dissenting:
The majority opinion reverses on conclusions that defendant’s confession should have been suppressed (a) because he did not waive his right to counsel during the custodial interrogation when the confession was obtained and (b) because the confession was improperly obtained through a subterfuge by Officer Meese. I disagree with both conclusions.
The majority first concludes that there was no waiver of defendant’s right to counsel “because the police did not tell him that his attorney was trying to reach him.” In reaching this conclusion the majority opinion relies entirely on “testimony” of defense attorney Rocco that he told Officer Meese that he wanted to speak to defendant. However, Rocco gave no such testimony.
At the hearing on the motion to suppress, Assistant State’s Attorney Raphaelson, who was an assistant United States Attorney at the time of trial, testified that he did not talk to Attorney Rocco until 3 p.m. on May 4, which was after defendant’s confession, and that prior thereto Raphaelson did not know that any attorney was trying or had attempted to reach defendant. Officer Meese testified that Attorney Rocco telephoned between noon and 12:15 p.m. on May 4 and requested only that he be notified when defendant was transferred to the Des Plaines station for a lineup and that he (Meese) called Rocco between 2:30 and 2:45 p.m. that day to inform him of the lineup but Rocco was not at home. Meese also testified that he was not told by Rocco or anyone else that Rocco wanted to speak to defendant. At the hearing, Rocco testified that he came to the Des Plaines station at 3:45 p.m. on May 4, which was after the confession, and that he was permitted to see defendant at that time. Rocco gave no testimony, as stated in the majority opinion, that he told Meese or anybody else at any time before the confession was given that he wanted to speak to defendant. In fact, no one gave any testimony at the hearing contradicting that of Raphaelson and Meese as set forth above.
The record does show that in his interrogation of Meese during the hearing to suppress the confession Rocco asked whether he (Rocco) told him in the telephone conversation on May 4 that he wanted to speak to defendant but Rocco did not testify to any such statement. The majority considered this questioning and a comment made by Rocco in his argument as testimony by him in reaching the conclusion that there was no waiver of counsel by defendant because his counsel was not permitted to speak with him. The conclusion is unsupportable.
The conclusion is also improper under Moran v. Burbine (1986), 475 U.S._, 89 L. Ed. 2d 410, 106 S. Ct. 1135, where the supreme court held that so long as defendant himself validly waived his right to counsel his statement to the police was admissible even though they would not allow an attorney hired by defendant’s sister to contact him. After his initial arrest for breaking and entering, Burbine was informed of his Miranda rights, but he refused to sign a waiver of counsel at that time. The police did not again question him for almost five hours, during which period others who had been arrested with Burbine implicated him in a murder. Within that five-hour interval, a lawyer from the office of the public defender, in response to a call from defendant’s sister, informed the police by telephone that he would act as Burbine’s attorney if he were questioned or was included in a lineup. The police did not inform Burbine of the call and subsequently, after Miranda warnings, undertook three separate interrogations of him, after each of which he signed waivers of his rights and gave written statements which were used at the murder trial.
It was held in Burbine that the conduct of the police in thwarting the efforts of counsel to contact him did not undermine the validity of the otherwise proper waiver of his right to counsel. The court stated, in pertinent part, that such deception “could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” Moran v. Burbine (1986), 475 U.S._,_, 89 L. Ed. 2d 410, 422, 106 S. Ct. 1135, 1142.
The majority here, while agreeing that under Burbine there would be a valid waiver in the instant case, relies instead upon People v. Smith (1982), 93 Ill. 2d 179, 442 N.E.2d 1325, in finding that there was not a waiver. In Smith, following defendant’s arrest he met with a private attorney who agreed to represent him and later the same day the attorney’s associate went to the jail where defendant was detained but was denied access to him. The court held that there could be no knowing waiver of the right to counsel “if the suspect has not been informed that the attorney was present and seeking to consult with him.” People v. Smith (1982), 93 Ill. 2d 179, 189, 442 N.E.2d 1325.
I view Smith as being inapplicable because (a) at the time of his confession defendant here had not retained an attorney and did not know that his sister had contacted Rocco; (b) no attorney had presented himself or herself at any place where defendant was detained and (c) there is no testimony in the record that any attorney had ever sought to speak or consult with defendant prior to his confession. See People v. Owens (1984), 102 Ill. 2d 88, 100, 464 N.E.2d 261; People v. Martin (1984), 102 Ill. 2d 412, 424, 466 N.E.2d 228 (Smith inapplicable where there was no indication in the record that any attorney attempted to confer with defendant prior to his confession).
I disagree also with the majority’s other conclusion in reversing that the court erred in denying the motion to suppress defendant’s confession because “Officer Meese made a knowing misrepresentation to defendant, the defendant’s confession which was improperly obtained by subterfuge, was involuntary, not freely given and was inadmissible.” As stated in the majority opinion, Meese admitted at the hearing on the motion to suppress that he made an untrue statement to defendant that the police had been notified by the city of Chicago that his car had been seen in the alley where the crimes occurred and that, while he could not be identified, he would have to explain why his car was there. Solely on the basis of this statement by Meese the majority finds that defendant’s confession was not freely and voluntarily given.
It is difficult to understand how the majority makes this finding since (a) defendant in his testimony made no mention of any statement by Meese that his car was seen in the alley where the crimes occurred; (b) defendant did not testify that any such statement by Meese or any other statement by anyone induced, coerced or influenced him in any manner to give his confession; (c) the confession was not given to Meese but to the two assistant State’s Attorneys, Raphaelson and Freedman, and there is nothing in the record which even remotely suggests that either said or did anything to influence the confession; and (d) defendant’s counsel did not contend at any time in the trial court that Meese’s statement coerced or influenced in any manner defendant’s confession.
In fact, the record discloses that the only question asked of defendant at the hearing on the motion to suppress concerning the reason he gave the confession was by his attorney as follows: “Now did you confess once you were — because you were hurt?” and defendant answered “Yes I wanted people to leave me alone.” Moreover, it is noted that the trial court found, in denying the motion to suppress the confession of defendant, that “his will was not overborne and he acted without any compulsion or any inducement of any sort whatsoever, and he received his rights, and he acted freely and voluntarily and intelligently when he made the statements.”
Under these circumstances, where its conclusion is based solely upon the statement made by Meese to defendant and neither defendant nor his attorney stated or gave any indication in the trial court that the statement in any way influenced his confession, the finding of the majority that the confession was not freely or voluntarily given because of Meese’s statement is unjustified.
For the reasons stated, I find that there is no support in the record here for the conclusions of the majority in reversing the convictions.