People v. Curtis
| Decision Date | 29 March 1985 |
| Docket Number | Nos. 83-2339,83-2395,s. 83-2339 |
| Citation | 132 Ill.App.3d 241,87 Ill.Dec. 170,476 N.E.2d 1162 |
| Parties | , 87 Ill.Dec. 170 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James CURTIS and Andrew Ryder, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
James L. Hardemon, Wilson Frost, Chicago, for defendant-appellant curtis.
Patrick A. Tuite, Chicago, for defendant-appellant Ryder.
Richard M. Daley, State's Atty., Chicago, for plaintiff-appellee.
Defendants James Curtis and Andrew Ryder were found guilty of armed robbery in a bench trial. We reverse the convictions and remand for a new trial because of the violation of defendants' sixth amendment right to counsel after adversarial judicial proceedings had been initiated against them and because of the exploitation of the results of that constitutional violation at trial.
On July 18, 1979, two men entered a liquor store at about 10 p.m., near closing time. They pretended to be customers and then wielded guns and removed a gun from a part-time security guard, Fred Kennie. They also took money and checks from the store manager, Thomas Buckle, a cashier, Rosalind Harris, and another employee, Gregory Webb. The entire incident lasted from 15 minutes to a half hour. After the robbery, the police were called and Buckle related that the robbers were a white man and a black man. Buckle also gave a general description of the robbers to the police.
Nineteen months later, in early February of 1981, Kennie informed the police that he was a participant in the robbery and that his accomplices were defendants Ryder and Curtis. On February 10, 1981, two arrays of five photographs were shown to Buckle. One array included a photograph of Ryder, and the other array included a photograph of Curtis. According to the testimony of a police officer, Buckle made a tentative identification of Ryder from the first array. The same police officer testified, however, that Buckle was not sure and that, in effect, he wanted to see the man in the photograph in person before he made a positive identification. After looking at the second array of five photographs Buckle said "this one here resembled" Curtis.
On February 11, 1981, an array of five photographs, which included a photograph of Ryder, was shown to Harris. She stated that the photograph of Ryder "looked like the guy" she saw in the store. After being shown another array of five photographs, which included a photograph of Curtis, she stated, "I thought this was the picture of the black guy."
On February 17, 1981, felony complaints were prepared and submitted before a judge of the circuit court, naming Ryder and Curtis as defendants. The complaints charged defendants with armed robbery. After conducting a hearing, the judge determined that there was probable cause for filing the complaints. He gave the assistant State's Attorney leave to file the complaints, and he issued arrest warrants.
At about 5 p.m. on the same day, Ryder was arrested pursuant to the warrant and taken to the area police station. He requested an attorney and declined to give a statement until he talked to his attorney. He telephoned his attorney, and he was told not to give any statements. Also, Ryder's attorney testified that he told a police officer on the telephone that he was in the process of working on another matter, but that he would appear at the police station and represent Ryder and he would attend a proposed lineup involving Ryder. About an hour and 15 minutes later, around 8:30 p.m., before the attorney arrived at the police station and without a waiver from Ryder, a lineup which included Ryder was conducted at the police station. Ryder's attorney appeared at the police station at 11 p.m., but the lineup had already taken place.
At the lineup, Buckle identified Ryder as one of the robbers. Ryder was the only person in the lineup who was in the array of five photographs that had been shown to Buckle seven days earlier on February 10, 1981.
Curtis was also arrested on February 17, 1981. After his arrest, he was taken to the same area police station but he did not arrive there until about 6:45 p.m. At the police station, when he was read his Miranda warnings and asked if he wanted to give a statement, he said: "I told them no, until I see my attorney." When he was asked if he wanted to call an attorney, he said: "I told them I had three attorneys and I didn't know which one to call at that time of night, whether they'd be in the office or not." Later, he attempted to call two of the lawyers but he was not able to reach them because no one answered the phone calls. About one-half hour to one hour later, Curtis was taken to a room where he was told, "[Y]ou're going to have to be in a lineup and * * * to stand where I wanted to." Curtis did not voluntarily participate in the lineup. He was told he "had to stand the lineup."
At the lineup, Buckle told the police that Curtis "resembled the man." At no time did Curtis tell anyone that he did not want an attorney or that he waived his right to an attorney. An assistant State's Attorney was present during the lineup involving Curtis, as well as during the lineup involving Ryder.
The police officer who arrested Curtis testified that after he read Curtis the Miranda warnings in an interview room at the police station, the following occurred:
A I told him there is going to be a lineup in about an hour or two and that there'd be several people viewing the lineup and he had the right to contact an attorney.
Q What did he say to that?
A He stated he had three attorneys and didn't know which one he wanted to call, and I offered him the phone to call all three if he wished.
Q What did he say to that?
A He stated he wanted to wait and see what happened. Meaning, I assume, he meant after the lineup. I don't know.
Q Okay. So did he make any calls at that time?
A He did make some phone calls.
Q Do you know who to?
A No.
Q Did he tell you anything after that?
A No.
Q Okay. By the way, did he indicate whether he wanted to give any statement when you advised him of his Miranda warnings?
A Right after he was advised of his rights he declined to give any statement at all.
Curtis was then taken to another room. While he was in that room, a second police officer stepped inside the room and began conversing with Curtis. As to what occurred, the police officer testified:
Q What, if anything, did he say to you, what, if anything did you say to him?
A I believe, first, I remarked about not looking like his picture. And, I told him who I was. And, I was working on the case. And, I asked him if he had been advised of his rights.
He said he had. And, he had already been advised of his rights. And, I told him that Mr. Ryder had been arrested. And also that Mr. [Kennie] had been arrested in this matter. And that he would have to stand a line-up. And, I asked him if he had an Attorney. And, advised him that Mr. Ryder had an Attorney. And he said that he had three Attorneys.
Now, on the three Attorneys he had, he used them, apparently, in some business deals or what have you, before. But, he informed me that he did not want to make a phone call. And, did not want to talk to one of the Attorneys, because--as he said--he was "gonna play it by ear" at that time. And, he didn't know who he was going to use as an Attorney. Because he had three of them that he had dealt with in the past.
Q So, did he make any phone calls, at all, in your presence?
A He made no phone calls. At that time, I asked him did he want one and he did not.
On February 19, 1981, Harris, who had not attended the lineups, saw a picture of Ryder and Curtis in a newspaper which reported that they had been arrested for the robbery. On February 23, 1981, police officers visited Harris and showed her photographs of the lineups that had been taken on February 17, 1981. She viewed the lineup photographs and stated that Curtis and Ryder were the "guys that [were] at the store."
The trial took place more than four years after the robbery. Except as stated, neither Buckle nor Harris had seen or viewed defendants in the interim period. At trial, defendants filed motions to suppress the lineup identifications that had been made by Buckle. The court allowed the motion to suppress as to Ryder on the basis that the lineup identification had occurred without assistance of counsel in violation of the sixth amendment. However, the court denied the motion to suppress as to Curtis on the basis that he had waived his right to assistance of counsel at the lineup.
At trial, over the objections of defendants, the court allowed Buckle and Harris to make in-court identifications of defendants. Defendants objected on the basis that the in-court identifications were the result of the unconstitutionally obtained lineup identifications and that, therefore, they should have been suppressed. In addition, over the objections of defendants, the prosecutor showed Harris the lineup photographs at trial, and Harris testified that she had seen the lineup photographs on February 23, 1981, and that she had identified defendants at that time. The lineup photographs were then admitted into evidence.
A critical issue in this case involves an accused's sixth amendment right "to have the Assistance of Counsel for his defence." U.S.Const., amend. VI. Specifically, defendants argue that their constitutional right to counsel at the lineups was violated and, therefore, the lineup evidence and the in-court identifications of defendants at trial should have been suppressed. The State counters that the lineup evidence and the in-court identifications were proper "as no right to counsel had attached at the time of the lineup[s] since no adversarial [judicial] proceedings had been initiated." 1 In addressing the issue, we first observe what the United States Supreme Court said in Gilbert v. California: "We there held [in United States v. Wade...
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