People v. Makiel, 1-91-1179

Citation263 Ill.App.3d 54,200 Ill.Dec. 602,635 N.E.2d 941
Decision Date24 May 1994
Docket NumberNo. 1-91-1179,1-91-1179
Parties, 200 Ill.Dec. 602 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel MAKIEL, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, Maureen A. Harton, Linda J. Jakubs, of counsel), for plaintiff-appellee.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Maria A. Harrigan, of counsel), for defendant-appellant.

Presiding Justice DiVITO delivered the opinion of the court:

The principal questions we address in this case are (1) whether law enforcement officials may properly initiate interrogation, after Miranda admonitions, of an already-indicted defendant who had accepted counsel for purposes of a concluded extradition proceeding; and (2) whether the trial court conducted a proper inquiry into the competency of a witness and the relevancy of the evidence he would offer before deciding to exclude his testimony. We answer the first question "yes" and the second one "no".

Defendant Daniel Makiel was indicted on April 7, 1989, for the murder and armed robbery of Katherine Hoch, which occurred on October 19, 1988, at the Mobil gasoline station she managed in Calumet City, Illinois. On October 20, 1989, police executed a warrant for defendant's arrest at the Indiana Department of Corrections. Indiana extradited defendant, and Illinois authorities transported him to Cook County. A jury later found defendant guilty of first degree murder and armed robbery, and he was sentenced to a term of natural life in prison for the murder, consecutive to an extended term of 60 years' imprisonment for the armed robbery, both sentences to be consecutive to a 40 year sentence for attempt murder in Indiana.

Prior to trial, defendant moved to suppress his pre-trial statement to the police. Defendant argued that his October 20, 1989 statement was taken in violation of his sixth amendment right to counsel, because an assistant state's attorney began questioning him on the drive from Indiana to Illinois after his extradition hearing where he had been represented by appointed counsel. The circuit court denied defendant's motion.

At trial, Todd Hlinko testified that in October 1988, he lived with defendant at defendant's father's house in Calumet City. On October 19, 1988, he and defendant had possession of a blue Oldsmobile Cutlass 442 owned by their friend, John Miller, who had loaned the car to defendant for transmission repair work. The Cutlass was a distinctive shade of blue, with wide, white striping emblazoned with "442" across the side panels. In later testimony, John Miller stated that he had loaned the car to Hlinko and defendant on October 19, 1988, and noticed from its condition the next day that the car had been driven overnight.

Hlinko testified that he and defendant used the Cutlass to pick up Sammy Ilich from work at about 5 p.m. on October 19, 1988. Defendant drove, Hlinko sat in the passenger seat, and Ilich sat in the back. They drove around Dolton and Calumet City, looking unsuccessfully for parties or somewhere to sell marijuana. They stopped at defendant's house to use the telephone at 7 p.m. At about 7:30 p.m., they drove to the Harrison Park area of Hammond, Indiana, where defendant got out of the car and went up to "some guy's house." When defendant returned to the car, he gave Ilich a "hit" of acid and took some himself. Although Hlinko said that he did not take acid that night, he had used it before.

They drove toward Calumet City, stopping to play pool and still trying to sell marijuana. At approximately 11 p.m., defendant said he "would stop and get some money." They pulled into the Mobil gasoline station at Burnham and Michigan City Roads in Calumet City, parking the Cutlass just off Michigan City Road. They waited in the car for a few minutes, listening to music, until two customers who were in the station left. Then they pulled the car next to a white van, which was parked parallel to the east side of the station. In later testimony, Hoch's husband identified the white van as the vehicle Hoch drove to work that day.

Hlinko followed defendant out of the Cutlass and into the station. As they entered, Hlinko saw Hoch walking from the counter in the mini-mart, towards the back room. Defendant told him to "watch out," pointed a gun at Hoch, grabbed her arm, and led her into the back room. As he acted as lookout, Hlinko heard defendant demand money from Hoch, heard noises like drawers slamming, and heard a single gunshot. Defendant then exited the back room, holding the gun and a purse, and went behind the counter to the cash register. Defendant picked up an envelope from the cash register and took two packs of cigarettes and handed them to Hlinko. Hlinko saw no one else in the station at the time, and estimated that only a few minutes elapsed while they were inside.

When they returned to the car, defendant put the purse under the driver's seat. Although he guessed what had happened in the station, Hlinko kept asking defendant "what the hell was going on." Defendant responded, "Don't worry about it." As he drove, defendant told Hlinko that "something went wrong" at the station. Ilich asked to go to his home in East Chicago, but as they neared his house Ilich changed his mind and they headed instead to the house of Shane Miller (no relation to John Miller), also in East Chicago. En route, they stopped in an alley near Ilich's house, and defendant left the car with the purse and walked to a dumpster. Hlinko did not see what defendant did there, but noticed that defendant returned to the car without the purse.

At about 11:30 p.m., Shane invited Hlinko, Ilich, and defendant into his house, and the four of them smoked a marijuana cigarette. About five minutes later, all four drove in the Cutlass to the Calumet Expressway, with Shane and Ilich in the back seat. Defendant, who was driving, slowed the car down and took the gun from his pants as they crossed the bridge near Calumet City. He handed the gun to Hlinko, and told him to get rid of it. Hlinko threw the gun out the passenger window and into the Cal-Sag River. Shane asked what Hlinko threw out the window, and Hlinko answered that it was a gun.

They then returned to the same Calumet City Mobil station, arguing about who would get out and pump the gasoline. They saw squad cars in the parking lot, and a police officer stopped their car at the entrance, telling them that something had happened and that they would have to leave.

They drove from the station to defendant's house, arriving around midnight. Hlinko and defendant went upstairs to defendant's bedroom, while Ilich and Shane used the downstairs bathroom.

During the moments before Ilich and Shane entered the bedroom, Hlinko again asked defendant what happened, and defendant again told him not to worry, and that something went wrong. After Ilich and Shane entered the room, Hlinko heard defendant tell Shane about the killing. The four then drank alcohol and smoked marijuana.

At about 1 a.m., John Pullyblank and his girl friend arrived at defendant's house, but no one said anything to them about the killing. When the two newcomers offered to go out and buy more alcohol, defendant contributed $20 for himself, Ilich, and Hlinko. Hlinko testified that the $20 surprised him because defendant usually had no money and Hlinko had paid for everything earlier that evening. In later testimony, Pullyblank said that he was friends with Ilich, Hlinko, and defendant, but denied seeing Shane while visiting defendant's house; he also did not know for certain whether he visited defendant's house on the night in question.

Hlinko further testified that, after the night of October 19, 1988, defendant next spoke to him about the killing upon returning from the police station, where the police had questioned him about an unrelated purse snatching. Defendant told him not to worry about the killing because they "got away with it", and because the police showed more interest in the purse snatching than in the killing.

On March 2, 1989, the police arrested Hlinko on a drug offense which also violated his probation. While in custody on March 2, 1989, Hlinko signed a statement in which he stated that on October 19, 1988, defendant went into the Mobil station alone, and that he, defendant, and Ilich drove to defendant's house directly from the station. In the statement, he said he saw a purse at defendant's house when he and defendant went to sleep on October 19, 1988.

The police arrested Hlinko again on March 16, 1989, this time for the armed robbery and murder at the Mobil station. Hlinko testified that he initially confirmed the truthfulness of his March 2 statement. He told the police on March 16 about defendant's statements to him after defendant's interrogation regarding the purse snatching. He might have told the police that defendant and others left the house at around 11 p.m. on October 19, 1988, to buy cigarettes at the Mobil station. Hlinko eventually signed a statement for the police on March 16, 1989, which differed from the March 2 statement. In the March 16 statement, he again placed himself, Ilich, and defendant at the station, but said that he stayed in the car while defendant and Ilich went inside. He told the police on March 16 that he saw defendant throw things out of the car window on October 19, 1988, but did not see a gun.

Hlinko testified that he lied to the police at first about not going into the gas station in an attempt to avoid implicating himself. He felt great pressure on March 16 and signed the statement because the police told his parents he should cooperate or be charged with the murder. He later filed charges of police brutality, alleging that the police beat him in order to obtain his statement. In April 1989, he told his mother, his attorney, and defendan...

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