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People v. Graham
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-0550 Rel
Case Date: 06/20/2003

NO. 4-01-0550

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,
                       Plaintiff-Appellee,
                       v.
HENRY D. GRAHAM,
                       Defendant-Appellant.
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Appeal from
Circuit Court of
Vermilion
County
No. 00CF53

Honorable
Claudia S. Anderson
,
Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court:

Following an October 2000 stipulated bench trial, thetrial court convicted defendant, Henry D. Graham, of first degreemurder (felony murder), home invasion, residential burglary, andattempt (robbery) (720 ILCS 5/9-1(a)(3), 12-11(a)(2), 19-3(a), 8-4(a), 18-1(a) (West 1998)). In May 2001, the court sentenced himto 20 years in prison on the felony-murder conviction, to beserved concurrently with a sentence he was already serving. (Thecourt did not enter judgment on the other convictions, havingdetermined that they merged into defendant's conviction forfelony murder.)

Defendant appeals, arguing that (1) the trial courterred by denying his motion to suppress statements he made topolice officers because those statements were elicited in violation of his right to counsel under both the fifth and sixthamendments; and (2) the State failed to prove him guilty offelony murder beyond a reasonable doubt. We affirm.

I. BACKGROUND

A. Pretrial Proceedings

In February 2000, the State charged defendant withseven counts of first degree murder: (1) counts I through IVcharged defendant with the intentional or knowing murder of PeterGodels, who was 81 years old (720 ILCS 5/9-1(a)(1), (a)(2) (West1998)); and (2) counts V through VII charged defendant with thefelony murder of Godels based on the forcible felonies of homeinvasion, residential burglary, and robbery, respectively (720ILCS 5/9-1(a)(3), 12-11(a)(2), 19-3(a), 18-1(a) (West 1998)). The State also charged defendant with two counts of home invasion(counts VIII and IX), two counts of residential burglary (countsX and XI), and attempt (robbery) (count XII) (720 ILCS 5/12-11(a)(2), 19-3(a), 8-4(a), 18-1(a) (West 1998)).

In March 2000, defendant filed a motion to suppressstatements he made to police officers following his arrest. Inthat motion, defendant alleged that (1) the officers did notinform him that he could speak with his retained attorney oradvise his attorney that they were interviewing defendant; and(2) the officers refused his request to speak with "an attorney,Larry S. Mills."

At the June 2000 hearing on defendant's motion tosuppress, Vermilion County sheriff's department investigator ToddDamilano testified that on February 1, 2000, he and VermilionCounty sheriff's department investigator Kirk Miller intervieweddefendant, who was in the Vermilion County jail on unrelatedcharges. After advising defendant of his Miranda rights (Mirandav. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602(1966)), defendant waived those rights and agreed to make astatement about Godels' murder to Damilano and Kirk. At somepoint during the interview, defendant asked to speak with Mills,the Vermilion County State's Attorney. Damilano testifiedregarding defendant's request as follows:

"A. [Defendant] kept stating that hedid not know why Josh Kruger [the other suspect in this case] was bringing [defendant's]name up into this matter. He asked me forclarification. I stated maybe Kruger wantedto help himself out in this matter.

[Defendant] asked me to clarify howKruger would help himself out. I said well,possibly talking to the state's attorney.

[Defendant] said who is the state'sattorney? I stated [Mills].

[Defendant] stated ['C]an [Mills] helpme out in this situation?['] Stated--

Q. [Prosecutor:] What happened then?

A. There was a long pause. He statedget me Mills."

Kirk then left the interview room and spoke with Vermilion Countysheriff's department chief investigator Gary Miller. A fewminutes later, Kirk returned and told defendant that Mills wasaware that defendant was speaking with the officers, and defendant could not talk with Mills "at that time." Damilano and Kirkthen began questioning defendant again, and defendant ultimatelymade incriminating statements about his involvement in Godels'death.

Damilano further testified that defendant did notrequest to speak with an attorney other than Mills. Damilano didnot know if defendant had an attorney on the unrelated charges. However, he acknowledged that all individuals who have been injail for "over a day or two" have an attorney. Damilano alsoacknowledged that (1) it would not have been difficult to determine the name of defendant's attorney; and (2) he did not attemptto learn defendant's attorney's name or inform defendant that theofficers could call his attorney.

Kirk testified that after defendant asked to speak withMills, Gary told him that (1) Mills was aware that the officerswere interviewing defendant; and (2) the officers would convey toMills any information from the interview. Defendant did not askto speak with an attorney other than Mills. Kirk assumed thatdefendant had an attorney on the unrelated charges. However, hedid not ask defendant the name of his attorney.

Gary testified that when he was present during theFebruary 1, 2000, interview, defendant did not ask to speak to anattorney other than Mills. Gary acknowledged that after he tolddefendant that Mills was not available, he did not inform defendant that he could have his attorney present during the interview. Gary stated that he believed that defendant wanted tospeak with Mills "about a deal."

After considering the evidence and counsels' arguments,the trial court denied defendant's motion to suppress his statements to police. In so doing, the court stated, in pertinentpart, as follows:

"[I]t's clear to me from this testimony that[defendant] was seeking an opportunity totalk to [State's Attorney Mills]. And frommy view of this frankly, I can't see where[defendant] at all could consider that[Mills] was going to come over there andrepresent his interests, because I think[defendant] has had experience with the criminal justice system, I would say that by myjudicial notice of previous files, so heknows that [Mills] is going to prosecute himpotentially and that [Mills] represents thePeople of the State of Illinois. And while[defendant] may be one of those people,[Mills] is not there to represent his interests."

B. Defendant's Stipulated Bench Trial

In October 2000, defendant waived his right to a jurytrial and agreed to a stipulated bench trial. The stipulatedfacts showed the following. Around 9:30 or 10 p.m. on July 14,1999, Kruger approached defendant and told him that Kruger knewwhere they could find a "lick," which meant some money. Defendant then went with Kruger to Godels' residence in Westville. Kruger, who was carrying a crowbar, walked in the unlocked frontdoor, and defendant followed behind him. Kruger and defendantthen entered Godels's bedroom, where Godels was lying in bedreading. According to defendant, Kruger pulled Godels from bedand dragged him to the floor. Kruger asked Godels where he kepthis money. When Godels did not answer, Kruger put duct tape overGodels's mouth and attempted to tie him up. Kruger then hitGodels on the head with the crowbar. Defendant stood in thebedroom and watched Kruger attack Godels. Kruger ransackedGodels's house but could not find any money. Defendant andKruger then left the house and drove to an area near some railroad tracks, where Kruger threw the crowbar into the weeds andburned his clothes.

When police officers arrived on the scene the nextevening, they found Godels's body on his bedroom floor. Anautopsy later showed that Godels died from head injuries due toblunt force trauma. The officers also found open dresser drawersthat appeared to have been searched and several blood-spattereditems on the bedroom floor.

After considering the stipulated facts and counsels'closing arguments, the trial court took the matter under advisement. In a November 2000 written order, the court found defendant guilty of felony murder, home invasion, residential burglary, and attempt (robbery) (720 ILCS 5/9-1(a)(3), 12-11(a)(2),19-3(a), 8-4(a), 18-1(a) (West 1998)). In so finding, the courtstated, in pertinent part, as follows:

"[Defendant] planned and intended to gainentrance to [Godels's] residence in order tocommit a theft. The [c]ourt's finding of[defendant's] guilt for the offenses of[h]ome [i]nvasion, [r]esidential[b]urglary[,] and ([a]ttempt) [r]obbery,support a conviction of [defendant] of [f]elony [m]urder."

The court also found that the State had failed to prove defendantguilty beyond a reasonable doubt of intentional or knowing murderon an accountability theory.

In May 2001, the trial court entered judgment on countV (felony murder of Godels based on the forcible felony of homeinvasion) (720 ILCS 5/9-1(a)(3), 12-11(a)(2) (West 1998)) andsentenced defendant as earlier stated. This appeal followed.

II. ANALYSIS

A. Defendant's Motion To Suppress

Defendant first argues that the trial court erred bydenying his motion to suppress statements he made to policeofficers because those statements were elicited in violation ofhis right to counsel under both the fifth and sixth amendments(U.S. Const., amends. V, VI). We disagree.

1. Standard of Review

When reviewing a trial court's decision on a motion tosuppress statements, we give deference to that court's factualfindings and will reverse those findings only if they are againstthe manifest weight of the evidence. People v. DeSantis, 319Ill. App. 3d 795, 802, 745 N.E.2d 1, 7 (2000). However, wereview de novo "the ultimate question of the defendant's legalchallenge to the denial of his motion to suppress." People v.Sorenson, 196 Ill. 2d 425, 431, 752 N.E.2d 1078, 1083 (2001).

2. Defendant's Fifth Amendment Claim

Defendant first contends that the trial court erred bydenying his motion to suppress statements he made to policeofficers because those statements were elicited in violation ofthe fifth amendment (U.S. Const., amend. V). Specifically, hecontends that the officers should have immediately ceased theinterrogation when he requested to speak with Mills. We disagree.

In Miranda v. Arizona, 384 U.S. at 467, 16 L. Ed. 2d at719, 86 S. Ct. at 1624, the United States Supreme Court determined that the fifth amendment privilege against self-incrimination applies in custodial interrogations. Accordingly, the Courtdetermined that certain measures were necessary to protect thefifth amendment rights of those subjected to such interrogation. To accomplish this objective, the Court (1) held that policeinterrogators must advise suspects of their rights under thefifth and fourteenth amendments before questioning them aboutsuspected crimes and (2) set forth the now-familiar Mirandawarnings. Miranda, 384 U.S. at 471, 16 L. Ed. 2d at 721-22, 86S. Ct. at 1626; see People v. Winsett, 153 Ill. 2d 335, 348, 606N.E.2d 1186, 1194 (1992). "The purpose of the warnings is toensure that the accused is aware of his substantive constitutional right not to incriminate himself and to provide him withthe opportunity to exercise that right." Winsett, 153 Ill. 2d at348, 606 N.E.2d at 1194.

Among other things, suspects must be warned that theyhave the right to either retained or appointed counsel duringquestioning. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86S. Ct. at 1630. The Miranda Court explained that "the right tohave counsel present at the interrogation is indispensable to theprotection of the [f]ifth [a]mendment privilege." Miranda, 384U.S. at 469, 16 L. Ed. 2d at 721, 86 S. Ct. at 1625. "Theprimary purpose of counsel is to act as a 'protective device[]*** to dispel the compulsion inherent in custodial surroundings.'" Winsett, 153 Ill. 2d at 348-49, 606 N.E.2d at 1194,quoting Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct.at 1619. The presence of counsel at interrogation reduces thelikelihood that the police will coerce a suspect into confessing. Winsett, 153 Ill. 2d at 349, 606 N.E.2d at 1194.

In Winsett, 153 Ill. 2d at 349, 606 N.E.2d at 1194, oursupreme court discussed the procedures police must follow if asuspect invokes his right to counsel:

"If a suspect invokes his right to counsel inresponse to Miranda warnings, all interrogation must cease until an attorney is present. [Citations.] The Court in Miranda thus'fashioned *** the rigid rule that an accused's request for an attorney is per se aninvocation of his [f]ifth [a]mendmentrights.' [Citation.]

In Edwards v. Arizona, [451 U.S. 477,484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct.1880, 1884-85 (1981)], the Court reconfirmedthe principles expressed in Miranda and emphasized that, where an accused requestscounsel, not only must the current interrogation cease, but the suspect may not be approached for further interrogation 'untilcounsel has been made available to him.' [Citation.]"

The testimony at the hearing on defendant's motion tosuppress showed that defendant asked to speak with Mills, theVermilion County State's Attorney, in Mills' capacity as theState's Attorney. Defendant wanted to meet with Mills to discussthe possibility of Mills' "help[ing defendant] out" with a dealof some sort, possibly a plea agreement. Defendant clearly didnot request to see Mills so that Mills could serve as his counseland protect his rights during the interrogation. Accordingly, weconclude--as did the trial court--that defendant's request tospeak with Mills did not constitute an invocation of his right tocounsel under Miranda. Cf. People v. Smith, 306 Ill. App. 3d 82,87, 713 N.E.2d 140, 144 (1999) (concluding that the defendant'srequest to speak with an assistant State's Attorney during aninterrogation constituted an initiation of further discussionsconcerning the police investigation).

3. Defendant's Sixth Amendment Claim

Defendant also contends that the trial court erred bydenying his motion to suppress statements he made to policeofficers because those statements were elicited in violation ofhis sixth-amendment right to counsel. Specifically, he contendsthat "since the police interviewed [him] without telling [him] hecould speak to his retained counsel and without telling theretained counsel the police were interviewing [him], the [m]otionto [s]uppress should have been granted." We disagree.

A defendant who is represented by counsel may not bequestioned about charges upon which adversarial criminal proceedings have commenced. Further, a defendant does not waive hissixth amendment right to counsel when a police officer givesMiranda warnings to the defendant, who then agrees to questioningabout a charge when adversarial proceedings have commenced onthat charge. People v. Sealey, 311 Ill. App. 3d 120, 123, 724N.E.2d 110, 113 (1999).

However, the sixth-amendment right to counsel--unlikean accused's assertion of his Miranda right to counsel duringcustodial interrogation--is offense specific. People v. Maxwell,148 Ill. 2d 116, 128, 592 N.E.2d 960, 966 (1992). Thus, simplybecause a defendant is represented by counsel on a chargedoffense does not prevent the police from questioning him aboutother unrelated offenses. Maxwell, 148 Ill. 2d at 128-29, 592N.E.2d at 966; People v. Harper, 311 Ill. App. 3d 104, 106, 723N.E.2d 1171, 1172 (1999).

In this case, although defendant was represented bycounsel when police interrogated him regarding Godels's death,that representation was on a drug offense unrelated to thepresent charges. Thus, defendant's sixth-amendment rights wereclearly not implicated, and once defendant waived his Mirandarights, the police could properly question him regarding hisinvolvement in this incident without the presence of counsel. See McNeil v. Wisconsin, 501 U.S. 171, 175-77, 115 L. Ed. 2d 158,166-68, 111 S. Ct. 2204, 2207-08 (1991) (in which the UnitedStates Supreme Court concluded that the defendant's statements,made in the wake of a valid Miranda waiver, were admissible atthe defendant's trial, notwithstanding the defendant's earlierassertion of his offense-specific sixth-amendment right tocounsel on an unrelated charge).

Nonetheless, defendant contends that the police shouldhave informed (1) him that his retained counsel on unrelatedcharges could be contacted, and (2) defendant's retained counselthat the police were interrogating defendant on other charges. In support of his contention, defendant primarily cites People v.McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994). However, thatcase is inapposite.

In McCauley, the police had brought the defendant tothe police station in connection with a recent shooting death. After advising the defendant of his Miranda rights, policedetectives began questioning him. McCauley, 163 Ill. 2d at 418,645 N.E.2d at 926-27. Unbeknownst to the defendant, his familyhad retained an attorney on his behalf. While the detectiveswere questioning the defendant, his counsel arrived at the policestation, identified himself as the defendant's counsel, and askedto speak with the defendant. The detectives refused to (1) allowcounsel to speak with the defendant, and (2) tell the defendantthat his counsel was present. McCauley, 163 Ill. 2d at 418-19,645 N.E.2d at 927.

The trial court in McCauley granted the defendant'smotion to suppress his statements, and the supreme court affirmed, ruling that the State could not use any statements thedefendant made after his counsel was present at the policestation and refused access to the defendant. McCauley, 163 Ill.2d at 449, 645 N.E.2d at 941. In so doing, the supreme courtconcluded that the police conduct violated the defendant'sprivilege against compelled self-incrimination and his right todue process under the Illinois Constitution of 1970. McCauley,163 Ill. 2d at 446, 645 N.E.2d at 939. The court reasoned, inpart, that "due process is violated when police interfere with asuspect's right to his attorney's assistance and presence byaffirmatively preventing the suspect, exposed to interrogation,from receiving the immediately available assistance of an attorney hired or appointed to represent him." McCauley, 163 Ill. 2dat 444, 645 N.E.2d at 938.

The McCauley court's paramount concern was that policenot actively prevent a suspect under interrogation from havingaccess to readily available assistance of counsel. The supremecourt in McCauley did not hold--or even suggest, for that matter

--that the police are required to (1) determine the identity of,or contact, a defendant's counsel, who has been retained orappointed on a wholly unrelated offense, prior to interrogatingthe defendant regarding a different offense, or (2) inform adefendant that he may consult with his counsel on an unrelatedoffense (who has neither informed the police that he representsthe defendant nor requested access to the defendant) prior toconducting an interrogation regarding a different offense.

B. Sufficiency of the Evidence

Last, defendant argues that the State failed to provehim guilty of felony murder beyond a reasonable doubt. Wedisagree.

Initially, we note that defendant challenges thesufficiency of the State's evidence on count VI, which chargeddefendant with committing the offense of felony murder based onthe forcible felony of residential burglary. Defendant relies onthe trial court's comment in its November 2000 written order thatdefendant "planned and intended to gain entrance to [Godels's]residence in order to commit a theft." However, the court also(1) found that defendant's "guilt for the offenses of [h]ome[i]nvasion, [r]esidential [b]urglary[,] and ([a]ttempt)[r]obbery, support a conviction of [defendant] of [f]elony[m]urder," and (2) entered judgment only on count V (felonymurder of Godels based on the forcible felony of home invasion)(720 ILCS 5/9-1(a)(3), 12-11(a)(2) (West 1998)). The court, asthe trier of fact in a bench trial, was under no obligation toprovide an explanation for its verdict (see People v. Curtis, 296Ill. App. 3d 991, 1000, 696 N.E.2d 372, 379 (1998) ("The trier offact in a bench trial is not required to mention everything--or,for that matter, anything--that contributed to its verdict")),and the court's comment regarding defendant's intent was meremusing. Thus, we will review the sufficiency of the evidence oncount V alone.

Section 9-1(a)(3) of the Criminal Code of 1961 providesthat "[a] person who kills an individual without lawful justification commits first degree murder if, in performing the actswhich cause the death *** he is attempting or committing forciblefelony other than second degree murder." 720 ILCS 5/9-1(a)(3)(West 1998). Home invasion is a forcible felony. See 720 ILCS5/2-8 (West 1998); see also People v. Ramey, 151 Ill. 2d 498,538, 603 N.E.2d 519, 536 (1992) (recognizing that home invasionis a forcible felony). A defendant commits home invasion if,without authority, he or she

"knowingly enters the dwelling place of another and remains in such dwelling placeuntil he or she knows or has reason to knowthat one or more persons is present and

***

(2) Intentionally causes any injury toany person or persons within such dwellingplace." 720 ILCS 5/12-11(a)(2) (West 1998).

Under the felony-murder statute, a felon is responsiblefor the direct and foreseeable consequences of his initialcriminal acts. The purpose behind the felony-murder statute isto limit the violence that accompanies the commission of forciblefelonies, so that a person engaged in such violence will beautomatically subject to a murder prosecution should someone bekilled during the commission of a forcible felony. People v.Belk, 203 Ill. 2d 187, 192, 784 N.E.2d 825, 828 (2003). "'Onemay be convicted of felony murder even though he did not intendto kill anyone and did not personally kill anyone ***.'" Ramey,151 Ill. 2d at 538, 603 N.E.2d at 536, quoting People v. Miller,89 Ill. App. 3d 973, 979, 412 N.E.2d 175, 180 (1980).

In People v. Howery, 178 Ill. 2d 1, 38, 687 N.E.2d 836,854 (1997), the supreme court discussed the standard of review inbench trials, as follows:

"The standard for reviewing the sufficiencyof the evidence in a bench trial is the sameas it is in a jury trial. [Citation.] Thequestion of whether the conviction may besustained depends on 'whether the recordevidence could reasonably support a findingof guilt beyond a reasonable doubt.' [Citations.] The relevant inquiry is 'whether,after viewing the evidence in the light mostfavorable to the prosecution, any rationaltrier of fact could have found the essentialelements of the crime beyond a reasonabledoubt.' (Emphasis in original.) [Citation.]"

See also People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d339, 349 (2001) ("A reviewing court will not set aside a criminalconviction on grounds of insufficient evidence unless the proofis so improbable or unsatisfactory that there exists a reasonabledoubt of the defendant's guilt").

The stipulated evidence showed the following: (1)defendant and Kruger, who was armed with a crowbar, enteredGodels's dwelling place without authority; (2) defendant andKruger remained in Godels's residence until they found Godelslying in his bed; and (3) defendant watched as Kruger pulledGodels from bed, dragged him to the floor, and beat him to deathwith the crowbar. As the State points out, the evidence established that (1) defendant committed the offense of home invasionwhen he knowingly entered Godels's dwelling place without authority and remained there while Kruger intentionally injured Godels;(2) Kruger killed Godels during the course of the home invasion;and (3) defendant was accountable for the offense of home invasion because he knowingly aided Kruger by entering and remainingin Godels' residence with the intent to facilitate an offense.

Having carefully reviewed the evidence in the lightmost favorable to the State, we conclude that the evidencesupports the guilty verdict. The evidence before the trial courtin this bench trial was not so improbable or unsatisfactory thatthe guilty verdict cannot be permitted to stand.

In so concluding, we reject defendant's contention thatthe guilty verdict was improper because the trial court foundthat no evidence existed that defendant "actively participated inhitting" Godels. Who committed the specific acts that resultedin the victim's death is irrelevant under the felony-murder rule. See Ramey, 151 Ill. 2d at 538, 603 N.E.2d at 536 (an individualmay be convicted of felony murder even though he did not personally kill the victim); People v. Toney, 337 Ill. App. 3d 122,146, 785 N.E.2d 138, 158 (2003) ("who fired the fatal shot isirrelevant under the theory of felony murder").

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

COOK and TURNER, JJ.

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