived at the interrogation after about two hours, and after the statement had been taken.
Moreover, implicit in the State’s entire argument is the contention that this court is bound by the trial court’s reasons for its finding of voluntariness. While I agree with the trial court’s reasoning, even if it were to be assumed that the reasoning did not support its conclusion, a party on appeal is permitted to complain of a decision, but not the reasons given for it. Campbell v. Powers, 139 Ill 128, 28 NE 1062 (1891); Roby v. South Park Comr’s, 215 Ill 200, 74 NE 125 (1905). The only issue for this court to determine is whether all of the evidence supports the decision of the trial court. I believe it does.
In People v. Ramirez, 92 Ill App2d 341, 235 NE2d 412 (1968), in upholding the trial court’s finding that the confession was voluntarily made, this division stated in language appropriate to the instant case:
“Upon our inquiry into the nature of that initial statement, the question of its competency is a matter long reserved for the trial court to alone decide, the voluntary character of which, moreover, need not convince the court to that degree foreclosing all reasonable doubt. Accordingly, in passing upon the entirety of circumstances surrounding the rendition of that confession, our court will lend considerable credence to the findings of the trial judge who saw and heard the witnesses as to matters of credibility.” (P 348.)
I believe that the order suppressing certain statements should be affirmed.