People v. Baugh
311 N.E.2d 607
Ill. App. Ct.
1974
Check Treatment
Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Dеfendant was indicted for theft, forgery and deceptive practices. He was found guilty by a jury of theft over $150 and forgery. The trial judge entered a judgment of conviction on both verdicts and after a sentencing hearing, sentenced defendant to an indeterminate term of 2 to 6 years for the crime of theft and forgery. Defendant appeals.

Defendant rаises several issues in this appeal. We need consider only one. Defendant contends that the trial court erred in refusing to suppress certain ‍‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌‌‍inculpatory statements he made to the attorney for the victim of a theft, prior to receiving the admonishments required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and that as a consequence the conviction should be revеrsed and the cause remanded for a new trial. We agree.

Defendant was approached by Deputy Deаn Mahannah and Officer Dennis Thrasher while at a restaurant in Monticello. Defendant was informed by Deputy Mahannah that he had a warrant for defendant’s arrest. Defendant was then taken to the Piatt County jail. The authorities called Robert Shоnkwiler, the attorney for Miss Tatman, the victim of an alleged theft through forgery and deceptive practices. The ‍‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌‌‍authorities advised Shonkwiler that the defendant had to be identified. Shonkwiler informed the authorities that he could not identify the defendant but that Miss Tatman could. He suggested that due to the nature of the weather conditions and the advanced agе of Miss Tatman, who was 93 years old, that the suspect be taken to her residence so that she could effectuatе identification of defendant.

The defendant was then taken to Miss Tatman’s home. There were six individuals present at the Tаtman residence: Thrasher, Mahannah, the defendant, two men that were with the defendant when he was apprehendеd, and Shonkwiler. Shonkwiler stated to Miss Tatman that the sheriff needed someone to identify “William Baugh if he was in the group.” Miss Tatman immediately identified the defendant. Shonkwiler then proceeded to show defendant a canceled check for $830 drawn on the State Bank of Cerro Gordo. He asked defendant if this was the check that Miss Tatman had given him, and the defendаnt answered in the affirmative. Defendant also admitted that he made the endorsement on the back of the cheсk and that he had cashed it at the State Bank of Cerro Gordo. Shonkwiler then inquired if defendant could make restitution for thе money that he had allegedly defrauded Miss Tatman of and Baugh stated that he could possibly do so. Defendant was indictеd for theft over $150, forgery and theft through deceptive practices.

Defendant filed a motion to suppress confession. The thrust of the motion was that defendant was not informed of his right as enumerated in Miranda prior to the custodial interrogation ‍‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌‌‍of defendant by Attorney Shonkwiler. A hearing was held on the motion and at the conclusion of said hearing the trial court ruled that the motion to suppress should be denied.

At trial, defendant renewed his objection concerning the inculpatory statement in question and the testimony relating thereto. The trial court again overruled defendant’s objection. Defendant was found guilty of forgery and theft. The trial judge erroneously entered judgment on both verdicts and sentenced dеfendant to an indeterminate term of 2 to 6 years.

The gravamen of this issue is whether the statements in question were ‍‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌‌‍the product of “custodial interrogation”. We find that they were.

In Miranda, custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedоm of action in any significant way.” (384 U.S. 436, 444.) First of all, it is clear that defendant was in custody within the meaning of Miranda. Secondly, we arе of the opinion that Shonkwiler’s questions amounted to an interrogation initiated by law enforcement officers because he acted as a police instrumentality. We are aware of the general rule that in absence of compulsion or duress ‍‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌‌‍statements made by defendant to a private citizen are admissible in evidence without the nеcessity of first giving the Miranda warning to a defendant. The State contends that Shonkwiler was not a law-enforcement agеnt but rather a private citizen who happened to be the attorney representing the complaining witness. In Peоple v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231, the court noted that statements which were elicited through the auspices of a private party who in effect was a police instru-: mentality must be suppressed if the Miranda warning was not administered.

Shonkwiler functioned as a conduit for information elicited from defendant and used by the authorities in the prosecution of defendant. From the оutset, Shonkwiler’s interests were so integrated and closely-aligned with the authorities that his role in this case was adversary in nature and his conduct and questions directed at defendant were accusa-: tory in character. While there may nоt have been an official affiliation existing between Shonkwiler and the authorities, nevertheless, through their joint actions, an affiliation in fact arose. This is borne out by the record which reveals that Shonkwiler was present at the sheriff’s office immediately after defendant’s arrest prior to the time he was taken to the scene of the alleged crimе; and he was present at the Victim’s residence where he conducted a lineup; and that it was Shonkwiler who interrogated the defendant in the presence of the complaining witness and the authorities, confronting him with incriminating evidencе in an attempt to elicit damaging admissions from him.

We find that the trial court’s ruling on the motion to suppress was contrary to thе manifest weight of evidence and should be reversed. (People v. Hawkins.) For the reasons herein stated, defendant’s judgment of conviction is reversed and this cause is remanded for further proceedings not inconsistent with the views herein expressed.

Judgment reversed and remanded with directions.

TRAPP, P. J., and SIMKINS, J., concur.