606 N.E.2d 1186 (Ill. 1992), 73042, People v. Winsett

Docket Nº:73042.
Citation:606 N.E.2d 1186, 153 Ill.2d 335, 180 Ill.Dec. 109
Party Name:The PEOPLE of the State of Illinois, Appellant, v. Larry WINSETT, Appellee.
Case Date:November 19, 1992
Court:Supreme Court of Illinois

Page 1186

606 N.E.2d 1186 (Ill. 1992)

153 Ill.2d 335, 180 Ill.Dec. 109

The PEOPLE of the State of Illinois, Appellant,

v.

Larry WINSETT, Appellee.

No. 73042.

Supreme Court of Illinois.

November 19, 1992.

Rehearing Denied Feb. 1, 1993.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[153 Ill.2d 336] [180 Ill.Dec. 112] Roland W. Burris, Atty. Gen., Springfield, and Michael J. Waller, State's Atty., Waukegan (Rosalyn Kaplan, Sol. Gen., and Terence M. Madsen and Karen Alice Kloppe, Asst. Attys. Gen., and Kenneth R. Boyle, John X. Breslin and Rita Kennedy Mertel, of the Office of the State's Attys. Appellate Pros., Ottawa, of counsel), for the People.

Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Asst. Defender, of the Office of the State Appellate Defender, Ottawa, for appellee.

[153 Ill.2d 337] Fred E. Inbau and Wayne W. Schmidt, Chicago, and James P. Manak, Glen Ellyn (Bernard J. Farber, Chicago, of counsel), for amici curiae Americans for Effective Law Enforcement, Inc., et al.

Justice BILANDIC delivered the opinion of the court:

The defendant, Larry Winsett, was convicted following a jury trial in the circuit court of Lake County of attempted murder (Ill.Rev.Stat.1985, ch. 38, par. 8-4), 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)). He was sentenced to concurrent terms of 14, 40, and 40 years' imprisonment. The defendant's convictions and sentences were affirmed on direct appeal. (People v. Winsett (1986), 147 Ill.App.3d 1161 (unpublished order under Supreme Court Rule 23).) The defendant subsequently filed a petition for post-conviction relief, claiming that he was deprived of the effective assistance of counsel on direct appeal. Following an evidentiary hearing, the circuit court denied the defendant's post-conviction petition. The appellate court reversed the judgment of the circuit court, reversed the defendant's convictions and sentences and remanded the cause for a new trial. (222 Ill.App.3d 58, 164 Ill.Dec. 673, 583 N.E.2d 589.) We allowed the State's petition for leave to appeal (134 Ill.2d R. 315).

STATEMENT OF FACTS

Due to the nature of the issue raised in this appeal, it is necessary to discuss the prior history and the facts of this case in some detail.

Motion to Suppress

The defendant was indicted on April 10, 1985, for the [153 Ill.2d 338] offenses of attempted murder, conspiracy to commit murder and solicitation of murder stemming from the shooting of Arturo Zarinana. On April 18, 1985, the trial court held a hearing on the defendant's motion to suppress statements he made to the police. The evidence at the suppression hearing established that the defendant was arrested at his home on February 20, 1985, pursuant to a warrant charging him with conspiracy to commit murder. Two plain-clothes detectives from the Waukegan police department and two plain-clothes police officers from the Round Lake Beach police department arrived at the defendant's home at approximately 5 p.m. as the defendant and his family were eating dinner. The detectives asked the defendant to step into the living room, informed him of the warrant, and placed him under arrest. The defendant immediately told one of the detectives, "I want a lawyer." The defendant then turned his head toward his wife, who had followed the officers into the living room, and said, "Call Bajko," who was the defendant's attorney. The 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 took the defendant from the house to their unmarked police cars, the defendant again told his wife to "call Bajko." The defendant's wife asked the officers what would happen to her husband. The officers informed her that the defendant would be permitted to phone her after he was booked and that they were taking defendant to the Lake County Building, which houses the Lake County sheriff's office. After waiting a half-hour without hearing from her husband, the defendant's wife called the Lake County sheriff's office, which had no record of the defendant's arrest. The Lake County sheriff's office informed the defendant's wife [153 Ill.2d 339] that it occasionally performed arrests for

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[180 Ill.Dec. 113] other departments and advised her to wait another half-hour and to call it again. During that time, the defendant's wife called attorney Bajko's office, but there was no answer. She then called the Lake County sheriff's office again, and was advised to call other local police departments in the area to locate her husband, which she did without success. The defendant's wife again contacted the Lake County sheriff, who offered to attempt to locate defendant.

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

The defendant testified that he was taken to the Waukegan police station, where he was placed in an interview room. His handcuffs were removed, and his personal property was inventoried. He was then read his Miranda rights. The officer who read him his rights completed a waiver form, including the time, and made check marks on the form as the defendant indicated that he understood each right. Defendant refused to sign the waiver, however, and told the officer that he was unwilling to answer questions or make statements until he spoke with his attorney. The officers nevertheless continued to question the defendant for approximately 2 to 2 1/2 hours. During this period of time, the defendant asked to speak with his attorney on three separate occasions. Defendant eventually made inculpatory statements. In his statement, the defendant identified Glen Spruille as [153 Ill.2d 340] his accomplice. After making his statement, the defendant was again presented with the waiver form to sign, at which time he did so. The defendant was then permitted to call his wife. His call was made at 8:35 p.m. as indicated on their telephone bill. The defendant's wife then contacted attorney Bajko, who later arrived and advised the defendant not to sign the statement.

Each of the four officers who participated in the defendant's arrest denied that the defendant asked for an attorney at his home, either in the living room or as he was leaving the house. The Waukegan officers testified that they told the defendant's wife that he was being taken to the Waukegan police station. The officer who read the defendant his rights testified that the defendant signed the waiver form immediately after he was informed of his Miranda rights. Both Waukegan officers testified that the defendant did not at any time request an attorney during their questioning. They also testified that the defendant was not advised that he could make a phone call, but was permitted to do so after he specifically asked to call his wife.

After hearing the testimony at the suppression hearing, the court found that the defense witnesses, who included the defendant, his wife, his two teenage daughters and his sister-in-law, were "extremely credible." The court then granted the defendant's motion to suppress his statements because they were given after the defendant had requested counsel. (See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378.) The court specifically found, however, that the defendant's statements were not 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.

Motion In Limine

[153 Ill.2d 341] On May 28, 1985, the defendant filed a motion in limine to exclude evidence obtained as a result of his statements. Specifically, the defendant sought to prohibit the State from presenting Glen Spruille's testimony implicating the defendant at trial. The defendant claimed that Spruille's identity and testimony should be excluded at trial under the "fruit of the poisonous tree" doctrine. That doctrine may be invoked where the police violate a defendant's constitutional rights, for example,

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[180 Ill.Dec. 114] by conducting an improper search, arrest or interrogation. The constitutional violation is termed the "poisonous tree." Any evidence obtained by exploitation of that constitutional violation is considered to be the "fruit" of the poisonous tree, and is subject to suppression at trial. (Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) The defendant here claimed that his interrogation amounted to a "poisonous tree" and that all evidence derived from that interrogation, including Spruille's identity and testimony, should be excluded at trial as the "fruit" of that poisonous tree. Following a hearing, the trial court denied the motion, finding that the "present state of the law was such that the motion was not well taken."

Trial

At the defendant's trial, the State attempted to show that David Robinson agreed to pay the defendant $20,000 to kill the victim, and that the defendant, in turn, paid Glen Spruille $2,000 to shoot the victim. Robinson apparently wanted the victim killed because he was having an affair with the victim's wife. To establish this theory, the State introduced the following testimony at trial. Maria Zarinana, the victim's wife, testified that she had an affair...

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