People v. Foster, 4-89-0958
| Decision Date | 05 July 1990 |
| Docket Number | No. 4-89-0958,4-89-0958 |
| Parties | , 145 Ill.Dec. 387 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cecil Scott FOSTER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Costello, Immel, Zelle, Ogren, McClain & Costello, Springfield, for defendant-appellant.
Alan D. Tucker, State's Atty., Havana, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Gwendolyn W. Klingler, Staff Atty., Springfield, for plaintiff-appellee.
This is an appeal by defendant Cecil Scott Foster, from the judgments of conviction entered in the circuit court of Mason County. Following a jury trial, defendant was found guilty of residential burglary and theft of property having a value in excess of $300 (Ill.Rev.Stat.1987, ch. 38, pars. 19-3, 16-1). Defendant was sentenced to a term of imprisonment of 10 years for residential burglary and a term of imprisonment of four years for theft, the terms to be served concurrently. In addition, defendant was ordered to pay $1,225 restitution, plus court costs.
On appeal, defendant raises several issues. The facts relevant to each issue will be presented as the issues are analyzed.
The first issue to consider is whether the arrest warrant was issued without probable cause, requiring the suppression of defendant's statements subsequent to arrest. It is defendant's contention that since the arrest warrant was issued solely on information provided by a coconspirator, whom defendant characterized as a distraught witness complaining about her husband, there was no probable cause to issue the arrest warrant and, therefore, statements made by defendant following his arrest should have been suppressed. Section 107-9 of the Code of Criminal Procedure of 1963 (Code) states, in relevant part:
"(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense." (Ill.Rev.Stat.1987, ch. 38, par. 107-9(c).)
Under the Fourth Amendment to the Constitution of the United States and a similar provision in the Illinois Constitution, an arrest warrant may not issue without probable cause having been shown. (Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; People v. Ross (1985), 132 Ill.App.3d 553, 87 Ill.Dec. 888, 478 N.E.2d 27.) The existence of probable cause turns on the knowledge of the court and the officers at the time of the issuance of the warrant. If it appears from the totality of the circumstances and facts known to the court and officers, based on the information before the court at that time, that probable cause exists, unless such a finding is manifestly erroneous, a reviewing court will not overturn that finding of probable cause. A statement from a coconspirator implicating an accomplice may be sufficient to constitute probable cause for the issuance of an arrest warrant. A mere suspicion the defendant committed the offense is not sufficient to support the issuance of an arrest warrant, but evidence sufficient to convict is not necessary. Ross, 132 Ill.App.3d at 557, 87 Ill.Dec. at 892, 478 N.E.2d at 30.
The arrest warrant issued on November 24, 1988. However, the record on appeal does not contain the affidavit in support of the request for issuance of the arrest warrant, or any bystander's report setting forth what information was provided to the judge prior to or at the time of the issuance of the arrest warrant. It is the obligation of defendant, as appellant, to have prepared and submitted to this court a record sufficient to allow the review of this issue. (People v. Edwards (1978), 74 Ill.2d 1, 23 Ill.Dec. 73, 383 N.E.2d 944.) While this court is somewhat hindered by defendant's failure to submit a complete record, it is clear from the record before us that the defendant's "motion to suppress evidence and statements of defendant based on no probable cause and illegal arrest" was properly denied. Defendant's motion recites, "The arrest of Defendant without warrant was without probable cause, and absent exigent circumstances." Since it is obvious defendant was arrested pursuant to the issuance of an arrest warrant, the trial court properly denied defendant's motion.
The next issue presented for consideration is whether defendant's statements should have been suppressed because of violations of defendant's Miranda rights or, in the alternative, whether a statement of defendant should have been determined inadmissible because it alludes to offenses other than the offense for which defendant was being tried. The defendant raises three contentions. First, the defendant's right against self-incrimination has been violated by the officer's testimony referring to his silence during interrogation. Second, defendant argues the testimony should not have been allowed because of reference to other crimes. The third contention is that defendant's Miranda rights were violated by the officer's failure to discontinue the interrogation when defendant indicated he wanted to talk to his estranged wife before making a statement.
On direct examination, Chief Deputy Robert Huber of the Mason County sheriff's department, testified concerning his observations of defendant while Deputy Leland F. Keith interrogated defendant. Huber testified:
"Sergeant Keith would ask Mr. Foster certain questions about involvement of the complaint that was attached to the warrant and I was more or less watching the reactions of his facial reaction and what have you whenever Sergeant Keith would ask him a question about this he would hang his head in an ashamed and forlorn manner."
Defense counsel asked that the answer be stricken and the trial court sustained the objection. After a conference at the bench, the jury was instructed to disregard Huber's characterization of an "ashamed or forlorn look." On cross-examination, defense counsel asked Huber if the witness thought it was fair for him to comment on the defendant's exercising his constitutional rights. The State objected and, after a conference at the bench, the question was withdrawn. Keith's testimony concerning one of the interviews was as follows:
"[Prosecutor]: When you returned did you commence your interview with Mr. Foster?
A. Yes, I did.
Q. At that time did you explain to him your theory of the Jeff Lynn burglary?
A. Yes, I explained to him the evidence we had, what I thought that it proved and explained that I believe in detail to him.
Q. What was his response?
A. During this Mr. Foster stared at the floor, clasped his hands, gave no real visible or verbal response to that. I asked something to the effect is that right or something, he didn't answer or didn't look up.
Q. Did you explain to him or did you provide your theory to him at that time as to other matters which were pending in your office?
A. Yes, I did.
Q. And what was his response in that regard?
A. In particular one response was that looking at the floor lifted his head, looked at me, said no way, I don't know nothing about it. Emphatic."
The defense made no objection to this testimony. The defendant was later asked on cross-examination by the prosecutor whether he denied to the police his involvement in the instant offense. During closing argument, the prosecutor made the following statement:
Again, no objection was made by defendant.
In People v. Herrett (May 23, 1990, Docket No. 67605), the Illinois Supreme Court decided that such error could be waived without invoking the plain error doctrine if it was not "of such magnitude as to clearly deprive the defendant of a fair trial." (Herrett (May 23, 1990, Docket No. 67605, slip op. at 13).) However, in this case we deem that no waiver of the issue has occurred since defendant raised this issue before the trial judge on motion and the trial judge entered a ruling prior to trial. As a result, defendant's failure to object at trial does not constitute waiver.
The conversation about which the officers testified occurred while the defendant was in custody in Arizona. Defendant had been given his Miranda warnings. (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Defendant had signed a form waiving his Miranda rights. After indicating he understood his rights and that he intended to cooperate, he said he wanted to talk to his estranged wife, Judy.
Defendant does not argue Judy is an attorney and that such a request constitutes a request to consult with an attorney. Nor can he do so since such a person is not in a position to offer the legal assistance necessary for the protection of defendant's rights during interrogation. In United States ex rel. Riley v. Franzen (7th Cir.1981), 653 F.2d 1153, cert. denied (1981), 454 U.S. 1067, 102 S.Ct. 617, 70 L.Ed.2d 602, a 17-year-old defendant's request to talk to his father was construed as not invoking the right to assistance of counsel under Miranda. See also Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (); Chaney v. Wainwright (5th Cir.1977), 561 F.2d 1129 (...
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