author: CHIEF JUSTICE RYAN JUSTICE MORAN,

text:
    (No. 55034.

      In re DANIEL MERRICK SCHUYLER, Jr., Attorney, Respondent.

      Opinion filed April 16, 1982.

      MORAN and UNDERWOOD, JJ., dissenting.
    Charles S. Morgan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Jacobs, Williams, and Montgomery, Ltd., of Chicago (Barry L. Kroll and C. Barry Montgomery, of counsel), for respondent.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This attorney disciplinary proceeding stems from the transfer of nearly $10,000 in 1970 from Hilda Waalkes, a 7 7-year-old lady who was living in a retirement home in Evanston, to the respondent, Daniel Merrick Schuyler, Jr., an attorney. The transaction did not come to light until after the death of Hilda Waalkes, who died in 1976.

The money was transferred to the respondent by Hilda following the death of her sister, Flora Waalkes. The transfers were made by four checks totaling $9,937.82 from different sources as follows:

Date: Maker: Amount: Payee: Source of Funds:
5/27/70 United of Omaha 6,133.81 Hilda Waalkes Annuity Policy
11/7/70 Pullman Bank 8c Trust Go. 19.67 Hilda or Flora Waalkes Certificate of Deposit
11/9/70 Pullman Bank & Trust Co. 84.34 Hilda or Flora Waalkes Certifícate of Deposit
11/12/70 Pullman Bank 8c Trust Go. 3,700.00 Hilda or Flora Waalkes Certificate of Deposit

A complaint was filed by the Administrator of the Attorney Registration and Disciplinary Commission charging the respondent with conduct which was unprofessional and unethical, which constituted undue influence, and which tended to bring the legal profession into disrepute. A panel of the Hearing Board found that the Administrator had proved by clear and convincing evidence that respondent had failed to rebut the presumption of undue influence in accepting gifts from Hilda Waalkes and had failed to advise her to seek independent advice. The panel recommended that respondent be suspended from the practice of law for six months.

The Review Board, without announcing its reasons, affirmed the findings and conclusions of the Hearing Board but modified the recommendation and ordered respondent to appear before the Review Board for the delivery of a reprimand pursuant to Commission Rule 10.4. We granted the Administrator’s petition for leave to file exceptions to the order of the Review Board. 73 Ill. 2d R. 753(e).

Two issues are presented for review. The first is whether the evidence clearly and convincingly establishes that respondent failed to rebut the presumption of undue influence which arose when respondent accepted nearly $10,000 from Hilda Waalkes while he was her attorney. The second issue is whether respondent’s conduct warrants the imposition of sanctions.

With regard to the first issue, although respondent suggests that the limited nature of his duties, i.e., filing income tax returns, falls short of an attorney-client relationship, this is clearly not true. The record reflects that, following Flora’s death, respondent performed other legal services for Hilda besides preparing her income tax return. The limited nature of his duties with respect to Hilda Waalkes did not lessen respondent’s professional responsibility as attorney with respect to her. Moreover, the existence of the attorney-client relationship results in a fiduciary relationship as a matter of law. In re Czachorski (1969), 41 Ill. 2d 459; In re Broverman (1968), 40 Ill. 2d 302, 307; McFail v. Braden (1960), 19 Ill. 2d 108; Gaffney v. Harmon (1950), 405 Ill. 273, 277.

It is a time-honored principle that all transactions occurring between attorney and client, while the relationship continues, must be subject to the closest scrutiny. (Elmore v. Johnson (1892), 143 Ill. 513, 525.) The measure of good faith which an attorney is required to exercise in all his dealings with his client is a much higher standard than is required when the parties deal with each other at arm’s length. Gaffney v. Harmon (1950), 405 Ill. 273, 277; In re Melnick (1943), 383 Ill. 200, 205; see also 7 Am. Jur. 2d Attorneys at Law sec. 121 (1980).

Accordingly, where an attorney engages in a transaction with his client and is benefited thereby, the burden rests with the attorney to show that it was fair, equitable and just, and that it did not proceed from undue influence. Turner v. Black (1960), 19 Ill. 2d 296, 305; McFail v. Braden (1960), 19 Ill. 2d 108, 117; Rose v. Frailey (1957), 10 Ill. 2d 514; Vrooman v. Hawbaker (1944), 387 Ill. 428, 435; see also 7 Am. Jur. 2d Attorneys at Law sec. 123 (1980).

Although, as the Hearing Board concluded, “many questions remain unanswered because of the failure of Respondent to appear and testify at the hearing other than by deposition,” certain essential facts are clear. Respondent was Hilda Waalkes’ attorney from 1965 or 1966 until 1973. Respondent also acted as attorney for Flora Waalkes, Hilda’s sister, from 1965 or 1966 until her death in 1970. The transfers from Hilda to respondent occurred after Flora’s death. However, the transfers came to light only after the death of Hilda Waalkes in 1976.

Shortly after Hilda Waalkes’ death, Frances Dalenberg, her niece, questioned respondent concerning the proceeds of Flora Waalkes’ annuity policy. Respondent said he would look into it. Later, in March 1976, Frances Dalenberg asked about the $6,000 which should have been received from the annuity policy. Respondent replied that it may have been put into a special account that his firm kept for client’s funds.

Frances Dalenberg retained Sheila Bator, an attorney, in May 1976 to represent her in connection with the estate of her aunt. Bator wrote to respondent asking for all the materials in his possession connected with Hilda Waalkes ’ estate and for information concerning the missing money. It was not until mid-September that respondent, returning Bator’s call, told her that he had just then remembered that Hilda Waalkes had given him the proceeds of an annuity policy in 1970. Respondent further stated to Bator that he had been very close to Hilda, closer than anyone except Frances Dalenberg, and that he remembered that Hilda had given him a gift but that he only then recalled that it was the proceeds of an annuity policy about which Bator had previously written. Respondent then indicated to Bator that he had a memorandum of gift and a gift tax return. After many attempts to obtain copies, Bator was finally furnished with them.

The Xerox copies of missing originals refer to the amount of $6,133.81, the amount of only one of the four checks. The memorandum of gift was prepared by respondent and dated July 13, 1970. The handwritten gift tax return was dated March 13, 1971. The Internal Revenue Service had no record of having received the gift tax return. When Bator asked respondent why the gift tax return did not include the amount of the other three checks, respondent replied that it was not enough money to make it necessary.

The probate record in Hilda’s estate shows that the circuit court authorized settlement of a claim against respondent and his former law firm in the amount of $15,000 based on “a cause of action *** arising out of various events which occurred on or about 1970 whereby the Estate of Hilda Waalkes was injured in property by reason of an alleged forgery or conversion of certain funds * ** 39

In its report, the Hearing Board stated that it was making no finding as to respondent’s “failure to be candid in accounting for the funds”; hence, the recommended six months’ suspension is not based on respondent’s apparent lack of forthrightness. Rather, the Hearing Board found that the respondent had not rebutted the presumption of undue influence in accepting the gifts and failed to advise Hilda Waalkes to seek independent counsel. This conduct the Hearing Board found to be unethical.

As pointed out earlier, a fiduciary relationship exists between attorney and client as a matter of law. Where the attorney benefits from a transaction with a client during the existence of the attorney-client relationship, the burden is on the attorney to show that the benefit was not the result of undue influence.

It is, of course, extremely difficult to overcome the presumption of undue influence when no third party is privy to the transactions. In his brief before this court, respondent has indicated that he now recognizes that the “wiser course” would have been to insist that Hilda Waalkes discuss the proposed gifts with a third party, “if only for his own protection.” The “memorandum of gift” prepared by respondent was, unfortunately, not witnessed and covered only part of the total amount of the gifts. Additionally, this court has in the past looked with disfavor on documents prepared by attorneys in which the attorney’s questionable conduct is later ratified by the client. (In re Broverman (1968), 40 Ill. 2d 302, 307.) This is not to suggest that respondent’s conduct in any way equaled the seriousness of the conduct in Broverman, but only to suggest that, at best, an unwitnessed “memorandum of gift,” even covering the full amount, is a poor substitute for the advice, or at least presence, of a disinterested third party.

This situation can be contrasted to In re Barrick (1981), 87 Ill. 2d 233, in which the attorney who drafted a will included a lifetime annuity for himself of $12,000 per year, the amount he had been receiving as an annual retainer, at the request of his client. In Barrick a third party, the business manager of the client, was privy to the transaction, and the attorney advised the client that she should select another lawyer to draft her will if she insisted upon including a legacy for him. The client continued to insist both that the attorney draft her will and that he be included in it. Three persons who were strangers to the attorney witnessed the will, and the attorney explained to them that he and the business manager were beneficiaries under the will. We dismissed the charge in that case because the attorney had done all that he could to protect both himself and his client. He advised her that there were ethical considerations involved and that she should secure the assistance of another attorney. A third party was privy to the entire transaction, and there were additional witnesses who were aware that the attorney was named beneficiary. As such, the presumption of undue influence was overcome.

Although we have not before confronted facts exactly like these, similar questions have arisen in other jurisdictions. In Cuthbert v. Heidsieck (Mo. 1963), 364 S.W.2d 583, 588, the Supreme Court of Missouri set aside a purported gift of stock worth approximately $20,000 from an 80-year-old woman to her attorney on the ground that the record did not establish that the client had “independent and disinterested advice” regarding her transfer of stock and her reasonable obligations to the defendant or that she discussed her intentions before or after the transfer with third parties. The court concluded: “defendant’s position would be much improved had [the client] secured and acted upon the advice of some competent disinterested person who was cognizant of all the circumstances connected with the transaction.” Cuthbert v. Heidsieck (Mo. 1963), 364 S.W.2d 583, 588; see also Flanagan v. DeLapp (Mo. 1976), 533 S.W.2d 592; McDonald v. Hewlett (1951), 102 Cal. App. 2d 680, 228 P.2d 83; Nicholson v. Shockey (1951), 192 Va. 270, 64 S.E.2d 813; Marron v. Bowen (1944), 235 Iowa 108, 16 N.W.2d 14; Armstrong v. Morrow (1917), 166 Wis. 1, 163 N.W. 179; Whipple v. Barton (1886), 63 N.H. 613, 3 A. 922.

We point out that the cases just discussed do not involve disciplinary proceedings, but involve actions which seek to nullify benefits received by attorneys from those with whom they had a fiduciary relationship. Transactions between an attorney and his client must be closely scrutinized. A gift from a client to his attorney raises a presumption of undue influence sufficient to establish a prima facie case and to place the burden on the attorney to prove, by clear and convincing evidence, that the gift was not induced by undue influence. (See generally 7 Am. Jur. 2d Attorneys at Law sec. 123 (1980); Annot., 24 A.L.R.2d 1288 (1952).) This court, in McFail v. Braden (1960), 19 Ill. 2d 108, held that an attorney was not prohibited from dealing with his client, and transactions, if open, fair and honest when deliberately made, are valid. This court stated:

“[I] mportant factors in determining whether a transaction is fair include a showing by the fiduciary (1) that he made a full and frank disclosure of all the relevant information that he had; (2) that the consideration was adequate; and (3) that the principal had independent advice before completing the transaction.” (McFail v. Braden (1960), 19 Ill. 2d 108, 117-18.)

We must consider whether the same considerations are applicable in disciplinary proceedings as in actions to invalidate transfers from a client to his attorney. Rule 5 — 104(a) of the Illinois Code of Professional Responsibility provides:

“A lawyer shall not enter into a business transaction with a client if they have conflicting interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” (79 Ill. 2d R. 5-104(a).)

In view of this provision, it would appear that the application of the presumption of undue influence and the requirement that the attorney overcome the presumption by clear and convincing evidence is appropriate in disciplinary proceedings.

The Administrator, in the briefs filed herein, places heavy emphasis on the fact that the respondent did not advise Hilda Waalkes to seek independent legal advice and that she, in fact, did not have independent legal advice concerning the gifts. In In re Saladino (1978), 71 Ill. 2d 263, and In re Anderson (1972), 52 Ill. 2d 202, this court, in those disciplinary cases, seemed to apply the usual presumption of undue influence and noted that the client did not have independent legal advice concerning the transaction with the attorney. While independent legal advice to the client, or advising the client to secure independent legal advice, may be a very compelling means of rebutting the presumption of undue influence, it is not necessarily an indispensable means. If the attorney can rebut the presumption in other ways, failure to comply with the independent-legal-advice test will not alone require the attorney to be disciplined.

In this case the Hearing Board found that the respondent had failed to rebut the presumption of undue influence by clear and convincing evidence and that his conduct was unethical. The Review Board affirmed the Hearing Board’s findings and conclusions but modified the recommendation as to discipline. While the Hearing Board and the Review Board both found the failure to advise Hilda Waalkes to procure independent legal advice to be part of the respondent’s unethical conduct, we find that, aside from the consideration of that element, the respondent has failed to rebut the presumption of undue influence by clear and convincing evidence. Although Hilda Waalkes apparently signed a memorandum of gift, there was no evidence concerning the circumstances surrounding the execution of that document, and, as noted earlier, it was not witnessed by a third party and does not cover all the gifts made to the respondent.

In the instant case, although respondent, in his brief before the Review Board, attempted to characterize his conduct as a “technical transgression” and a failure to follow a “mere formality,” it is clear that Hilda Waalkes did not receive the kind of protection which all clients should receive in dealings in which the attorney receives substantial benefit. A totally private transaction, inadequately documented, clearly fails to rebut the presumption of undue influence which arises when the attorney benefits during the attorney-client relationship.

When disciplinary action is warranted, as in this case, the sanctions which may be imposed include censure, suspension and disbarment. In determining the proper sanction, each case is considered unique and the court must look to all the facts and circumstances. In re Howard (1977), 69 Ill. 2d 343, 354.

In the instant case, the Hearing Board has recommended a suspension from the practice of law for a period of six months and the Review Board has ordered the delivery of a reprimand. However, the final responsibility for imposing discipline rests with this court. In re Hopper (1981), 85 Ill. 2d 318, 323; In re Sherman (1975), 60 Ill. 2d 590, 593.

In this case, however, the presumption of undue influence stands alone as evidence of respondent’s transgression. There is no clear and convincing evidence that the respondent’s conduct was the result of anything more than exceedingly poor judgment. Furthermore, it appears that the conduct complained of in this instance is an isolated event. Nothing else in respondent’s background detracts from an otherwise unblemished record. Accordingly, respondent is hereby ordered censured.

Respondent censured.

JUSTICE MORAN,

dissenting:

After thorough analysis, the majority concludes that disciplinary action is warranted and states:

“[I]t is clear that Hilda Waalkes did not receive the kind of protection which all clients should receive in dealings in which the attorney receives substantial benefit. A totally private transaction, inadequately documented, clearly fails to rebut the presumption of undue influence which arises when the attorney benefits during the attorney-client relationship.” (91 Ill. 2d at 17.)

It then imposes a sanction of censure, determining that respondent’s conduct resulted from nothing more than “exceedingly poor judgment” and that it was an isolated event. I agree with the majority’s conclusion that disciplinary action is warranted. However, I believe that in disciplinary cases where the facts and circumstances are alike or so similar to those in a previous case, it is unfair to the persons involved to impose disparate sanctions. Consistency is possible because final responsibility for imposing discipline rests with this court.

In In re Saladino (1978), 71 Ill. 2d 263, the respondent took legal title to a house he purchased for his client and named himself the sole legatee under the residuary clause of his client’s will. With respect to respondent taking title to his client’s house, respondent prepared the deed conveying the house to his wife and himself. He testified that this action was taken so the acquisition of an asset would not jeopardize his client’s eligibility for government assistance and because his client’s poor health might require a sale at a time when she was incapable of participating in such a sale. Respondent stated that to protect his client’s interest he, at the same time the other deed was prepared, drew up another warranty deed conveying the property to his client. He also prepared a closing statement that showed her as purchaser. When the client demanded the property be placed in her name, respondent delivered the deed to her the next day at his office. This court found that the respondent may have had good intentions but, nonetheless, his conduct constituted an abuse of a fiduciary relationship. (71 Ill. 2d 263, 270.) With respect to naming himself sole legatee under the will, the court noted that respondent was named as the next responsible person when his client was hospitalized. The court did not believe the will was the result of free deliberation or that his client received independent advice. Notwithstanding the fact that respondent “may have had good intentions” with respect to the conduct regarding the house, and the lack of any indicia of fraud with respect to the will, the court suspended respondent, who had a prior unblemished record, for three months. In imposing a suspension, the court stated:

“[I] t [the length of suspension] should be closely linked to the harm caused or the unreasonable risk created by the lack of care.
Respondent did not cause actual harm; that is, complainant did not suffer any financial loss. However, she was needlessly exposed to risk of such loss: her interest in the house was unprotected, and a significant part of her estate could have gone to respondent. Where an attorney exposes a client to the risk of loss, jeopardizes the freedom or the pecuniary or privacy interests of a client, or otherwise abuses his or her relationship with a client, whether or not the attorney receives an intended advantage, the attorney has breached a duty, owed to a client, of safeguarding the public.” 71 Ill. 2d 263, 276.

In the instant case, the respondent’s misconduct was greater than that in Saladino, where no actual harm resulted. Here, the undue influence found by the majority resulted in respondent’s receipt of nearly $10,000, and financial loss to Hilda Waalkes’ estate in that amount. Moreover, here, Hilda Waalkes’ niece first questioned respondent about the $6,000 that should have been received from the annuity policy in late January or early February 1976. Respondent said he would look into it. Then, in March 1976, the niece asked respondent if he had a chance to determine what happened to the proceeds of the United of Omaha policy, which should amount to approximately $6,000. Respondent replied that it may have been put into a special account that his firm kept for clients’ funds. As noted by the majority, it was not until mid-September that respondent, submitting to requests by the niece’s attorney for materials with respect to Hilda Waalkes’ estate and information concerning the missing money, told her that he had just then remembered that Hilda Waalkes had given him the proceeds of an annuity policy in 1970 (which was for $6,133.81). The attorney for the niece also testified that, at a meeting in July 1977, respondent first denied that he had received the $6,133.81 check for the proceeds of the annuity policy. He then admitted receiving it when the attorney reminded him he had sent her a copy of a gift tax return and a gift memorandum. She also testified that at that July meeting respondent first denied receiving the $3,700 certificate of deposit check, but then admitted receiving it after the attorney told him he had endorsed the check. In addition, the Internal Revenue Service had no record of having received a gift tax return for the annuity gift. Further, respondent’s copy of the gift tax return revealed only a gift of $6,133.81, rather than the total amount of the gifts, $9,937.82.

As noted earlier, the majority held that respondent failed to rebut the presumption of undue influence and disciplinary action is, therefore, warranted. Although respondent’s misconduct did not rise to the level of that in other cases regarding breach of fiduciary relationship (see In re Anderson (1972), 52 Ill. 2d 202), I believe the actual receipt of nearly $10,000 resulting from undue influence, to the detriment of Hilda Waalkes’ estate, combined with the conduct exhibited by respondent in revealing the existence of the gifts, warrants a penalty more severe than the minimum sanction of censure imposed by the majority.

JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 54762.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CLINT DALTON, Appellee.

      Opinion filed April 16, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (Herbert Lee B. Caplan, Melbourne A. Noel, Jr., Jack Donatelli, and Neal B. Goodfriend, Assistant Attorneys General, of Chicago, and John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz and Peter A. Carusona, Assistant Defenders, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

A Peoria County circuit court jury found defendant, Clint Dalton, guilty on two of three counts of indecent liberties with a child, and he was sentenced to two concurrent four-year terms of imprisonment. The appellate court reversed, holding that the State had failed to establish an essential element of the crime: defendant’s age. (93 Ill. App. 3d 264.) That holding was based upon two independent grounds: (1) the only evidence of his age was a statement made by defendant to an officer investigating the offense, which the court held was taken in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; and (2) defendant’s admission of his age was not corroborated by anything in the record as required by Wistrand v. People (1904), 213 Ill. 72. We granted the State’s petition for leave to appeal.

The offense of indecent liberties with a child is defined, in relevant part, by section 11-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)):

“Any person of the age of 17 years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of 16:
(2) Any act of deviate sexual conduct; ***.”

Proof of defendant’s age was offered in the form of testimony given by Officer Martha Childers, who worked in the juvenile division of the Peoria police force. She testified that she first learned of the offense in an October 1978 conversation with defendant’s three younger sisters, the victims of this crime, whom the court had earlier removed from the family home and subsequently placed in foster homes. In that conversation the sisters indicated that defendant forced them to submit to various sexual acts. (At the time of trial one girl was 10 years old and her younger twin sisters were 8 years old.) Defendant was arrested on these charges the following February and interviewed by Officer Childers three days later. Their conversation lasted about an hour, during which defendant gave his date of birth in response to her question.

It is clear from the testimony of both the officer and defendant that at some point during this conversation defendant was informed of his Miranda rights and that he said he would not discuss the charges without first consulting his attorney. However, he also expressly indicated his willingness to talk about anything else, and he subsequently brought up the subject of the pending charges.

While we do not believe the timing of the Miranda warning is controlling, the appellate court erred in holding that Officer Childers’ inquiry regarding defendant’s age preceded the warnings. She originally testified that the warning was given prior to asking defendant’s age. On cross-examination, however, she acknowledged uncertainty whether she asked him his date of birth before or after she read defendant the Miranda warnings. Defendant testified, on both direct examination and cross-examination, that the first thing the officer did when he entered the room and sat down was to read him his rights. This testimony leaves no doubt that any statements made by defendant followed the warning. The primary question here, in our judgment, is not whether the warning preceded or followed the question; rather, it is whether Miranda prohibits inquiry into certain basic identifying data concerning a defendant, where the response, as here, might establish an element of the crime with which he is charged. The decisions in other jurisdictions which have considered the question support the conclusion that such inquiry is not barred. (Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d 229 (defendants stated their age at booking prior to Miranda warnings; age was an element of the offense); State v. Rassmussen (1969), 92 Idaho 731, 449 P.2d 837 (defendant, charged with procurement, stated at booking, after talking to his attorney, that his occupation was “pimp”); People v. Hernandez (1968), 263 Cal. App. 2d 242, 69 Cal. Rptr. 448 (defendant gave his date of birth at booking; age was an element of the offense).) Numerous other cases have held that Miranda does not prohibit inquiry into background data even though that information is later used to gather more evidence against a defendant or is itself used as supporting evidence of defendant’s guilt. (See, e.g., United States v. Grant (4th Cir. 1977), 549 F.2d 942 (spontaneous admission of guilt during booking); United States v. Prewitt (7th Cir. 1977), 553 F.2d 1082 (defendant’s “alias” taken during booking used to gather more evidence); United States ex rel. Hines v. LaVallee (2d Cir. 1975), 521 F.2d 1109 (defendant responded to prebooking questions regarding marital status and children which proved to be incriminating); United States v. Menichino (5th Cir. 1974), 497 F.2d 935 (defendant volunteered incriminating statements during, but not connected with, booking process); United States v. La Monica (9th Cir. 1972), 472 F.2d 580 (defendant made incriminating statement while identifying a receipt during personal effects inventory after arrest); Toohey v. United States (9th Cir. 1968), 404 F.2d 907 (FBI used defendant’s address as a starting point in search of witnesses); Farley v. United States (5th Cir. 1967), 381 F.2d 357 (defendant’s address was used to impeach his explanation of coincidence that he was found at the scene of the crime); People v. Fognini (1970), 47 Ill. 2d 150 (no Miranda prohibition of obtaining defendant’s alias during booking); People v. Rivera (1970), 26 N.Y.2d 304, 258 N.E.2d 699, 310 N.Y.S.2d 287 (defendant’s statement of false address given at arrest used to impeach); Clarke v. State (1968), 3 Md. App. 447, 240 A.2d 291, (defendant’s address used to uncover stolen goods); Propst v. State (1968), 5 Md. App. 36, 245 A.2d 88 (defendant’s address used to establish control of premises); but see Proctor v. United States (D.C. Cir. 1968), 404 F.2d 819 (defendant’s statements about his employment status, made during booking, were inadmissible under Miranda, to rebut his preferred alibi).) We accordingly hold that under these circumstances Officer Childers’ inquiry about defendant’s date of birth was not proscribed by Miranda and, consequently, defendant’s response was properly admitted.

Defendant argues, however, that age is a necessary element of the corpus delicti of indecent liberties with a child and therefore the State must produce corroborating evidence aliunde his admission. (Wistrand v. People (1904), 213 Ill. 72; People v. Rogers (1953), 415 Ill. 343.) In both Wistrand and Rogers the defendants were convicted of rape and the State relied solely on each defendant’s extrajudicial statement of his age to prove that element of the crime. This court reversed both convictions on the basis that the corpus delicti cannot be established by the confession of the defendant alone. In Wistrand the court held that age was essential to the corpus delicti of rape, for if the defendant was under 17 years of age there was no crime, and, therefore, defendant’s statement of his age must be corroborated. The court held that the jury’s observation of the defendant, who was 44 years old, was insufficient corroboration. 213 Ill. 72, 79-80.

The State invites us to abandon the Wistrand, rule in this case, arguing that one’s admission of his age is an inherently reliable statement and is therefore admissible to establish corpus delicti without corroboration. The purpose of the corroboration rule, argues the State, is to provide some indication that the confession or admission is reliable and where there is no question of reliability, as in this case where a defendant has stated his date of birth, the rule is inapplicable. Alternatively, the State argues that if corroboration is necessary, there is sufficient corroborating evidence in the record. We note that defendant’s statement of his age is corroborated by his testimony at a February 26, 1980, bail hearing and by the booking record, neither of which, however, was before the jury.

The State’s argument as to the strength of the “corroborative” testimony is somewhat overdone. While corroborative evidence need not establish corpus delicti beyond a reasonable doubt (People v. Willingham (1982), 89 Ill. 2d 352, 359; People v. Perfecto (1962), 26 Ill. 2d 228, 229), it must be more probative than that offered here. The strongest evidence that the State suggests corroborates defendant’s age is his prior conviction of misdemeanor theft, which was offered to impeach his credibility. However, this conviction was obtained several months after the period in which the indictment alleged that the crimes occurred. It is not probative of defendant’s age during the period for which he was indicted. Nor are references in the record to defendant as “Mr. Dalton,” “this young man,” or “an adult compared to other witnesses” particularly helpful to the State.

However, we believe there is merit in the State’s argument that the rule of Wistrand and Rogers should be modified insofar as it holds that age is subject to the corroboration requirement. Rather than abandon the rule entirely, we would have been inclined in those cases to hold simply that the jury’s observation of defendants was sufficient corroboration. However, unlike the defendants in Wistrand and Rogers, who were considerably over the statutory age, defendant Dalton was 20 years old at the time of trial and sufficiently close to the statutory age that we think observation could be unreliable. Our conclusion is that age, while perhaps technically an element of the corpus delicti of indecent liberties, is not subject to the same infirmities when admitted to by a defendant as are more subjective admissions. Consequently, we do not believe that the purpose of the corroboration rule would be served by applying it in these circumstances.

The corroboration rule requires that the corpus delicti be proved by some evidence aliunde admission of a defendant. Proof of corpus delicti requires both proof of injury or loss, as well as proof of criminal agency. (7 Wigmore, Evidence sec. 2072 (rev. ed. 1978); McCormick, Evidence sec. 158, at 347 (2d ed. 1972).) The corroboration rule was the result of an historical mistrust of extrajudicial confessions. Two reasons for this mistrust have commonly been cited: confessions are unreliable if coerced; and, for various psychological reasons persons “confess” to crimes that either have never occurred or for which they are not legally responsible. (See generally 7 Wigmore, Evidence secs. 2070 through 2072 (rev. ed. 1978); McCormick, Evidence sec. 158 (2d ed. 1972); Developments in the Law — Confessions, 79 Harv. L. Rev. 938, 1072-84 (1966); Note, Proof of the Corpus Delicti Aliunde: the Defendant’s Confession, 103 U. Pa. L. Rev. 638 (1955); see also Smith v. United States (1954), 348 U.S. 147, 99 L. Ed. 192, 75 S. Ct. 194.) Although the rule has been criticized and its elimination urged (7 Wigmore sec. 2070, at 510 (rev. ed 1978); Developments in the Law — Confessions, 79 Harv. L. Rev. 938, 1084; Daeche v. United States (2d Cir. 1918), 250 F. 566, 571 (opinion by Judge Learned Hand)), we remain unconvinced that it should be completely abandoned (People v. Willingham (1982), 89 Ill. 2d 352, 358-59).

However, where the rule may serve to guard against a possible miscarriage of justice in the instance of a forced confession or a “confession” to a crime that has not been committed, it does not appear to us that this purpose is served by requiring corroboration of a defendant’s admission of his age given in circumstances arousing no doubt of its reliability. An admission of one’s birth date is not subject to the peculiar perceptions or recollections of a defendant who is under the psychological pressures of an arrest or indictment. (See Smith v. United States (1954), 348 U.S. 147, 153, 99 L. Ed. 192, 198-99, 75 S. Ct. 194, 197.) It appears to be inherently more reliable than a statement of what one did, or saw, or heard, or thought because it is a statement of an immutable characteristic. In this regard it is much more similar to personal characteristics such as fingerprints, handwriting, blood type or voice pattern. Unlike these latter characteristics, which might tend to prove an element of a crime, in this case, the characteristic itself, without more, is an element of the crime. We do not believe that this distinction requires application of the corroboration rule. Accordingly we hold that the statement was admissible without corroboration. Our holdings in Wistrand and Rogers, to the extent that they are contrary to this opinion, are overruled.

Defendant raises two other grounds for reversal which were presented to, but not considered by, the appellate court. Since they have been briefed here by both the defendant and the State, in the interest of judicial economy we will address them.

Defendant argues that the trial court erred in denying his motion to suppress another statement made by defendant to Officer Childers in the course of his conversation with her. Officer Childers testified that after defendant told her he would not discuss the charges against him without first talking to his attorney, she did not inquire further about them. At some point during their conversation, defendant returned to the subject, without prompting from her, and asked the specific nature of the charges. She told him. She testified that he then said that he would sometimes tell his sisters to “suck his dick” if he was angry with them, but that he meant it only as a request to leave him alone. Defendant argues that the statement is inadmissible because he had invoked his Miranda right to cut off questioning on these charges.

The trial court’s ruling on the motion indicates that it found the statement was voluntarily made because testimony indicated that defendant had initiated the inquiry about the charges. Defendant does not contest the finding that he had initiated that part of the conversation but only that the State had not met its heavy burden of showing the defendant’s waiver of his right to silence. (People v. Washington (1977), 68 Ill. 2d 186, cert. denied (1978), 435 U.S. 981, 56 L. Ed. 2d 72, 98 S. Ct. 1631.) The question of voluntariness is to be determined by the trial court, and its ruling will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Aldridge (1980), 79 Ill. 2d 87, 93; People v. Medina (1978), 71 Ill. 2d 254, 258.) The trial court’s finding that defendant had initiated the conversation reopening this topic is not disputed, and its finding that the ensuing statement was voluntarily made is clearly not against the manifest weight of the evidence.

Defendant also contends that the trial court failed to exercise discretion in denying his motion to suppress the evidence of his prior conviction for misdemeanor theft which was introduced to impeach his credibility. (See People v. Malone (1979), 78 Ill. 2d 34.) The trial court, after hearing arguments on the motion and reading Malone, ruled that “I am bound by the ruling in the case of [Malone] and under those circumstances, the motion in limine is denied.” Defendant argues that this statement indicates that the trial judge did not exercise his discretion in determining whether the probative value of the conviction outweighed its prejudicial effect. This contention is belied by the fact that the court heard oral argument on the motion and apparently read the Malone decision at that time. The judge was in fact bound by Malone, and we cannot, on this record, attribute to him a misunderstanding of the nature of his ruling on the issue being argued before him.

Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court of Peoria County.

Appellate court reversed; circuit court affirmed.


author: JUSTICE MORAN JUSTICE UNDERWOOD,

text:
    (No. 54906.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. IVORY J. TOWNES, Appellee.

      Opinion filed April 16, 1982.

      UNDERWOOD, J., and RYAN, C.J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Edward Litak, State’s Attorney, of Danville (Robert J. Biderm an and James K. Horstman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Kennith W. Blan, Jr., of Danville, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Subsequent to a denial of defendant’s pretrial motion to suppress an inculpatory statement he made to the police, a jury in the circuit court of Vermilion County found defendant, Ivory J. Townes, guilty of rape, deviate sexual assault and home invasion in violation of sections 11-1, 11-3 and 12-11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3, 12-11). Defendant received consecutive sentences of 30 years each on the rape and deviate sexual assault convictions, to run concurrently with a sentence of 10 years’ imprisonment for home invasion. The appellate court reversed and remanded the cause for a new trial, holding that the statement made by the defendant to the police should have been suppressed because it was elicited subsequent to an illegal seizure. (94 Ill. App. 3d 850.) We granted the State leave to appeal.

One issue is raised on appeal: Were defendant’s fourth amendment rights violated when, on less than probable cause, he was subjected to a lengthy interrogation at the police station?

The complainant testified that, on January 16, 1980, she awoke at approximately 3 a.m. to find a man standing in her bedroom doorway. He was holding what appeared to be an iron bar and demanded money. After she complied with this demand, he forced her back into bed and committed the sexual acts previously stated. The complainant further testified that, while she was struggling with the man, she hit him on the head with the iron bar and bit his finger.

Soon after the occurrence, the victim was able to give the police only a vague description of her assailant. She indicated that he was a short black man with a thin build, a moustache, and an “Afro” hair style, and that his lips were “thick and full.” Later, she was unable to identify the intruder from a series of photographs shown to her by the police. However, she did point out certain features in the photographs which resembled those of her assailant. On the basis of this information, and their knowledge of “local” people with criminal records, the police compiled a list of possible suspects.

Defendant’s name was included on the list, and two Danville, Illinois, police officers visited his residence in Georgetown, Illinois, at approximately 9 a.m. on the day following the incident. One of the officers testified that the defendant was told they “wished to speak to him at the Danville Police Department. ” When defendant asked their reason, the officers informed him that they were investigating an entry into an apartment and an assault on a woman. The evidence further disclosed that defendant was given the choice of accompanying the officers in the police car or driving his own car to the station. Defendant chose to ride with the policemen, and they arrived at the station at 9:30 a.m.

Defendant was thereupon taken into an interview room where an officer read to him the Miranda warnings. He initialed a form indicating that he understood these rights. Subsequently, the police conducted a series of interviews with the defendant. He was read the Miranda warnings prior to each session.

During the initial interview, which began at 9:37 a.m. and lasted until 9:50 a.m., defendant provided an alibi with respect to his whereabouts at the time of the offense. When asked to explain the scratches on his neck, he indicated that he received them while playing with his niece. He also stated that he had a bump on his head because the hood of his car fell on him while he was changing the battery.

A second interview was conducted from 10:27 a.m. until approximately 10:45 a.m. Defendant was again asked to explain his wounds, and whether he would consent to a search of his home and car. Pursuant to his consent, an officer searched his car and discovered two iron bars. He noticed a red substance on one of them, which a laboratory test later revealed was human blood. During the third interview, which began at 11:30 a.m. and lasted about 15 minutes, defendant was asked to display his hands. An officer noticed a mark on his left middle finger, which defendant claimed was caused by a splinter.

At 1:10 p.m. a fourth interview began, during which defendant was informed that an iron bar with blood on it was found in his car. Defendant stated that he was using the bar to pry off a battery cable when the car hood fell on him. He was then asked if he would submit to a medical examination, and defendant indicated that he would. He was transported to a medical center at 2 p.m., where he was requested to give head and pubic hair samples, and fingernail scrapings. The examination revealed scratches and bruises around defendant’s neck, a bump on his head, and a bruise on his left middle finger. Defendant was then returned to the police station at 4 p.m. and placed in a lineup. The victim was unable to identify him as her assailant.

A final interview was conducted from 6 p.m. until 10:10 p.m., during which defendant admitted that he was in the victim’s apartment and that he had sexual relations with her. However, he maintained that the relations were consensual and that he did not rape her. He further claimed that the victim was not injured when he left her apartment and he thought that any injuries she received resulted from her bumping into something. At the conclusion of the interview, defendant was formally charged. The statements he made during the course of the fifth interview were introduced into evidence at trial by the State.

Defendant, relying on Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, argues that he was illegally seized when, without probable cause, he was interrogated at the police station at various times for a period of more than 12 hours. Since his admissions, it is argued, were the product of an unlawful detention, they should have been suppressed pursuant to defendant’s motion. We agree that the circumstances of Dunaway are apposite to our case.

In Dunaway, the petitioner was transported by the police to the station house, where he was placed in an interrogation room and questioned. The court found that petitioner’s detention for custodial interrogation was similar to that which accompanies a traditional arrest. It therefore concluded that he was seized within the meaning of the fourth amendment. Since the seizure was based on less than probable cause, it was held illegal.

Similarly, in the instant case, the defendant’s detention resembled a traditional arrest, and the circumstances indicate that a reasonable person would not have believed he was free to leave. As previously noted, defendant was not questioned briefly at his residence. Rather, he was subjected to five different interviews at the police station and remained there from 9:30 a.m. until 10:10 p.m. He was consistently read his Miranda rights, which could indicate to a reasonable person that he was in custody on suspicion of criminal activity. The police officers, pursuant to defendant’s consent, searched his home and car and confronted him with the fruits of that search. They requested that he submit to a medical examination, and transported him to a local clinic for that purpose. Upon returning to the police station, defendant was placed in a lineup. Although the victim was unable to identify him as her assailant, the defendant was not released but rather was questioned further for four hours. During the hours in which defendant remained at the police station, he was never informed that he could leave or that he was not under arrest. See Dunaway v. New York (1979), 442 U.S. 200, 212, 60 L. Ed. 2d 824, 836, 99 S. Ct. 2248, 2256.

Further, as in Dunaway, the seizure of defendant without probable cause had an improper “ ‘quality of purposefulness,’ ” in that it appears to have been an “ ‘expedition for evidence.’ ” (442 U.S. 200, 218, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259, quoting Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.) The circumstances indicate that the officers interrogated the defendant in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for an arrest.

The State concedes that the police lacked probable cause to arrest the defendant at the time they visited his residence. However, it is argued that a finding of probable cause is unnecessary because defendant was never “seized” within the meaning of the fourth amendment. The State, citing United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, asserts that defendant voluntarily cooperated with the police and therefore any statements that he made were admissible as evidence.

Contrary to the State’s assertion, the instant case is clearly distinguishable from United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. In Mendenhall, the Supreme Court held that defendant was not unlawfully seized when she was briefly questioned by two drug-enforcement agents in the concourse of an airport, followed by a consent search. However, this initial confrontation involved the brief, on-the-scene questioning, akin to a “stop,” which has been upheld without a showing of probable cause. (E.g., United States v. Brignoni-Ponce (1975), 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574; Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Similarly, other cases which have upheld a search or seizure, unsupported by probable cause, involved limited intrusions which lacked the attributes of an arrest.

For example, in Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587, the court held that where the officers obtained search warrants, issued on probable cause, they were also authorized to detain the occupants of the premises until the search was conducted. It should be noted that the court, in upholding the detention as reasonable, emphasized the fact that the officers had obtained search warrants issued by a neutral and detached magistrate. Further, the detention of the defendants involved only a limited intrusion. In the instant case, the continuous questioning to which defendant was subjected clearly exceeded the bounds of a “limited intrusion.”

The State next contends that, even if the initial seizure of defendant was illegal, his voluntary cooperation with the police vitiated the taint of the initial illegality. This argument apparently refers to the fact that defendant was consistently read his Miranda warnings and chose to waive them. However, it is now well established that administering the Miranda warnings does not automatically purge the taint of an illegal seizure. (E.g., Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S.Ct. 2254.) If it were otherwise, “[a] rrests made without warrant or without probable cause, for questioning or ‘investigation,’ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings.” 422 U.S. 590, 602, 45 L. Ed. 2d 416, 426, 95 S. Ct. 2254, 2261.

Accordingly, we hold that defendant’s fourth amendment rights were violated when, without probable cause, he was subjected to a lengthy interrogation at the police station. Since the elicited statements were a product of the unlawful detention, defendant’s motion to suppress should have been granted.

For the reasons stated herein, the judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE UNDERWOOD,

dissenting:

I disagree with the result reached by my colleagues.

Assuming, as I do, that an individual’s presence at a police station and responses to questions may still be voluntary even though requested by a police officer (United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 225, 36 L. Ed. 2d 854, 861, 93 S. Ct. 2041, 2046), the fundamental issue in this case is whether defendant’s actions in going to the station and participating in the questioning were voluntarily undertaken. The majority, however, pre-judges that issue by referring to defendant’s journey to the station as a “seizure,” and his presence there as “detention.” Those terms imply the use of force or the exercise of restraint (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1869), and this record simply will not support such inferences.

The Supreme Court has repeatedly recognized police questioning as a necessary tool in the effective enforcement of the criminal laws. (Mendenhall; Schneckloth; Haynes v. Washington (1963), 373 U.S. 503, 515, 10 L. Ed. 2d 513, 521, 83 S. Ct. 1336, 1344.) The question of the circumstances under which, and the extent to which, investigative questioning is permissible in the absence of probable cause is a troublesome one for the courts as the cited cases indicate. Given the volume of disagreement among judges at all levels, the resulting problems for those engaged in investigating crime are obvious. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 250, 36 L. Ed. 2d 854, 876, 93 S. Ct. 2041, 2059 (Powell, J., joined by the chief justice and Rehnquist, J., concurring).) It is settled, however, that the police officer need not preface his noncustodial questions or requests with an explanation to the person addressed that he need not answer or comply. Schneckloth so held, and no case since then disclaims that holding. Even the dissenters in Mendenhall acknowledged that the prosecution “need not prove that [defendant] knew she had a right to refuse to accompany the officers ***.” 446 U.S. 544, 577, 64 L. Ed. 2d 497, 524, 100 S. Ct. 1870, 1889 (White, J., joined by Brennan, Marshall and Stevens, JJ., dissenting).

In his opinion in Mendenhall announcing the judgment of the court and joined by Justice Rehnquist, Justice Stewart discussed the distinction between “seizures” of the person and encounters which did not intrude upon constitutionally protected interests. Quoting language from earlier cases to the effect that only when an officer has exerted force or shown authority in restraining the liberty of an individual has a seizure occurred, and that policemen are at liberty to ask questions of anyone on the streets, he leaves no doubt that, in his judgment, “[a] s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” (446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877.) Justice Powell, with whom the chief justice and Justice Blackmun joined, concurred in the result without joining in part II-A of Justice Stewart’s opinion holding no seizure occurred and that the defendant’s responses were voluntarily made. Justice Powell specifically noted, however (446 U.S. 544, 560 n.1, 64 L. Ed. 2d 497, 513 n.1, 100 S. Ct. 1870, 1880 n.1), that the nonjoinder did not necessarily indicate disagreement. In his later concurring opinion, again joined by the chief justice and Justice Blackmun, in Reid v. Georgia (1980), 448 U.S. 438, 442-43, 65 L. Ed. 2d 890, 895-96, 100 S. Ct. 2752, 2754-55, Justice Powell again referred to the Mendenhall concurrence, indicating that the issue whether the questioning in Reid constituted a seizure or was voluntarily submitted to was open for consideration by the State courts. Given the majority positions in Mendenhall and Reid, coupled with the Mendenhall minority’s admission that the Schneckloth holding remained viable, there seems to me no doubt that the absence of an explanation to a possible suspect of his right to remain at home and refuse to answer questions cannot foreclose the possibility that his presence at the police station, even though in response to a police request, may still be voluntary. As noted in Schneckloth the suggestion that an explanation was essential “has been almost universally repudiated by both federal and state courts, and, we think, rightly so.” (412 U.S. 218, 231, 36 L. Ed. 2d 854, 865, 93 S. Ct. 2041, 2049-50. See also United States v. Watson (1976), 423 U.S. 411, 424, 46 L. Ed. 2d 598, 609, 96 S. Ct. 820, 828, indicating that the absence of an explanation of the right to refuse a request to consent to a search was not of controlling significance in determining the voluntariness of the subsequent consent.) While others of the cited cases also concern the voluntary nature of consented-to searches, rather than the combination of consented-to questioning and searches presented here, that difference is not consequential. United States v. Mendenhall (1980), 446 U.S. 544, 555-56, 577, 64 L. Ed. 2d 497, 510, 524, 100 S. Ct. 1870, 1878, 1889 (Stewart, J., joined by Rehnquist, J., concurring, and White, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.

Nor am I aware of anything in either the State or Federal constitutions which precludes officers investigating a recently committed, serious crime from going to private homes at reasonable hours to ask the occupants questions regarding that crime. Recognition and approval of that practice in the context of a consent to search was indicated by the Supreme Court in quoting with approval from People v. Michael (1955), 45 Cal. 2d 751, 754, 290 P.2d 852, 854: “ ‘[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.’ ” (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 230, 36 L. Ed. 2d 854, 864, 93 S. Ct. 2041, 2049; United States v. Mendenhall (1980), 446 U.S. 544, 553, 64 L. Ed. 2d 497, 508-09, 100 S. Ct. 1870, 1876-77.) When one of those occupants resembles a general description by the victim and has a record of similar offenses, I would think good police practice would dictate that an officer with no more specific clues should attempt, in a reasonable manner, to interview him even though probable cause, as such, does not exist. Too, no constitutional guarantees known to me bar asking that individual if he is willing to talk to the officers at the station where, as here, there is not the slightest hint of coercion. Of course, the individual to whom such questions or requests are addressed may refuse. If, however, he elects to cooperate, the simple fact that his cooperation was requested by an officer does not prevent use of its results. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; United States v. Watson (1976), 423 U.S. 411, 425, 46 L. Ed. 2d 598, 609-10, 96 S. Ct. 820, 828.) “It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.” United States v. Mendenhall (1980), 446 U.S. 544, 555-56, 64 L. Ed. 2d 497, 510, 100 S. Ct. 1870, 1878.

It is not contended here that the officers had probable cause to arrest defendant at the time they went to his home on the morning of January 17. They testified they were simply investigating the crime, and that defendant’s name was fifth on a list of “possibles” whom they were interviewing. Some persons on the list had been interviewed the preceding day, found to bear no evidence of injuries, and cleared. Defendant was on the list because he fit, in a general fashion, the description given by the victim of her assailant and had a record of involvement in similar offenses. The officers testified that defendant was not arrested and was free to return home had he so requested on the trip to Danville. In fact, defendant testified that the officers, whom he knew, urged him to drive his car, but his mother needed it so he rode with them. Before they went, defendant left and “washed up” while the officers visited with his mother. Too, defendant admits that he understood and voluntarily waived his Miranda rights when they were later explained to him and that he did not at any time inform any officer that he wanted to return home or stop talking. While he did testify that he told the police he wanted a lawyer, the officers testified to the contrary, and the trial judge found their testimony more worthy of belief, a finding which is obviously not contrary to the manifest weight of the evidence. It is to me entirely clear that defendant voluntarily accompanied the officers to the Danville police station, and that he, therefore, was not “seized” as the majority indicates.

While my colleagues appear to concede that some limited questioning would have been permissible, they conclude, it seems, that at some undetermined point after his arrival at the station, those permissible limits were exceeded. The precise holding is “that defendant’s fourth amendment rights were violated when, without probable cause, he was subjected to a lengthy interrogation at the police station.” (91 Ill. 2d at 39.) Had probable cause been absent during the greater part or all of the questioning, I would agree, but the troublesome part of this holding is that it seems to ignore the fact that while probable cause did not exist at the time of defendant’s arrival at the station, it did arise early in the questioning and defendant could thereafter have been detained without his consent.

Defendant had signed a consent to search his car at 9:37 a.m., almost immediately upon his arrival at the station, and that search produced a tire iron with blood on it. The precise time at which probable cause arose may be debatable, but certainly it arose no later than the discovery of the bloodied tire iron in defendant’s car. At that point defendant’s neck scratches and head and finger wounds, as observed by the officers, corresponded with the victim’s statement regarding her stmggles with her assailant and that she had bitten him on the finger and hit him on the head with the iron bar. Too, the victim had told police her assailant had worn a large ring, and the officers had observed such a ring on defendant’s hand when they arrived at his home. After he “washed up” before leaving home, he was no longer wearing the ring. Given these circumstances, coupled with the fact that defendant’s physical appearance generally fit the description given by the victim, the subsequent detention and interrogation cannot, in my opinion, be said to be without probable cause. (See United States v. Watson (1976), 423 U.S. 411, 417-18, 46 L. Ed. 2d 598, 605-06, 96 S. Ct. 820, 824-25; Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; People v. Robinson (1976), 62 Ill. 2d 273; People v. Clay (1973), 55 Ill. 2d 501; 1 LaFave, Search and Seizure sec. 3.2 (1978).) The fact that the victim was unable to identify defendant in the lineup later that day did not, it seems to me, eliminate the existing probable cause. The victim had told the officers she did not get a good look at her assailant’s face. The lights were off during the assault except for several brief periods when defendant turned one on after telling her not to look at him. Because of the severe beating she had received, she obeyed. Too, she was without the contact lens which she normally wore because of nearsightedness. Given these circumstances, her inability to identify defendant is not surprising, nor does it, in my judgment, affect the continued existence of probable cause. See 1 LaFave, Search and Seizure sec. 3.2 (1978); see also State v. McClinton (1975), 265 S.C. 171, 217 S.E.2d 584 (evidence sufficient to sustain defendant’s conviction despite prosecutrix’ inability to identify him as her attacker where corroborative facts included a bitten hand); Jeffers v. State (1980), 268 Ark. 329, 595 S.W.2d 687 (evidence sufficient to sustain defendant’s convictions despite prosecutrix’ inability to identify him as her masked assailant).

The cases relied on by the court do not require the result it reaches. There is no resemblance between Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, and this case, for there the police broke into the defendant’s apartment without a warrant, searched it, arrested the defendant at gunpoint, handcuffed him, and took him to the station. There is also what seems to me to be a significant difference from Dunaway v. New York (1979), 442 U.S. 200, 203, 60 L. Ed. 2d 824, 829, 99 S. Ct. 2248, 2251, in that the three officers in Dunaway would not have permitted defendant to leave their custody for they had been instructed to “ ‘pick up’ petitioner and ‘bring him in.’ ” (See also People v. Creach (1980), 79 Ill. 2d 96, 101, cert. denied (1980), 449 U.S. 1010, 66 L L. Ed. 2d 467, 101 S. Ct. 564.) Here, on the contrary, the testimony is undisputed that no coercion was used and that defendant was free to refuse to go to the station and would have been permitted to leave, at least in the initial stages of the interrogation.

In my judgment defendant voluntarily accompanied the officers and participated in the initial interrogative stages leading to the discovery of the bloodied tire iron. With that discovery, probable cause arose to believe him guilty of the rape, and the subsequent questioning was justified. The incriminating statements were, accordingly, properly admitted.

I would reverse the judgment of the appellate court and affirm the judgment of the circuit court of Vermilion County.

CHIEF JUSTICE RYAN joins in this dissent.


author: JUSTICE WARD JUSTICE SIMON,

text:
    (No. 54604.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICARDO GODINEZ, Appellee.

      Opinion filed April 16, 1982.

      SIMON, J., specially concurring.
    Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita F. Kennedy, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Thomas Filien, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

The defendant, Ricardo Godinez, pleaded guilty in the circuit court of Peoria County to armed robbery and aggravated kidnaping. He was given a sentence of 24 years’ imprisonment for the robbery, and a concurrent sentence of 10 years’ imprisonment for the kidnaping. The appellate court held that the sentence of 24 years for robbery was improperly disparate from the 15-year sentence received by a codefendant, Michael Godinez, his brother, who also pleaded guilty to the armed-robbery charge. The court considered that the trial court abused discretion in imposing the disparate sentences and reduced the defendant’s sentence to 15 years. (92 Ill. App. 3d 523.) We granted the People’s petition for leave to appeal pursuant to Rules 315 and 612 (73 Ill. 2d Rules 315, 612).

An indictment was returned on February 22, 1978, charging the defendant with aggravated kidnaping and armed robbery. Named as codefendants were Michael Godinez (the defendant’s brother), Ralph Trevino (the defendant’s cousin), Debra Huddleston (to whom the defendant was later married), and Kathy Newman (Debra’s sister). On April 10, 1978, the defendant pleaded guilty to both charges.

Before the defendant’s pleas were accepted, the People represented the following as a factual basis for the pleas. (73 Ill. 2d R. 402(c)). Ethiel Randle would testify that on Febmary 3, 1978, she went to the Wisconsin Plaza Shopping Center in Peoria around 8:30 p.m. As she left her car, two masked men approached her. One of them had a gun. She was pushed into the front seat of her car, and her car keys were taken. The two men got into her car and drove her to another location in Peoria, where the driver left the car. He returned and she was then blindfolded. She was driven to another location, and the two men led her to an apartment. Her hands and feet were bound, and she remained there for several hours, until the police arrived and freed her. She later identified the defendant as one of the men who had abducted her at the plaza.

Leota Reay would testify that on February 3 she was with the defendant, Michael Godinez and Ralph Trevino in a car in Wisconsin Plaza around 8:30 p.m. The defendant and Trevino left the car, and thereafter she saw a car matching the description of Ms. Randle’s auto being driven from the plaza by the defendant.

Kathy Johnson would testify that she was employed at the Convenient Food Mart in Peoria on February 3. At 10 p.m., three masked and armed men entered the store. One had a handgun; the others had knives. They took money from the cash register and a bottle of liquor from a shelf.

Andrew Koehl would testify that he was a customer in the store at the time of the robbery. He saw the car in which the robbers left, and his description of it matched that of Ethiel Randle’s car.

Gary Cullen, a Peoria police officer, would testify that he stopped the above-described auto shortly after the robbery. He approached it, and as he reached in to turn off the engine, the vehicle drove off, brushing him aside.

Officer Richard Jordan of Peoria would testify that he then chased the car and brought it to a halt when his squad car collided with it. The auto was that of Ethiel Randle.

Leota Re ay would testify that she accompanied the defendant, Michael Godinez and Trevino to the Convenient Food Mart, and that she remained in the car while they entered the store.

After the People made the above representation, the defendant agreed it was what the prosecution’s evidence would show, and the court accepted the plea.

On April 10, 1978, Michael Godinez also pleaded guilty to the armed robbery. The count charging him with kidnaping was dismissed by the State following a plea-bargaining discussion, but there was no agreement or negotiation as to his sentence. Trevino went to trial and was convicted of both armed robbery and aggravated kidnaping.

A joint hearing on sentencing was held for the defendant and Michael on June 2, 1978. At the hearing, presentence reports were filed for consideration by the court. The reports included the prior criminal records of the two men. The defendant, who was 19 years old, had been convicted of burglary and theft in 1976, and he was given a one- to three-year prison sentence. The experience apparently was not an educational one, for after being given an early parole, he was convicted of another burglary in 1977. For this offense he was given a sentence of 3 to 10 years, and was released on an appeal bond in January 1978. The defendant was sent to a youth farm by juvenile authorities in January 1974, but was relocated because he had been involved in fights with other inmates. In the fall of 1974, the defendant was committed to the Department of Corrections after leaving without authority the youth facility to which he had been sent after being declared a delinquent for possession of a stolen auto.

The defendant obtained a General Educational Development (GED) certificate through the Department. The defendant used alcohol and drugs heavily following his release on the appeal bond in 1978, but he told the presentence investigator that he had reformed himself in this regard, and had turned down a recent offer of drugs.

The presentence report prepared on Michael Godinez noted that he was 21 years old and described his criminal history. He was convicted of unlawful possession of cannabis in 1974 (one-year probation), theft in 1975 (one-year probation and $50 fine), two burglaries in 1976 (five years’ probation concurrently), and aggravated assault in 1977. He was given a four-month jail sentence for the assault, and his probation for the burglaries was revoked and he was given one- to three-year concurrent sentences. He, too, received an early parole, having been released in December 1977.

Michael also said that he was a heavy user of alcohol and drugs. It appears that, in February 1977, he had twice attempted suicide. As the defendant had done, he had obtained a GED certificate. Unlike the defendant, however, he had worked at a few jobs outside of the corrections system. He was enrolled in college courses in welding and blueprinting at the time of his last offenses.

Both presentence reports contained excerpts from police reports. One police report set out a statement given to police by Trevino. In it Trevino said that he was recruited by his cousins (the defendant and Michael) on the day of the offense to accompany them on the robbery. He stated that when he, the defendant and Michael entered the Convenient Food Mart, the defendant went in first and Michael entered last. In the store, the defendant did all the talking, while Michael served as the lookout. Trevino and the defendant emptied the cash registers. Trevino thought that the defendant had a handgun during the robbery. Trevino also stated that, after they left the store, the defendant drove the car.

At the sentencing hearing, the People presented three witnesses to show aggravating circumstances. Leota Reay testified that on February 3 she was with the defendant, Trevino and Michael on Wisconsin Avenue in Peoria. The defendant and Trevino left to steal a car, and returned in an auto with the defendant at the wheel. She said that Michael and she were unaware of the kidnaping of Ethiel Randle until the defendant informed them of it on the way to the apartment where Ms. Randle was to be held. Reay also testified that she saw the defendant, Trevino and Michael enter the Convenient Food Mart, with Michael carrying the gun.

Kathy Newman testified that she was with the defendant, Trevino and Michael on February 3. She stated also that Michael had a gun, and the others had knives.

Officer Gary Cullen testified that he was able to curb the car after the robbery. He stated that he reached into the car to turn off the ignition but it pulled away, throwing him aside. As the car backed away from the officer, it hit another auto, which an elderly man was entering. Officer Cullen’s backup squad car gave chase and collided with the defendant’s car.

The defendant, to show mitigating circumstances, presented his and Michael’s parents. They told the court that their children had talents and career interests, but drugs and alcohol had altered their behavior. The defendant also testified that he had voluntarily used alcohol and drugs on February 3, the day of the crime. Debra Huddleston testified that she observed the defendant consume the drugs and alcohol on that day, and that he “wasn’t acting himself.”

The trial court sentenced Michael to 15 years’ imprisonment on the armed-robbery conviction. The defendant was sentenced to 24 years on the armed robbery and was given a concurrent sentence of 10 years on the aggravated-kidnaping conviction. In both cases, the court stated that it saw no mitigating factors. Rather, the court recognized the presence of aggravating factors in the danger posed to the victims, the defendant’s and Michael’s serious criminal records, and the need to protect society while deterring others from committing similar offenses. The court said nothing regarding the differences in the sentences imposed on the defendant and his brother for the armed robbery.

Trevino, who had no prior convictions, was sentenced later. He was sentenced to four years for aggravated kidnaping and six years for armed robbery. The sentences were to be served concurrently.

We gave the People leave to appeal from the appellate court’s second decision in this case, which was to reduce the defendant’s sentence. The first decision by the appellate court is reported at 81 Ill. App. 3d 547. On that appeal, the defendant contended that the trial judge had ignored several mitigating factors. The appellate court held that none of the alleged mitigating circumstances asserted by the defendant required a reduction of sentence. Moreover, the court stated that the disparity between the defendant’s sentence and Trevino’s was justified, because Trevino had no prior offenses.

The court, however, proceeded to reduce the defendant’s sentence because it considered that there was no basis for the disparity between it and Michael’s 15-year sentence. The court found their criminal backgrounds were similar. Also, it concluded that Michael was as culpable or more culpable than the defendant, because two witnesses at the sentencing hearing said that he had carried a gun in the store, while the defendant had only a knife.

This court reversed the judgment of the appellate court and remanded it with directions to reconsider because the standard the court had applied was held improper in People v. Cox (1980), 82 Ill. 2d 268. Cox held that the proper standard on review of a sentence is whether the trial court abused its discretion. In its review of the defendant’s sentence, the appellate court had applied a standard under which a sentence was only presumed to be proper. 81 Ill. App. 3d 547, 550.

Upon the directed reconsideration (92 Ill. App. 3d 523), the appellate court again reduced the defendant’s sentence to 15 years. This time the court held that the disparity between the defendant’s sentence and Michael’s sentence constituted an abuse of discretion. The court stated that disparity in the sentencing of codefendants could be justified by “either a greater relative participation in the offense [citation], or a lesser rehabilitative potential evidenced by a more serious past criminal record [citation], and relative maturity of the defendant.” (92 Ill. App. 3d 523, 524.) The appellate court said that its review of the record disclosed no basis for the disparity.

We consider there is a basis for the different sentences imposed, and we reverse the appellate court’s judgment reducing the defendant’s sentence. We agree with the appellate court that there is no reasonable ground to distinguish between the seriousness of Michael’s and the defendant’s criminal records, and that the rehabilitative potential of one brother is no more promising than that of the other. Nevertheless, we deem it was error for the appellate court to disturb the sentence imposed by the trial court because we consider the difference in sentences can be supported by the difference in the roles of the defendant and Michael in the crimes.

The imposing of punishment is one of the most important and sensitive of judicial responsibilities. It is recognized that a court of review, in considering the appropriateness of punishment, must give great weight to the judgment of the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) That court had the first responsibility of determining a proper sentence and of imposing it. Justice Frankfurter perceptively observed that oral argument frequently has a force beyond what the written word conveys. (Rosenberg v. Denno (1953), 346 U.S. 271, 272, 97 L. Ed. 1607, 73 S. Ct. 1152 (statement of Frankfurter, J.).) Similarly, presiding in the trial court and personally observing the proceeding may give insights and allow observations beyond what a written record can communicate to a court of review. Here, however, the written record itself makes it clear that the trial court had grounds for distinguishing between the punishments to be imposed on the defendant and on his brother.

An arbitrary and unreasonable disparity between the sentences of codefendants who are similarly situated, of course, cannot be defended. A disparity between sentences will not be disturbed, however, where it is warranted by differences in the nature and extent of the concerned defendants’ participation in the offense. See, e.g., People v. Martin (1980), 81 Ill. App. 3d 238 (disparity permissible where facts indicated that defendant was the leader or instigator in the offense); People v. Olmos (1979), 77 Ill. App. 3d 287 (disparity justified where defendant was the planner of the crime and the most active participant); People v. Johnson (1978), 59 Ill. App. 3d 640 (disparity in armed-robbery sentences upheld where defendant had entered the gasoline station with a weapon and had taken the money, and his unarmed accomplice drove the getaway car).

Here, it was the defendant and Trevino who stole the car used in the armed robbery. Trevino’s statement which was a part of the presentence reports for both the defendant and Michael showed that the defendant entered the food store first, commanded the victims, and emptied the cash registers with Trevino. Michael was the lookout. It is true Michael had a gun during the robbery, according to the testimony of codefendants, but, of course, the defendant also was armed; he carried a knife.

In addition, the defendant, Trevino said, drove the stolen getaway car and threatened Officer Cullen with injury or death when it threw him aside. Considering the information before the court on the issue of the sentence, the court properly could have concluded that the defendant was a more serious offender than his brother. We consider the sentence imposed by the trial judge should not be disturbed.

The defendant, in oral argument contended that Trevino’s statement to the police should have been entirely disregarded, though section 5-3-2(a)(6) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-2(a)(6)) does provide that a presentence report may contain any matter deemed relevant by the investigating officer.

We do not consider this contention because it has not been preserved for review. Trevino’s statement was set out in the third and fourth pages of the defendant’s presentence report. At the sentencing hearing, the defendant acknowledged that he had received the report. He did not object to the inclusion of Trevino’s statement within the report, although he did object to different material in the report. After the court struck the material in response to the defendant’s objection, the defendant said he had no further objections to the report. Any question regarding the inclusion of the statement was waived. See People v. Carlson (1980), 79 Ill. 2d 564, 576-77 (failure to object in the trial court waives errors the court could have corrected by sustaining the objection); People v. Fowler (1979), 72 Ill. App. 3d 491, 500 (failure to object at the sentencing hearing to the form or depth of the presentence report waived consideration of that issue on review); People v. Burdine (1978), 57 Ill. App. 3d 677, 688 (inaccuracies in the presentence report and the prosecutor’s argument concerning defendant’s prior offenses were waived by defendant’s failure to object or to point out error at the hearing on aggravation and mitigation); People v. Handley (1977), 51 Ill. App. 3d 68 (alleged error that the court improperly considered arrests without convictions in sentencing the defendant was waived because defendant did not object at the time of sentencing to the inclusion of the arrests in the presentence report).

Moreover, the defendant did not make this contention in the brief he filed in this court. Our rules expressly provide that a party waives points he has not argued in his brief. 73 Ill. 2d Rules 341(e)(7), (f).

For the reasons given, the judgment of the appellate court reducing the defendant’s sentence is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

specially concurring:

I concur in the judgment, but in doing so I feel the need to emphasize, as the court’s opinion fails to do, the relevance of the fact that defendant was convicted of both aggravated kidnaping (not for ransom), a Class 1 felony, and armed robbery, a Class X crime, while in contrast his older brother was not convicted of participating in the kidnaping. The defendant’s involvement in the kidnaping indicates that he was the primary actor in the armed robbery, for without the car taken from the kidnap victim, the robbery would have been impossible. More importantly, just as a trial judge may take a defendant’s previous crimes into account when sentencing, despite the fact that the defendant has already been punished for those crimes, he is also entitled to take into consideration concurrent criminal convictions. The fact that Ricardo Godinez committed two felonies in one day, in the course of which he abducted and terrorized an innocent woman (who later identified him) by driving her around, part of the time while she was blindfolded, after he seized her, binding her hands and feet and holding her captive for several hours in an apartment, indicates that his offenses were more serious than his brother’s and that he is a greater danger to society and less likely to change his ways than is his brother. Thus even though the trial judge imposed concurrent sentences on the defendant, perhaps because he believed this to be required under section 5-8-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4), the judge did not abuse his discretion in imposing longer sentences for either or both convictions than would have been imposed in the absence of the other conviction.