January 5, 2001

No. 3--99--0673

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The defendant, Paul Lira III, submitted to an Iowa policeinterview accompanied by counsel. During this first interview,the defendant confessed to an Iowa crime. Later the same day, hewas interviewed by Illinois police while under arrest in Iowa,but not accompanied by counsel. During the second interview, thedefendant confessed to an Illinois crime. The defendant laterwas charged in Illinois with aggravated battery with a firearm. 720 ILCS 5/12--4.2(a)(1) (West 1998). The defendant moved tosuppress his Illinois confession. The trial judge granted themotion based on violation of the defendant's fifth amendmentright to counsel under Miranda. On appeal, the State argues thatthe trial judge's ruling was manifestly erroneous because (1) thedefendant did not personally invoke his right to counsel, (2) ifthe defendant invoked his right to counsel, he was not in custodyduring the Iowa police interview, and (3) even if Iowa policeknew the defendant invoked his right to counsel, such knowledgecannot be imputed to the Illinois police. We affirm.

I. BACKGROUND

At the hearing on defendant's motion to suppress, DetectiveMike Hutton, of the Moline, Illinois, police department,testified that he received confidential information that thedefendant was involved in a shooting in Moline. As a result ofthis information, Hutton phoned the Davenport, Iowa, policedepartment on December 14, 1998, and spoke with Detective GeraldMcCabe. McCabe told Hutton that he also was looking for thedefendant regarding an Iowa shooting. McCabe testified that hehad no contact with the Moline police department on that day. Moline police records, however, corroborate Hutton's version ofevents.

McCabe stated that he previously had given the defendant'sphotograph to the news media with the information that theDavenport police were looking for the defendant. The defendanttestified that he received a phone call from a friend onDecember 15, 1998, saying that the police were looking for him.

Following this conversation, the defendant called attorneyDavid Treimer, who previously represented the defendant. Thedefendant told Treimer that he heard Iowa police were looking forhim and asked Treimer to determine whether this was true. Treimer called the Davenport police department to ask if awarrant was outstanding for the defendant's arrest and he spokewith McCabe. Treimer could not recall whether he learned if awarrant had issued for the defendant's arrest. McCabe toldTreimer that the defendant could come to the police station orotherwise be arrested. Treimer told McCabe of his contact withthe defendant and that he was willing to surrender the defendantto McCabe that day.

Treimer then phoned the defendant asking him to come toTreimer's office. After the defendant arrived, he agreed tosurrender to and be interrogated by the Davenport police. Thedefendant testified that he told Treimer he was not involved withthe Davenport shooting. Treimer testified that he explained tothe defendant his right to remain silent and his right to havecounsel present during interrogation. The defendant testifiedthat he told Treimer that he would go to the police station to beinterviewed only if accompanied by counsel. Treimer and thedefendant then went to the Davenport police station at aboutnoon.

McCabe testified that even if the defendant made nostatements, he would have been under arrest. According to McCabe, the defendant was actually under arrest as soon as hearrived at the police station.

After McCabe arrived at the police station, Treimer, thedefendant, and McCabe entered an interrogation room where McCabeshowed Treimer and the defendant a waiver of rights form. Treimer testified that he briefly may have discussed thedefendant's rights with him again. The defendant signed the formand McCabe began the interrogation. McCabe testified that theinterview was taped.

Treimer indicated to McCabe that he was representing or hadrepresented the defendant in the past. Treimer told McCabe thatthe defendant needed an attorney and that Treimer was present forthe limited purpose of the interview. Counsel stated that thedefendant would speak to McCabe in the presence of counsel. Thedefendant testified that he did not tell McCabe that he wouldonly speak with the officer in the presence of counsel becauseMcCabe never asked him a question about the subject.

During the interview, the defendant admitted to purchasing agun and delivering it to a residence near the location of theshooting. Because this statement indicated to Treimer that thedefendant might have confessed to a violation of Iowa law, theinterrogation was terminated by Treimer. He testified that thedefendant did not at any time ask to terminate the interview.

Treimer stated that next he probably told McCabe he would berepresenting the defendant through court appointment, and if not,the defendant would have another attorney appointed. Counsel andMcCabe agreed that the interview was concluded. Counseldiscussed the defendant's statement with McCabe outside theinterrogation room.

McCabe told Treimer that he had no further questions for thedefendant. The officer did not reenter the interrogation roomwith the defendant. The interview lasted approximately 45minutes.

Treimer returned to the interview room where the defendantasked Treimer if he would be allowed to go home or if he wasgoing to be arrested. Treimer told the defendant he was certainthe defendant would be incarcerated. He advised the defendantnot to speak with anyone. The defendant indicated that he didnot wish to speak to the police. Treimer told the defendant toallow himself to be arrested and to let Treimer do his job. Thedefendant was formally arrested following termination of theinterview.

McCabe testified that, after the interrogation, he receiveda phone call from a confidential source saying that the defendantmight be wanted for a shooting in Moline, Illinois. McCabecalled the Moline police following the interview and advisedLieutenant Brockway that the defendant was in custody inDavenport and that the defendant could be questioned by Molineauthorities. Brockway communicated this information to Hutton. Hutton then traveled to Davenport to interview the defendant,arriving at the Davenport police station around 4 p.m.

McCabe testified that he was not present in the Davenportpolice station after 4 p.m. that day. He stated that he did notcommunicate to anyone in the Davenport police department that thedefendant was represented by counsel on the Iowa offense or thatcounsel was present during the interview concerning the Iowamatter. McCabe said that he did not inform anyone at the Molinepolice department that the defendant was under arrest. Hetestified that he told someone from Moline that the defendant wasin an interview room in Davenport.

Upon his arrival, Hutton told someone at the Davenportpolice front desk that he wished to speak with the defendant. Hewas directed to a detective who told him that the defendant wasin an interview room. Hutton testified that no one at theDavenport police department informed him that defendant wasrepresented by counsel. He admitted, however, that he consideredthe possibility that the defendant had invoked his right tocounsel during the Iowa interview.

Hutton began his interview with the defendant at about

4:25 p.m. He read the defendant his Miranda rights and thedefendant again signed a written waiver of rights form. Huttoninformed the defendant that he wished to speak with the defendantabout a shooting in Moline, Illinois. The defendant gave Huttona seven-page statement about the Moline shooting including self-incriminating statements. During this interview, the defendantdid not tell Hutton that he was represented by counsel, that hewished to have counsel present, or that he wished to terminatethe interview.

On December 28, 1998, the defendant was charged withaggravated battery with a firearm. 720 ILCS 5/12--4.2(a)(1)(West 1998). On July 12, 1999, the defendant filed a motion tosuppress his confession to Hutton. The trial judge held ahearing on the motion to suppress and granted the defendant'smotion. The State moved to reconsider this ruling. The motionto reconsider was denied and the State appealed.

II. STANDARD OF REVIEW

On appeal, when a trial court's ruling concerns thevoluntariness of a defendant's statements, the reviewing courtwill afford great deference to the trial court's finding of factsand will reverse those findings only if they are against themanifest weight of the evidence. The reviewing court, however,will review de novo the ultimate legal question of whether theconfession was voluntary. In re G.O., 191 Ill. 2d 37, 727 N.E.2d1003 (2000).

III. ANALYSIS

The fifth and fourteenth amendments to the Constitution ofthe United States guarantee the right not to be compelled totestify against oneself. U.S. Const., amend. V, XIV. In Mirandav. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602(1966), the United States Supreme Court held that custodialinterrogation is inherently coercive and violates a defendant'sprivilege against self-incrimination unless the defendant iswarned of certain rights. Under Miranda, a criminal defendantmust be advised of his or her right to have counsel present inorder to counter the inherently coercive atmosphere of custodialinterrogation.

In cases that followed Miranda, the Court further clarifiedthis rule. In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d378, 101 S. Ct. 1880 (1981), the Court stated that once a suspectasserts the right to counsel during questioning, not only mustthe current interrogation cease, but also the defendant may notbe approached for further interrogation until counsel has beenmade available. If police subsequently initiate questioning inthe absence of counsel, the defendant's statements are presumedinvoluntary and are inadmissible at trial.

Unlike the sixth amendment right to counsel in preparationfor trial, the Miranda fifth amendment right to counsel is notoffense specific. Once a defendant invokes this right to counselfor one offense, the defendant may not be approached regardingany offense unless counsel is present. Arizona v. Roberson, 486U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).

A defendant's Miranda right to counsel is not satisfied by aone-time consultation with his or her lawyer. If the defendantexpresses the desire to deal with police only through counsel,the defendant is only to be interrogated by police with defensecounsel present. Minnick v. Mississippi, 498 U.S. 146, 112 L.Ed. 2d 489, 111 S. Ct. 486 (1990).

A. Whether the Defendant Personally Invoked His Right to Counsel.

Under Miranda, a defendant invokes his fifth amendment rightto presence of counsel when he "indicates in any manner and atany stage of the process [of custodial interrogation] that hewishes to consult with an attorney before speaking." (Emphasisadded.) Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 707, 86 S.Ct. at 1612.

The State argues that the defendant never personally invokedhis Miranda fifth amendment right to the presence of counselduring interrogation. Further, the State contends that thedefendant only communicated this wish to his counsel and that hisattorney could not invoke his right to counsel for him.

The State cites cases in which others attempted to invoke adefendant's right to counsel for the defendant. See, e.g.,People v. Benoit, 240 Ill. App. 3d 185, 608 N.E.2d 250 (1992);People v. Watson, 233 Ill. App. 3d 143, 583 N.E.2d 1180 (1991);People v. Thompkins, 121 Ill. 2d 401, 521 N.E.2d 38 (1988). Thedefendant, however, points to People v. Olivera, 246 Ill. App. 3d921, 617 N.E.2d 98 (1993), in which the defendant invoked hisright to the presence of counsel by surrendering to policeaccompanied by his attorney.

We find the cases cited by the State to be inapposite inthat in the instant case, others did not indicate for thedefendant his desire to be represented by counsel. Rather, thedefendant clearly and personally indicated his desire to berepresented by counsel by submitting to police interrogationwhile accompanied by his attorney. Like the defendant inOlivera, the defendant in the instant case invoked his right tocounsel by coming to the police station accompanied by hisattorney. Therefore, we find that it was not against themanifest weight of the evidence for the trial court to find thatthe defendant personally invoked his Miranda fifth amendmentright to presence of counsel.

B. If Defendant Invoked His Right to Counsel,
Whether Defendant's Iowa Interview Was Custodial. 

Factors to be considered by the trier of fact in determiningwhether an interrogation was custodial include the location,time, length, and mood of the interrogation; the number ofinterrogators; any indication of formal arrest; whether thedefendant voluntarily assisted in the investigation; whether thedefendant was allowed to walk about the location unaccompaniedduring questioning; and the age, intelligence, and mental makeupof the defendant. Whether the defendant was in custody duringinterrogation is a question of fact for the trial judge. Peoplev. Anderson, 225 Ill. App. 3d 636, 587 N.E.2d 1050 (1992). Thequestion of custody depends on the objective circumstances of theinterrogation, not the subjective views of the police or thedefendant. Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d293, 114 S. Ct. 1526 (1994); People v. Goyer, 265 Ill. App. 3d160, 638 N.E.2d 390 (1994).

In determining that the defendant was subjected to custodialinterrogation in Iowa, the trial judge reasonably could haveconsidered such factors as that the interview was at the policestation, that the interview lasted for 45 minutes, and that themood of the interview was that of a serious interrogationconcerning a shooting incident. The trial judge reasonably couldhave relied on McCabe's testimony in finding that the defendantobjectively was in custody once he arrived at the police station. Thus, it was not manifest error for the trial judge to find thatthe defendant was in custody during the Iowa interview.

C. Whether Even if Iowa Police Knew the Defendant
Invoked His Right to Counsel, Such Knowledge
Cannot be Imputed to Illinois Police.

The State submits that, in response to its motion toreconsider, it was manifest error for the trial judge to rulethat knowledge by Iowa police that the defendant invoked hisright to counsel can be imputed to Illinois police. The Stateargues that the trial court's ruling is in conflict with theIllinois Supreme Court's holding in People v. Young, 153 Ill. 2d383, 607 N.E.2d 123 (1992).

In Young, the defendant was arrested by Wisconsin police atthe request of Illinois police pursuant to a fugitive warrant. During an extradition hearing, the defense attorney asserted thedefendant's fifth amendment right to counsel for the present andthe future. The defendant also articulated this right. At thedefense attorney's request, the Wisconsin court agreed to enteran order that Illinois authorities refrain from questioning thedefendant without counsel present. The judge noted that such anorder might not be valid. The record did not reflect whethersuch an order was entered by the Wisconsin court.

In any event, no Wisconsin court order was never presentedto the Illinois police who transported the defendant back toIllinois. In response to police interrogation, the defendantgave self-incriminating statements during transport. The trialcourt granted the defendant's motion to suppress, but theappellate court reversed. The Illinois Supreme Court affirmedthe appellate court's decision, stating that "knowledge [of thedefendant's invocation of the right to counsel] should not beimputed interstate under the circumstances present." Young, 153Ill. 2d at 394, 607 N.E.2d at 128.

As the defendant points out, the Young court did notestablish a bright line prohibition against interstate imputationof knowledge of a defendant's Miranda fifth amendment right tocounsel under all circumstances. The Young court made clear thatits ruling was narrowly tailored to the circumstances present inthe case before it.

We find the facts of the instant case to be distinguishablefrom those present in Young. In Young, the defendant invoked hisMiranda right to counsel in court, was returned to Wisconsinpolice custody awaiting extradition, and a few days later madeself-incriminating statements while being transported to Illinoisby Illinois police. In the instant case, the defendant was incontinuous custody in the Iowa police station where he invokedhis Miranda right to counsel during custodial policeinterrogation. During his continuous police custody in Iowa, thedefendant was interrogated first by Iowa police, and then byIllinois police, all on the same afternoon within a matter of afew hours.

In Young, the record did not reflect whether the Wisconsincourt issued an order pursuant to the defense request at theextradition hearing. In any event, no taped or written record ofthe defendant's invocation of his Miranda right to counsel wasmade available to the Illinois police by the Wisconsin police. In the case at bar, Officer McCabe taped the Iowa interview withthe defendant. Thus, a record of the defendant's tape-recordedinvocation of his Miranda right to presence of counsel wasavailable for the Illinois police to review at the Iowa policestation.

In Young, the defendant was in Wisconsin custody awaitingextradition to Illinois. Unlike the circumstances of the case atbar, the Illinois police had no reason to believe that thedefendant had been subjected to police custodial interrogationwhile in Wisconsin. The Illinois police had no reason to expectthat the defendant might have requested presence of counselduring a Wisconsin extradition hearing.

In the instant case, however, the Illinois police officerwas aware that the defendant was being held in Iowa policecustody for an Iowa offense. The Illinois police officer in thepresent case, therefore, had reason to expect that the defendantmight have invoked his right to presence of counsel during Iowapolice interrogation. Officer Hutton testified that heconsidered the possibility that the defendant had invoked hisMiranda right to counsel during the Iowa interview.

Because Young is factually distinguishable from the case atbar, we find Young to be inapposite in this case. We find theUnited States Supreme Court's rulings in Roberson and Minnick tobe controlling. We hold that under Roberson and Minnick, oncethe defendant invoked his fifth amendment right to counsel duringcustodial interrogation, all questioning by police from eitherjurisdiction should have ceased unless the defendant initiatedfurther questioning. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704,108 S. Ct. 2093; Minnick, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S.Ct. 486.⁽¹⁾

In Roberson, the Court stated that custodial interrogation"must be conducted pursuant to established procedures, and thoseprocedures in turn must enable an officer who proposes toinitiate an interrogation to determine whether the suspect haspreviously requested counsel." Roberson, 486 U.S. at 687, 100 L.Ed. 2d at 717, 108 S. Ct. at 2101. The Court further stated that"whether the same or different law enforcement authorities areinvolved in the second investigation, the same need to determinewhether the suspect has requested counsel exists." Roberson, 486U.S. at 687-88, 100 L. Ed. 2d at 717, 108 S. Ct. at 2101. UnderRoberson, a defendant's Miranda right to counsel is not offensespecific. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct.2093.

In Minnick, the defendant was wanted for murder inMississippi and was arrested in California. During an FBIinterview in California in which the defendant made self-incriminating statements, the defendant asserted the right to thepresence of counsel. Following the FBI interview, the defendantmet with an appointed lawyer two or three times.

Three days after the FBI interview, the defendant wasinterviewed in California by a Mississippi deputy sheriff. During this interview, the defendant again incriminated himself.

The Court held that both self-incriminating statementsshould be suppressed. The Court ruled that pursuant to Edwards,"when counsel is requested, interrogation must cease, andofficials may not reinitiate interrogation without counselpresent, whether or not the accused has consulted with hisattorney." Minnick, 498 U.S. at 153, 112 L. Ed. 2d at 498, 111S. Ct. at 491.

Under Roberson, the Illinois police in this case should havefollowed procedures to determine if the defendant had previouslyrequested counsel. According to Roberson, such a procedureshould be followed even if the Illinois police were different lawenforcement authorities initiating a second investigation.

As in Minnick, we find that the defendant in the instantcase clearly invoked his right to counsel during custodialinterrogation by law enforcement officials from one jurisdiction. Once the defendant invoked the right to counsel, interrogation bypolice from any jurisdiction must cease while the defendantremains in custody. Officials may not reinitiate interrogationunder such circumstances without the defendant's counsel present. In this case, the second interview was initiated by Illinoispolice and not by the defendant after he invoked his right tocounsel. Therefore, we hold that it was not manifest error forthe trial court to rule that the Illinois police violated thedefendant's fifth amendment right to the presence of counselunder Miranda, Edwards, Roberson, and Minnick.

IV. CONCLUSION

For the foregoing reasons, we affirm the ruling of the trialcourt.

Affirmed.

HOLDRIDGE, J.J., and HOMER, P.J., concur.

1. The court in Young did not discuss Minnick even thoughYoung was decided in 1992 and Minnick had been decided in 1990.