*1
imрosing
in
broad discretion
trial court with
Rule 137 vests the
Kent,
Ill.
3d
App.
Bachmann v.
See
appropriate.
that
sanction
(1997).
cor
hold
the trial court
We
689 N.E.2d
por
for that
not entitled
fees
Semersky was
rectly
determined
custody
the minor children.
that involved
proceedings
tion of the
he is
Semersky’s
entitled
claim
Finally, we address
appeal.
defending the instant
of fees for
award
375(b))
(155
375(b)
provides
2d
Ill.
R.
Supreme Court Rule
frivolous,
or that it is
taken
appeal
that an
the court determines
sanction,
rea
including
faith,
impose an
good
may
appropriate
in
it
conduct, a
If,
objective
under an
standard
attorney fees.
sonable
ap
brought
attorney
good
faith could
reasonably prudent
Chicago v. Park
will be denied. Bank
request
for sanctions
peal,
(1995); Ben
Bank,
3d
For the firmed, fees is denied. Semersky’s request appellate
Affirmed. JJ., QUINN,
GREIMAN and concur. ILLINOIS, Plaintiff-Appellee, v. THE THE PEOPLE OF STATE OF HARBACH, Defendant-Appellant. V. DeWAYNE 2 — 96—1361 Second District No.
Opinion filed 1998. *2 J., DOYLE, dissenting. Weller, Joseph Office, Appellate Elgin, G. of State Defender’s and John Inverness, Kightlinger,
D. appellant. for (Martin Fish, Attorney, Daniel A. State’s of Dixon Moltz Sharon E M. сounsel), Neal, Attorneys Office, Appellate both State’s Erosecutor’s Feople. JUSTICE INGLIS delivered the of the court: opinion Following a trial in the circuit Lee found County, jury court of Harbach, criminal sexual guilty aggravated defendant, DeWayne V 1996)). (West (720 16(d) appeals Defendant ILCS abuse 5/12 — when it denied the trial court erred and contends that conviction made purportedly that he inculpatory suppress motion to reverse and remand. agreе trial. custody We prior while that, on allegations defendant was based on charge The against years was 43 old County, in Lee who December young with a woman time, penetration an act of sexual committed trial, testi- young At the woman old at the time. years who was pre- The State also alleged committed the act. fied that defendant Thatcher, police investigator. testimony of Mark state sented the in the Lake custody was in testified that while dеfendant Thatcher statement statements, including a County inculpatory he made penetration young committed act sexual woman. trial, inculpa- motion
Prior to the defendant filed a made to Thatcher. The trial court tory purportedly statements that hearing, hearing suppress. conducted a on the motion to At officer, Costliow, present Thatcher who was and another Jerome statements, made testi- purportedly inculpatory when dеfendant father testified for de- fied the State. Defendant fendant. undisputed
The facts. On following record reveals the De- shortly p.m., County. after 3 defendant was arrested Lake *3 County jail, fendant to the Lake he was subsequently taken where holding in a a At around placed booked and cell known as tank. had ad- midnight, telephoned his mother. Defendant been defendant vised that he could be bailed out and asked his mother to make ar- rangements to bail him out. а.m., at
On defendant’s father arrived around Although the jail post initially the bail for defendant. went to to by wrong defendant’s father had bail defendant place, around a.m. date, and arrived at the
On the same Officers Thatcher Costliow County. They They from Lee asked jail around 10 a.m. had traveled jailer holding A tank where defendant speak to defendant. went the if he of- being still defendant wanted to talk the held asked of- jailer ficers. the that he did not want to talk the Dеfendant told ficers. tank later, jailer again holding a came to the
Five or ten minutes time, holding the This defendant left something and said to defendant. in the jailer foyer to a area jailer accompanied tank with de- area, approached and Costliow jail. foyer Officers Thatcher conversation, After brief accompanied fendant. defendant the offi- cers to an interview room where he purportedly inculpatory madе the statements. is conflicting There as' to testimony what occurred after police approached defendant in the foyer officers area. testimony
Thatcher’s included following. Even though Thatcher had been informed 5 or 10 minutes earlier that defen- dant officers, did not want to talk to police the reason he ap- proached defendant was to serve defendant with a notice eavesdrop- ping. immediately notice, He defendant served and defendant then asked the questions charge. officers about underlying Before engaged a conversation with regarding defendant underlying charge, signed defendant jailers form that the insisted sign talking defendant before with the officers. Thatcher no knowl- edge form; just content it jail policy believed was sign inmates such a form speaking before officers. The officers and defendant then moved to an interview room. Thatcher testified thаt he then advised defendant of his rights constitutional reading the Miranda warnings to defendant from card that Officer Costliow carried.
Thatcher further testified that defendant stated that he understood rights but waived them because he wanted to talk to the officers about charge. According Thatcher, only then did the officers underlying charge discuss the with defendant. Thatcher testified that the inculpatory ensuing made statements promises, interview. Thatcher testified that the officers did not use threats, deception, trickery during or the interview. The interview lasted about two hours.
Thatcher acknowledged that the officers did not obtain a written waiver of from Miranda defendant. Thatcher also acknowledged made purported inculpatory orally that the statements were not or written otherwise recorded. they
Thatcher testified that while were interviewing defendant Thatcher and Costliow were not aware that dеfendant’s father was at jail post Thatcher, bail for defendant. one no inter- rupted the interview to tell them that defendant’s father was there to post acknowledged him. Thatcher that when he and Costliow leaving defendant’s father them approached and talked briefly to them on his son’s behalf. testimony generally
Costliow’s corroborated testimony. Thatcher’s *4 However, Costliow testified that he was unaware that defendant had to talk initially declined to the officers. him
Defendant testified that no one advised of his Miranda custody following specifi- his any time arrest. Defendant ad- or Officer Costliow ever Thatcher that either Officer cally denied rights. him his Miranda vised his ar- following. Prior to also included the testimony
Defendant’s or He was jailed. been arrested July on he never rest following ar- night the jail tank at the entire holding in the kept loud, placed in men were also the numerous drunk During night, rest. during the time at all sleep tank. Defendant was unable holding the men in the In the the оther holding morning, tank. kept he was not taken to court holding were taken to court. Defendant was tank expected because he to be bailed out. that, jailer he he did further testified after told
Defendant officers, 10 minutes talk about or not want to state that the officers were still jailer later the returned and told defendant very that, testified because he was waiting talk to him. Defendant tired, response, just but instead followed say anything he not foyer to the area. jailer foyer him in the approached that the officers
Defendant testified go area and with him to them an interview room pleaded with defendant, papers Thatcher had some folded talk to them. very and that defendant should up important that Thatcher said were the officers see and defendant went into room and talked to they Defendant papers. would show defendant testified he reason he went into the interview roоm with the officers was that they him that not papers wanted to see the and the officers told show him the he into the room with them. Accord- papers unless went room the offic- ing when he went into the interview with ers, money not that his father was at the aware out, no him until after the interview that one informed posted if he had his father had bail for him. Defendant testified there to bail him out he would not been advised that his father was did not officers. Defendant testified that officers have talked recalled that show him the until the end of the interview. He papers to do with finally something showed him had papers officers eavesdropping. At following. included the around testimony
Defendant’s father’s a.m., sooner,” morning a little “or jail. He to see his son at that bail for his son at the allowed released, Later, sitting waiting for his son to be time. while he was glass jail. Through enter the he saw Officers Thatcher and Costliow interviewing The interview he could his sоn. doors see interview, officers were as the lasted about two hours. After briefly Thatcher on leaving jail, spoke defendant’s father to Officer released after the officers left. behalf of his son. Defendant was *5 given The trial court found that defendant was Miranda warnings talking and that defendant into tricked to the officers. The trial court then suppress denied defendant’s motion to the inculpatory purportedly statements that he made to Thatchеr. appeal, On defendant that contends error occurred reversible when (1) the trial court his to suppress inculpatory denied motion the state- (2) he purportedly Thatcher; ments that made prosecutor the made (3)
improper argument; remarks closing the failed State prove guilty him a beyond reasonable doubt.
We first address the trial court’s denial of defendant’s motion to suppress. Defendant asserts that the trial court erred because the totality of the circumstances purported shows that involuntary. specifically, were argues More follow- ing statements, made, factors indicate that the involuntary: his inexperience with justice system; the criminal sleep prior lack of interrogation; anyone the failure of to advise him of his Miranda rights; the failure of the scrupulously officers to observe his desire not them; talk to the use of him deception get the officers to to talk them; anyone failure to advise that his father had interrogation. made bail for him prior responds The State trial court not err denying to suppress motion because defendant voluntarily confessed to Officers Thatcher and Costliow. The State contends that the trial court properly determined defendant was advised of his rights Miranda and that no deception was used induce defendant to talk to being Officers Thatcher and Costliow. As to advised that his bail, рosted father presented State maintains that defendant County jail no evidence that Lake failed to its follow standard practices with respect to defendant’s bail and that only speculates that the officers were aware that bail had been they questioned defendant when him. The argues State that this rec- ord shows defendant waived his Miranda voluntarily inculpatory made the statements. is a principle
It fundamental of criminal procedure that a voluntary confession must be or else it People is inadmissible. v. Me- (1992). lock, 149 Ill. 2d 447 Whether a made statement was vol untarily judged by totality People v. is circumstances. Wil (1998). liams, Ill. 309 The test 181 voluntariness of a freely, compul is whether the statement was made without confession inducement, given sion or consideration the characteristics of Thomas, and the interrogation. People accused details v. (1990). single Ill. 2d No factor is dispositive; voluntariness Melock, of each 149 Ill. 2d at determination is based the facts case. 447-48. of a establishing the voluntariness
The State has burden People of the evidence. by preponderance defendant’s confession reviewing court will Gilliam, Generally, 172 Ill. 2d only suppress a statement ruling on a motion reverse a trial court’s Williams, of the evidence. against weight the manifest ruling if the neither the appropriate when 2d at 309. De novo review is Williams, 181 credibility questioned. of thе witnesses facts nor the Ill. 2d at 309. conflicting case, required to resolve trial court was
In this Therefore, of the witnesses. credibility testimony and to determine the will determine largely undisputed, we though even the critical facts are manifestly erroneous. the trial court’s decision was whether circumstances, that the we believe totality Based on the inculpatory motion to denial of defendant’s court’s weight against the manifest purportedly statements he made *6 major factor is single dispositive, no factor a the evidence. While had been certainly anyone the failure of to advise defendant that bond was, be, go. posted for him that soon free to We note and he or would ongoing through morning. entire one ad that this failure was No attempted vised of his before the officers impending release him, had his right to talk to and no one advised him after he invoked that, to had he he remain silent. Defendant stated known that go, free would not have the officers. find to he talked to We also that contact, coming second hard the heels defendant’s to sleepless night, refusal talk and after a exacerbated the situation weighing against factor the voluntariness defendant’s state ments. him at undisputed posted
It is that defendant’s father bond for one Officers first to least hour before Thatcher Costliow asked It speak undisputed defendant. is also that when the officers first clearly indicated, he had speak though asked to to defendant even rights or that bail had been never been advised of his constitutional him, speak he did not to the officers. Nonethe- posted want minutes, speak to less, only again after 5 or 10 the officers asked to interview, two During ensuing which lasted about defendant. hours, posted had been for him. defendant was never advised that bail him until the posted had been Defendant was not advised bаil ended, posted. had been up interview to three hours after bail right to be released person A for whom has been set has bail bond, ap- from of the bail when custody, subject the conditions deposited. ILCS has propriate properly amount been (West (b) 1996). 7(a), realize that a reasonable amount We 5/110— it has process time must for the authorities to bail once be allowed (1973) posted. been See People Tripplett, adopt se (declining per rendering any rule inadmissible statement gained when right violated, to bail is but determining instead if delay reasonable). case, view of the facts this we find that delay of more than an hour in at advising least defendant that bail been had posted for him was We need not unreasonable. determine whether the officers who interviewed defendant were aware that bail had been posted they for defendant began when to talk to him. After defendant initially officers, refused to talk to the someone should have informed posted defendant that been bail had for him before the again try allowed talk to defendant.
Nothing in the record shows that who had little if prior experience procedure, with criminal had been advised of his Mi- randa rights before the officers to speak asked to him. Defendant had in custody been overnight During for about 18 hours. period, to sleep. him, been unable When the speak officers asked to de- clearly fendant stated that he did not speak want to After them. minutes, 5 or 10 again speak the officers asked to to defendant. knowing posted Not that bail had earlier, been for him an hour about accompanied jailer and met the officers. We believe that advised, defendant had been been, as he should have that bail had been for him he would not gone jailer with the and would not have met with and talked to the facts, officers. Based on these purported subsequent inculpatory statements were invol- untary and therefore were notwithstanding inadmissible findings court’s the officers advised defendant of his Miranda deception not resort to speaking while to defendant.
We are further troubled
the officers’
on speaking
insistence
with defendant in the face of his
unequivocal
clear and
invocation of
right
view,
remain silent. In our
this was a clear
violation
*7
right
defendant’s
to
Michigan Mosley,
remain silent. See
v.
423 U.S.
46
(1975);
R.C.,
L. Ed. 2d
119 (one to R.C., of the factors Ill. 2d at “scrupulously honored.” an ac scrupulously honored whether authorities determinе elapsed be the amount time right to remain silent is cused’s sur totality on of the circumstances interrogations). Based tween statements, conclude that giving of defendant’s we rounding the involuntarily given. statements any admitting in the state- argue not error
The State does is- not address that Consequently, we need ments would be harmless. to suppress motion that the denial of defendant’s We conclude sue. in reversible error. was question statements re admitting in trial court’s error statements Because the remaining versible, necessary it is for us address defendant’s not However, note that the evidence adduced contentions of error. we guilty that defendant was jury trial was sufficient to conclude making are not a determination beyond a reasonable doubt. We People v. binding on retrial. See guilt or innocence that (1997). Rather, Rodriguez, our examination sufficiency of the evidence eliminates risk that defendant subject Pеople Taylor, jeopardy retrial. See be double Ill. 2d 309-10 reversed, judgment County of the circuit court of Lee
The with this proceedings the cause is remanded for further consistent opinion. and remanded.
Reversed
GEIGER, P.J., concurs. DOYLE, dissenting:
JUSTICE deny I court’s decision respectfully disagree that the trial manifestly erroneous. defendant’s motion assumption is the Implicit majority’s analysis credibility of the witnesses. court erred its assessment did, factual, If we the officers’ version as as court accept to the sound basis denial the motion becomes evident. officers, they meet unaware that went already posted. his bond had been When defendant declined come cell, ques- they again appear, out of his asked for defendant to legal Although tion defen- him but rather serve with a notice. paper,” dant this as “an court legal characterizes notice irrelevant issuing cause the eavesdropping requires judge that the shall stаtute upon to be served request eavesdropping notice of for use of an device after the persons days in the not later than 90 application named *8 120 (West of of period
termination the order. 725 ILCS 5/108A—8 1994). Here, period expired order December 14, defendant not apprehended was until 1995. In effectuat- ing notice, statutorily mandated, the court’s as the officers had both a right and duty view, to serve the notice on In my defendant. it is speculation doing to assume that their a ploy. so was appeared,
When defendant begin question not Instead, about the crime. began asking defendant the officers questions charges. about the Before questioning, signed form provided by jailers given authorization and was Miranda warnings. Defendant said that he understood his but waived them because he wanted talk charges. to the officers about the events,
I sequence fail see how this of which is the version court, found credible by trial сan be as improper viewed “reini- of questioning tiation” in of rule Michigan Mosley, violation of v. (1975). 96, 313, 423 U.S. 46 L. Ed. S. 2d 96 Ct. 321 to the officers, the discussion of crime was voluntarily initiated defen- dant.
The circumstance that in defendant was interviewed after already father had admittedly presents his bond a closer question in resolving the I suppression agree issue. with majority our questioning that even officers were not aware father money, had arrived with the jailers bond should have informеd facts, defendant of On that fact. these it is not unreasonable to conclude that defendant questioned during of period unlawful However, detention. unlawful detention not itself does invalidate a confession. It is one circumstance totality to be evaluated determining House, the circumstances in v. People voluntariness. 323, (1990); Nicholls, Ill. 2d People v. 44 Ill. 2d (1970). voluntary may, Statements that are otherwise in some in stances, still be admissible. The focal remains defen issue whether dant’s will was overborne.
Every delay admitting defendant to will not constitute a bail, violation of the right defendant’s constitutional where even questioning has occurred period delay. v. People Trip 12 Ill. plett, App. 3d 835-36 authority Defendant cites no holding right that even of this violation constitutional would render statements, per se his otherwise voluntary inadmissible and this court has adopted exclusionary such an rule. See 12 Ill. Tripplett, 3d at 836. did,
Adopting version, the officers’ as the court there is no significant coopera- indication involuntariness here. Defendant was willing tive and I note that to have a conversation with officers. bond, going post his father he knew that admits the voluntariness be consistent appear which sit- his custodial any misapprehension participation opposed as hopeless. uation was Illinois, 45 L. Ed. 422 U.S. of Brown parameters
Within (1975), given during periods confessions 95 S. Ct. *9 upheld even wherе inter- have sometimes been unlawful detention illegal arrest. trauma of rogation preceded by possible was be less Here, presumably of the would any coercive effect detention illegal but subjected to an seizure defendant was not significant where soon be custody would already lawful aware released on bond. overruling testimony, I see no basis for conflicting of the view facts, my opinion and it is
the trial court’s determination state- of defendant’s motion support those facts denial I order. ments. affirm the trial court’s ILLINOIS, Plaintiff-Appellant, THE THE PEOPLE OF STATE OF HILT, Defendant-Appellee. R. CARMEL Second District No. 2—97—0656 July 23,
Opinion filed 1998.