People v. Winsett

• Decision Date: 27 November 1991
• Docket Number: No. 2-90-0481,2-90-0481
• Citation: 164 Ill.Dec. 673,583 N.E.2d 589,222 Ill.App.3d 58
• Parties: , 164 Ill.Dec. 673 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry WINSETT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 589

583 N.E.2d 589

222 Ill.App.3d 58, 164 Ill.Dec. 673

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry WINSETT, Defendant-Appellant.

No. 2-90-0481.

Appellate Court of Illinois,

Second District.

Nov. 27, 1991.

G. Joseph Weller, Robert Agostinelli, Deputy Defenders, Office of the State Appellate Defender, Ottawa, Kathleen J. Hamill, Office of the State Appellate Defender, Elgin, Frank W. Ralph, Stephen Omolecki, Asst. Defenders, Office of the State Appellate Defender, Ottawa, for Larry Winsett.

Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, John X. Breslin, Deputy Director, State's Atty. Appellate Prosecutor, Rita Kennedy Mertel, State's Attys. Appellate Service Com'n, Ottawa, for the People.

Justice NICKELS delivered the opinion of the court:

After a hearing on April 25, 1990, the circuit court of Lake County denied defendant's post-conviction petition, which arose from his convictions of attempted murder (Ill.Rev.Stat.1985, ch. 38, par. 8-4(a)), solicitation of murder (Ill.Rev.Stat.1985, ch. 38, par. 8-1(a)), and conspiracy to commit murder (Ill.Rev.Stat.1985, ch. 38, par. 8-2(a)). Defendant appeals and asserts that the circuit court erred in denying his post-conviction petition because the trial court improperly denied defendant's motion to suppress the testimony of another putative defendant, Glenn Spruille, discovered as a fruit of defendant's unconstitutionally obtained statements.

On April 10, 1985, defendant was indicted in the circuit court of Lake County. The indictment alleged that David R. Robinson paid defendant $20,000 to kill Arturo Zarinana, the husband of Robinson's paramour. Defendant, in turn, agreed to pay Spruille $2,000 to kill Zarinana.

Defendant was arrested at his home on February 20, 1985, at approximately 5 p.m. by two plainclothes detectives from the Waukegan police department, who were driving an unmarked police car. Two Round Lake Beach officers, who were also in plainclothes and driving an unmarked car, assisted the Waukegan police in the arrest. After the detectives asked defendant to step into the living room and placed him under arrest, defendant told one of the detectives "I want a lawyer." Defendant then immediately turned or inclined his head toward his wife, who had followed the officers into the living room, and said "Call Bajko," who was defendant's attorney. Defendant's six children, sister-in-law, brother-in-law, and nephew, who were standing in the doorway between the adjoining dining room and the living room, overheard this conversation.

As the detectives escorted defendant from the house, defendant again said "Call Bajko" to his wife. In response to defendant's wife's questions about what would happen, the officers advised her that defendant would be allowed to phone her after he was booked and, further, that they were taking defendant to the Lake County Building, which houses the Lake County sheriff's office. After waiting a half hour without word from her husband, defendant's wife phoned the Lake County sheriff's office, which had no record of defendant's arrest. However, because it occasionally performed arrests for other departments, the Lake County sheriff's office advised defendant's wife to wait another half hour and call it again. During that time, defendant's wife phoned attorney Bajko's office, but there was no answer. She then phoned the Lake County Sheriff's office again, which suggested she call local police departments in the area to attempt to locate her husband, which she did without success. Defendant's wife again contacted the Lake County sheriff, who offered to attempt to locate defendant.

Defendant's wife then called the local junior college, at which attorney Bajko taught and where defendant had met him. Although attorney Bajko was not on campus that evening, the receptionist took defendant's wife's name and phone number and attempted to relay a message to attorney Bajko after learning the nature of the emergency that existed. The receptionist testified that after several unsuccessful attempts she eventually reached attorney Bajko, who then contacted defendant's wife.

Defendant testified that upon arrival at the Waukegan police station he was placed in an interview room, the handcuffs were removed, and his personal property was inventoried. At that time he was read his rights, and the officer who did so completed a waiver form, including the time, and checked each item off as defendant indicated that he understood his rights. Defendant, however, refused to sign the waiver and told the officer he was unwilling to answer questions or make statements until defendant spoke with his attorney. As the officers continued to ask questions over the next 2 to 2 1/2 hours, defendant requested his attorney another three times. Defendant eventually made statements, and he was then again presented with the waiver form to sign, at which time he did so. Defendant was then allowed to call his wife, which occurred at 8:35 p.m. as indicated on their telephone bill. Defendant's wife then contacted attorney Bajko, who later arrived and advised defendant not to sign the statements.

Each of the four officers denied that defendant had asked for an attorney at his home, either in the living room or as defendant was leaving the house, and the Waukegan officers testified that defendant's wife was told he was being taken to the Waukegan police station. The officer who read defendant his rights testified that defendant immediately signed the waiver, and both Waukegan officers testified that defendant did not at any time request an attorney during their questioning. Defendant was allowed to make a phone call to his wife when he requested to do so, but was not advised that he could make such a call prior to his request.

At the April 18, 1985, hearing on defendant's motion to suppress evidence of his statements, the court found defendant's witnesses, who included not only defendant himself, but his wife, two teenage daughters, and sister-in-law, "extremely credible." Although expressly finding that defendant's statements were neither involuntary for purposes of possible impeachment under Harris v. New York (1971), 401 U.S. 222, 225-26, 91 S.Ct. 643, 645-46, 28 L.Ed.2d 1, 4-5, nor the result of police trickery or coercion, the court granted defendant's motion to suppress his statements because they were given after defendant had requested counsel. (See Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378.) No interlocutory appeal was taken by the State from this ruling.

On May 28, 1985, defendant filed a motion in limine to suppress evidence obtained as a result of his statements. Specifically, defendant sought to exclude "any and all testimony of GLEN [sic ] SPRUILLE as it relates to Defendant, LARRY WINSETT, for the reason that said testimony and said evidence was a direct result of statements elicited from Defendant, LARRY WINSETT, and said statements have heretofore been ruled inadmissible by this Court." At the hearing on the motion in limine, defendant argued that the evidence was the "fruit of the poisonous tree and that the police and State should not benefit from any illegal activities on their part." The trial court found that the present state of the law was such that the motion was not well taken and denied the motion.

At trial, testimony revealed that Robinson was having an affair with Zarinana's wife and had attempted to hire somebody to kill Zarinana. Several employees and former employees of Robinson, including Spruille, were solicited to kill Zarinana. Spruille testified that defendant gave him a $1,000 down payment and defendant was to give him "another thousand after it's finished." According to Spruille, defendant gave him a description of Zarinana. Spruille testified that he shot Zarinana four times, although not fatally, and Spruille collected the rest of the money from defendant.

The jury found defendant guilty. On June 27, 1985, defendant filed a post-trial motion that included as a ground for a new trial the trial court's denial of the motion in limine to exclude evidence gained as the "fruit" of defendant's unconstitutionally obtained statements. The motion was denied, and defendant was sentenced to concurrent terms of 40 years' imprisonment for the convictions of attempted murder and solicitation and 14 years' imprisonment for conspiracy.

On his direct appeal to this court, defendant's appellate counsel did not raise as an issue the trial court's denial of defendant's motion in limine to exclude evidence obtained as a result of his suppressed statements, and this court affirmed defendant's convictions. (People v. Winsett (1986), 147 Ill.App.3d 1161, 512 N.E.2d 138 (unpublished order under Supreme Court Rule 23).) On February 1, 1990, defendant filed an amended petition for post-conviction relief (Ill.Rev.Stat.1989, ch. 38, par. 122-1 et seq.) claiming that the testimonial evidence of Spruille obtained as a result of the suppressed statements should also have been suppressed.

At the hearing on defendant's amended petition for post-conviction relief, Michael Fusz, the chief of felony review with the Lake County State's Attorney in 1985, testified that based on his review of the record there was nothing in the police reports that indicated that the victim could have identified Spruille, nor were there any eyewitnesses that identified Spruille as the shooter. According to Fusz, there was no indication that the Waukegan police department was aware of Spruille relative to the Zarinana shooting prior to defendant's February 20, 1985, arrest and statements, which directly linked Spruille to the offense. However, the investigation, including the interviews with Robinson's employees, would have continued absent defendant's statements.

Detective Donald Meadie of the Waukegan police department testified that he first...