People v. Shaw , 180 Ill. App. 3d 1091 ( 1989 )

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, Jerry Shaw, was charged with attempted murder and three counts of aggravated battery arising from an incident in which he allegedly put paint thinner in his infant son’s milk bottles. Following his arrest, the defendant made both oral and written statements which formed the substance of a pretrial motion to suppress evidence. The trial court suppressed the statements based on its finding that they were induced by a police officer’s promise that the defendant could get help in the form of psychiatric counseling if he were found guilty. The State has appealed, contending that the trial court’s suppression of the statements was manifestly erroneous because it failed to consider the totality of the circumstances surrounding the making of the statements.

Chicago police officer Robert Loughran was the sole witness to testify at the hearing on the motion to suppress. Loughran stated that he and his partner interviewed the defendant at 10:30 p.m. on July 3, 1986. The defendant was advised of his Miranda rights and indicated that he understood them. In response to Loughran’s inquiry, the defendant stated that he was willing to answer questions at that time.

The defendant was then taken to a different interview room where Loughran had two or three conversations with him between 10:30 p.m. and 11:30 p.m. Each of these conversations lasted between 5 and 10 minutes. The defendant never indicated that he was unwilling to talk to the police, and Loughran testified that he neither threatened the defendant nor made any promises to him during those conversations.

During an interview which occurred at 11:40 p.m., the defendant asked Loughran what would happen to him if he were found guilty. Loughran testified that he responded to the defendant’s question by explaining the sentencing alternatives “from the misdemeanor level all the way up to a felony level.” He emphasized, however, that the sentencing decision was not in the hands of the police but was instead “basically up to the Judge.” Loughran also told the defendant that “there was a possibility of felony probation involved.” In response to the defendant’s request for further explanation, Loughran stated that “it was an order of Court of counseling. There is an order of Court on felony probation he would not be locked up. He would be on probation and through the courts.” Loughran testified that when the defendant asked further questions about counseling, Loughran repeatedly explained that a judge , would make the final decision. At the conclusion of this interview, the defendant agreed to give a statement. A police report prepared by Loughran contained the following statement: “After approximately one hour of periodically interviewing [the defendant], he asked that if he did do what he is accused of doing, he could get help. When told that he could get — probably get help through the courts, he related the following ***.”

The defendant then gave a written statement to an assistant State’s Attorney. According to Loughran, there was no conversation concerning “help or help through the courts” at that time. Before signing the statement, however, the defendant requested that the following sentence be added: “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.” The assistant State’s Attorney did not question the defendant about the nature of the help referred to in the added sentence.

Loughran then testified that the defendant was offered coffee and allowed to use the bathroom, that he did not request to use the telephone or to contact an attorney and that he did not appear to be under the influence of drugs or alcohol.

At the conclusion of the hearing the trial court granted the defendant’s motion to suppress, stating its reasons as follows:

“The test of the admissibility of the confession, the confession is made freely and voluntarily without compulsion or inducement of any sort. The Court finds that in this case the defendant stood mute until the youth officer made a promise to the defendant to get help, the promise which is articulated clearly in the statement.

The police told him he can get help, that coupled with the youth officer’s explanation of misdemeanor sentencing, probation by the Court, the defendant spoke only after the promise was made. The police officer’s report which clearly indicates a question by the defendant as to whether or not he could get help, the statement by the officer concerning the help that he would probably get followed by the defendant beginning to talk, the Court finds the defendant made a statement which was induced by promise of help.

The statement of providing treatment rather than punishment, I read the promise of treatment rather than punishment, accordingly, the motion to suppress the statement is sustained.”

The State has appealed, contending that the trial court erred in relying upon the promise of help as the single dispositive factor which required suppression of the defendant’s statement. The State maintains that the totality of the circumstances surrounding the making of the statement establishes that it was made voluntarily.

The admission into evidence of a confession which was not voluntarily made constitutes a violation of the defendant’s right to due process of law. (Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336; People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) In determining whether a statement was voluntarily made, the court must ascertain whether the defendant’s will was overborne at the time he made the statement, or whether the statement was made freely and voluntarily without compulsion of any sort. (People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.) The totality of the circumstances surrounding the making of the statement must be considered in arriving at this determination. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) These circumstances include such factors as whether the Miranda warnings were given, the presence of threats or physical coercion, whether the defendant was promised leniency, the length and intensity of the interrogation and the age, experience and physical condition of the defendant. (People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) A confession must be proved voluntary by a preponderance of the evidence, and the trial court’s finding on the issue of voluntariness will not be reversed unless it is against the manifest weight of the evidence. (People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.) A promise of leniency will not necessarily mandate a finding that the defendant’s statement was involuntary; rather, the ultimate question is whether under the totality of the circumstances the defendant’s will was overborne. People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.

In the case at bar, Officer Loughran’s testimony established that before giving a statement the defendant asked what would happen to him if he were found guilty. Loughran responded by explaining the sentencing alternatives available, from the misdemeanor level to the felony level. When the defendant expressed interest in the possibility of felony probation, Loughran explained that under that sentencing alternative the defendant would not be locked up and could receive help in the form of counseling through an order of the court. Loughran testified that he repeatedly told the defendant that the final decision as to whether counseling would be available was in the hands of a judge. However, in his police report, Loughran indicated that the defendant made his statement after being told that he could “probably” get help through the court. After making a written statement, the defendant requested the assistant State’s Attorney to add the following sentence: “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.” Loughran’s testimony further established that the defendant was advised of and indicated he understood his constitutional rights, that he was not threatened or coerced and was in good physical condition, that he was offered coffee and allowed to use the bathroom and that the interrogation was neither lengthy nor intense.

Based upon Loughran’s testimony, the trial court found that the promise of help overbore the defendant’s will and induced him to make a statement. The court accordingly suppressed the statement as having been involuntarily made. The State contends that the court’s finding of involuntariness was against the manifest weight of the evidence because it was based upon a single factor — the promise of help — rather than upon a consideration of the totality of the circumstances. In support of this contention, the State cites People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014, People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483, and People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57.

The cases cited by the State stand for the proposition that the trial court must consider the totality of the circumstances in determining whether a statement was voluntarily made. We do not interpret them, however, as saying that there can never be a case in which one factor so overwhelmingly overshadows the others as to support, in and of itself, a finding of involuntariness. In the case at bar Officer Loughran testified as to the giving of the Miranda warnings, the length and intensity of the interrogation, the physical condition of the defendant and the manner in which he was treated by the police. According to Loughran’s testimony, these factors favored the State’s position and there is no reason to believe that the trial court would have found otherwise had it expressly mentioned them in its finding. The court nevertheless found that the circumstances surrounding the police promise of help, including Loughran’s explanation of sentencing alternatives, his statement that the defendant would “probably” receive help and the defendant’s express reliance on the promise as evidenced by his addition to the written statement, showed that his will was overborne at the time the statement was made. In our view, the trial court could well have found that the specific statement that the defendant could probably get help through the court served to lessen the effectiveness of Loughran’s warnings that the final decision was in the hands of a judge. Based on the record before us, we cannot say that the trial court’s finding was against the manifest weight of the evidence.

Moreover, the cases relied upon by the State are factually distinguishable from the instant cause. In each case, the reviewing court stated that although a promise of leniency or help was made to the defendant, the promise did not influence the defendant’s decision to confess. In People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014, the trial court made a specific finding that it was not the promise of leniency that induced the defendant’s confession, but rather the fact that his commission of the offense had been discovered combined with a guilty conscience. The court based this finding in part on the fact that the defendant indicated in his written statement that he had not been promised leniency of any kind in return for his statement. A lack of reliance on the promise of help was also noted in People v. Noe (1980), 86 Ill. App. 3d 762, 766, 408 N.E.2d 483, 486, where the court stated that “it is significant that in the instant case when defendant was asked why he talked to police, he did not mention the suggestions of psychiatric help. He testified he talked to them because he was afraid of losing his wife.” Finally, in People v. Baine (1980), 82 Ill. App. 3d 604, 610, 403 N.E.2d 57, 61, the appellate court stated that “[o]ur review of the record indicates no evidence that the promise of leniency induced in the slightest way the defendant’s decision to confess.” Unlike the facts of Veal, Noe and Baine, the instant defendant’s reliance on the police promise of help is clearly reflected in his express mention of the promise in his written statement.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.