dissenting:
Defendant’s convictions of murder and armed robbery should be reversed and this cause should be remanded to the circuit court for a new trial. Despite the majority’s holding to the contrary, the trial court erroneously denied defendant’s motions to suppress statements made to police in violation of the fifth amendment and admitted into evidence defendant’s journal entry in violation of the Mental Health and Developmental Disabilities Confidentiality Act.
The trial court determined that Miranda warnings were not necessary until defendant was returned to the police station from the crime scene on the morning of June 2. The majority agrees, finding that it was only after defendant admitted he was to receive $500 for being a lookout that officers should have known that any further questioning would be likely to elicit an incriminating response from defendant. The record shows, however, that the officers had sufficient indication of the incriminating nature of defendant’s responses at a much earlier time.
Sometime after 7 p.m. on June 1, when defendant was returned to the police station from the hospital, he was questioned by Detective Katz and Sergeant Bernardini because he claimed to know the perpetrators of the S&S crimes. Bernardini stated that when asked why three people were killed during the S&S robbery, defendant became sullen, put his head in his hands and said that it was a "spur of the moment thing” and that it "wasn’t supposed to happen.” Defendant’s reaction to Bernardini’s question was a strong indication that defendant had intimate knowledge of the crime and that further questioning was reasonably likely to incriminate him. Nevertheless, the questioning continued without Miranda warnings.
When the officers doubted defendant’s claim that he had heard the crime being planned and had followed the robbers to the liquor store, defendant stated that if he told the truth, "he would just be getting himself in deeper,” but acknowledged that he was to meet the robbers at 10 p.m. and was hoping to get money after the robbery. The majority claims that the detectives’ doubts "were not designed to elicit an incriminating response from defendant.” (164 Ill. 2d at 451.) However, given the nature of this admission, if the detectives had not yet concluded that defendant might reasonably be expected to incriminate himself in response to their questions, they could no longer avoid that conclusion. Following Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682, defendant was thereafter under custodial interrogation and any statements he made were subject to the exclusionary rule of Miranda. I would therefore reverse that portion of the trial court’s order allowing the use of defendant’s unwarned statements made at the police station following his admission that he was to meet the robbers at the time of the robbery and his statements on the trip to the crime scene on the morning of June 2, 1989.
The majority also concludes that defendant was not coerced into making his first written statement, and thus his second written statement on June 2 and his statement to Richard Humber on June 4 were not tainted by the earlier failure of police to provide Miranda warnings. I disagree. In Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, the Supreme Court stated:
"It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” (Emphasis added.) Elstad, 470 U.S. at 309, 84 L. Ed. 2d at 232, 105 S. Ct. at 1293.
In Elstad, the Court determined that the respondent’s initial unwarned remark was voluntary, and thus did not taint his subsequent written confession given after he received Miranda warnings. The Court believed that nei ther the environment nor the manner of either interrogation was coercive, pointing out that respondent’s first conversation with police took place at midday, in the living-room area of his own home, with his mother in the kitchen, a few steps away. However, there are several distinctions between Elstad and the case at bar.
First, in Elstad the respondent’s warned confession was preceded by an unwarned yet volunteered remark. Here, however, defendant’s warned written statement was preceded by an unwarned written statement. Indeed, as the majority concedes, the second written statement was a mere reiteration of defendant’s previous statements. Second, in Elstad no deliberately coercive or improper tactics were used to obtain the initial statement. In the present case, however, there is a considerable amount of evidence which would suggest coercion and improper tactics on the part of the police.
The determination of a statement’s voluntariness depends on the totality of the circumstances, and consideration must be given to both the characteristics of the accused and the details of the interrogation. (People v. Simmons (1975), 60 Ill. 2d 173, 179.) Specific factors to be considered when making a determination of voluntariness include any deception on the part of the police, the age, education and intelligence of the accused, the duration of questioning, and whether he was subjected to any physical punishment. (People v. Martin (1984), 102 Ill. 2d 412, 427.) The accused’s emotional state and experience in criminal matters are also relevant. People v. Hester (1968), 39 Ill. 2d 489, 497.
Here, the record shows that defendant has a severely limited intellectual capacity with a history of mental problems. Additionally, defendant was, at the time of his interrogation, suicidal and depressed, having just returned from the hospital following a suicide attempt in his jail cell. Defendant’s interrogation was prolonged, spanning at least 14 hours, and included the pressure of being taken to the scene and pressed to explain weaknesses in his account of the events. (See Spano v. New York (1959), 360 U.S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202.) Although there were no direct promises of leniency, the police made statements which raised within defendant the hope of leniency and, particularly, the hope that his cooperation might result in his release. (See People v. Ruegger (1975), 32 Ill. App. 3d 765, 769.) Moreover, defendant was led to believe that the police possessed evidence of his footprint at the crime scene, prompting defendant to admit that he had been inside the store. The Supreme Court has stated that "any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege [against self-incrimination].” Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629.
It is true that defendant was not physically abused and was given food and permitted to use the rest room during breaks in his interrogation. Nor was defendant young or inexperienced in criminal matters, although it is questionable whether a 44-year-old man with an IQ estimated between 67 and 87 can be expected to have learned from experience. Nevertheless, from an examination of the "surrounding circumstances and the entire course of police conduct” with respect to defendant (Elstad, 470 U.S. at 318, 84 L. Ed. 2d at 238, 105 S. Ct. at 1298), it is clear that the manner of interrogation was coercive. Therefore, the administration of Miranda warnings prior to defendant’s subsequent written and oral statements did not cure the condition that rendered the unwarned statements inadmissible. (See In re T.S. (1986), 151 Ill. App. 3d 344, 353 (written confession of 15-year-old arson suspect was inadmissible despite Miranda warnings where it immediately followed and reiterated unwarned oral confession obtained pursuant to intimidating, coercive and deceptive interrogation).) Accordingly, the trial court committed reversible error in failing to suppress the tainted statements made by defendant on June 2 and 4. See In re T.S., 151 Ill. App. 3d 344.
Reversible error also occurred when a portion of defendant’s confidential statements to a mental health therapist was admitted in violation of the Mental Health and Developmental Disabilities Confidentiality Act (the Act) (Ill. Rev. Stat. 1991, ch. 91½, par. 801 et seq.). While I agree with the majority that the oral statements which defendant made to Julie Rice fall within the homicide exception of the Act, the majority’s conclusion that defendant’s journal entry was similarly admissible is contrary to the obvious intent of the statute.
The exception contained in section 10(a)(9) of the Act states: "Records and communications of the recipient may be disclosed in investigations of and trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide.” (Ill. Rev. Stat. 1991, ch. 91½, par. 810(a)(9).) As the appellate court aptly stated in People v. Doe (1991), 211 Ill. App. 3d 962, 967:
"The legislature intentionally included the words ’directly’ and ’immediate’ in this exception. (See Rosewood Corp. v. Transamerica Insurance Co. (1972), 8 Ill. App. 3d 592, 290 N.E.2d 656 (terms expressly stated in a statute were intended by legislature), aff’d (1974), 57 Ill. 2d 247, 311 N.E.2d 673.) Therefore, a showing that the disclosure merely relates to the circumstances of a homicide is not sufficient to invoke the exception. There must be a showing that the disclosure directly relates to the immediate circumstances of the homicide.” (Emphasis in original.)
There has been no such showing made in this case.
The majority contends that although defendant’s journal entry "does not use the phrase ’S&S,’ it can be interpreted as referring to the S&S armed robbery/ murders,” and was admissible because it "explained his reasons for committing armed robberies.” (164 Ill. 2d at 457.) However, defendant’s journal entry merely states that he "use to be *** a stick up man.” Because defendant has at least one prior robbery conviction, it is entirely possible that the journal entry did not refer to the crime in question. Construing the homicide exception so broadly as to include defendant’s vague references to former bad acts violates the Act’s clear prohibition against revealing mental health clients’ records and communications. These statements were not directly related to the fact or immediate circumstances of the S&S homicides. The admission of defendant’s journal entry into evidence was therefore erroneous and prejudicial and defendant should be entitled to a new trial.
For the foregoing reasons, I must dissent.