People v. Downey
| Citation | 198 Ill.App.3d 704,556 N.E.2d 300 |
| Decision Date | 15 June 1990 |
| Docket Number | Nos. 2-88-1077,2-88-1078,s. 2-88-1077 |
| Parties | , 144 Ill.Dec. 833 The PEOPLE of the State of Illinois, Respondent-Appellee, v. Connie DOWNEY, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Paul J. Glaser (argued), Office of State Appellate Defender, Elgin, for Connie Downey.
Fred L. Foreman, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, David A. Bernhard (argued), State's Attys. Appellate Prosecutors, Elgin, for People.
Defendant, Connie Downey, appeals from an order of the circuit court dismissing his post-conviction petition in two separate cases. Pursuant to defendant's motion, this court consolidated these cases for this appeal. Defendant raises the issue of whether the trial court abused its discretion in denying defendant an evidentiary hearing on the issues of the ineffective assistance of trial and appellate counsel.
Defendant was found guilty in a bench trial of armed robbery (Ill.Rev.Stat.1985 ch. 38, par. 18-2), two counts of robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-1), and one count of misdemeanor theft (Ill.Rev.Stat.1985, ch. 38, par. 16-1(a)(1)) resulting from occurrences in an armed robbery of a grocery store in Waukegan, Illinois, on January 19, 1985. In a separate jury trial, defendant was convicted of armed robbery at a pharmacy in North Chicago, Illinois, on January 4, 1985. The cases were consolidated for sentencing, and the trial court sentenced defendant to two consecutive 30-year terms of imprisonment for the armed robbery convictions. Defendant's convictions and sentences were affirmed on appeal in People v. Downey (1987), 162 Ill.App.3d 322, 113 Ill.Dec. 553, 515 N.E.2d 362. The facts relating to the underlying crimes were set forth in detail in the direct appeal, and we will discuss only those facts relevant to the issue in these consolidated appeals.
On May 19, 1988, defendant filed a pro se petition for post-conviction relief. Defendant alleged that his trial counsel was ineffective for failing to challenge defendant's arrest on the basis of lack of probable cause. Defendant attached a copy of the transcript of the suppression hearing in 1985, when defendant was represented by the public defender.
At the suppression hearing, Officer Ryan Milot, of the Waukegan police department, testified that on January 22, 1985, he and Officer Hansen went to a home in North Chicago to look for defendant. The officers found defendant in a bedroom closet, crouched down, hiding beneath some clothes. Hansen told defendant to come out of the closet. The officers told defendant to get dressed, and they asked him to come down to the police station to answer some questions. Milot denied that they arrested defendant at the house. Defendant agreed to accompany the officers to the police station. At the police station, the officers read defendant the Miranda rights. According to Milot, defendant was free to leave the police station. Milot further testified to events which occurred at the police station, including defendant's confession. Defendant was arrested after he confessed to one crime, and he eventually confessed to a total of 10 crimes.
On cross-examination, defense counsel attempted to ask Milot why they went to the house in North Chicago. The prosecutor objected on the ground of relevancy, and the court sustained the objection. Defense counsel then explained that the question related to whether defendant was in custody. The prosecutor responded that how defendant was brought into the police station was irrelevant because he did not make any statement until after the officers read him the Miranda warnings. Defense counsel then argued that whether defendant was in custody was relevant to the confession. The court then allowed defense counsel to proceed with that line of questioning.
Milot testified that he had received a tip to go to that address in North Chicago as part of an investigation into several armed robberies. The officers had gone to the house and were met at the door by a man who told the officers that defendant was not there. The officers left to telephone the house to determine if defendant was there. Milot did not know why defendant was a suspect in the armed robberies except that the police had a photograph from one incident, and, after showing it to several people, they "came up with" defendant as a suspect. The second time they went to the house, a woman answered the door. The officers asked if defendant was there. She said no and told the officers that they "could come inside and look" if they wanted. The officers then entered the house and searched for defendant. Milot admitted that the officers did not tell defendant that he was free to go after they arrived at the police station.
Mark Hansen, a Waukegan police officer, testified that he was a friend of defendant. He went with Milot to look for defendant. The officers found defendant hiding in a bedroom closet. At that time, Hansen had his hand on his gun, and it was halfway out of the holster. The officers had defendant come out of the closet. Hansen asked defendant to come to the police station to talk about something, but he did not tell defendant about what they wanted to talk with him. Hansen testified that they did not arrest defendant at the house and that he was not under arrest in the squad car. Hansen also testified about events which occurred at the police station.
Hansen explained that he did not go into the interrogation room with defendant. More than an hour after they brought defendant to the police station, one of the detectives who had been talking to defendant told Hansen that defendant wanted to talk to him and that the detectives had already read defendant his rights. When Hansen went in to talk to defendant, defendant asked him "how many years he was going to get for the robbery." Hansen asked defendant "why he had done the robberies." Defendant told Hansen that "he had done them because his family wasn't giving him any support; he needed money and it was cold out." Hansen further questioned defendant about the robberies, and then left the room and told the detectives that defendant confessed to committing all the robberies.
On cross-examination, Hansen explained the circumstances behind the visit to the house in North Chicago. The police received an anonymous tip from Crime Stoppers that defendant had committed a series of armed robberies in the Waukegan and North Chicago area, and the tipster gave the police a telephone number at which defendant could be reached. Hansen did not have any reason to know how the tipster knew defendant was involved in the armed robberies. Defendant was already a suspect, but Hansen was "not sure why." Someone came up with defendant's name after viewing the videotape of an armed robbery. Hansen had seen the videotape but did not recognize the offender as defendant. Hansen admitted that he never told defendant he was free to go because "[i]t wasn't needed." On redirect, Hansen stated that they did not try to get a warrant to arrest defendant because Hansen knew it would be useless without a positive identification of defendant as the offender.
Detective Howard Pratt testified that he interviewed defendant at the Waukegan police station. According to Pratt, defendant was not in custody or under arrest. Pratt and Detective Milot read defendant his rights and then gave him a copy of a form with the Miranda rights printed on it. Defendant read the form and stated that he understood it, but he refused to sign it. The detectives then asked him about one of the robberies. Defendant asked them "how much time would he get" if he talked about the incident. After an hour and one-half, defendant told the detectives that he wanted to talk to Officer Hansen. After speaking with Hansen, defendant gave a statement to the detectives. Defendant was arrested after he gave a tape-recorded statement about one of the robberies.
In several colloquies, defense counsel and the prosecutor argued the relevance of the issue of whether defendant was in custody. The court told them, "I don't see [custody] as an issue from the Motion unless there is another Motion." Defense counsel responded that the issue of custody was inherent in the motion to suppress.
Defendant testified that on January 22, 1985, he was staying with friends in North Chicago. The police came to the house and knocked on the door. Defendant was unsure who answered the door, but the person told the police that defendant was not there. Twenty minutes later, there was a phone call, and one of his friend's younger brothers answered and said it was for defendant. When defendant picked up the phone, whoever had called hung up. Approximately 15 to 20 minutes later, the police returned to the house. When defendant heard it was the police at the door, his friends told him to go into a bedroom until they could find out what the police wanted with defendant. The police asked if defendant was there, and his friends told them he was not. Defendant's friend told the police that they could not come in the house. According to defendant, the police "barged in anyway," saying that they knew defendant was there because they had just called the house and someone said he was there. During this conversation, defendant was hiding in the bedroom closet.
The police officers came into the bedroom and opened the closetwhere defendant was hiding. Officer Hansen told defendant to come out. According to defendant, Hansen had his gun completely out of the holster. The officers asked defendant to accompany them to the police station to answer some questions. Defendant asked them what it was about, but they would not tell him. Defendant was under the impression that he did not have a choice, so he went to the police station. Before they left the bedroom, the officers...
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