People v. Schuning

SUPREME COURT CASES

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People v. Schuning

State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0194 Rel

Case Date: 04/09/2010

Preview:No. 2-09-0194 Filed: 4-9-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 06--CF--713 ) GARY W. SCHUNING, ) Honorable ) John J. Kinsella, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: On March 23, 2006, defendant, Gary W. Schuning, was indicted for the stabbing deaths of two victims on February 26, 2006. 720 ILCS 5/9--1(a)(1) (West 2006). On August 14, 2008, defendant filed an amended motion to suppress certain statements that he made to officers on February 27, February 28, and March 7, 2006. On January 21, 2009, defendant's motion was denied in part and granted in part. The trial court denied defendant's motion to suppress the statement that he made on February 27, 2006, at 2:26 p.m. However, the trial court granted defendant's motion to suppress the statements he made at or after 5:45 p.m. on February 27, 2006, because the State violated Miranda with respect to defendant's invocation of his right to counsel. The State moved for reconsideration, and the trial court denied that motion on February 19, 2009. The State filed a certificate of impairment and timely appealed the trial court's order pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). We affirm.

No. 2--09--0194 I. BACKGROUND On appeal, the State argues that the trial court erred in partially granting defendant's motion to suppress, because defendant never invoked his right to counsel. The statements at issue were given while defendant was hospitalized at Loyola University Medical Center in Maywood, where he underwent critical surgery and treatment for serious self-inflicted stab wounds to his chest, abdomen, and neck. Defendant argues that, when he asked if he could use a phone and call his attorney at 5:45 p.m. on February 27, 2006, after an initial interrogation by police earlier that day, he sufficiently invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885 (1981). Therefore, defendant argues, the trial court properly suppressed all of the statements that he made after that time. The following facts are derived from the testimony adduced at the hearing on defendant's suppression motion. Prior to witness testimony, the State stipulated to the factual allegations contained on page 5, in paragraphs 14 through 18, of defendant's amended motion to suppress. Those paragraphs provided: "14. In addition, prior to February 28th, on February 27th at approximately 5:45 p.m., [defendant] asked Officer Giertz of the Addison Police to use the telephone to call his attorney. 15. At the time, [defendant] was in the ICU. 16. Officer Giertz told [defendant] that yes, he could call his attorney. 17. Despite Officer Giertz's agreement to allow [defendant] to call his attorney, the ICU nurse told [defendant] that phones could not be used in the ICU.

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No. 2--09--0194 18. Ultimately, [defendant] fell asleep in the ICU and was unable to make his requested telephone call." The State further stipulated to the factual allegations contained on page 7, in paragraphs 4 through 12, of defendant's amended motion. Those paragraphs provided that on February 28, 2006, at 5 p.m., defendant asked Officers Tierney and Brucal of the Addison police department if he could call his attorney to consult with him about the search warrant that the officers were executing. Defendant asked that his attorney be present during the execution of the search warrant. On March 2, 2006, at 6:30 a.m., Officer Tierney returned to defendant's hospital room with Officer Anderson pursuant to the search warrant to obtain additional samples from defendant's body. On that date, defendant asked Officer Tierney to obtain the telephone number of his attorney, John Carbon. Officer Tierney complied with defendant's request, and defendant called Carbon but was unable to reach him. On March 3, 2006, just after 3:34 p.m., defendant asked Officer Brant of the Addison police department for permission to call his grandmother and was told by Officer Brant that defendant could place calls only to his attorney. At 3:35 p.m., at defendant's request, Officer Brant called Carbon and when Carbon's answering service picked up, he handed the phone to defendant. Defendant provided Carbon's answering service with his hospital room phone number and his room number and requested that Carbon give the information to his grandmother. The State then called its first witness, Officer Brian Goss of the Addison police department. On February 26, 2006, Officer Goss was called to a home on Yale Street where two persons were dead and one was injured in an apparent double homicide. Defendant was the injured party and was taken to Loyola. Officer Goss did not speak with defendant at the scene. He first spoke with defendant on February 27, 2006, at 2:26 p.m. in defendant's intensive care hospital room at Loyola.

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No. 2--09--0194 Officer Sean Gilhooley was present when Officer Goss interviewed defendant. Prior to the interview, Officer Goss spoke to defendant's nurse about his condition. Officer Goss knew that the day before, defendant was in a drug-induced coma and underwent open-chest surgery. Defendant also had a nasogastric tube inserted in his throat. The nurse advised Officer Goss that he was being taken off Propofol, the coma-inducing drug, which would take 1 to 1

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