*1 ILLINOIS, Plaintiff-Appellee, v. THE STATEOF OF THE PEOPLE al., Defendants-Appellants. et JAMES CURTIS 83—2339,2 395 cons. (3rd Division) Nos. District First 83— 29, 1985. Opinion filed March J., McNAMARA, dissenting. Frost, appellant for Chicago, of L. Hardemon and Wilson both
James James Curtis. Tuite, Ryder. Andrew Chicago, appellant A. of for
Patrick Shabat, (Michael E. Tim- Attorney, Chicago Daley, Richard M. State’s Attorneys, of coun- Assistant State’s othy Joyce, Crowley, J. and Brian S. sel), People. for the
JUSTICE RIZZI delivered the opinion court: Defendants James Curtis and Ryder Andrew were found guilty armed in a robbery bench trial. We reverse the convictions re- mand for a new trial because of the violation of defendants’ sixth amendment after judicial adversarial proceedings been initiated against them and because of the exploitation *2 results of that constitutional violation at trial. 18, 1979,
On men entered a July liquor two store at about 10 p.m., near closing They pretended time. to be customers and then guns wielded and gun removed a from a part-time security guard, Fred Kennie. They also took and checks from the money store man- Buckle, ager, cashier, Harris, Thomas a Rosalind and another em- The entire incident Gregory Webb. lasted from 15 minutes to ployee, police a After the the were called and Buckle re- robbery, half hour. were a man and a black man. Buckle also lated that the robbers white gave police. a to the general description robbers later, of Kennie in-
Nineteen months in early February formed the the and that police participant robbery that he was a his were accomplices Ryder defendants and Curtis. On February of arrays photographs two five were shown to Buckle. One ar- of and the other Ryder, included a included a ray photograph array officer, to the of a According police of Curtis. photograph of from the first Ryder array. Buckle made a tentative identification not sure testified, however, that Buckle was police same officer effect, that, and he to see the man in the photograph wanted the person positive looking before he made a identification. After at array photographs said, of “this one here second five Buckle resem- Curtis. bled” of in- photographs, an five February array
On was shown to Harris. She stated that Ryder, cluded a of photograph like the she saw in store. Ryder guy” of “looked photograph which included photographs, another of five being array After shown of Curtis, stated, thought picture she “I this was a of photograph the black guy.” were and complaints prepared sub- February felony
On court, and Curtis naming a of the circuit judge Ryder mitted before defendants armed rob- complaints charged as defendants. The with determined that there was conducting hearing, judge After a bery. He the assistant State’s filing gave for the complaints. cause probable and he issued arrest warrants. leave to file the complaints, Attorney Ryder pursuant same was arrested p.m. day, At on the about an at- requested station. He police and taken to the area the warrant his attor- he until talked a statement give and declined torney give any not to he was told attorney, his and telephoned He ney. offi- a police that he told Also, attorney testified statements. Ryder’s on another working process he was in the telephone cer on the represent station matter, police at appear but he would About involving Ryder. proposed lineup he attend a would Ryder later, p.m., attorney 8:30 before an hour and 15 minutes around a Ryder, from waiver police at station without arrived Ry- station. police was conducted Ryder which included at but p.m., station police attorney appeared der’s already place. taken one the robbers. Ry- Buckle identified as lineup, Ryder At the in the was in the five only array der who person shown Buckle seven earlier on days had been photographs 10,1981. February arrest, After his was also arrested on February
Curtis he area station but he did arrive police was taken same station, At he was read p.m. there until about 6:45 when statement, give Miranda he warnings and asked if he wanted “I them no, said: told until I see When he was asked if attorney.” my to call he attorney, wanted said: “I told them I had three attor- *3 night, and I didn’t to call at neys know which one that time Later, whether the office to they’d attempted be in or not.” he call no lawyers two of the he was to reach them because one but able later, calls. hour to one hour phone answered About one-half told, going was taken a room was to Curtis to where he “[Y]ou’re *** in a I have to be and to to.” Curtis lineup stand where wanted in He he “had voluntarily did not was told to participate lineup. stand the lineup.” lineup,
At the Buckle told the that Curtis “resembled the police At time tell that he an man.” no did Curtis did not want at- anyone he State’s attorney. or that waived his to an An assistant torney involving Curtis, as well as Attorney present during lineup was during involving Ryder. after he who testified that read police officer arrested Curtis
Curtis the in room at the sta- warnings police Miranda an interview tion, following occurred: I him
“A. told there is to going be about hour and people viewing two there’d be several he had to attorney. contact an Q. to say What did he that?
A. He he know which attorneys stated had three didn’t call, one he wanted to I offered him the to call phone all three if he wished.
Q. What did he to say that? A. He stated he wanted to wait and see happened. what assume, I Meaning, he meant after the I lineup. don’t know.
Q. So did make at Okay. he calls that time? any A. He did make some calls. phone Q. Do you know who to?
No.A.
Q. Did he tell you anything after that?
No.A.
Q. did Okay. By way, he indicate whether he wanted to him give you statement any when advised his Miranda warn- ings?
A. was he to Right rights after he advised declined give statement all.” at
Curtis was then taken another room. he While was room, a second officer inside the room and stepped began con- versing occurred, with Curtis. As to the police what officer testified: What, if
“Q. what, he if anything, say you, did anything say did you him? believe, first,
A. I I looking remarked about not like his pic- And, And, I ture. told him who I was. I working was on the And, I if case. asked him he had rights. been advised of his And, He said he he already had. had been advised of his And, I rights. told him that Mr. Ryder had been arrested. And also that Mr. had been arrested in this matter. And [Kennie] would line-up. And, he have to stand a I him if he asked And, had an him that Attorney. advised Mr. an At- Ryder And he that he had three torney. Attorneys. said Now, had, them, he Attorneys the three he used appar- some But, business deals or what have he ently, you, before. And, informed me that he did not want make a call. phone did not want to to one of the talk because—as he Attorneys, ear” And, said—he was time. “gonna play didn’t know use going who he as an Attorney. Because *4 he had three of them that he had dealt -within past. the So, calls,
Q. all, did he at any phone presence? make your He time, A. made no calls. At that I him he phone asked did want one and he did not.” 19, 1981, Harris, February
On who had not the attended lineups, Curtis in a picture Ryder newspaper reported saw that On robbery. February arrested for the they had been that lineups her photographs Harris and showed officers visited lineup photo- She the had 1981. viewed February been taken that “guys that were the graphs Ryder and stated Curtis and [were] at the store.” Ex- robbery. the place years
The trial took more than four after defend- stated, neither Harris seen or viewed cept as Buckle nor had to trial, motions sup- ants in the interim At defendants filed period. had Buckle. The press the been made lineup identifications as to on the basis that court allowed the motion to suppress Ryder of counsel in the identification occurred without assistance lineup had However, denied the sixth the court the mo- violation of amendment. his right tion as to Curtis on the basis that he had waived to suppress lineup. to assistance of counsel at the trial, defendants, the court allowed
At over objections to of defendants. Buckle and Harris make in-court identifications Defendants on the in-court identifications were objected basis lineup result of obtained identifications and unconstitutionally that, therefore, addition, they suppressed. should have been over defendants, objections prosecutor showed Harris lineup trial, at had seen the photographs Harris testified that she 23, 1981, and photographs on that she had identified February time. defendants at that The were then admitted lineup photographs into evidence.
A critical case an accused’s sixth issue this involves right amendment “to have the Assistance of for his defence.” Counsel (U.S. Const., amend. VI.) argue defendants their Specifically, and, to lineups counsel at the was violated there fore, evidence and the in-court identifications of defendants have been trial should State counters that suppressed. proper evidence and in-court identifications were “as no had the time of the since ad lineup[s] to counsel attached at no versarial initiated.”1 [judicial] proceedings been involves amendment 1 This case defendants’ sixth to counsel not their fifth fifth into amendment counsel. One’s amendment comes during interrogation. purpose protect being existence custodial Its a citizen from himself, compelled testify against provide or otherwise the State with evidence of Here, lineups anything communicative neither testimonial or nature. nor required privilege in the self-in defendants were do violated their 218, 221-27, L. crimination. See United States v. Wade Ed. 2d 1929-32; Martin N.E.2d *5 246
In addressing issue, we first observe what the United States Supreme Court said in Gilbert v. “We there held [in California: United States v. Wade 218, 18 L. 1149, Ed. 2d 87 S. Ct. that a post-indictment pretrial lineup at 1926] which the accused is exhibited to is identifying witnesses a critical stage the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert 263, 388 272, U.S. 18 L. Ed. 2d California 1178, 1186, 1951,1956.
Subsequent
decision,
Gilbert
the United States Supreme
Court decided Kirby v.
Illinois
682,
U.S.
32 L. Ed. 2d
411,
With this we focus on the background, question of whether at the case, time of the in present adversarial judicial proceed- ings already against been initiated defendants “by way formal We the answer lies in an charge.” believe examination of the standard criminal that are followed in procedures Illinois and which were followed in this case. aby complaint, information,
Prosecutions are commenced an (Ill. an indictment. ch. par. Rev. Stat. When an ar 111— case, rest is in sought felony warrant a a felony complaint pre is sented an by Attorney judge assistant State’s a in the circuit court. as the naming plaintiff, addition the State the felony complaint names the accused as a defendant and he charges that has committed specified felony judge offense. must examine under oath the complainant presented witnesses the assistant State’s At If from torney. appears judge, his examination of the com plainant and witnesses presented by assistant State’s Attorney and the contents of the complaint, that the person charged committed offense, the judge approve filing will of the complaint naming defendant, charged as the and the person judge will issue a war- par. ch. Stat. arrest.2 Ill. Rev. rant for the defendant’s 107-9. has ceased filed, charged the person is complaint after the
Plainly, become has, fact, respect accused, every being merely as a interests attorney protect of an in need formal defendant proceedings of the criminal stage critical subsequent citizen at any in mind Here, must also bear we are him the State. brought against sup file motions may that the defendant stage that it is after this him in the that are made charges or to the formal press quash included Also, complaint” expressly that “a we note complaint.3 entitled “Form Procedure of 1963 under sections of Criminal the Code de 3), and “Formal par. Stat. ch. (Ill. Rev. charge” *6 111— Thus, it 1983, 38, 5). par. ch. Rev. Stat. charge” (Ill. fects in a 111— judi is complaint that after a felony to conclude incongruous would be court, judicial pro adversarial filed in the circuit cially approved way a defendant against “by commenced ceedings have been 220, 226, 54 L. 434 U.S. (1977), See v. Illinois charge.” formal Moore 424, 432, 458, 464, Kirby 98 v. Illinois quoting Ed. 2d S. Ct. 417, 1877,1882. 682, 689, 411, 92 S. Ct. 406 U.S. judicial proceedings we believe that adversarial Accordingly, of a filing in cases commence after the way charge felony of formal otherwise, If it the use of in the circuit court.4 were felony complaint when ad- charge” Kirby designate term “formal pertinent meaning- have been initiated would be judicial proceedings versarial less, from hear- distinguished “preliminary for the term would not be Illinois indictment, information, arraignment.” Moore v. ing, 458, 464, 424, 432, 220, 226, 54 L. Ed. 2d 98 S. Ct. (1977), 434 U.S. 682, 411, 689, 32 L. Ed. 2d Kirby v. Illinois quoting 417, 1877, 1882. judicial that circumstances, since we believe adversarial
Under defendants before been initiated proceedings already that their sixth amendment we conclude lineups place, took lineups. attached at the time of the of counsel had already assistance case, following on the face present judge to the statement 2 In the subscribed complaint person pre complaints: felony “I have examined the above thereon, there senting and am satisfied that is the same and have heard evidence given complaint.” probable filing to file said cause for same. Leave is hearing approval complaint judicial felony is in court after a 3 The filed hearing Attorney upon which preliminary the State’s also serves as the basis for 38, probable Ill. ch. signs if there is cause. Rev. Stat. and files an information 3,111—3. pars. 109 — 14,1985), People (Mar. v. Boswell No. 83 —169. 4 But see 248 so,
This defendants had entitlement being pres- constitutional firmly ence of at the because it that a counsel established the criminal a defend- stage proceedings against is a critical United 218, 227-37, States Wade ant. 18 L. Ed. 2d Gilbert 1932-38; S. Ct. California 1178, 1186, 1951, 1956; U.S. Ed. L. Moore v. Illinois 220, 229-32, U.S. 54 L. 434- Ed. 465-66.
As to he Ryder, placed having without present Thus, protect lineup. interests the trial court properly suppressed pretrial identification of him that was made by Buckle. Curtis,
As to the trial court ruled he waived his constitu tional disagree. assistance of counsel at A lineup. We Johnson waiver is an intentional abandonment of a known right. Zerbst 82 L. 2d 1023; App. 3d Swift applied This must be here precept scrutiny, with utmost for fun damental such rights, as the to assistance of coun sel, dearly were for too to be lost paid unwittingly by citizen. Thus, intelligently before can conclude that Curtis waived his con we stitutional must deter assistance of counsel at the we lineup, mine he whether knew of the existence in a real very sense. Accordingly, we must determine whether he knew under circumstances which he found himself could not de mand that appear at the lineup without assistance of counsel. circumstances under Curtis found are not himself com- *7 mon to average citizen.5 He was under arrest a police and at sta- Miranda tion 8 p.m. between hours of 7 and he was given When warnings, responded give he that he did not want a saying by statement “I A attorney.” until see officer testified that af- my police ter rights, Curtis was advised of his “he give any declined to state- ment at all.” Curtis lawyers had three who had him in represented business matters in he but did know one to call past, not previous convictions, transcript 5 The reflects had no record that Curtis and the steady sentencing hearing suggests employment, strong of the that he has familial history criminality. sentencing Curtis, judge ties and no of serious trial im posed statutory years. minimum sentence of six In Johnson v. Zerbst 1461, 1466, 1019, 1023, L. Ed. held that the court “the background, experience, and conduct accused” each case is to be taken into determining intelligent consideration in “whether there has an waiver of been right to counsel.” offices. in their not be would night they probably time because that part to have to be going that he was officer told Curtis The police attorney.” po- an had the to contact and that “he to call his the phone that he offered Curtis lice officer stated when happened. see he wanted to wait and what said that Curtis attorneys, him in the that represented lawyers two of the Curtis then called Later, taken calls. Curtis was the phone no one answered past, but him “that told officer room, police a second another interview where of this all It is that to stand a unrebutted line-up.” he would have he did that police after Curtis had told happened unequivocally The second his lawyer.6 statement until he saw give any not want told if he had an and Curtis attorney, officer then asked Curtis police one he was did not know which him he had three but attorneys, that This re- it ear” at that time. by and he would going “play to use two attor- already phoned he had Curtis was made after sponse by and nighttime, them because it was was not able to reach neys but their offices. they were not in relies counsel, the State
In its a waiver of argument establish that when he offered Curtis the first officer’s statement upon police said that he wanted wait attorneys, to call his Curtis phone also the second officer’s statement upon police see. The State relies However, the crucible ear.” “gonna play that Curtis said was of one’s constitutional for whether there was waiver determining to a defend the words attributed plainly solely to counsel is 51 Ill. 2d People Dailey (1972), officer. (See ant a police Here, not uttered in a Curtis’ words were 282 N.E.2d Rather, we them in that manner. vacuum, and we should not view to de his words surrounding to the facts and circumstances must look of a as an intentional abandonment termine he uttered them whether to him. was known is a funda to assistance of counsel regard, In this since the pre reasonable right, indulge every we must mental constitutional presume cannot right, that Curtis did not waive we sumption (Johnson v. Zerbst right.7 in the loss of the acquiescence 6 Knowledge previous he did not want to Curtis’ statement imputed police officer. lawyer is to the second give any until he saw his statement App. 3d 881 n.4. 460 N.E.2d v. Hammock See n.4, citing People v. White sitting justices presently on the three point, this we note with interest 7 0n specific position only express Supreme support United.States Court right. (North justify a loss of the constitutional to counsel will waiver of the 369, 377-79, v. Butler Carolina *8 250 458, 464, 1461, 1466, 1019, Moreover,
U.S. 82 L. 1023.) Ed. although trial court need not be a beyond convinced reasonable waiver, when considering doubt the issue of we must mind bear in that the State has the of proof burden on the issue. v. (People Swift 361, 364, 895, 91 Ill. 414 (1980), App. 3d N.E.2d The State’s to of the to counsel de right burden establish a waiver has been 289, Taylor as a 76 Ill. “heavy People scribed burden.” 310-11, 366, 391 N.E.2d 375-76.
In the un present case, believe the manifest that plainly we facts himself, der the circumstances in know which found Curtis did not that the police could not demand that he at the appear lineup without Rather, assistance counsel. if appear was made to as his partici counsel, that with pation night, or without was inevita ble. also We believe that facts and circumstances surrounding answers strongly Curtis’ officers militate police against that a intentionally right conclusion Curtis abandoned constitutional 458, that was known to (Cf. him. Johnson v. Zerbst 1461, 1019; Ed. L. People App. Swift 895; People N.E.2d 76 Ill. 2d Taylor 366.) Thus, N.E.2d the waiver to the facts applying principles before us, trial we conclude that court’s Curtis his ruling waived is right to counsel the manifest v. Martin weight People evidence. See Ill. 2d 466 N.E.2d 234. addition, to In conversations on the State relies before the a establish waiver took Curtis told the place, already police (Brennan, J., dissenting, joined by Stevens, JJ.).) 1759-60 Marshall and In his dissent, requirement express Justice Brennan states: of an im waiver would “[T]he imposed by pose police interpretation. on the no burden Court’s It would Agent merely simply explicit. make that burden Had Martinez elicited a clear answer right you your lawyer?’ jour question, ‘Do waive to a this from Willie Butler to the through ney necessary.” 60 L. three not have been courts would People Ed. 2d 99 S. 1760. But see v. Martin 102 Ill. 2d Ct. relinquishment 234: “This court has held a valid right express dependent to counsel is not on an waiver.” 8 TheJohnson and eases involve a claim of waiver of one's to counsel Swift authority support position under sixth amendment. There to that there is a sixth to higher that must met show waiver of one’s amendment standard be (Wyrick one’s fifth to counsel. counsel than show waiver of amendment 214, 221-24, (1982), 459 Fields 398-400 J., However, (Marshall, dissenting).) authority support position there is also that must be met to show a of one’s to counsel is the the standard waiver the fifth and See v. Owens same under sixth amendments. N.E.2d 267. 88. 102. 464 he saw his our lawyer. statements until give any he did not want counsel, were obli view, once Curtis asserted *9 concerning him a critical gated not to conversation with any initiate him until a reasonable he had against of the criminal stage proceedings least, counsel, the until was very contact with his or at time to make States v. Wade United (1967), counsel. (See furnished with substitute 1163, 1926, 218, 237, 1149, 1937-38.) 2d 87 S. 388 18 L. Ed. Ct. counsel, Instead, to the right after Curtis asserted him him for and initiated the conversations with readied the which the State to of counsel. relies establish waiver assistance We the improperly police. believe that were the by conversations initiated a fifth comparison, right in amendment counsel setting, to way By Court held that once a in Supreme suspect custody the States United counsel, subject interrogation he “is not further asserts his him, made unless has available the authorities until counsel been by communication, con exchanges, the accused himself initiates further (Edwards v. Arizona 477, (1981), with 451 U.S. police.” versations Smith 1880, 1884-85; L. Ed. 101 also 484-85, 68 2d S. Ct. see v. 488, 105 If Illinois (1984), 490.) 469 U.S. 83 L. Ed. 2d communications, initiate or conversa exchanges, authorities further defendant, resulting information or waiver there any tions with (People v. Hammock be unconstitutionally (1984), from would obtained. 879-80, no 121 Ill. 3d see reason App. N.E.2d We Edwards and Smith should why pertinent holdings rationale and setting not in a sixth to assistance of apply amendment communications, regard involving or conduct a critical exchanges, of the criminal stage proceedings against Rights defendant. the Bill of guarantees Rights subject afforded cannot be made v. Smith People Ill. 2d test. (See endurance nom. majority rev’d sub Smith J., (Simon, dissenting), N.E.2d People 490; v. Illinois 469 U.S. 83 L. Ed. 2d 879-80, 382- Hammock App. 3d reservation, for it fact stated is 83.) This can be without judicially in our American ideals. plainly ingrained that the trial court’s only ruling do we conclude Accordingly, to assistance of counsel at his constitutional that Curtis waived evidence, but we also weight is the manifest lineup waiver of that would conclude that under the circumstances Edwards Arizona unconstitutionally have been obtained. Cf. 378, 386-87, 101 Ct. 1884- 477, 484-85, 68 L. Ed. 2d S. 451 U.S. 874, 879-80, 460 N.E.2d Hammock 85; Ill. App. 378, 382-83. Wade, takes the
Next, State, relying upon position if even defendants’ constitutional counsel was violated waiver, and there was no no error occurred at trial because there independent was an basis for the in-court identifications made by Wade, Buckle and Harris. the court held that if the es prosecution clear convincing tablished evidence that the in-court identifica tion is based observations of the other than upon suspect from the identification, then in-court identification permissible, (United States v. Wade 218, 239-42, 1926, 1939-40.) However, Wade, 1164-66, unlike the present case, did not elicit from the the fact prosecution witnesses had identified the they defendant at the and there was no evi lineup, dence of the Moore Illinois itself introduced at See trial. 220, 225-26, 54 L. Ed. Here, prosecutor elicited from opportunistically Buckle that he had identified defendants at the lineups, were *10 Moreover, held in rights. violation defendants’ the prosecutor showed Harris the at trial and elicited lineup photographs from Harris that testimony lineup photographs she had seen the 23, 1981, and identified defendants at that time from February the photographs. The were then admitted into lineup photographs Plainly, evidence. this and evidence were the direct results of testimony by exploitation unconstitutional obtained lineups, prosecutor’s primary illegality. testimony and evidence should therefore have been prohibited regard prosecution without whether was prove able identifications or the in-court identifica- pretrial tions had an independent source. se
Moreover, only per a as exclusionary rule to such testimony evidence can be efficacious sanction to assure that law enforcement authorities will an accused’s constitutional to assistance respect of counsel at all critical after stages judicial proceedings adversarial (Moore Illinois have against been commenced him. 434 U.S. 220, 231-32, 424, 435-36, 458, 466; Gilbert 1178, 1186-87, 18 L. Ed. California Thus, case, not enti- 1956-57.) present the State was iden- testimony pretrial tled to show that the and other evidence of the tifications, identifications, or the had an source. independent in-court circumstances, we are
Under the a arises as to whether question able to declare a belief that the violation of defendants’ sixth amend- ment to assistance of counsel was harmless reasonable beyond (Chapman 18, 24, 17 L. Ed. 2d doubt. California v. Illinois 824, 828; Moore 705, 710-11, Ct. 87 S. Gilbert 466; 424, 436, 98 S. Ct.
232, 54 L. Ed. 2d California 1168, 1187, 87 S. Ct. 18 L. Ed. (1967), 388 U.S. a declaration. cannot make such that we 1957.) We conclude Webb, present who was first observe regard, In this we made an identifica- could have robbery presumably throughout In addi- the State. robbers, was not called as witness tion of the right af- included defendants which tion, Webb witnessed while night February Buckle on the witnessed ter the the defend- identified either of Webb as to whether record is silent an assistant State’s although Here, note we lineups. ants at those not have did defendants at the lineups, was Attorney present reac- or responses Webb’s memorialize perhaps to observe present lineups. tions at the witness, only as a witness not call Webb
Since the State did However, Harris was Kennie. Buckle and defendants besides identify to reasonable doubt. true, subject it is testimony may while Kennie’s be first named robbery, Kennie 1981, 19 months after February time, part-time in addition to his At the defendants as the robbers. for the Chi- store, working full-time was security job liquor technician. He had medical emergency fire as an cago department Kennie years. for 10 or worked fire Chicago department for fire Chicago in the was a Ryder captain testified that in February testi- Kennie also to the Internal Affairs Division. department assigned in- and the IAD were he knew that February Ryder fied that people dead and sick people from stealing money him for vestigating if that he knew that testified Kennie ambulances. department fire at the time were investigating him Ryder charges department. fire Chicago with the job then he would lose his proved, not- that are worth testimony There are other of Kennie’s aspects agreement he had “an with According testimony, Kennie’s own ing. trial. to his relative of the State Illinois” the People recommend that he receive *11 the State would The was agreement a for- charge and robbery for an armed sentences minimum concurrent addition, had a pos- Kennie him. against charge pending then gery Kennie’s which, under charge pending, session-of-controlled-substance case, nol-pros the State would present the State the agreement with case also in the present with the State agreement Kennie’s dismiss. charges pend- deceptive practice of two counts of included a disposition checks. cashing him for worthless ing against to his the relative with State agreements that Kennie’s believe We un- the circumstances trial, of history criminality his testimony der which his with “cooperation” the State arose seriously impugn subject Thus, to reasonable doubt.9 in reality, this case may hinged weight have to the given identifications made by witnesses, were Buckle and Harris. As to these two only prosecutor expediently did buttress their in-court identifica- tions with the unlawful identifications and the identifica- pretrial tions that had lineup photographs, been made with the use of the but he also into put evidence the unlawful themselves. lineup photographs wrongful enhancement of the prosecutor’s by identifications made Buckle significant, (1) and Harris is neither Buckle nor clearly because Harris had seen (2) ever defendants before the more than 19 robbery, months elapsed had from the time of the until Buckle and robbery Harris first defendants, saw Buckle and Harris’ ini- photographs (3) tial identifications certain, from the were not photographs absolutely officer, according Harris seen (4) photographs had defendants in a account of newspaper defendants’ arrest for the rob- bery four she identified defendants in the only days lineup pho- before for tographs, (5) except the unlawful identifications by Buckle 19 months after neither Buckle nor Harris had robbery, seen for more person defendants than four from the time of years, until the trial. robbery stated,
We conclude that for all of the reasons that we have we cannot declare belief that violation of defendants’ sixth amend- ment to assistance of counsel at the and the exploitation of that prosecutor violation were harmless reasonable beyond Therefore, doubt. convictions must be reversed.
One other issue is raised contend that They defendants. State failed in its burden to were armed prove robbers with as dangerous weapons required by armed statute. We find robbery merit, this contention to be without and it does not warrant totally discussion.
Accordingly, we reverse the convictions and remand the case for a new trial because of the violation of defendants’ sixth amendment to assistance of counsel after judicial proceedings adversarial been of the results of exploitation initiated them and because of the 9 Compare People Smith “Finally, argues the court stated: the State that even if the statements should where admitted, admitting Considering error. the record not have been them was harmless *** Moreover, out, agree. points only other we cannot as the defendant evidence Smith, testimony Mary directly linking the was the who defendant the crimes charges dropped exchange pleaded guilty robbery, were to armed and whose murder testimony.” for her *12 at trial. that constitutional violation
Reversed and remanded.
McGILLICUDDY, J., concurs. McNAMARA, dissenting:
JUSTICE I dissent from the respectfully majority’s reversing decision defendants’ convictions. The trial court found that Curtis correctly right waived his constitutional to counsel at the that the lineup and and identification photographic procedures suggestive. were not convincing presented There was also clear and evidence to show identifications of eyewitness in-court both defendants were based lineups. Accordingly, a source of the the trial court independent properly concerning found that the identification of Curtis and the in-court identifications of defendants was admis- both at trial. I sible would affirm the convictions of both defendants. An accused’s sixth amendment to right counsel attaches at the judicial commencement of adversarial criminal proceedings. (Moore 220, 424, 458; Illinois 54 L. Ed. 2d People cert, 261, Burbank 53 Ill. 2d 291 N.E.2d denied (1973), 412 U.S. However, 37 L. Ed. 2d neither 3017.) United States Court nor Supreme our court have decided supreme rights whether sixth amendment attach upon filing a complaint Nevertheless, and of an arrest the issuance warrant. it is unnecessary issue, because had ample proof address this the trial court to find Curtis waived counsel. A waiver of counsel must and must voluntary be constitute a or knowing intelligent relinquishment abandonment of a known (Edwards v. Arizona 68 L. privilege. Ed. A 1880.) determination of waiver depends case, facts “upon particular surrounding and circumstances including background, and conduct of the accused.” experience, (Johnson Zerbst U.S. L. Ed. 1019, 1023.) It is for the trial court to decide whether there has counsel;
been a waiver of the the court need not be convinced doubt, the court’s decision not dis beyond reasonable will be turbed unless it the manifest weight (People the evidence. Dailey Moreover, 282 N.E.2d our su preme court has held that “a valid relinquishment to coun sel is not dependent upon an express waiver.” v. Martin cert, denied 270,105 S. Ct. 334.
Before being placed Curtis was informed of lineup, counsel at states that lineup. majority Curtis’ statements as reported by police officers that he wanted to “wait and see” before calling attorney and that did not wish to call an attorney before the lineup “gonna because he was ear” play do indicate a Contrary holding, surrounding waiver. facts majority’s background circumstances and Curtis’ and conduct demonstrate *13 he he a right right. knew had to an and waived that attorney counsel, initially right
When Curtis was advised of his to the police testified that Curtis stated he had three but did not want to lawyers, call them. He had not made his mind which to call or if up attorney he going calls, was to contact an After attorney. making two Curtis stated that he would ear” and did not want to “play make a call or have an He attorney present. proceeded thereafter to the voluntarily an attorney. Although without Curtis have been unfamiliar a may with station-house a setting, high had school education and had served in military. He contact with in the and was attorneys past advised this was a serious case. Curtis chose to deal with the authorities Brewer v. Wil- (See on his to legal own and make his own decisions. liams 51 L. 2d 97 S. 1232.) Ed. Ct. Curtis’ background experience right and demonstrate that he understood his counsel, language to and his and conduct prior lineup show that he knowingly, intelligently right. and waived this voluntarily to Edwards v. Arizona that, according
The also asserts majority 451 U.S. 68 L. any police- Ed. initiated with after he counsel right conversation Curtis asserted his to for The improper finding. and should not be used as basis its United States has set forth its Supreme recently analysis Court v. Illinois Smith fifth amendment to counsel in right 469 U.S. 83 L. Ed. 2d Two distinct are neces- inquiries sary determining a fifth amendment constitutional violation: whether the accused invoked his to if so, counsel and whether the accused initiated further conversation with and thereafter police know- ingly intelligently right. waived his fallacy extending Edwards-Smith fifth amendment to analysis a sixth amendment is that the right protect to counsel in each instance exists to different rights. The fifth amendment to counsel attaches to an protect during interroga- accused from self-incrimination custodial (Edwards Arizona tion. 451 U.S. 1880.)
S. Ct. The sixth amendment to counsel an attor- provides an accused and ney beginning assist insure fairness at adver- (Kirby v. Illinois 682, 32 L. sary judicial proceedings. 1877.) 92 S. an accused can assert his fifth Ed. 2d Ct. While and halt an accused cannot halt a questioning, police amendment investigation judicial proceeding. the Edwards-Smith
Therefore, proscription applying police cannot initiate further once a has been questioning lawyer requested Rhode lineup setting illogical (See a sixth amendment is improper. Island v. Innis 297,100 Ed. 64 L.
It is entirely appropriate again for officers to ask an accused if so, he wishes to call a or if he lawyer has contacted a and if lawyer, when the is It lawyer expected arrive. would be impractical pro- further for inquiry concerning request hibit of an presence The State should attorney anticipated lineup. not have to wait until the accused initiates further conversation to determine if or when an attorney coming. For sixth amendment lineup purposes, police officers should to make inquiries concerning be able further without a constitutional violation.
Moreover, even if the
Edwards-Smith
rule
did
to a sixth
apply
setting,
there is no
amendment
clear and unequivocal
indication
requested
attorney’s presence
Curtis
lineup. When ad
counsel,
responded
vised of his
Curtis
equivocally. His state
ments
conduct
showed indecisiveness
and do not demonstrate
clear
for
People Krueger
request
(See
counsel.
*14
cert,
denied
537,
1019,
412 N.E.2d
(1981),
390,
451 U.S.
69 L. Ed. 2d
3009;
People
v. Winston
101 S. Ct.
(1982),
673,
106 Ill.
3d
App.
435
1327.)
N.E.2d
This is not to
that an accused must make
say
two sepa
requests
rate
for counsel for fifth and sixth amendment purposes. The
to counsel
is not
on a
dependent
request by
defendant.
(Brewer
v. Williams
(1977),
387,
424,
430 U.S.
51 L. Ed. 2d
Courts, however,
1232.)
must
engage
separate inquiries
determine
Edwards v. Arizona
violations of
See
rights.
those
477, 68
(1981),
378,
451 U.S.
L. Ed. 2d
The because of the sixth amendment viola- tion, was not the State entitled to show either that the testimony and pretrial evidence identification the in-court photographic had an independent identification source. The conclusion is majority’s of the Wade-Gilbert interpretation to the rule. contrary exclusionary Moore v. Illinois 220, (See (1977), 54 L. Ed. 2d 458.) Even if a identification violates accused’s sixth amend- right, subsequent ment in-court identifications are still if admissible source untainted independent based of and identifi- cations. United States Wade 218,18 (1967), L. Ed. 2d 1926; People McDonald 62 Ill. 2d 343 N.E.2d The record reveals that both Buckle and Harris had ample opportu- to view nity evening defendants the Buckle robbery. testified that the store had liquor fluorescent and that lighting defendants were in the store approximately 15 minutes. Buckle had face-to-face conver- sations with both defendants and them observed at a close distance while they registers. removed from the safe and cash money Immedi- ately after the Buckle robbery, physical described characteristics of to the police. descriptions robbers Those substantially matched actual Buckle descriptions of Curtis and identified both defend- Ryder. ants from an array of five one week before photographs, defendants’ arrest and lineup.
Harris testified that she observed both defendants in the store actual prior and that she was robbery standing approximately five feet from the black man and seven feet from the white man. Harris also observed defendants the 15-minute during robbery thereafter furnished description which matches defend- ants’ descriptions. actual Harris viewed a photographic array stated that defendants’ looked similar to those of the photographs rob- bers. of both witnesses reveals no discrepancy between
any prelineup descriptions descriptions and defendants’ actual nor any failure to identify (People defendants on a occasion. v. Marshall prior 47 Ill. The trial App. 3d 365 N.E.2d court had ample evidence in-court identifications of defendants were based and, therefore, upon origins independent of the lineups absence defense not reversal require does on appeal. McDonald (People 489; Ill. 2d N.E.2d Ill. 1071; Giovanetti 387 N.E.2d App. People v. Shorter App. 513.) The fact that there were 20 months between the crime and lineup identification by Buckle and identification from the lineup photographs Harris is In People determinative. v. Martin cert, N.E.2d denied 91 S. Ct. the court that despite found a time lapse approximately years two between the robbery photographic identifications and trial, over three between the crime and years delay pre did not *15 independent clude observations. that,
I note also
since
identifications were
Ryder’s
sup-
court,
the trial
did not
pressed by
testify
Buckle
he had identified
If
there
connected with
Ryder
lineup.
any illegality
were
Buck
dissipated
have been
it would
Ryder,
identification
The fact
lineup.
of the
independent
of Ryder
le’s observation
like” the
“looked
defendant
of each
the photographs
Harris stated that
identification
positive
make a
and did not
the store
who robbed
gten
identi
her in-court
not make
does
viewing
lineup photographs
until
3d
App.
(1981),
Anton
People v.
(See
fication less reliable.
no contention
Further,
make
defendants
1070.)
426 N.E.2d
unnecessarily sugges
were
procedures
identification
lineups
photo
v. Brathwaite
Munson
(See
record so indicate.
tive, nor does the
2243;
Simmons
140, 97 S. Ct.
98, 53 L. Ed. 2d
(1977), 432 U.S.
967.)
1247, 88 S. Ct.
377, 19 L. Ed. 2d
390 U.S.
United States
coun
that defense
not require
the sixth amendment does
Additionally,
(United
arrays.
photographic
views
sel be
when witness
present
2568.)
93 S. Ct.
300, 37 L. Ed. 2d
v. Ash
413 U.S.
States
identifications
Therefore,
pretrial
about
testimony
witnesses’
both
was proper.
for each defendant
photo array
from the
from photographs
that she identified defendants
Harris’ testimony
into evidence
those photographs
and the introduction of
lineups
that since the uncounseled
majority
was
concludes
proper.
this
and evi
right,
testimony
defendants’ sixth amendment
violated
and should
constitutional violation
a direct result of the
dence were
that the trial court was
noted, I
As I have
believe
have
excluded.
been
attorney
to an
that Curtis waived
justified
finding
his lineup,
as to
illegality
no
lineup.
primary
there was
Consequently,
testimony by
and the
identification
subsequent photographic
(cid:127)
tainted,
the introduction into evidence
Harris were not
nor was
identifi
suppressed
the trial court
While
lineup photograph.
at a
Buckle,
attorney
pho
no
to an
Ryder
cation of Ryder
300, 37 L. Ed.
v. Ash
(United States
tographic display.
of evi
Moreover,
that the admission
2568.)
assuming
2d
either defend
identification
concerning
photographic
dence
Harris’
Harris
error because
tainted,
introduction was harmless
ant was
such
during
defendants
to view
independent opportunity
had a clear and
(United
identification.
States
positive
and made a
in-court
occurrence
1926;
People
18 L. Ed.
Wade
error
Since
Ill.
App.
Strater
harmless, it
or Harris’
photographs
the admission of
Chapman
for reversal on
ground
appeal.
is not a
California
824;
v. McDonald
L. Ed. 2d