FIFTH DIVISION

January 19, 2001

No. 1-99-3760

JUSTICE GREIMAN delivered the opinion of the court:

The defendant, Kyung Kim, a Korean national, was charged byindictment with armed robbery, aggravated kidnapping andattempted armed robbery. On defendant's motion, the trial courtdismissed the indictment because of the prejudice that inured todefendant by reason of the failure of police to advise defendantduring custodial detention of his right to communicate withconsular officials of South Korea under the Vienna Convention onConsular Relations, April 24, 1963, art. 36, 21 U.S.T. 77 (ViennaConvention). The State has appealed from the dismissals. Asdefendant has not filed a brief, we consider the case only on theState's brief. First Capital Mortgage Corp. v. TalandisConstruction Corp., 63 Ill. 2d 128, 131-33 (1976). For reasonsthat follow, we reverse.

Defendant came to the United States from South Korea in 1995and testified at the hearing on the motion to dismiss theindictment that he speaks, reads and writes a "little" Englishbut does not understand it. He further testified that while incustody he was interrogated by police in the Addison, Illinois,police station as well as the Niles police station without atranslator being present. Further, he testified that he wasdirected to sign a form while in custody at both police stationsand that defendant was unaware that he had a right to speak withthe South Korean Consul General. He further testified that, hadhe been aware of such a right, he would have made appropriatecontact with a consular official, who would have provided himwith an interpreter and possibly counsel, and had these mattersbeen explained to him he would not have made the inculpatorystatements to which police officers testified.

Police officers and an assistant State's Attorney testifiedthat they had given defendant his Miranda warnings in English andthat they believed he understood the admonitions of thesewarnings.

These law enforcement officers and the assistant State'sAttorney acknowledged that they did not provide the defendantwith an understanding of his rights under article 36 of theVienna Convention.

In support of defendant's motion, he cited to United Statesv. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980) and UnitedStates v. Lombera-Comorlinga, 170 F.3d 1241 (9th Cir. 1999), forthe proposition that where an alien has not been advised of hisright to consult with a consular official and can establish thathe was prejudiced by the violation, the appropriate remedy is todismiss the indictment. The State maintained that, regardless ofany appropriate remedy, defendant failed to establish actualprejudice.

Based upon the evidence presented, the trial court foundthat defendant did not ask to consult with the Korean consulatebecause he was unaware of this right; that the purpose of such aconsultation is to aid the defendant in dealing with his exposureby providing an interpreter, contacting his family and providingcounsel; and that the defendant never contacted the Koreanconsulate in the eight months that the matter had been pendingalthough he was aware of his right to do so. The trial courtconcluded that "prejudice" had been shown in the failure of theauthorities to advise defendant of his rights under the ViennaConvention and that the appropriate remedy was dismissal of theindictment.

Initially, we note that the United States v. Lombera-Comorlinga, 188 F.3d 1177 (9th Cir. 1999) decision relied upondefendant below was withdrawn by the Ninth Circuit. Thereafter,in an en banc decision, the court held that even assuming aprivate right of action, there is nothing in the language oroperation of the Vienna Convention provision to suggest that itwas intended to create an exclusionary remedy with protectionssimilar to those announced by the United States Supreme Court inMiranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d694 (1966). We agree that to hold otherwise would out"mirandize" Miranda. Even if a defendant could show prejudice,as expressed in the deportation case of Rangel-Gonzales, theviolation of the Vienna Convention does not warrant suppressionof evidence or dismissal of the indictment as a remedy. UnitedState v. Li, 206 F.3d 56 (1st Cir. 2000); People v. Villagomez,313 Ill. App. 3d 799 (2000). In Li, the court observed that theState Department believed that the only remedies for failure ofconsulate notification under the Vienna Convention arediplomatic, political or those that exist between states underinternational law and that the Vienna Convention does not createindividual rights. Li, 206 F.3d at 63.

In Villagomez, while the trial court determined that

defendant had been appropriately advised of his fifth amendment

rights, any violation of the obligations created by reason ofthe Vienna Convention did not create individual rights for adefendant. In Villagomez the court observed:

"We also note that the Convention does not ex-

pressly or impliedly provide for the suppression

of statements or other evidence as a remedy where

a police officer or other arresting authority fails

to notify a foreign national of the right to contact

the consulate. See Tapia-Mendoza, 41 F. Supp. 2d at

1255. Because of this, several courts have held

that even if a defendant could show prejudice result-

ing from law enforcement authorities' failure to conform

to the Convention, suppression of a statement or other

evidence is not available as a remedy. United States

v. Li, 206 F.3d 56 (1st Cir. 2000); United States v.

Torres-DelMuro, 58 F. Supp. 2d 931 (C.D. Ill. 1999);

United States v.Carrillo, 70 F. Supp. 2d 854 (N.D. Ill.1999); United States v. Rodrigues, 68 F. Supp. 2d 178(E.D.N.Y. 1999).*** As shown in the discussion above,

every court that has addressed this issue has held that

any rights created by the Convention cannot be equated

with constitutional rights, fundamental rights, or withrights under Miranda. It would therefore be illogical

to extend the remedy of the exclusionary rule to

violations of the Convention." Villagomez, 313 Ill. App.

3d at 812.

In People v. Madej, 193 Ill. 2d 395 (2000), our supreme

court considered a defendant's petition for writ of mandamus andfor relief under section 2-1401 of the Code of Civil Procedure(735 ILCS 5/2-1401 (West 1998)). The defendant based hispetitions on the State's admitted violation of the ViennaConvention. The majority denied the defendant's petitions asthey were not timely filed. Three justices dissented from thisholding. However, even the dissenters said that the properrelief was to reverse for a new sentencing hearing (JusticeMcMorrow) or a new trial (Justices Heiple and Harrison). None ofthe Justices asserted that the case against the defendant shouldbe dismissed and the State barred from retrying the defendant.

In its ruling, the trial court said it considered the factthat defendant testified that he needed an interpreter as anotherreason to require notification of the Korean consulate. InVillagomez, it was clear that the defendant had been notified ofhis Miranda rights in Spanish and that he acknowledged that heunderstood these rights and was willing to answer questions thuswaiving those rights. In the instant case, defendant's testimonysuggests that he may not have understood the importantconstitutional rights that he was waiving in giving a statementto police and acknowledging in writing that he understood themeaning and implications of his Miranda warnings.

An examination of the record indicates that defendant'sunderstanding of English, his prior involvement in the criminaljustice system, which would give him some knowledge of thesystem, and his interchange with the police officers andassistant State's Attorney are factors that undercut his claim. See People v. Teran-Cruz, 272 Ill. App. 3d 573 (1995). However,that is for the trial judge at a suppression hearing.

Accordingly, the judgment of the circuit court of CookCounty is reversed and the matter remanded.

Reversed and remanded.

QUINN, P.J., and THEIS, J., concur.