Third Division
March 19, 2003

No. 1-01-3661

Defendant, Vernon Woods, was charged with two counts offirst-degree murder in the death of seven-month-old Tiywon J.Austin, who died as a result of "shaken baby syndrome" injuries. Prior to trial, a two-day hearing was held on defendant's motionto suppress statements. At the hearings, defendant argued thathis constitutional rights were violated when police officersprevented him from seeing a note that an attorney left for him atthe police station where he was being held in custody. Themotion was denied. On August 15, 2001, following a jury trial,defendant was found guilty of involuntary manslaughter. OnSeptember 26, 2001, defendant was sentenced to 18 years'imprisonment. Defendant's motion to reconsider sentence wasdenied and this appeal followed.

On appeal, defendant contends that: (1) the trial courterred in denying his motion to suppress statements; (2) theState's rebuttal closing arguments deprived him of a fair trial;and (3) his rights to due process and trial by jury underApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000), were violated when the trial court enhanced theClass 3 felony of involuntary manslaughter to a Class 2 felony,based on a judicial finding that the victim was a family member. For the reasons that follow, we reverse and remand.

FACTUAL BACKGROUND

Tiywon J. Austin was born on February 9, 1999. Approximately four weeks later, on March 18, 1999, he wasseverely injured and on September 2, 1999, he died fromcomplications arising from his injuries. Niki Garrett isTiywon's mother and his father is defendant. Garrett anddefendant had terminated their relationship when she becamepregnant with Tiywon. Nonetheless, once Tiywon was born, Garrettand defendant had an arrangement whereby defendant would care forTiywon on the weekends.

The following facts presented at the suppression hearing andtrial are relevant to our determination as to whether defendant'sstatements were voluntary.⁽¹⁾ On Friday, November 5, 1999, atapproximately 1 p.m., Agents Rovirdes Delaney and Zeniah Ward-Hudson⁽²⁾ brought defendant to the Broadview police station forquestioning regarding the circumstances surrounding Tiywon'sdeath. At about 2:49 p.m., defendant was read his Mirandarights, he signed a waiver form and agreed to give a writtenstatement. Delaney handed defendant a pen and pad and askeddefendant to make a written statement, in his own words,regarding the events surrounding Tiywon being injured on March18, 1999.

In his statement, defendant claimed that during the morningon the date of the incident, Tiywon kept crying. Defendantstated that his girlfriend, Alicia May, asked him if Tiywon had abowel movement. He answered no. May gave Tiywon an enema, whichcaused him to have a bowel movement. Tiywon went to sleep andMay left for work. An hour later, Tiywon was crying again. Defendant wrote that he tried to put Tiywon back to sleep bypatting him on the back, by walking him and talking to him. Itdid not work. Defendant wrote that he then gave Tiywon anotherenema. Tiywon kept crying. Defendant laid Tiywon down, stillcrying and hollering, while he finished cleaning the kitchen.

Defendant wrote that he went to pick Tiywon up and Tiywonhollered one loud scream and passed out. Defendant and hisaunt's boyfriend, Tommy Nutall, called an ambulance and Tiywonwas taken to the hospital.

Delaney testified that after he received defendant's writtenstatement, he and Ward-Hudson reviewed the statement withdefendant. Delaney told defendant that his statement did notaccount for the injuries Tiywon sustained. Defendant deniedshaking, dropping, or hitting Tiywon. At 6:45 p.m., defendantrequested to speak with Delaney. According to Delaney, duringthis interview, defendant changed his story and stated that hehad laid Tiywon down on the living room couch when he went toclean the kitchen and that Tiywon probably hit his head on thecoffee table when he fell off the couch.

Delaney terminated the interview and called the assistantstate's attorney (ASA). The ASA arrived at the station the nextday, early Saturday morning, November 6, 1999, at approximately 2a.m. Delaney testified that he was not present for defendant'sinterview with the ASA and Ward-Hudson, because defendant hadspecifically asked to speak to Ward-Hudson. After the interview,the ASA refused to approve charges. Defendant was interviewedagain and the ASA was contacted a second time. Delaney testifiedthat the State's Attorney's office still refused to approvecharges.

Delaney testified that at 3:52 a.m., defendant againrequested to speak to him. Defendant wanted to add to hisearlier statement and wanted to speak to his girlfriend, AliciaMay. According to Delaney, defendant stated that he was in thekitchen preparing a baby bottle while holding Tiywon, when Tiywonslipped from his hand and hit the kitchen table, chair and floor. Defendant stated that he called Tiywon's name and shook himbecause Tiywon looked like he was knocked out after he hit thefloor. Delaney testified that when the ASA arrived to takedefendant's statement, defendant stated that he wanted to speakwith Alicia May, not the ASA. The ASA responded that he wasthere to take a statement and to call him when defendant wasready to give a statement. The interview was then terminated.

Attorney John F. Nocita testified that on November 5, 1999,he was contacted by defendant's girlfriend, Alicia May. Nocitatestified that May wanted him to represent defendant, who wasthen being held in custody at the Broadview police station. OnSaturday afternoon, November 6, 1999, at about 2 p.m., Nocitawent to the Broadview police station to speak to defendant.

When Nocita asked the desk officer on duty if he could speakto defendant, the desk officer left her desk to confer withanother officer. The desk officer returned and informed Nocitathat defendant's case was a State Police case and since the stateinvestigators were not at the station, he could not seedefendant. The desk officer told Nocita that the stateinvestigators would return to the station later that night.

Nocita then asked the desk officer for a piece of paper.Nocita testified that he wrote a full-length-of-paper note todefendant telling defendant that he was a lawyer and advisingdefendant not to talk to anyone without an attorney beingpresent. Nocita testified that the desk officer agreed to givethe note to defendant and agreed to give a copy of the note alongwith his business card to the state investigators.

Nocita estimated that he stayed at the Broadview policestation for about 50 minutes. He testified that when he left thepolice station, he did not return and he was never contacted bydefendant or the State Police that weekend. Nocita subsequentlyrepresented defendant at his preliminary hearing.

Delaney testified that when he returned to the Broadviewpolice station on Saturday evening, November 6, 1999, at about 7p.m., he was informed that earlier that afternoon an attorney hadbeen at the station asking to speak to defendant and that theattorney had left his business card and a note. According toDelaney, after he received the attorney's business card and readthe note, he discussed the matter with his fellow agents and itwas decided that defendant should be informed that an attorneyhad been to the police station to see him. Delaney testifiedthat he never gave Ward-Hudson any specific instructionsregarding the business card or note. He testified that he onlytold Ward-Hudson to advise defendant that an attorney had been tothe police station to see him and that arrangements could be madefor him to call the attorney. Delaney testified that he did notpersonally pass this information on to defendant, becausedefendant chose to speak with Ward-Hudson.

Delaney testified that he threw Nocita's note away, butbefore he disposed of the note, he showed it to his fellowagents. He conceded that his police report contained a notationregarding Nocita's business card, but not the attorney's note. Delaney also acknowledged that in his records pertaining to theconversations he had with the ASA, there is a notation indicatingthat the ASA told him that he should not talk to defendant ifdefendant had an attorney. Delaney could not remember if he toldthe ASA about the note. Delaney also conceded that hisinformation log indicated that on Saturday morning, November 6,1999, at 4:09 a.m., defendant requested to make a telephone calland that defendant was not allowed to make that phone call.

Delaney testified that early Sunday morning, on November 7,1999, at about 12:15 a.m., defendant again requested to speakwith him. According to Delaney, defendant wanted to tell thefull story. Delaney testified that defendant basically gave thesame story about accidentally dropping Tiywon and then shakinghim in an attempt to revive him. Delaney typed the statement andasked defendant to sign the statement. Defendant responded thathe would sign the statement if he could call his girlfriend sincehe had never explained to her exactly what happened. Defendantrefused to sign the statement and the interview was terminated.

Agent Ward-Hudson testified that the first time sheinterviewed defendant alone was after he had already beeninterviewed by herself and Delaney. This interview occurredearly Saturday morning, on November 6, 1999, at about 2 a.m. Ward-Hudson testified that defendant told her that Tiywon hadprobably hurt himself when he fell off the living room couch andhit his head on a coffee table. Defendant then gave the samestatement to the ASA. Ward-Hudson testified that the ASA leftafter telling defendant that his statement did not account forTiywon's injuries.

Later that Saturday evening, on November 6, 1999, at about7:40 p.m., Ward-Hudson returned to the Broadview police station,bringing food and toiletries for defendant. Delaney was alreadyat the station. Ward-Hudson testified that Delaney told her thatan attorney had come to the police station to see defendant andhad left his business card. Ward-Hudson testified that Delaneyinformed her that when she spoke with defendant to tell defendantthat an "attorney was there and if he wanted to talk to him, hewas free to talk to him." Ward-Hudson testified that when shewent to the holding cell to speak with defendant she told himthat an "attorney had been there. He had left his name and phonenumber, and that if he wanted to talk to him, [she] could makearrangements for him to do that, but that [she] would not be ableto speak with him after that." According to Ward-Hudson,defendant stated that he wanted to talk to her.

Ward-Hudson testified that defendant told her that he hadgiven Delaney a "bullsh-t" statement and wanted to tell her whatactually happened. Defendant stated that he was in the kitchenholding Tiywon, when Tiywon slipped out of his hands and hit hishead on a table and then on the floor. Defendant stated that hewas unable to catch Tiywon before he hit the table and floor. Hestated that he then shook Tiywon in an attempt "to wake him up"and that he did not "mean to shake the baby as hard as he did." Ward-Hudson gave defendant a stuffed animal and asked him todemonstrate how he shook Tiywon. Defendant picked up the stuffedanimal with both hands and shook it lightly. Defendant was thentold that his demonstration was not forceful enough to cause theinjuries that Tiywon sustained. Defendant then shook the stuffedanimal with more force. Afterwards, defendant's oral statementwas written out, typed, and signed by defendant. The statementwas dated November 8, 1999, at 1:45 a.m.

On cross-examination, Ward-Hudson testified that when shespoke to defendant in his holding cell, she did not inform himthat the attorney who came to see him at the police station hadleft a note for him. She testified that she never saw theattorney's note and that neither Delaney nor anyone else everinformed her of the note. Ward-Hudson also acknowledged that theBroadview police department's complaint control form anddetention report indicated that defendant was not allowed to makeany telephone calls.

After hearing arguments, the trial court, citing to Escobedov. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758(1964), determined that defendant's constitutional rights wereviolated. The trial court, however, further determined that theconstitutional violations were cured when defendant madeincriminating statements after the State Police informeddefendant that an attorney had been to the Broadview policestation to see him, the police gave defendant the attorney'sbusiness card, and defendant was again "Mirandized." The trialjudge stated, "I say once Investigator Hudson tells [defendant],'Here's the lawyer's card. The lawyer was here to see you.'[Defendant] is then sufficiently informed and can make anintelligent decision then as to waive his Miranda rights or talkto the lawyer."

ANALYSIS

I. Suppression of Statements

Defendant first contends that the trial court erred indenying his motion to suppress statements where the trial courtdetermined that the violations to his constitutional rights werecured. In response, the State concedes that the Broadview policeofficers' decision not to allow Nocita access to defendantviolated defendant's constitutional rights under People v.McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994). The State,however, goes on to argue that the case at bar is factuallydistinguishable from McCauley, and therefore, we should affirmthe trial court's judgment denying defendant's motion to suppressstatements. We must reject the State's argument.

Since neither side disputes the relevant facts, we conductde novo review of the trial court's application of the law tothese uncontested facts. People v. Chapman, 194 Ill. 2d 186, 208,743 N.E.2d 48 (2000); People v. Rodriguez, 324 Ill. App. 3d 468,469, 754 N.E.2d 393 (2001). A defendant's right against self-incrimination is protected by article I, section 10, of theIllinois Constitution of 1970 (Ill. Const. 1970, art. I,