The People Of The State Of Ill. v. Schuning

• Decision Date: 09 April 2010
• Docket Number: No. 2-09-0194.,2-09-0194.
• Citation: 928 N.E.2d 128,399 Ill.App.3d 1073,340 Ill.Dec. 409
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant,v.Gary W. SCHUNING, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 1073

928 N.E.2d 128

340 Ill.Dec. 409

The PEOPLE of the State of Illinois, Plaintiff-Appellant,v.Gary W. SCHUNING, Defendant-Appellee.

No. 2-09-0194.

Appellate Court of Illinois Second District.

April 9, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Lawrence M. Bauer, Deputy Director, Jay Paul Hoffman, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Charles M. Schiedel, Deputy Defender (Court appointed), Office of the State Appellate Defender, Springfield; Steven L. Clark (Court appointed), Office of the State Appellate Defender, Chicago, for Gary W. Schuning.

Justice BOWMAN delivered the opinion of the court:

On March 23, 2006, defendant, Gary W. Schuning, was indicted for the stabbing deaths of two victims on February 26, 2006. 720 ILCS 5/9-1(a)(1) (West 2006). On August 14, 2008, defendant filed an amended motion to suppress certain statements that he made to officers on February 27, February 28, and March 7, 2006. On January 21, 2009, defendant's motion was denied in part and granted in part. The trial court denied defendant's motion to suppress the statement that he made on February 27, 2006, at 2:26 p.m. However the trial court granted defendant's motion to suppress the statements he made at or after 5:45 p.m. on February 27, 2006, because the State violated Miranda with respect to defendant's invocation of his right to counsel. The State moved for reconsideration, and the trial court denied that motion on February 19, 2009. The State filed a certificate of impairment and timely appealed the trial court's order pursuant to Supreme Court Rule 604(a)(1) (210 Ill.2d R. 604(a)(1)). We affirm.

I. BACKGROUND

On appeal, the State argues that the trial court erred in partially granting defendant's motion to suppress, because defendant never invoked his right to counsel. The statements at issue were given while defendant was hospitalized at Loyola University Medical Center in Maywood, where he underwent critical surgery and treatment for serious self-inflicted stab wounds to his chest, abdomen, and neck. Defendant argues that, when he asked if he could use a phone and call his attorney at 5:45 p.m. on February 27, 2006, after an initial interrogation by police earlier that day, he sufficiently invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981). Therefore, defendant argues, the trial court properly suppressed all of the statements that he made after that time.

The following facts are derived from the testimony adduced at the hearing on defendant's suppression motion. Prior to witness testimony, the State stipulated to the factual allegations contained on page 5, in paragraphs 14 through 18, of defendant's amended motion to suppress. Those paragraphs provided:

“14. In addition, prior to February 28th, on February 27th at approximately 5:45 p.m., [defendant] asked Officer Giertz of the Addison Police to use the telephone to call his attorney.

15. At the time, [defendant] was in the ICU.

16. Officer Giertz told [defendant] that yes, he could call his attorney.

17. Despite Officer Giertz's agreement to allow [defendant] to call his attorney, the ICU nurse told [defendant] that phones could not be used in the ICU.

18. Ultimately, [defendant] fell asleep in the ICU and was unable to make his requested telephone call.”

The State further stipulated to the factual allegations contained on page 7, in paragraphs 4 through 12, of defendant's amended motion. Those paragraphs provided that on February 28, 2006, at 5 p.m., defendant asked Officers Tierney and Brucal of the Addison police department if he could call his attorney to consult with him about the search warrant that the officers were executing. Defendant asked that his attorney be present during the execution of the search warrant. On March 2, 2006, at 6:30 a.m., Officer Tierney returned to defendant's hospital room with Officer Anderson pursuant to the search warrant to obtain additional samples from defendant's body. On that date, defendant asked Officer Tierney to obtain the telephone number of his attorney, John Carbon. Officer Tierney complied with defendant's request, and defendant called Carbon but was unable to reach him. On March 3, 2006, just after 3:34 p.m., defendant asked Officer Brant of the Addison police department for permission to call his grandmother and was told by Officer Brant that defendant could place calls only to his attorney. At 3:35 p.m., at defendant's request, Officer Brant called Carbon and when Carbon's answering service picked up, he handed the phone to defendant. Defendant provided Carbon's answering service with his hospital room phone number and his room number and requested that Carbon give the information to his grandmother.

The State then called its first witness, Officer Brian Goss of the Addison police department. On February 26, 2006, Officer Goss was called to a home on Yale Street where two persons were dead and one was injured in an apparent double homicide. Defendant was the injured party and was taken to Loyola. Officer Goss did not speak with defendant at the scene. He first spoke with defendant on February 27, 2006, at 2:26 p.m. in defendant's intensive care hospital room at Loyola. Officer Sean Gilhooley was present when Officer Goss interviewed defendant. Prior to the interview, Officer Goss spoke to defendant's nurse about his condition. Officer Goss knew that the day before, defendant was in a drug-induced coma and underwent open-chest surgery. Defendant also had a nasogastric tube inserted in his throat. The nurse advised Officer Goss that he was being taken off Propofol, the coma-inducing drug, which would take 1 to 1 1/2 hours to exit defendant's system. The nurse also stated that the nasogastric tube would be removed that day. The tube was removed around 1:10 p.m. that day, and the physician removing the tube told Officer Goss to wait a half an hour to one hour before speaking with defendant. After the tube was removed, Officer Goss observed defendant answering questions posed by his nurse. His voice was hoarse but he responded appropriately to basic questions.

At 2:26 p.m., Officer Goss began to interview defendant. At the time of the interview, defendant had an intravenous line running into his arm and his index finger and was hooked up to a heart monitor. Officer Goss had a microcassette audio recorder in the pocket of his jacket. The wire was strung down his sleeve “in attempts to try to hide the audio recorder so that the defendant didn't see it.” He admitted that he intended to record the conversation with defendant regardless whether defendant wished to have the interview recorded. The entire interview was recorded.

We briefly summarize the audiotape of the February 27 interview. Officer Gilhooley introduced himself and Officer Goss as officers with the Addison police department. Defendant was asked where he was and he responded “Loyola Hospital.” Officer Gilhooley told defendant that they wanted to ask him some questions and then read defendant his Miranda rights individually, and defendant acknowledged that he understood each of these rights as they were read. The officers asked how defendant felt, and defendant stated that his torso hurt. The officers began questioning defendant about the events that took place the day before. The officers asked defendant to speak up at times so that the recording device would record his answers. Defendant sounded coherent and lucid during the interview.

Defendant proceeded to tell the police that he came home after being at a nightclub in Chicago and called some escort services. Defendant then provided details about the events surrounding the double murder. As the officers began to conclude the interview, defendant said “keep recording.” Defendant acknowledged that he knew the interview was being recorded, and he knew that he did not have to talk to the officers. The officers asked whether defendant would want to talk again later or be willing to answer more questions later, and defendant said “I guess.” The officers then said that if they needed to, they would come talk to him again. At 3:11 p.m., the February 27, 2006, interview ended.

At 3:25 p.m. on February 27, 2006, the audiotape resumed with officers asking defendant to authorize that his medical records be released to the Addison police department. Defendant questioned what records, and the officers stated his medical records from his stay at Loyola. Defendant then agreed and signed an authorization form.

Officer Goss's testimony was consistent with defendant's tape-recorded statement from February 27. On cross-examination, Officer Goss admitted that he and Officer Gilhooley were assigned to this double-homicide investigation on February 26 and were responsible for keeping abreast of all of the developments in the case, including the progress of other officers' interviews and discoveries about the case. Officer Goss acknowledged defendant's exhibit No. 1, which was the report of Officer Giertz. The report indicated that on February 27, at 5:45 p.m., defendant asked Officer Giertz if he could phone his attorney. Defendant was denied permission to use the phone by the nurse. Officer Goss admitted that officers took no action to enable defendant's wish to speak to his attorney. Officer Goss admitted that he did not speak with Officer Giertz regarding his report or regarding defendant's request. In fact, Officer Goss admitted that he had not read Officer Giertz's report, and was not aware of defendant's request, until several days later, sometime after the March 7 interview.

Officer Goss testified that on February 28, 2006, at 8:26 a.m., he and Officer Gilhooley returned to Loyola Hospital to interview defendant. Defendant was administered his Miranda rights, and defendant acknowledged each right and that he...