People v. Smith

• Decision Date: 24 December 1980
• Docket Number: No. 79-245,79-245
• Citation: 414 N.E.2d 1281,47 Ill.Dec. 165,91 Ill.App.3d 438
• Parties: , 47 Ill.Dec. 165 PEOPLE of the State of Illinois, Plaintiff-Appellee v. Dan W. SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1281

414 N.E.2d 1281

91 Ill.App.3d 438, 47 Ill.Dec. 165

PEOPLE of the State of Illinois, Plaintiff-Appellee v. Dan W. SMITH, Defendant-Appellant.

No. 79-245.

Appellate Court of Illinois, Second District.

Dec. 24, 1980.

Mary Robinson, Deputy State Appellate Defender, Josette Skelnik, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Peter J. Woods, State's Atty., Oregon, Phyllis J. Perko, William L. Browers, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

VAN DEUSEN, Justice:

On September 5, 1978, an information was filed against the defendant, Dan Smith, and Mary Smith, charging them with the murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1(a)) and armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2(a)) of Clifty Davis. These offenses were committed on August 25, 1978. Mary Smith's case was severed from that of the defendant prior to trial. After a trial by jury, the defendant was found guilty of both offenses. The State sought to impose the death penalty, and the defendant waived a jury for the purpose of sentencing. After holding a separate sentencing hearing to determine whether the death penalty should be imposed, the trial court concluded that sufficient mitigating circumstances were present which precluded the imposition of the death penalty. The court subsequently sentenced the defendant to a term of natural life imprisonment on the murder conviction and to a concurrent term of 50 years imprisonment on the armed robbery conviction. The defendant appeals.

On appeal, the defendant first contends that the trial court erred in not suppressing two incriminating statements which he alleges were elicited in violation of his right to counsel as provided in the sixth and fourteenth amendments to the United States Constitution (U.S.Const., amends. VI, XIV) and section 8, article 1, of the Illinois Constitution of 1970 (Ill.Const. 1970, art. 1, § 8). More specifically, he asserts that his tape-recorded statement of September 3, 1978, was the product of an unlawful intrusion into the attorney-client relationship which occurred when his attorney was refused permission to meet with him at 3 p. m. on Saturday, September 2, 1978. He contends that this interference amounted to a violation of his sixth amendment right to counsel and tainted the subsequent confession of September 3. In this regard, he maintains that there were no intervening circumstances present which were sufficient to dissipate the taint of illegality caused by the police misconduct. Continuing, he asserts that since his September 4, statement was the fruit of the first illegally elicited statement, it too must be suppressed. Finally, the defendant argues that at no time did he waive his sixth amendment right to the assistance of counsel. Inherent in this contention is the assertion that the statements must be suppressed as independently violative of his sixth amendment right to counsel during police interrogation, since adversary judicial proceedings had already commenced.

The sixth amendment right to counsel attaches at the time that adversary judicial criminal proceedings have been initiated against the accused, whether by way of formal charge, arraignment, preliminary hearing, information or indictment. (Brewer v. Williams (1977), 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, 436, citing Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411, 417, accord, People v. Burbank (1972), 53 Ill.2d 261, 271-72, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1004.) This court in People v. Hinton (1974), 23 Ill.App.3d 369, 372, 319 N.E.2d 313, held that a complaint followed by an arrest warrant and the actual arrest of the defendant amounts to a formal charge under the language of Kirby v. Illinois describing the kind of adversary judicial criminal proceedings which vests the right to counsel. (Accord, People v. Marshall (1977), 47 Ill.App.3d 784, 786, 8 Ill.Dec 129, 365 N.E.2d 367; see United States ex rel. Sanders v. Rowe (N.D.Ill.1978), 460 F.Supp. 1128, 1139; People v. Huffman (1980), 81 Ill.App.3d 901, 909, 37 Ill.Dec. 118, 401 N.E.2d 1211; People v. McDonald (1974), 23 Ill.App.3d 86, 90, 318 N.E.2d 489, aff'd (1976), 62 Ill.2d 448, 343 N.E.2d 489.) Here the defendant had been arrested and appeared before a judge at 9:30 a. m. on September 2, 1978, at which time the judge read him the complaint and the charges against him and informed him of his constitutional rights. Based on the cases cited immediately above and the fact that the defendant had appeared before a judicial officer, the defendant's sixth amendment right to counsel attached at the time he appeared before the judge.

Having disposed of this threshold inquiry, the question arises whether the defendant's sixth amendment right to counsel was infringed on September 2, 1978, when attorney Ellerby of the Spiezer law firm attempted to visit or consult with him.

Attorney Carol Ellerby, a partner in the Joseph Spiezer law firm, testified that she went to the Ogle County jail at approximately 3 p. m. on Saturday, September 2, 1978, to visit the defendant and Mary Smith. She spoke with the jailer, whom she believed was John Willard, and informed him that she had come to see Dan Smith and Mary Smith. He told her that she could not see the defendant because he was undergoing withdrawal and was shaking so hard he could not stay on the bed. She took out a business card and wrote on the back of it that she was Joe Spiezer's partner and the defendant was not to make a statement unless one of his lawyers was present. She gave the card to the jailer and asked him if he would see that the defendant received it; the jailer responded that he would do so. Attorney Ellerby did not see the defendant at any time on September 2.

Carol Ellerby then met with Mary Smith shortly after she was refused permission to visit the defendant. Ellerby testified that as of 3 p. m. the Spiezer law firm was representing Mary Smith. After visiting briefly with Mary Smith, Ellerby informed attorney Spiezer that she was not allowed to consult with the defendant. At approximately 3:30 p. m., she returned to the jail with another partner of the Spiezer firm, Robert Thorsen, and attempted to see Mary Smith again. Ellerby and Thorsen met with Mary Smith at 4:30 p. m. and informed her that they did not represent the defendant and asked her if she wanted the Spiezer firm to represent her. Mary Smith responded that she was going to be represented by another attorney provided by her family.

Judge Moore testified that he met with attorneys Ellerby and Thorsen at their request on Saturday, September 2, 1978, at approximately 4 p. m. The judge stated that Thorsen informed him that the Spiezer law firm did not represent the defendant because he did not have any money.

Preliminarily, it should be noted that the trial court made a finding that the Spiezer law firm was representing the defendant as of 3 p. m. on September 2, although the trial court believed that such representation had been terminated an hour or so later after attorneys Ellerby and Thorsen met with Judge Moore. In addition, all the law enforcement officials who testified in this cause stated that the defendant was not undergoing heroin withdrawal on Saturday, September 2, and no valid reason was adduced at trial to explain or justify the denial of personal consultation between attorney Ellerby and the defendant.

Given these facts, the jailer wrongfully interfered with the attorney-client relationship here. The question remains whether it was a wrongful interference which rose to the level of a constitutional infringement of the defendant's sixth amendment right to counsel such that the statements subsequently obtained from the defendant must be suppressed.

Relying on fourth amendment cases which have applied the taint analysis and suppressed evidence which was obtained after a violation of the defendant's constitutional rights (Dunaway v. New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416), the defendant contends that the statements he gave to Officer Messer approximately 24 hours after attorney Ellerby's attempted visit was the product of the unlawful interference with the attorney-client relationship and therefore must be suppressed, since no intervening circumstances occurred to dissipate the taint of the illegal police conduct. We believe that the fourth amendment precedent for requiring the exclusion of evidence tainted as a result of police conduct which abridges constitutional rights is equally applicable in the sixth amendment right to counsel area. See United States v. Wade (1967), 388 U.S. 218, 239-42, 87 S.Ct. 1926, 1939-40, 18 L.Ed.2d 1149, 1164-66; Maglio v. Jago (6th Cir. 1978), 580 F.2d 202, 207; United States v. Massey (M.D.Fla.1977), 437 F.Supp. 843, 861-62.

To determine whether there is a sufficient causal connection between the illegality and the subsequent confession given by the defendant on September 3 so as to require its exclusion from evidence, it is necessary to apply the test recently articulated in Dunaway v. New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 284, and Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. Thus, the court must consider the temporal proximity of the constitutional violation and the resultant confession, the presence of intervening circumstances, the purpose and flagrancy of the official misconduct and whether Miranda warnings were given. Dunaway v. New York, 422 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824, 839-40; Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 427, accord, People v. McMahon (1980), 83 Ill.App.3d 137, 144, 38 Ill.Dec. 550, 403 N.E.2d 781.

We note that almost 24 hours passed between the time attorney Ellerby was denied permission...