People v. Lashmet

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People v. Lashmet

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0026 Rel

Case Date: 04/19/2007

Preview:NO. 4-06-0026 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK J. LASHMET, Defendant-Appellee.

Filed 4/19/07

) Appeal from ) Circuit Court of ) Cumberland County ) No. 05CF24 ) ) Honorable ) Teresa K. Righter, ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE STEIGMANN delivered the opinion of the court: In February 2005, the State charged defendant, Mark J. Lashmet, with solicitation of murder for hire in that defendant (while he was incarcerated at the Cumberland County jail), with intent that first degree murder be committed, hired David J. Marr to murder Jimmie L. Cummins (720 ILCS 5/8-1.2 (West 2004)). In

January 2006, defendant filed a motion to suppress incriminating statements he made to Marr while Marr was posing as a fellow inmate and acting on the State's behalf. Following a hearing

later in January 2006, the trial court granted defendant's motion. The State appeals, arguing that the trial court erred by granting defendant's motion to suppress. and remand for further proceedings. I. BACKGROUND We agree and reverse

Defendant's January 2006 motion sought to suppress his incriminating statements to Marr on the ground that the State's conduct violated his fifth-amendment right against self-incrimination. Specifically, defendant's motion alleged as follows:

(1) sometime prior to late December 2004, the State had charged him with "various felony offenses," regarding which he was represented by counsel; (2) on December 29, 2004, defendant, who was an inmate at the Cumberland County jail, made certain incriminating statements to Marr, who was participating in an undercover police operation; and (3) Marr did not give defendant Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) prior to asking him questions. Attached to his motion was a memorandum in support thereof. The

memorandum indicated, in part, that in November 2004, defendant was incarcerated on charges of "aggravated battery, attempted murder [of Cummins,] and violation of bail bond," regarding which he was represented by counsel. At the hearing on defendant's motion to suppress, which was held later in January 2006, the parties stipulated to the following facts. In mid-November 2004, defendant was incarcerOn November 17, 2004, a After answering some

ated in the Cumberland County jail.

deputy asked defendant to answer questions.

preliminary questions, defendant informed the deputy that he did not want to answer any further questions. - 2 Defendant did not

waive his Miranda rights after that date. On December 29, 2004, police authorities placed Marr in a cell with defendant. Marr, who was participating in an under-

cover police operation to obtain information from defendant, was wearing a recording device. Defendant sat in a chair while Marr

asked him a series of questions for approximately 45 minutes. During the meeting, Marr sometimes stood over defendant or stood within whispering distance. The State had not yet charged

defendant with solicitation of murder for hire, and he did not then know that the State was investigating his involvement in solicitation to commit murder. If called as a witness, Marr would testify that prior to December 29, 2004, he had been incarcerated with defendant at the Cumberland County jail. to pay Marr to kill Cummins. During that time, defendant offered As part of their agreement, defenIf

dant posted bail for Marr, and Marr was released from jail. called to testify, defendant would deny Marr's allegations. The trial court also admitted as a joint exhibit a transcript of the December 29, 2004, jailhouse conversation between defendant and Marr. The transcript shows that the

conversation began with small talk about why Marr was purportedly back in jail (for driving on a revoked license) and how he could bail out. At some point during the conversation, the following

colloquy took place. - 3 -

"[MARR]:

I can't do it.

I thought I I've

could but I can't do it.

You know?

never shot nobody or nothing.

I can't even

kill myself, let alone (inaudible). [DEFENDANT]: [MARR]: (Inaudible.) You

You (Inaudible) for sure.

got to make sure you want it done. [DEFENDANT]: [MARR]: I want it done. You

What about the old lady?

want her dead too or just him? [DEFENDANT]: Just him."

After more small talk, the following colloquy occurred. "[MARR]: I'm scared as hell. You know?

The only way it can happen, you got to get, you know, I can't say 'Hey, do it, man; I'll owe you.' you know? [DEFENDANT]: [MARR]: (Inaudible.) (Inaudible.)

Says as soon as I got the money

and I got the picture ... [DEFENDANT]: You still got that paper I

gave you with all that information on it? [MARR]: Yeah ... I'm scared, man. I lay

[DEFENDANT]:

there in bed thinking--I wonder--don't take - 4 -

this wrong--are you going to get your ass off and put me away? (Inaudible.) I don't know.

I don't know, Dave. [MARR]: derstand that. [DEFENDANT]: [MARR]:

I don't know. I know. Yeah, I un-

I know.

(Inaudible) my life...

(Inaudible.) I want him dead.

[DEFENDANT]: [MARR]:

You want him dead. I want him dead."

[DEFENDANT]:

After considering the evidence and counsel's arguments, the trial court granted defendant's motion to suppress. In so

doing, the court (1) agreed with defendant that the case was directly on point with the Fifth District's decision in People v. Perkins, 248 Ill. App. 3d 762, 618 N.E.2d 1275 (1993) (Perkins II) and (2) found that defendant's fifth-amendment rights were violated because "he was already represented by counsel in other matters that were pending, and from his assertion to [the deputy] that he didn't want to speak any longer with the officers or answer questions with regards to the issues at hand." This appeal followed. II. ANALYSIS A. Standard of Review When ruling on a motion to suppress evidence, the trial - 5 -

court often must choose between competing versions of fact and weigh the credibility of witnesses. We thus defer to the trial

court's factual findings unless we determine that those findings are manifestly erroneous. People v. Roberson, 367 Ill. App. 3d A "'manifest error'" is People

193, 195, 854 N.E.2d 317, 320 (2006).

one that is "clearly evident, plain, and indisputable."

v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997). Although we defer to the trial court on questions of fact, we review de novo whether the law requires suppression of the evidence under those facts. 854 N.E.2d at 320. B. Defendant's Fifth-Amendment Rights The State first argues that the trial court erred by granting defendant's motion to suppress on the ground that defendant's fifth-amendment rights were violated. We agree. Roberson, 367 Ill. App. 3d at 195,

In Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612, the United States Supreme Court held that the fifth-amendment privilege against self-incrimination prohibits admitting in evidence statements given by a suspect during custodial interrogation without a prior warning. warnings "were meant to preserve the fifth[-]amendment privilege against self-incrimination during incommunicado interrogation of individuals in - 6 The Miranda

a police-dominated atmosphere.

Courts view

that atmosphere as generating inherently compelling pressures that work to undermine the individual's will to resist and to compel the person to speak where the person would not otherwise do so freely." People v. Man-

ning, 182 Ill. 2d 193, 206, 695 N.E.2d 423, 429 (1998). However, in Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 250-51, 110 S. Ct. 2394, 2397 (1990) (Perkins I), the United States Supreme Court held that Miranda is not implicated during conversations between suspects and undercover agents. The Supreme Court reasoned that the concerns underlying

Miranda are not implicated in such circumstances because "[t]he essential ingredients of a 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate." Perkins I, 496 U.S. at 296, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397. The Court further explained as follows: "When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. *** [Citation.]

There is no empirical basis for the

assumption that a suspect speaking to those - 7 -

whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess." Perkins I, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397. See also Manning, 182 Ill. 2d at 206, 695 N.E.2d at 429 ("Ploys to mislead a suspect or lull the suspect into a false sense of security--that do not rise to the level of compulsion or coercion to speak--are not within Miranda's concerns"). In this case, defendant freely chose to speak with Marr, who was posing as a fellow inmate on the State's behalf. The record shows no ploys to mislead defendant that rose to the level of compulsion or coercion to speak. Thus, in accordance

with Perkins I, we conclude that no Miranda warnings were required prior to Marr's jailhouse conversation with defendant. See People v. Easley, 148 Ill. 2d 281, 312, 592 N.E.2d 1036, 1049 (1992) (in which our supreme court concluded that in light of the Supreme Court's decision in Perkins I, an inmate who was working undercover for the Department of Corrections was under no obligation to give the defendant Miranda warnings prior to questioning him). In so concluding, we note that defendant's prior invocation of his right to remain silent did not require that - 8 -

defendant validly waive that right before Marr questioned him. In that regard, we agree with Professor LaFave, who wrote the following: "While a concurring opinion [by Justice Brennan] in Perkins [I] asserted that if 'respondent had invoked either [his right to remain silent or his right to counsel], the inquiry would focus on whether he subsequently waived the particular right,' that contention is inconsistent with the analysis of the Perkins [I] majority ***." W. LaFave, J. Israel & N. King, Criminal Procedure

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