dissenting.
I respectfully dissent.
The statements made by defendant to the police on December 30 are inadmissible under the rule of Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885, which states that an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” This is a bright-line rule. (Smith v. Illinois (1984), 469 U.S. 91, 98, 83 L. Ed. 2d 488, 495, 105 S. Ct. 490, 494.) Defendant here had invoked his right to counsel on December 27. Defendant did not initiate the December 30 conversation with the police. Thus, any statements made at that meeting were inadmissible. The majority concludes that defendant initiated further conversation with the police by “stating that he wanted to tell the truth concerning the occurrences of December 26.” This conclusion ignores the fact the agents came to defendant’s cell uninvited to question him about the use of an alias. Under Edwards, a valid waiver of the right to counsel cannot be established by showing only that a defendant responds to further police-initiated interrogation even if he has been advised of his rights. (Edwards v. Arizona (1981), 451 U.S. 477, 484, 68 L. Ed. 2d. 378, 386, 101 S. Ct. 1880, 1884-85.) Furthermore, the majority’s reference to a footnote in Edwards is misplaced. That footnote states:
“If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be ‘interrogation.’ In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” 451 U.S. 477, 486 n.9, 68 L. Ed. 2d 378, 387 n.9, 101 S. Ct. 1880,1885 n.9.
The situation in the present case is not the situation described in the footnote. Here, the officers initiated the conversation and did something which amounted to interrogation before defendant made the incriminating statements. Had defendant called the agents to his cell, made incriminating statements, then answered questions from the agents, the rule set forth in the footnote would apply.
The majority states that the police “had not only the right but the duty to determine his true identity and were not inquiring about the occurrences of December 26.” The majority has apparently determined that the agents’ words and actions did not amount to interrogation. However, interrogation includes not only express questioning, but also “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90.) For example, in People v. R.C. (1985), 108 Ill. 2d 349, 483 N.E.2d 1241, the defendant had asserted his right to remain silent, then was told by police that an officer had identified him as the person who had fled from an earlier arrest attempt. Our supreme court, referring to the police telling defendant he had been identified, stated: “This was an obvious effort to persuade R.C. to make a statement.” (108 Ill. 2d 349, 354, 483 N.E.2d 1241, 1244.) In People v. Thompson (1982), 107 Ill. App. 3d 285, 437 N.E.2d 916, the defendant had asserted his right to remain silent, but was subsequently asked by police if he wanted to see other suspects who were making incriminating statements about him. The defendant made an incriminating statement after a confrontation with the other suspects. The court found the police practices employed amounted to interrogation. (107 Ill. App. 3d 285, 288-89, 437 N.E.2d 916, 918-19.) Likewise in People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226, police confronted the defendant with discrepancies in his story. The court found this was the functional equivalent of express questioning. 105 Ill. App. 3d 1023, 1029-30, 435 N.E.2d 226, 231.
In the present case, the agents should have known that their words and actions were reasonably likely to elicit an incriminating response. This is not a case, contrary to the majority’s belief, where police were engaged in routine ministerial questioning during an arrest (United States v. Taylor (4th Cir. 1986), 799 F.2d 126) or booking process. (People v. Davis (1981), 103 Ill. App. 3d 792, 796, 431 N.E.2d 1210, 1213.) The agents had learned defendant’s real name through a fingerprint analysis. Therefore, they did not need to ask defendant his real name, for they already knew it. The officers testified they went to defendant’s cell to “confront” him with his true identity, not to learn it. In effect, the agents went to defendant’s cell to confront him with their knowledge that he had been lying. While “confronting” defendant with his true identity alone was reasonably likely to elicit an incriminating response, it is irrefutable that the officers should have known that their further question to defendant of why he had been using a false name was reasonably likely to elicit an incriminating response. Already having knowledge of defendant’s true identity, there could be no purpose for the agents’ confrontation with defendant other than to elicit incriminating statements.
The majority also notes that the statements of December 30 were made after defendant had initiated further communications with the police on December 28. The conclusion that defendant initiated the December 28 conversation is not supported by the evidence. Agent Higgins testified that while he was in the State’s Attorney’s office on December 28, a person he could not identify informed him that the three suspects in the case wanted to speak to him. He and Agent Bowman went to defendant’s cell, gathered biographical data from defendant and advised him of his rights. Defendant then simply said that he did not want to talk and that what he had to say he had said previously. I agree with defendant that the State failed to show he initiated this meeting. Under the Code of Criminal Procedure of 1963, once defendant moved to suppress evidence of his statements to police, the State had the burden of proving the voluntariness of the statements. (Ill. Rev. Stat. 1985, ch. 38, par. 114—11(d).) The applicable standard requires proof by a preponderance of the evidence. (People v. King (1986), 109 Ill. 2d 514, 525, 488 N.E.2d 949, 955.) There is no evidence of a request by defendant to see the agents. There was merely testimony by Higgins that he was told by some unidentified person that the three suspects wanted to see him. Furthermore, when the agents arrived at defendant’s cell, defendant stated he did not want to talk to them. I cannot conclude the State met its burden of proving defendant wanted to waive his right to counsel which he had invoked earlier.
Nor can I conclude the error here was harmless.
“[I]n determining whether a constitutional error is harmless beyond a reasonable doubt, ’[t]he focus should *** be upon the character and quality of the illegally obtained evidence as it relates to the other evidence bearing on the same issue and the court should appraise the possible impact upon the jury of the wrongfully obtained evidence.’ (People v. Black (1972), 52 Ill. 2d 544, 555, [288 N.E.2d 376, 383,] cert. denied (1973), 411 U.S. 967, 36 L. Ed. 2d 689, 93 S. Ct. 2155.) *** [A] confession is the most powerful piece of evidence the State can offer, and its effect on a jury is incalculable.” (People v. R.C. (1985), 108 Ill. 2d 349, 356, 483 N.E.2d 1241, 1245.)
Other than defendant’s statements, the evidence of his guilt was entirely circumstantial. No witness identified defendant as being at the scene of the murder and armed robbery. While defendant made statements to the police on four occasions, only in the December 30 statements did defendant admit that he had helped carry out the armed robbery and had used a shotgun to do so. Thus, I cannot say admitting the statements of December 30 was harmless beyond a reasonable doubt.
For these reasons, I would reverse defendant’s conviction and sentence and remand the cause for a new trial. Consequently, I will not discuss whether admission of defendant’s statements during the second session on December 27 amounts to harmless error, but would require those statements be excluded at the new trial.