People v. Laliberte, 2-91-1040

• Decision Date: 16 June 1993
• Docket Number: No. 2-91-1040,2-91-1040
• Parties: , 186 Ill.Dec. 9 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark LALIBERTE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 813

615 N.E.2d 813

246 Ill.App.3d 159, 186 Ill.Dec. 9

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark LALIBERTE, Defendant-Appellant.

No. 2-91-1040.

Appellate Court of Illinois Second District.

June 16, 1993.

G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Sherry R. Silvern (argued), Aurora, for Mark Laliberte.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director, State's Attorneys Appellate Prosecutor, Cynthia N. Schneider (argued), State's Attorney Appellate Prosecutor, Elgin, for the People.

Justice COLWELL delivered the opinion of the court:

Defendant, Mark A. Laliberte, was charged on June 8, 1990, with aggravated kidnaping. (Ill.Rev.Stat.1989, ch. 38, pars. 10-1(a)(1), 10-2(a)(1).) Following a jury trial in the circuit court of Winnebago County, defendant was found guilty and sentenced to 30 years in prison. Defendant appeals both the conviction and the sentence.

Defendant contends on appeal: (1) defendant's statements to police regarding the whereabouts of the kidnaping victim should have been suppressed; (2) tape recordings of conversations between defendant and the victim's father should have been suppressed; and (3) the trial court's sentence of 30 years' imprisonment was an abuse of discretion. The State contests defendant's assertions and further contends that regardless of this court's disposition of defendant's two suppression claims, the conviction should be affirmed due to the "overwhelming" nature of the evidence against defendant. We affirm.

On June 7, 1990, at approximately 9:50 a.m., defendant rang the doorbell at 1625 Shiloh Road in Rockford, Illinois, the residence of Dr. David Bartels. Home at the time were the Bartelses' baby-sitter and their two children, Bradley Bartels, age seven years, and Douglas Bartels, age one year.

Bradley answered the bell. Defendant stood in the front door, holding a bouquet of flowers and a gun. When the baby-sitter came up the basement stairs with Douglas in her arms, the defendant ordered her and Bradley back downstairs. All four went to the basement, where the baby-sitter was handcuffed to a pole, Bradley to a laundry basin. Defendant then took one-year-old Douglas. He asked for Dr. Bartels' office phone number, rummaged around upstairs until he found it, and left with the baby. Bradley was able to get free and telephoned the police.

Defendant drove the baby in a rented van to a wooded area in the northwest part of Rockford. There he zipped Douglas into a nylon duffel bag and left him in the woods.

Defendant telephoned Dr. Bartels in his office at about 10:15 a.m. and told him he had kidnaped his son. A few moments later, defendant called again and demanded $100,000 in return for the child. He told Dr. Bartels that he would call back at 5 p.m. Defendant returned the van to the rental agency around noon and later visited a hair salon, where he had his hair cut and highlighted.

Defendant called Dr. Bartels' home at 12:50 p.m. and 5:58 p.m. Those calls were electronically recorded by the FBI with Dr. Bartels' consent.

Learning that Dr. Bartels had accumulated the money, defendant directed him to three locations to wait for phone calls. Eventually, defendant told Dr. Bartels to leave the money at a mailbox on an island in a shopping center. When Dr. Bartels asked to see Douglas before handing over the money, defendant said that it would not be possible since the baby was out in the woods.

Observed by an FBI surveillance team, defendant picked up the money while on his motorcycle. He led officers on a high-speed chase before he was bumped from his motorcycle by an FBI squad car.

On the ground, surrounded by officers, defendant responded to police demands to reveal the location of the child by saying, "Fuck you, I want a lawyer." He was handcuffed and placed in a squad car with FBI agent Gary Fuhr. According to defendant, he requested an attorney repeatedly during the ensuing interrogation. After approximately 40 minutes of intense questioning by Fuhr, defendant agreed to direct the police to the woods where he left Douglas that morning. He also revealed that he had worked alone and that he had placed the baby in a duffel bag. Douglas was found alive, lying outside the duffel bag, at about 9:30 p.m.

Later that evening, at the Winnebago County Public Safety Building, defendant signed a written waiver of his Miranda rights and gave Winnebago County sheriff's police a detailed statement of the planning and execution of the kidnaping.

Defendant filed a motion to suppress all statements made to police from the moment of his apprehension. The motion was denied following a hearing. Defendant received a jury trial. A motion to suppress the tape-recorded telephone conversations with Dr. Bartels was argued and denied. Defendant's statements made to Agent Fuhr in the backseat of the squad car and the taped telephone conversations were introduced into evidence at trial. The State did not introduce defendant's later statement given to officers at the Public Safety Building.

Defendant was convicted of aggravated kidnaping for ransom and sentenced to 30 years' imprisonment. Motions for a new trial and for reconsideration of the sentence were denied.

Defendant asserts on appeal that his statements to Agent Fuhr in the squad car were improperly admitted into evidence. Defendant claims that, by ignoring his demands to see a lawyer and by continuing to question him about the whereabouts of the child, Agent Fuhr violated his fifth amendment protection against self-incrimination. The State urges us to consider the exigent circumstances under which the police were operating and to apply a public safety exception to defendant's privilege against self-incrimination.

The issue of whether a suspect's invocation of his right to counsel in an emergency situation need result in the suppression of evidence requires our careful consideration. Fundamental questions arise involving the interpretation of the privilege against compelled self-incrimination as provided for by article I, section 10, of the Illinois Constitution (Ill. Const.1970, art. I, s10) and the fifth amendment of the United States Constitution (U.S. Const., amend. IV).

We are persuaded from our review of Federal constitutional jurisprudence that the fifth amendment's privilege against compelled self-incrimination provides no constitutional right to counsel independent of the procedural protections of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A State case that may directly bear on a question of whether article I, section 10, of the Illinois Constitution provides a State constitutional right to counsel is currently pending in the Illinois Supreme Court. While nevertheless recognizing the validity of certain exceptions to the Miranda rule, specifically the public safety or "rescue doctrine" exceptions, we hesitate to adopt and apply such an exception where, as here, a suspect in custody immediately and unambiguously demands an attorney. Therefore, we conclude, based on current Illinois law, that the trial court erred in denying defendant's motion to suppress his statements made to Agent Fuhr in the backseat of the squad car. However, we hold that the error is harmless, given the overwhelming nature of the remainder of the evidence against defendant, and affirm the conviction.

The right to counsel is associated with two amendments to the United States Constitution. The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel." (U.S. Const., amend. VI.) The right to counsel under the sixth amendment attaches only when "judicial proceedings have been initiated against [the criminal defendant]--'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " (Brewer v. Williams (1977), 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, 436, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417.) A right to counsel is associated with the fifth amendment through the procedural safeguards provided by Miranda. Because, in the case before us, defendant was not charged with any crime at the time of his initial interrogation, any right to counsel must be analyzed under the fifth amendment.

The fifth amendment to the United States Constitution guarantees that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself." (U.S. Const., amend. V.) In Miranda, the United States Supreme Court extended the fifth amendment privilege against self-incrimination to custodial interrogation.

Among other things, a suspect in a custodial interrogation setting must be warned that he has the right to counsel, either retained or appointed, during questioning. (Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.) The Miranda Court explained that "the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege." (Miranda, 384 U.S. at 469, 86 S.Ct. at 1625, 16 L.Ed.2d at 721.) The primary purpose of counsel is to act as a "protective device[ ] * * * to dispel the compulsion inherent in custodial surroundings." Miranda, 384 U.S. at 458, 86 S.Ct. at 1619, 16 L.Ed.2d at 714.

The fifth amendment right to counsel attaches only after the defendant's invocation. (Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723.) If a suspect invokes his right to counsel in response to Miranda warnings, all interrogation must cease until an attorney is present. (Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723; see also Minnick v. Mississippi (1990), 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489.) The Court in Miranda thus "fashioned * * * the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth...