dissenting:
To bring into focus my dissent, I shall paraphrase certain evidence relating to defendant’s motion to suppress.
Three interrogations of the defendant were conducted by detectives of the Decatur Police Department. The first session occurred on July 30, 1976, lasting from 7:43 p.m. until approximately 8:30 p.m. The second occurred between 1:36 a.m. and 2:30 a.m. on July 31, 1976. The third began at 9:30 a.m. on July 31,1976, and lasted approximately 1 hour and 15 minutes.
At the first interview, defendant was given a Custodial Interview Advice Form listing each of the Miranda warnings and a waiver provision. After the form was read to the defendant, he initialed each right and printed “I want attorney” after the provision setting forth his right to have an attorney present at the interview. Also, after the waiver provision on the form, which stated that the reader understood the above rights and wished to make a statement, the defendant again printed the words “with attorney present today.” At the suppression hearing two officers testified that the defendant requested an attorney after being advised of his rights. An officer testified that the police repeatedly made it clear to the defendant that he couldn’t have a lawyer at the interview that evening because the procedure in Macon County required that he had to appear in court for that purpose. Defendant was permitted to phone the only attorney he knew but that attorney was unable to come to the police station at that hour. Two officers testified that defendant, after making the phone call, told them that the attorney advised him to go ahead and talk to them. Defendant denied this and asserts that he requested to be taken back to his cell until an attorney could be present. The prosecution concedes that defendant was taken back to his cell.
The second interview was conducted by another officer beginning at 1:36 a.m. The police awakened defendant from a sound sleep and this officer read defendant his rights from the previously described form. The officer claims that defendant did not request counsel at this interview but defendant asserts that he not only made such a demand but, in addition, made reference to Escobedo (Escobedo v. Illinois (1984), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758), and Miranda (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), and told the officer that once a defendant has requested an attorney, anything that comes after that is by compulsion. Apparently the defendant admitted some sexual activity at this time. Defendant’s testimony is that he told the officer he didn’t wish to talk about it but the officer persisted in the questioning.
The third interview was conducted by still another police officer who testified that after reading the Miranda rights off the same custodial interview form, defendant declined the services of an attorney and said he was perfectly willing to talc with him, about the arrest. Defendant denies this and says he again requested an attorney from the officer who was very nice to him and offered him a cigarette and coffee. Defendant testified that he did continue the interview and did answer some questions at this time because the officer persisted in asking him questions after his demands for an attorney were refused and disregarded because he was of the opinion that in view of Escobedo and Miranda, anything he said after a demand for an attorney could not be used against him.
The above review of the evidence highlights the problem wherein, I believe, the majority errs. To bring it into perspective we must remember that the defendant, in his own handwriting, twice claimed his constitutional right to have his attorney present before any questioning of him was conducted. In addition, the record reflects, and the prosecuting witnesses admit, that defendant made several similar oral requests. Despite these clear and unambiguous demands, three interviews of the defendant were instituted and engaged in by the police officers. There is no evidence nor contention that the defendant requested, volunteered, suggested, or in any manner invited the officers to his cell to continue or renew the interviews. The majority relies on People v. Morgan (1977), 67 Ill. 2d 1, 364 N.E.2d 56, and liken it factually to this case. The difference between the two cases is patently obvious. In Morgan the defendant asked for an attorney and questioning ceased. After an interlude of approximately 30 minutes the defendant asked a police officer if he could continue his statement. The officer was uncertain and asked the State’s Attorney. Before continuing his statement, Morgan said he thought a lawyer would confuse him and he wished to proceed. These facts are miles away from the facts in this case. Our facts are quite similar to those in People v. Henenberg (1973), 55 Ill. 2d 5, 302 N.E.2d 27. There the defendant, while being questioned by Illinois authorities in the St. Louis, Missouri, Police Department building, asserted his desire to see a lawyer four times during the interrogation. The officers did not cease their interrogations. In Henenberg our supreme court said, ” the record shows that the defendant repeatedly told the officers that he wanted to consult with a lawyer. Nevertheless, interrogation continued until a confession was obtained. It follows that the motion to suppress should have been allowed.” (55 Ill. 2d 5, 12, 302 N.E.2d 27.) Similarly the defendant here, after his demands for a lawyer went unheeded, would be returned to his cell, left alone for awhile, and then the questioning would begin anew with a different set of inquisitors.
It must be acknowledged that there is some difference between Henenberg and this case. Here the officers assert that the defendant told them, following his telephone conversation with the lawyer, that he should go ahead and talk to the police. Apparentiy the majority is willing to support the finding of the trial judge that the defendant willingly and understandingly talked to the police and abandoned his previous requests for the help and assistance of counsel. I cannot bring myself to join in this conclusion. I am afraid that I, like Justice Goldberg in Escobedo, must conclude that “ ‘any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.’ Watts v. Indiana (1949), 338 U.S. 49, 59, 93 L. Ed. 1801, 1809, 69 S. Ct. 1347 * * * (Escobedo, 378 U.S. 478, 488, 12 L. Ed. 2d 977, 984, 84 S. Ct. 1758.) The right to remain silent distinguishes our system of justice from an inquisitorial one. It complements and serves an accusatorial system and protects us from unwarranted governmental intrusion. For the majority to find shelter in the statements of the officers that after having advised defendant of his rights he voluntarily talked to the police is indeed leaning on a slender reed. We need only ask ourselves: What terminated the first interview with defendant? Why was it terminated? What triggered the second interview? Why was it not continued to a conclusion? Why the third interview? Is it logical to conclude that prisoners are awakened in the wee hours of the night just to chat? Is it not more logical to conclude that very little information was obtained by the police in the first interview, a little more was obtained in the second interview, and a substantial amount was elicited from defendant in the third session. If the defendant’s responses were as voluntary as the police officers maintain, the initial interview would have been totally productive and the subsequent interviews would have been unnecessary. Since we know this did not happen, does it not become crystal clear that the police were operating in defiance of defendant’s constitutional rights and that their conduct constituted a psychological “wearing down” of the defendant’s will proscribed by Miranda? Miranda teaches us:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.
If the interrogation continues without the presence of an attorney and a statement is 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 retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, note 14, 12 L. Ed. 2d 977, 986, 84 S. Ct. 1758. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 ALR 357 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U.S. 436, 473-75, 16 L. Ed. 2d 694, 723-24, 86 S. Ct. 1602.
The psychological “wearing down” process described in Miranda appears in all of its ugliness here. The “good guy — bad guy” routine practiced on this defendant will serve as no ornament to dedicated law enforcement within the framework of constitutional and statutory law. In my judgment, finding it to be otherwise is contrary to the manifest weight of the evidence.
The motion to suppress should have been allowed. Accordingly, I dissent.