People v. Racanelli

476 N.E.2d 1179, 132 Ill. App. 3d 124, 87 Ill. Dec. 187, 1985 Ill. App. LEXIS 1795

• Court: Appellate Court of Illinois
• Decided: March 15, 1985
• Docket: 83—972, 83—977 cons.
• Status: Published

Opinions

PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Joseph Racanelli and Johnny Watters, were charged with home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(2)), burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1), and murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1). Following a jury trial, verdicts were returned finding each defendant guilty of home invasion and burglary and not guilty of murder as to each defendant. Each defendant was sentenced to concurrent terms of five years for burglary and 12 years for home invasion. Each defendant asserts on appeal that the trial court erred in denying his motion to suppress his oral and written confessions, and that he was not proved guilty beyond a reasonable doubt in the absence of the confessions. We affirm.

On the evening of August 20, 1981, 12-year-old Jimmy Lopez, an eyewitness, went to the apartment of the victim, Robert Reynolds. Lopez watched television with the victim for awhile. Later, Racanelli, Lopez’ cousin by marriage, stopped by the apartment. Lopez testified that around 10 p.m. he went to sleep in the victim’s bedroom. Sometime later he woke up and saw the victim and Watters in the bedroom. The victim was staggering about the room with a stab wound in his back. Lopez then saw Watters stab the victim in the chest with a butcher knife. Lopez began screaming at Watters to stop. At this point, Racanelli looked into the bedroom and called, “Let’s go,” to Watters. Lopez stated that Racanelli had a knife in his hand. Defendants then exited through the front door of the apartment.

After the defendants left, Lopez testified that he dressed, padlocked the bedroom door as Racanelli had requested, and left the apartment. On his way out of the apartment, he noticed that two television sets, a stereo, headphones, a radio, speakers and a clock were missing. Lopez stated that he then walked through a vacant apartment next door to that of the victim to get to the back door of the building. Lopez recognized some articles in this apartment, including the headphones and a lamp which had been in the victim’s bedroom before he went to sleep. He opened a cupboard in the vacant apartment and saw the knife Watters used to stab the victim lying on the shelf. After leaving the building through the back door, Lopez went to his father’s house.

Lopez testified that Racanelli telephoned him a few days later telling him to “keep his mouth quiet” and that “it wasn’t supposed to happen like that.” Until the police arrested Lopez on September 2, he did not talk with the police about the incident. After the police informed him that he was a prime suspect in the murder and that they intended to try him as an adult, he told them about Racanelli and Watters. Lopez then gave a written statement to Assistant State’s Attorney Francis Mahon, Jr.

An assistant public defender, William Kunz, testified that on January 11, 1982, he was present during a conversation with Jimmy Lopez at the public defender’s office. He testified that Lopez told him he did not see the stabbing but rather found the victim lying dead next to him on the bed, that he had sex with the victim for money that evening, that the police had beaten him, and that he had made a statement that the police had instructed him to make. On cross-examination, Kunz stated there was no record of the conversation, although he could have summoned a court reporter if he had chosen to do so. Lopez testified that he did not recall talking with anyone from the public defender’s office. He further testified that he knew the victim was a homosexual but that he had never had sexual relations with him. Lopez stated that he never told the public defender’s office that he did not see the stabbing.

Lopez’ testimony regarding the items found in the adjacent apartment was corroborated by Zonhair Dajani, the manager of the victim’s apartment building. Dajani testified that he found a lamp and headphones in the unlocked apartment on August 23. He also found a bloody knife on the shelf of a cabinet. Sharon Ellis, a microanalyst, testified that the victim’s blood type matched that of the blood found on the knife and on the victim’s bed.

I

Defendant Racanelli argues that the trial court erred in denying the motion to suppress his oral and written statements because the police and prosecution failed to inform him of charges pending against him. At the hearing on his motion to suppress, Racanelli testified that on September 12, 1981, while in Tennessee, he phoned Detective Sappanos because one Johnny Lopez said the police wanted him to be a witness. Sappanos then told him he wanted to use him as a witness but did not tell him there was a warrant for him. Racanelli agreed to come to Chicago and be a witness. On September 18, 1981, he called Sappanos and his partner, who came to Johnny Lopez’ house to meet them. They did not tell him about the warrant, did not handcuff him, nor tell him he was under arrest. On cross-examination, Racanelli testified that he could not remember whether the State’s Attorney had told him that he was just a witness. He stated that he admitted burglarizing an apartment only after he had been told that he could go home after he made a statement. Racanelli remembered being told that he could see a lawyer but was not sure when that occurred.

Detectives Thomas Keane and Thomas Sappanos testified that Racanelli called them at the police station on September 18 and that they arranged to meet him at Lopez’ apartment for the purpose of Racanelli’s surrender. Sappanos testified that he had informed Racanelli of the warrant during the telephone conversation on September 18 and in an earlier conversation with him on September 12. During the earlier conversation, Racanelli asked Sappanos what his, Racanelli’s, alternatives were. After being told that an arrest warrant had been issued for his arrest and that he had the option to continue to flee or to surrender, Racanelli stated he would prefer to surrender in Chicago. Sappanos testified that although his police report did not reflect that he had told Racanelli there was a warrant for his arrest, his report did state that Racanelli was planning to surrender himself in the near future. Keane testified that Racanelli was told he was under arrest when they left Lopez’ apartment and went with the police willingly. He was not handcuffed, fingerprinted or placed in a cell at the police station. Keane stated that he also told Racanelli there was a warrant for his arrest regarding the apartment burglary and murder. Both detectives testified that Racanelli was given Miranda warnings several times, which he indicated he understood, and that he never requested a lawyer.

After arriving at the police station, the detectives called Assistant State’s Attorney Robert Kaiser. After Kaiser arrived, he spoke with Racanelli. Detective Keane was also present. Kaiser stated that Racanelli indicated he still wanted to talk to him after Kaiser had explained his office to Racanelli and had given him Miranda warnings. Racanelli indicated that he understood the warnings. After talking with him for about 15 minutes, Racanelli communicated his willingness to make a statement. Kaiser again gave the Miranda warnings. Racanelli stated he understood them and signed a waiver of rights form. Racanelli then made a statement in the presence of a court reporter, Sappanos, Keane and Kaiser admitting his involvement in the apartment burglary. Kaiser stated that he did not tell Racanelli he was only a witness and denied telling him that he would not need a lawyer. After hearing all the testimony, the trial court denied Racanelli’s motion to suppress the statements made to the police.

It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from that evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) In the instant case, Racanelli’s contention with regard to the motion to suppress is essentially a question of credibility. The trial court specifically stated at the conclusion of the hearing that he believed the testimony of the prosecution witnesses. Viewing the case in that posture, the evidence indicates that Racanelli made a knowing and intelligent waiver of his rights before making his statement. If a defendant chooses to speak and does not request a lawyer after being informed of and understanding his Miranda rights, a court may properly find that he understood those rights and chose not to exercise them. (People v. Winston (1982), 106 Ill. App. 3d 673, 682, 435 N.E.2d 1327.) In this case, the decision of the trial court was well within the limitation on review that a trial court’s findings on a motion to suppress should not be disturbed unless contrary to the manifest weight of the evidence. (106 Ill. App. 3d 673, 683, 435 N.E.2d 1327.) Accordingly, this contention is without merit. We find that the trial court did not err in denying defendant Racanelli’s motion to suppress his oral and written statements.

Raeanelli additionally urges that the authorities’ failure on September 12, 1981, to inform him of the charges pending against him violated his sixth amendment right to counsel. He maintains that formal adversary proceedings were initiated against him on September 3, when the murder complaint was signed against him and a murder warrant was issued for his arrest. He argues, therefore, that he was entitled to know of the pending charges and to have counsel present during his telephone conversations with the police on September 12 and 18. The State responds that Racanelli’s sixth amendment right to counsel did not attach on September 3, when an arrest warrant was issued on a complaint signed by a police officer, but instead it attached on November 2 when Raeanelli was indicted.

An individual’s sixth amendment right to counsel attaches at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82.) The initiation of adversary proceedings is determined by looking to the point at which the government has committed itself to prosecute and the adverse positions of the parties have solidified. 406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882.

Hlinois law provides that felony prosecutions must be commenced by indictment or information and not by complaint. (Ill. Rev. Stat. 1979, ch. 38, pars. 111 — 1, 111 — 2.) Further, only the State’s Attorney has the authority to file a felony charge, and a police officer is Without that authority to prosecute such a charge. (People v. Pankey (1983), 94 Ill. 2d 12, 19, 445 N.E.2d 284.) Thus, the State cannot be said to have filed a formal charge committing itself to the prosecution of Raeanelli simply with the filing of a complaint by a police officer.

Illinois courts have expressly held that the issuance of an arrest warrant does not formally charge a defendant with a crime. (People v. Mitchell (1983), 116 Ill. App. 3d 44, 47, 451 N.E.2d 934; People v. Dockery (1966), 72 Ill. App. 2d 345, 355, 219 N.E.2d 687.) An exception to this rule has been found when the filing of a complaint by a police officer is made at the direction of the State’s Attorney. (People v. Owens (1984), 102 Ill. 2d 88, 101, 464 N.E.2d 261.) In the case at bar, the complaint for warrant was not filed at the request of the State’s Attorney and the rule of Owens is not applicable. We therefore find that Racanelli’s right to counsel did not apply to the telephone conversations and that his sixth amendment right to counsel was not violated.

II

Defendant Watters contends that the trial court erred in denying the motion to suppress his oral and written statements in light of his low intelligence. Watters, 16 years old at the time of the homicide, testified at the suppression hearing that he was arrested at 5 a.m. when he was awakened by a police officer holding a gun to his head. At the police station, Watters was handcuffed and placed in a small room for about an hour. Two police officers gave him Miranda warnings. Watters testified that he asked to see a lawyer. The police told him that he could see a lawyer when he went to the Audy Home, a juvenile detention center. Watters testified that he did not understand that any statements he might make could be used against him. He also did not understand the warning that he could be tried as an adult. Watters stated that he did understand that he could have a lawyer if he wanted to talk. Watters testified that sometime later a man came into the room, read him Miranda rights, and asked him to sign a statement. The man read the statement and told Watters to read it. Watters initialed the bottom of each page of his statement and printed his name at the end.

Detective Sappanos testified that he and Detective Keane conducted the initial interview with Watters at the police station advising him of his rights. Watters indicated that he understood his rights. Sappanos testified that Watters seemed reasonably intelligent and denied telling Watters that he would have a lawyer at the Audy Home.

During a second interview with Watters, Assistant State’s Attorney Mahon testified that he told Watters he was not his attorney but that he worked with the police. He advised Watters of his Miranda rights. Watters stated that he understood his rights and that he was willing to talk. Because he was 16 years old, Mahon told Watters he could be tried as an adult. Watters stated that he understood. Prior to taking Watters’ written statement, to which Watters agreed, Mahon explained what questions would be asked of him when the court reporter arrived.

A third conversation ensued in the presence of Mahon, a youth officer named Muscolino, and a court reporter. Watters was again read his rights. He admitted his involvement in the burglary, but stated that Racanelli had stabbed the victim. In addition to signing the written statement, Watters signed a written waiver of rights form. Mahon testified that Watters did not ask to see a lawyer nor did he request that questioning cease. When asked if he could read, Watters responded affirmatively.

Paula Bailey, a Cook County Juvenile Court psychologist, testified that she administered a standard battery of psychological tests to Watters. She testified that he did not exhibit any psychoses but that his results were at a preschool level. She further testified that he had an I.Q. of 54, which is in the moderately retarded range. In her opinion, Watters probably could not understand Miranda warnings unless they were explained in simpler language. On cross-examination, Bailey stated that because these tests were not designed specifically to determine if Watters understood the Miranda rights, she had no personal knowledge as to whether he in fact understood them. She also testified that Watters would not understand the warning that he could be tried as an adult, but probably understood the words “court,” “judge,” “lawyer,” “silent,” “free,” and “no charge.” The witness testified that Watters had six prior station adjustments, three prior referrals to juvenile court, and was probably “street-wise.” At the conclusion of the hearing, the trial court found that Watters waived his Miranda rights and denied his motion to suppress his statements made while in police custody.

The determination of whether an accused has waived his Miranda rights depends on whether the defendant in fact knowingly and voluntarily waived those rights. The inquiry as to whether, defendant knowingly and voluntarily waived those rights focuses on the totality of the circumstances surrounding the interrogation. (Fare v. Michael C. (1979), 442 U.S. 707, 724-25, 61 L. Ed. 2d 197, 212, 99 S. Ct. 2560, 2571-72, reh’g denied (1979), 444 U.S. 887, 62 L. Ed. 2d 121, 100 S. Ct. 186, quoting North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.) When regarding the totality of the circumstances, both the characteristics of the accused and the details of the interrogation must be considered. People v. Stone (1978), 61 • 5. App. 3d 654, 659, 378 N.E.2d 263.

The characteristics of the accused which must be examined are those which bear upon his ability to make knowledgeable and independent decisions. Pertinent factors are the defendant’s age, intelligence, prior experience with the criminal law and emotional stability. (People v. Stone (1978), 61 Ill. App. 3d 654, 659, 378 N.E.2d 263.) Although subnormal mental capacity alone does not render a confession involuntary, it is a factor to be considered in determining the voluntariness and the admissibility of a confession. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677; People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466.) Juvenile confessions are to be carefully reviewed to ensure that they are voluntary and not coerced, suggested, or the product of a juvenile’s ignorance of rights, his adolescent fantasy, fright or despair. (People v. Avery (1980), 88 Ill. App. 3d 771, 775, 410 N.E.2d 1093.) While the prosecution bears a heavy burden of establishing that a statement was made knowingly, intelligently and voluntarily, where a trial court so finds after application of the proper legal standard, review is limited to whether that finding is contrary to the manifest weight of the evidence. People v. Kincaid (1981), 87 Ill. 2d 107, 116-18, 429 N.E.2d 508, cert, denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144,102 S. Ct. 1726.

In the instant case, the trial court found that the confession was voluntary and stated that:

“I have testimony before me from a woman who claims that from her testing, at times some part of the test, he demonstrated the ability of a five-year-old or a seven-year-old. I have to take that into consideration. That is part of the totality, but I think his responses and the questions and the degree of difficulty that he might have with the questions that might appear difficult to a person of low intelligence, I think I have to consider all of that.”

This statement demonstrates that the trial court did in fact apply the proper standard in evaluating the admissibility of the statements. This finding was supported by evidence that Watters could understand various words, that he appeared to understand the warnings, that he in fact told the police that he understood the warnings, that he testified that he knew he could talk with a lawyer, and that he had had some prior experience with the criminal court system. Although Bailey testified on Watters’ behalf, the trial court specifically stated that her testimony was not persuasive. The trial court need not accept an expert’s conclusions of fact. (People v. Grice (1984), 121 Ill. App. 3d 567, 568, 459 N.E.2d 1122.) Accordingly, the trial court’s decision was not against the manifest weight of the evidence.

Watters cites People v. Redmon (1984), 127 Ill. App. 3d 342, 468 N.E.2d 1310, in support of his position. In Redmon, the defendant expressly stated during an interview with the police that he did not understand his right to talk to and be represented by a lawyer while being questioned. After this was explained, he asked that questioning cease. Defendant never signed a written waiver of rights form. In contrast in the instant case, Watters indicated at all times during questioning that he understood his rights. According to his own testimony at trial, he understood at the time he was questioned that he could have an attorney if he was willing to talk with the police. Testimony at trial revealed that Watters had several prior experiences with the law while the Redmon defendant had not. We find Redmon inapposite.

Ill

Both defendants advance the argument that they were not proved guilty beyond a reasonable doubt in the absence of their confessions. We disagree. Furthermore, as discussed earlier, the trial court did not err in denying either defendant’s motion to suppress his statements admitting participation in the homicide. A reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a a reasonable doubt of a defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In a jury trial, it is the function of the jury to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) A court of review will not substitute its judgment for that of the trier of fact where the evidence is merely conflicting. 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.

The material elements of the offense of burglary are entry into a building without authority, or remaining after authority to enter has been withdrawn, with the intent to commit a felony or theft. (People v. Sansone (1981), 94 Ill. App. 3d 271, 273, 418 N.E.2d 862.) Defendants’ entry into the victim’s apartment, although initially with the victim’s authority, exceeded that authority when they attacked the victim and removed his property. (See People v. Hudson (1983), 113 Ill. App. 3d 1041, 1044-45, 448 N.E.2d 178.) Defendants’ confessions, coupled with inferences drawn from Lopez’ testimony, establish the specific intent to commit a burglary. Lopez testified that certain items which were in the apartment when he arrived were missing when he left. He recognized several of these articles in the vacant next-door apartment as he exited the building. We find there was sufficient evidence to establish beyond a reasonable doubt that defendants were guilty of burglary.

Home invasion is the entry without authority of the dwelling place of another by a person not a peace officer acting in the line of duty, knowing that one or more persons is present and intentionally causing injury to any person within such dwelling place. (Ill. Rev. Stat. 1979, ch. 38. par. 12 — 11(a)(2).) The words “without authority” have the same meaning under the home invasion statute as they do under the burglary statute. (People v. Hudson (1983), 113 Ill. App. 3d 1041, 1045, 448 N.E.2d 178.) Therefore, defendants’ presence in the apartment was without authority once they attacked the victim and removed his belongings from the apartment. Both defendants knew that the victim was present at the time. Lopez testified that he saw Watters stab the victim before Watters and Racanelli fled. We find that the evidence was sufficient to establish that defendants were proved guilty beyond a reasonable doubt of home invasion.

For the reasons stated, the judgment finding defendants guilty of burglary and home invasion are affirmed.

Affirmed.