People v. Holland

I see no reason to section 5—9 of the Juve invalidate fact, nile I do not know Court Act. how legisla ture have more than in explicit could been to expressly clude clear standard section convincing I flows 9(2). interpretation propose naturally 5— our rul previous the statute consistent with that assume the ings interpretations that favor statutory See, a constitutional statute. legislature pass intended Braun v. Board e.g., Retirement Ill. 2d 127. in this concurrence. joins special

JUSTICE MILLER (No. 64182. ILLINOIS,

THE THE STATE Appel- PEOPLE OF OF lant, HOLLAND, Appellee. DANIEL 21,1987. Rehearing Opinion December — filed 5, 1988. April denied CUNNINGHAM, J., took no part.

CLARK, C.J., specially concurring.

SIMON, J., dissenting. General, of Hartigan, Springfield,

Neil F. Attorney Attorney, Chicago Richard M. State’s of Daley, General, (Mark Rotert, Attorney L. Assistant Gainer, Carstensen, Jr., Paula Rosanne T. Os- Thomas V. Assistant State’s Attor- and Kenneth T. McCurry, sey, of for Chicago, counsel), People. of neys, Defender, Biebel, Jr., Chicago of Paul P. Public Defender, of Honchell, Assistant Public coun- (Donald S. sel), appellee. the court: delivered of opinion

JUSTICE MORAN indict Holland, charged Defendant, Daniel (Ill. of aggravated kidnapping ment with two counts two 1979, 38, 2(a)(3), (a)(5)); ch. Rev. Stat. pars. 10 — 38, ch. (Ill. 1979, 1); Rev. Stat. par. counts rape 11— 1979, sexual assault Rev. Stat. (Ill. counts of deviate two (Ill. of armed Rev. 38, 3); robbery one count par. ch. 11— and one count 1979, 38, 2); aggra Stat. ch. par. 18— 38, ch. 12— par. Rev. (Ill. vated Stat. battery the sexual assault stemmed from charges These 4(b)(1)). The indict teenager. Cook County of a female suburban of ag two counts also the defendant with charged ment of a confrontation with two as a result gravated battery Stat. ch. (Ill. his arrest Rev. officers after police use of and one count of unlawful 4(b)(6)) par. 12 — of release from penitentiary five weapons years within (b)). On 24-1(a)(9), ch. (Ill. pars. Rev. Stat. charg severed the counts motion, the court and the count of a officer ing aggravated battery Trial be of weapons. proceeded unlawful use charging on the re of Cook County in the circuit court fore jury of the indictment. maining counts battery guilty aggravated was found not Defendant de- kidnapping, rape, guilty aggravated but was found The court en- robbery. assault, armed viate sexual tered verdicts and held judgment sentencing hearing aggravation to consider factors mitiga tion. At the conclusion of the hearing, court found “that the offenses deviate sexual assault and rape, ag gravated were kidnapping ‘accompanied exceptionally brutal heinous indicative wanton cru behavior [or] ” 1979, (Ill. 38, Rev. Stat. ch. 1005—5— elty.’ par. 3.2(b)(2).) court then sentenced the defendant to ex tended terms of 60 for rape and years’ imprisonment deviate sexual 1979, 38, assault Rev. Stat. (Ill. ch. par. an 2(a)(2)) and term im extended years’ 1005—8— for prisonment aggravated (Ill. Rev. Stat. kidnapping 1979, ch. par. These 2(a)(3)). sentences 1005—8— were to run As to the concurrently. conviction for armed robbery, court made a and distinct” find “separate the defendant’s ing objectives changed during the course of the from kidnapping gratification sexual to armed robbery and that the sexual assault com was before the pleted armed occurred. The fur robbery court ther found that this conviction was defendant’s fifth conviction for armed robbery and that society required protection the defendant. On the basis of these findings, the court imposed term of 25 years’ imprison ment for armed and ordered that it robbery be served imposed. consecutively to the extended-term sentences already (I Rev. Stat. ch. pars. 4(a), ll. 1005—8— The court further (b).) ordered that of these sen “[a]ll tences shall be served consecutive viola any parole tions.”

Defendant appealed, numerous errors but raising that an principally contending statement inculpatory during made his post-arrest interrogation an assistant (Miranda violated Miranda State’s his Attorney rights v. Arizona U.S. 16 L. Ed. 2d 86 S. 1602) Ct. and should have been A suppressed. divided agreed, court appellate concluding that defendant’s he was waiver of his Miranda was invalid because rights an informed, receiving rights giving prior an statement, attorney attempting was inculpatory court to see him. The also held majority it statement was inadmissible because (147 Ill. of a police “subterfuge.” App. product 323, 337-38.) the State’s leave granted petition We (103 Rule Ill. 604(a) Court pursuant Supreme appeal 604(a)). 2d R. of defend-

The issue is the validity central presented We also consider ant’s waiver of his Miranda rights. that (1) raised the defendant: following issues to exclude black ju- State used its peremptory challenges Kentucky of U.S. rors violation Batson 1712; that trial L. 106 S. Ct. (2) Ed. for his conviction armed ineffective; counsel was that (3) to State failed prove was improper because robbery or force threat that he took the complainant’s property by force; of of an extended-term sentence (4) imposition that that im- (5) was improper; aggravated kidnapping first We improper. consecutive sentences was position to these issues. pertinent summarize the facts on defendant’s hearing at the Testimony presented incriminating post-arrest motion various suppress was the object defendant established statements a.m. on May traffic stop approximately a he the vehicle Park officer because a Schiller license officer plate. not have a rear driving did and found license ordered a check defendant’s driver’s the results awaiting it had revoked. While been check, officer noticed license the driver’s Camaro, his blue Chevrolet dark defendant’s vehicle—a a white T-shirt bear- jacket, clothing jeans, jean —blue physical appearance and his “Superscrew,” the word ing abduction reported contained information matched which occurred in Plaines, Illinois, Des at approximately 6 a.m. 4,1980. on May

Defendant was arrested for improper vehicle registra- tion, on a driving revoked license, and illegal transporta- tion of alcohol. At the arrest, time of his a straight blade hunting knife was removed from his back pocket. Defendant was to the transported Schiller Park police station and, in a search, subsequent the complainant’s high school identification card was found in a pocket of defendant’s jacket. Also found in this search was $58.80 in currency and coins.

Schiller Park police then contacted Detective John Meese of the Des Plaines police regarding arrest of the defendant. Detective Meese asked that the defendant be photographed and held pending further investigation. Detective Meese obtained the defendant’s photograph from the Schiller Park police and presented it with along six others to the complainant. After she identified the defendant’s picture as representing assailant, her Meese made arrangements transport to the Des Plaines station. Prior moving defendant, Meese spoke by telephone to Rocco, Anthony who repre- sented himself as defendant’s attorney. According Meese, Rocco asked to be notified if the defendant was to be placed in a Meese lineup. testified that he tele- phoned Rocco later that afternoon and left a message that the defendant would inbe a lineup.

Meese transported the defendant to the Des Plaines station. Upon Meese arriving, advised him of his Miranda rights was present an during interview conducted by Assistant State’s Ira Attorney Raphaelson, accompanied by Assistant State’s Attorney Howard Freedman. The interview at began 2:05 approximately on the p.m. afternoon of 4.May

Meese heard Raphaelson give the defendant his Miranda rights. About 20 later, minutes left Raphaelson and Detective room, the defendant leaving

the interview time, this Meese told Meese alone At together. defendant: received, Chicago City from the report

“that we had in an At that being alley. in reference to a female raped offending as to the vehi- plate given time his license cle, type the same vehi- and his vehicle was described as cle. could not that time I told him that the woman

At him; however, he would make a identification of positive that lo- particular his vehicle was at explain why have cation.” that, fact, he had not received

Meese also testified the defendant However, Meese stated such a report. to tell the truth.” “he now wished responded by saying in the and remained Meese summoned Raphaelson he He testified that this second interview. during room defendant of his Miranda heard advise again Raphaelson oral interview, an gave defendant During rights. that he had statement in which he admitted inculpatory Irving and her companion picked up complainant forced the Plaines; companion in Des that he Park Road to accom- car; complainant that he forced the from his two acts of fel- he her to him; perform forced pany occasions. her on two separate latio and also raped money addition, taking complainant’s he admitted her school identification. high not complain did Meese stated that defendant Des Plaines police he when arrived injuries any or men- no physical He that he observed station. stated interviews the two during of the defendant tal coercion Meese also indicated Raphaelson. conducted by his Miranda that he understood acknowledged time an attorney. and at no rights requested testified at Raphaelson Ira Attorney Assistant State’s the defend- that he interviewed hearing the suppression ant twice on 4—once at 2:05 May approximately p.m. second time 2:30 approximately p.m. he Raphaelson stated that first interview began himself and he introducing telling represented the State and not the defendant. He then defendant of his Miranda advised According rights. to Raphaelson, defendant indicated that he understood rights agreed his to talk. Defendant to proceeded a false he give statement which said that exculpatory he had picked up teenage and her girl boyfriend who were hitchhiking argument and that an ensued where- he ordered the out his upon two car. The defendant his explained possession complainant’s school iden- tification card that she had by saying it on the dropped car, floor his he where found it and it in the placed pocket his jacket.

Raphaelson stated that he left the interview room. The defendant and Detective Meese remained inside with the door slightly open. Raphaelson stood about 10 feet from the door. He could not see the defendant, but he Meese, could see who was talking, to the presumably defendant. At approximately p.m., 2:30 Meese called him into back the interview room. reentered Raphaelson again advised the defendant of his Miranda rights. Defendant again indicated that he understood rights. He to proceeded give his oral incriminating statement.

Raphaelson testified that he then left the room and spoke defendant’s attorney, Rocco. Accord- Anthony ing Raphaelson, Rocco wanted to know what charges would be filed but did not ask to be present any during interviews or interrogations. Raphaelson also stated that, while he was aware that had attorney called the Des Plaines station, he was of any unaware with the request speak defendant prior any inter- views. At approximately p.m. May Raphaelson informed Rocco the charges the defendant. against at wife, Holland, testified Defendant’s Patricia also Park the stated that Schiller hearing. She suppression notified her around 8:30 a.m. on May officer vi- several traffic that her husband had been arrested for to post olations that she should come the station to her Later that she was informed that morning, bond. held the Des Plaines who police, husband was for being other him. Mrs. Holland charges against were preparing were charges was not told what contemplated. re-

Mrs. Holland then contacted Rocco Anthony he her She reached husband. quested represent afternoon, on 4. p.m. May During Rocco around con- him on several occasions. each During she to spoke efforts to see versation, Rocco related his unsuccessful she further testified that the defendant. Mrs. Holland Plaines station around met Rocco the Des attorney thereafter, Rocco was Shortly permitted 3:45 p.m. meet defendant. with the hearing, testified at the suppression defendant around telephone that he to his wife by

stating spoke custody He was in the May 8:30 a.m. on 1980. his Park He stated that he told wife Schiller police. he arrange contact Rocco so that could attorney defendant’s release. that, custody in the

Defendant further testified while As an his hair. of the Schiller Park officer police, pulled handcuffed resisted, stated, hands were he defendant his were elevated to where him and his “arms behind [he] feet. was knocked couldn’t stand [his] [He] he kicked, The defendant also stated hit.” ground, I stick “where would with a 40-inch night was punched result, defendant stated As a clothing.” be covered with hurt, his and that hair, tufts of that his ribs that he lost hit he testified that was knee swollen. He became right his while with club billy under chin repeatedly resisted, was he he taken. When shot” was “mug knocked to floor and Defendant re- again. beaten ceived medical while at Schiller Park no treatment station.

Defendant further testified that he mistreated Detective Meese Plaines after he ar- Des rived at the Des Plaines station. to the According defendant, interview between first second with Assistant State’s he was left alone Attorney Raphaelson, time, with Meese. him During this Meese in the jabbed ribs for 5 to about 10 minutes. Meese said that then defendant start “better or he was answering questions going my thereafter, kick ass.” Shortly Raphaelson However, returned. did tell Raphaelson about Meese’s mistreatment or physical about his verbal threat. defendant, to the According he then told them “what believed wanted to [they] hear.” There fol- [he] lowed an statement in incriminating which defendant ad- mitted that he had picked up the and her complainant boyfriend; that he forced the boyfriend car; out of the that he forced to two complainant perform acts of fellatio; he that her. raped Defendant stated that, this entire throughout no one him period, advised of his Miranda rights. that,

Defendant also testified after his arrival at the Des station, Plaines he an asked for repeatedly attorney. he did see Rocco, his Ultimately, attorney, Anthony but not until he had given his statement inculpatory and had been placed he did his lineup. When see attorney, him told mistreatment he physical had received. May On defendant stated that he was taken to Cermak Hospital, where he was told he that probably had fractured ribs in the mid-chest area. Defendant was given medication for told sitz pain and to take baths for his knee. Rocco, defendant’s

Anthony attorney, also testified at the suppression He testified that he first hearing. saw limp- the defendant at 4 on 4 and that he was p.m. May said that he had ing. Rocco stated the defendant knee. right According been beaten and showed Rocco his Rocco, to the knee was Rocco also stated discolored. the defendant said that he had been mistreated by Meese of the Des Schiller Park and Detective Plaines police. did not his various regarding Rocco

Attorney testify to reach the defendant and talk him attempts prior However, his any during closing argument questioning. he on the motion to Rocco stated that talked suppress, p.m. May to Detective Meese around by telephone to the defendant prior and to talk specifically requested that, also sometime be- argued Rocco any questioning. he of As- tween 1 made this same p.m., request Rocco concluded Attorney Raphaelson. sistant State’s he to see noting permitted was not argument by incriminating after he had an given defendant until in a placed lineup. statement and had been motion to At the close of on defendant’s testimony degree phys- the court concluded “that suppress, [the] defend- ical statements any confrontation contaminate[d] Station, Schiller Park Police ant would have made statements made relevant accordingly any Schiller Park Police cause made the defendant in the *** hereby suppressed, suppressed Station are defendant was given The court also found that toto.” Miranda rights Attorney his Assistant State's by physical cruelty and further found that “no Raphaelson to exerted department was be proved defendant’s “will Des The court concluded that Plaines.” overborne, any compulsion he without and acted he received whatsoever, and sort any or inducement and intelli- he voluntarily and acted and freely his rights, 2:30.” of 2:05 and he made statements when gently to The case the defendant trial. against proceeded mention During the State made no opening arguments, in reviewing statement incriminating it what and what evidence. How- expected prove ever, in- defense counsel Rocco did refer to defendant’s his culpatory statement during opening argument.

The State’s principal complainant. witness was the She testified that she and her boyfriend they left party were around on A attending midnight 1980. May later, short while they discovered that their car had a flat tire. After pulling Irving off onto the shoulder of Park in Des Plaines, Road tire found that they spare was flat as well. turned on the They car’s emergency flashing no one lights, give but assistance. Af- stopped hour, ter about an they decided in the car and sleep in the go turned help morning. They flashing off the turned on the lights, and parking lights, went to sleep. dawn, The two awoke a.m., approximately 4May began down Al- walking Irving Park Road. most immediately, the defendant up drove in a blue Chevrolet Camaro and offered to them a ride. give They accepted got into defendant’s car. The complainant sat in the front passenger seat while her sat companion in the back seat. awhile, After driving around grabbed defendant the complainant shoulder, around her a knife placed throat, to her her and ordered companion out car. exit, When he refused to said that he would kill he complainant unless com- He off plied. acquiesced the defendant drove with the complainant. continued,

The complainant testifying defendant held the knife under her arm while he drove. Defendant to the lot of an proceeded parking apartment where he her disrobe. After complex ordered undress- she testified ing, the defendant her head pushed area, into his groin where entered her mouth. penis hard,” stated, it “you’re getting Defendant then leg upper he cut her on the right whereupon thigh hip. again

She the defendant began driving stated that The defendant his remained in her mouth. penis while Chicago to an alley parked. drove Diversey into the alley. that a saw them drive She said woman her to strad- The the car and forced defendant stopped her vagina. entered dle him and penis her of the car and forced Defendant then ordered out Next, he told her a act of fellatio. her to second perform car, again time she to turn around and face the which her vagina. felt his enter penis her to get her and told

Defendant returned clothes when and, her eyes He then told her close dressed. said, I’m way. go- “it’ll easier she asked he be why, The testified complainant to knock out.” ing you wanted, giving he he she told him could have anything the defend- identification card while him her school high concluded She ant her money, approximately took $60. towards walking that she by stating began her testimony the defendant and that she observed a store grocery have rear license that did not a drive vehicle away plate. corroborated of the victim’s testimony boyfriend leading events up testimony about complainant’s shown further that he was He testified

to the abduction. several other pic- with along defendant picture as represent- that of the tures and identified a ride who him and the complainant the man offered ing him, drove off threatened morning May on the an in-court he also made During testimony, with her. of the defendant. identification confirming that testimony presented

Medical There was leg. had on the right been cut complainant of semen confirming presence testimony also medical in the taken from the spermatozoa vaginal swab an hour and a half after her complainant approximately release.

The State rested its case in chief. The defense elected counsel, not present however, to a case. Defense cross- examined all the State’s at length, witnesses estab- other lishing, among things, that the semen and sper- in matozoa found the vaginal swab could not be linked to the directly defendant nor could its be age deter- that no in mined; semen was the found crotch the bib overalls worn the by complainant; that no semen was found or underwear on the worn jeans by defendant; the that were complainant’s fingerprints not found either in or on the defendant’s automobile. closing During argument, defense counsel reviewed the State’s case in detail. He concluded “Think of by saying, all the factors I’ve pointed out to I must have you. pointed out to you 30 reasonable opin- doubts my ion. Consider those.” Defense counsel also reminded that jury defendant had to subject been physical force police.

The first issue on is the appeal validity defend- ant’s waiver his af- privilege against self-incrimination ter Miranda receiving while in rights at the custody Des Plaines station. police

The State contends that court erred in appellate holding defendant’s waiver invalid because it was given without knowledge an attorney attempting was confer with him. In of its support position, the State ar- Moran Burbine gues this case is controlled U.S. 89 L. Ed. 2d 106 S. Ct. 1135. Burbine, a custodial suspect confessed after receiving his Miranda waiving rights. He did so without that his sister an knowledge had retained attorney him represent and that an associate of had attorney been in contact with the in- telephone police specifically act legal that “she would as Burbine’s counsel

dicating him a police place in the event intended him.” While the associate was told or lineup question until the that Burbine would be questioned following him later that evening, in fact day, police interrogated written Burbine was three statements which securing unsuccessful in suppressing. concluded that know- Supreme suspect’s

The Court waiver of his Miranda does not rights ing intelligent has retained or that an been require knowledge attorney has been in contact with attorney information that see the suspect. or has attempted held it is determined that suspect’s Court that “[o]nce uncoerced, that he rights not to on his rely decision all knew he stand mute and a law- request times could he of the state’s intention to and that was aware yer, conviction, the analysis use his statements to secure a is. law.” a matter of and the waiver valid as complete v. 412, 422-23, 89 L. (Moran Burbine 475 U.S. (1986), Bur- 422, 1135, 1142.) Since the 410, Ed. 106 S. Ct. case, urges met in this the State that bine standard was valid. it hold that defendant’s waiver was we and apply that court was argues appellate The defendant Burbine and instead following correct rejecting v. Ill. 2d 179. People Smith decision in court’s the Burbine Court ex defendant notes Initially, stand stringent more adopt invited the States pressly of his Miranda waiver suspect’s ards for evaluating provisions State constitutional under rights applicable disables today it we “[njothing say when stated for the con different requirements from adopting States state as a matter of its and officials duct of employees 412, 428, 89 Burbine 475 U.S. (Moran law.” The defend 1145.) S. Ct. L. Ed. 2d Smith apply this invitation and that we accept ant urges guar- self-incrimination privilege against to find that his I, anteed article section of the Illinois Constitution I, of 1970 (Ill. §10) Const. art. was violated when the Des Plaines assistant police Attorney State’s failed to inform him an attorney had been contacted and was to see him. attempting Smith

We decline defendant’s our view, invitation. In Burbine cases with Bur- are clearly distinguishable bine being on all with the fours instant case. virtually Burbine, Here, inas a relative secured counsel suspect; suspect was unaware that counsel had been retained; all communication between the or prose- cutors and the was by telephone. Smith differs attorney Burbine and the instant case. In from significantly Smith, met suspect with an after actually attorney his arrest and retained him as personally counsel. Fur- ther, a of the retained counsel partner went personally to the where defendant jail was held and asked to being meet with him. She did not limit her communications to telephone conversations with the or authorities ask to be notified in the event authorities anticipated questioning her client or Burbine, him in a placing lineup. Applying we hold that his Miranda the defendant given at the Des rights station, Plaines police that he under- stood the nature of those that his Miranda rights, waiver was valid despite the fact that he was not told that an attorney wanted to him confer with prior any interrogation or lineup.

The appellate court also held that defendant’s Miranda waiver was invalid it because was secured Detective Meese’s “subterfuge.” Meese told defend- ant that he had report Chicago received po- lice department that his vehicle in the was seen same al- where the ley and that he would complainant raped have to explain However, his vehicle why was there. no such existed. report not in “subterfuge” this does argues State the defendant’s Miranda waiver. The State

validate nor court maintains that neither Court Supreme lie, a or half-truth has held that is misrepresentation, v. a Miranda waiver. Frazier sufficient to invalidate Cupp 731, 684, 693, 22 L. 2d 739, 394 U.S. Ed. (1969), that his 1420, (a false statement by police 89 S. Ct. relevant, insuffi “is, had confessed while co-defendant con to make this otherwise voluntary cient in our view inadmissible”); People Kashney v. (1986), 111 Ill. fession State’s 454, (a 465-67 false statement an assistant were found at the that defendant’s Attorney fingerprints to invalidate a scene of an insufficient alleged rape v. waiver); People Martin Miranda 102 Ill. 2d (1984), (same). 426-27 that, a mis- while responds by arguing The defendant invalidate a alone standing may representation Miranda waiver, which is coercive a misrepresentation relies on in effect invalidate the waiver. Defendant will Lynumn v. Illinois 528, 530-35, L. 372 U.S. Spano 918-21, 922, 924-27, Ed. 2d 83 S. Ct. New York L. 319, 322-23, 3 Ed. 2d 360 U.S. In 1271-72, 1202, 1205, Ct. 1206-07. 79 S. Lynumn, confession Court invalidated Supreme that, if she did not the defendant after told given police and she taken away her children would be cooperate, these The Court held lose her aid. public would con- and that Lynumn’s amounted to threats statements Spano, defendant, his upon coerced. fession was time, was who, at arrest, a close friend telephoned occasions, four academy. separate enrolled On police on the him to play ordered superiors the friend’s “that the defendant telling sympathy by [his] trouble, job that his him into had gotten call telephone be disas- loss his would job and that was in jeopardy, his children, wife, and unborn to his three trous fact, child.” In the friend’s in no way was job placed the defendant’s call. On the jeopardy by totality circumstances, the Court held that the defendant’s will overborne, was which his rendered confession involun- However, tary. use of the defendant’s friend and the friend’s false statement his that was was job endangered only one of a of factors number which rendered the con- fession born, was involuntary. Spano foreign emotionally unstable, with no criminal and was history, subject questioning for eight continuous hours.

Lynumn Spano are clearly distinguishable and, the case at view, bar in our do not control. Unlike Lynumn, Detective Meese’s so-called “subterfuge” employed suggest that the defendant would suffer emotional, or physical, material harm if he did not ex- plain of his presence in the automobile where alley the complainant Here, was raped. Spano, unlike there is no indication defendant lacked the capacity understand his He rights. was questioned Fi- only briefly. nally, Meese’s statement did not threaten or imply either the defendant or a loved one would be harmed in some if the way defendant asserted right to remain silent rather than explain presence his automobile in the alley.

We also find unconvincing defendant’s contentions that Meese’s statement or was false It is misleading. true that Meese had not received Chicago police report defendant’s placing However, vehicle in the alley. testified complainant that a woman saw the defendant drive into her, where he alley then and the raped record indicates that Meese to the be- spoke complainant fore hold, interviewing therefore, defendant. We his Miranda rights was unaffected waiver Meese’s by statement is valid.

Defendant, however, advances third argument of his contention that his Miranda waiver was support mistreatment by invalid. He that his argues physical to the Des Plaines imputed Schiller Park should be police his the State’s Under assistant Attorney. ren entity one governmental coercion ory,, physical statements made to another any gov ders involuntary even no force used physical ernmental entity though of this argument, the second entity. support People v. Thomlison 400 Ill. relies on People Santucci 562-64, 374 Ill. Thomlison, In defendant confessed 398-401. the as Alton, Illinois, the after day being “brutally police San In of the same force. police saulted” members by tucci, three to Chicago police the defendant confessed of the “severely by after beaten” members days being incident. both force in an unrelated Chicago police were involun cases, court held that the confessions of the first encounter the coercion physical because tary and tainted the encounter which pro carried over to in court, in the the circuit duced the confessions. Since statements made case, suppressed stant there had it that the Schiller Park because found police while the of confrontation” type “physical been some concludes, on their defendant custody, defendant was in Santucci, of Thomlison that the the authority the interrogation tainted by confrontation” the “physical Attorney State’s Plaines and the assistant police Des do incriminating in his oral statement. We which resulted not agree. no there was the record indicates that review of

Our by the was beaten defendant showing affirmative defendant, testifying during The police. Schiller Park he beaten. How- hearing, claimed suppression the defendant against of the indictment ever, two counts Park offi- of Schiller two aggravated battery were of hearing, At the suppression cers. the conclusion beaten defendant had been not find that court did but, rather, there had been some sort of “physical confrontation.” The court gave defendant the benefit of any doubt and all statements made while suppressed in the However, Schiller Park custody police. of absence an affirmative coercion finding physical the Schiller Park there can no coercion police, be available to infect either Detective interrogation of the Des Meese Plaines or the police interrogation Assistant State’s Attorney Raphaelson. confrontation” the defendant “physical between

and the Schiller Park had no police bearing events which transpired between the defendant and the Des or police Plaines the assistant State’s Ac- Attorney. we cordingly, conclude that the statement made to the assistant State’s while in the Attorney the Des custody of Plaines was not coerced.

Defendant presses two other arguments support the appellate court’s decision reversing conviction. First, he contends that the State used its peremptory challenges excuse two jurors black prospective solely on the basis of their race in violation of Batson v. Ken- (1986), 476 U.S. tucky 79, 69, 90 L. Ed. 2d S. 106 Ct. 1712.

We decline to address this issue we because find that defendant, Caucasian, the does not have standing assert a Batson violation. Batson, Under the defendant the exclusion of challenging prospective jurors because of their race must show “that of members his race have been impermissibly excluded.” (Emphasis added.) (476 79, 93, 85-86, U.S. 90 L. Ed. 69, 1712, 2d S. 106 Ct. 1721.) Since defendant is white excluded pro- spective black, are jurors he is unable to show that mem- bers of Thus, his race have been excluded impermissibly. he is unable to establish the threshold element of a prima Batson violation. facie

158 alternative, in the that exclu

Defendant argues, in the jury sion two black only prospective jurors of to trial his sixth amendment right violated array a fair cross-section the community. jury representing (People v. Gaines 105 Ill. 2d (1984), Neither this court 252, v. Williams 97 Ill. 2d People 79, 88; 278-80) (1983), (Batson Kentucky (1986), v. 476 nor Supreme Court 69, n.4, 106 Ct. 79, n.4, 90 L. Ed. 2d S. U.S. 84-85 this so decline to overrule n.4) have held. We that the ex holdings by finding peremptory court’s prior the fair or other minorities violates clusion of blacks requirement. cross-section he received ineffective argues

Defendant next that this as an urges ground at trial and assistance counsel his convic- basis for reversal affirming alternative defendant, had decided According to the State tion. as of its case in his statement part to use inculpatory However, the State reversed its position chief. into after counsel the statement evidence defense placed statement mentioned the defendant’s specifically The defendant claims argument jury. before opening counsel’s ineffectiveness. an example this is cross-examination also claims “mislead- “irrelevant,” “suggestive,” often counsel was court into fre- the trial forcing ing,” “improper,” maintains admonitions. Defendant off-the-record quent incompetence. conduct is indicative of was ineffec claim that trial counsel To on a prevail performance must show that counsel’s tive a defendant range competent fell wide of professionally “outside the and “but for counsel’s [incompetence], assistance” have different.” result of the would been proceeding Washington Strickland 668, 690, U.S. 690, 698, 2066, 2068; S. Ct. 80 L. Ed. 273-74; People People v. Collins 106 Ill. 2d Albanese 104 Ill. 525-27. of the Our record leads to the conclusion that reading the defendant has on failed sustain his burden either Strickland test. As to the competence of prong counsel, in defendant’s trial we note that he succeeded severing three counts the the against indictment defendant. Trial counsel also succeeded in suppressing defendant’s statements made to the Schiller Park police if in vigorous, unsuccessful, was his efforts to sup- the press statement to the assistant incriminating given State’s Des Attorney Plaines station. Counsel’s defense was effective to win a verdict of not enough on the charge of guilty aggravated victim. battery in Counsel was effective creating record which pro- vided several grounds on which to on challenge appeal Miranda waiver. of defendant’s validity se- During lection of the counsel jury, challenged the State’s use of its peremptory exclude black challenges prospective jurors.

The record also reveals that counsel in vigorous was his cross-examination of witnesses with apparent purpose raising reasonable in minds doubt For jurors.' example, brought counsel out the fact that the complainant’s were not either in fingerprints found or on the defendant’s He automobile. also established there was no on semen found under- wear or other clothing and that the semen found on the complainant’s clothing and her vaginal swab could be linked positively the defendant. Finally, closing counsel argument, stressed the inconsistencies he had developed during cross-examination, arguing that each one raised a reasonable doubt and that each one would a verdict of not support guilty all counts.

The record establishes that counsel was active in his defense both in pretrial trial. On proceedings during record, of this totality fact he first raise defendant’s into insig- statement inculpatory pales Further, if to conclude .that

nificance. even we were in- statement was inculpatory reference defendant’s upon incumbent the defend- it would remain competent, that, error, he would have ant to show but for that been unwavering not of the accurate and found view guilty. of and out-of-court identifications the defendant in-court her that we believe by complainant companion, find evidence adduced to the defendant there was ample Therefore, even if it doubt. a reasonable guilty beyond incrimi- the existence of defendant’s was error raise statement, it on this cannot be deemed nating prejudicial the defendant has estab- record. We conclude that of counsel. that he received ineffective assistance lished for armed also his conviction challenges Defendant He contends affirmed court. by appellate robbery complain- he took the the State failed to prove or threat force ant’s school identification money of an the offense armed force, of essential element of on this of the record After review robbery. thorough armed rob- issue, find ample support we conviction. bery the final sexual that, testified after complainant and told her

assault, clothing returned her her so, After did the defendant told dressed. she get and, “it’ll why, replied, her she asked to close when eyes out.” To I’m to knock going you easier that way. be attack, she offered the defendant further physical avoid her identi- She then handed over he wanted.” “anything Throughout took her and the defendant money. fication armed with the the defendant remained exchange, the entire course during he had hunting displayed knife on the complainant. his sexual attacks uncontradicted complainant’s It is clear from her prop- she with unimpeached testimony parted act avoid another being yet order victim erty circumstances, proved the State violence. Under these a reasonable beyond doubt that the another property taken force or threat of force. v. Tiller (People 94 Ill. We, therefore, affirm defend 316.) ant’s conviction for armed robbery.

Defendant’s final two issues concern He sentencing. first contends that circuit court erred an imposing extended-term sentence on the conviction of aggravated it is not kidnapping because an offense of “the class of the most serious offense of which the offender was convicted.” (Il Rev. Stat. ch. 38, par. 2(a).) l. 1005—8— He contends that is a aggravated Class fel kidnapping ony rape while and deviate sexual assault are X Class that, felonies. He concludes under the extended-term sentencing provision, the convictions for only rape deviate sexual assault can the basis for ex provide tended-term sentences.

The State concedes that the extended-term sentence for aggravated Therefore, was kidnapping improper. the v. authority People Jordan 103 Ill. (1984), 2d 204-07, and v. Evans People 77, 87, Ill. 2d we vacate defendant’s for sentence aggravated kidnapping.

Defendant’s final challenge directed at the imposi- tion of a consecutive sentence on the armed con- robbery viction as well as the court’s order that all sentences for the instant convictions were to be served consecutively to “any parole violations.” firstWe consider the propri- of a consecutive ety sentence for armed con- robbery viction.

Section 5—8—4 of the Unified Code of Corrections (Ill. Rev. Stat. ch. pars. 4(a), (b)) pro 1005—8— vides that a consecutive sentence may be where imposed the court finds: (1) that the offense the consec receiving utive sentence was substantially different from the other for sentenced, offenses which the (2) defendant was that of a imposition consecutive sentence is necessary from further criminal conduct

“protect public defendant.”

The the circuit court expressly record reveals during found that the defendant’s objective changed The court also found that course of the kidnapping. for sexual gratifi- initial motivation was kidnapping assault cation and further found that the sexual was the time the robbed the victim. defendant completed to the defendant’s convic- prior The court then referred tions for armed and concluded that soci- four robberies future from the defendant's protection ety required for the sentence court then ordered criminality. armed be served to the concurrent consecutively robbery assault, and sentences for deviate sexual imposed rape, aggravated kidnapping. pursuant applica

A consecutive sentence imposed will not be dis law and the record ble supported 105 Ill. (People Steppan on review. turbed grounds the court had 310, 323.) ample We believe that robbery a consecutive sentence the armed impose conviction. that, at the time

It is manifest beyond peradventure complain- the sexual assault robbery, the armed was ant had terminated and that the defendant prepar- her. The testified complainant release ing she had returned her clothes and that “knock her the defendant threatened to dressed when money. out,” taking her identification subsequently of the defendant property, After taking possession and, she saw him leaving, her while allowed to leave drive away. from protection clear that society requires

It is also a of sex- He committed traumatic series the defendant. teenage hours a upon over the course two ual assaults ordeal, and kill her girl, throughout threatened to to the the incident reported kill her if she threatened to police. These events occurred while the defendant was on four parole convictions for armed robbery, Thus, same offense committed here. there is more than for the adequate court’s order that the sentence support for armed robbery be served and we af- consecutively, firm this order.

Defendant’s sentencing second is to the challenge court’s order that all sentences in the instant imposed case to were be served vio- consecutively “any parole lations.” He a contends that sentence consecutive to parole “any violations” is and that insufficiently specific remand for resentencing is required.

The State argues that the court meant to order that the sentences in the instant case were to be served con- secutively defendant’s reconfinement for violation on his parole prior armed robbery convictions. According State, to the the record shows case of the numbers prior convictions in addition to a con- presentence report taining a notation of these convictions with a along nar- rative indication that warrant for violation parole had issued, with the Prisoner Review Board preparing take action at later date.

This court has affirmed of sentences imposition con secutive to an unrelated sentence prior where the com pletion the prior sentence and the of the beginning later sentence can be (Peo ascertained from the record. ple v. Toomer Ill. 2d 387.) We agree with the State can necessary certainty be derived and, therefore, this record affirm the order that sentences the instant case are to be served consec utively any remaining portion defendant’s sen four tence armed prior robbery convictions. herein,

For the reasons stated we reverse the judg- ment of the court. affirm appellate We con- with the victions and all sentences exception the ex- for aggravated tended-term sentence which kidnapping, court of remanded the circuit is vacated. The cause on the aggravated kidnap- County resentencing Cook conviction. ping reversed; court

Appellate affirmed; convictions remanded. cause no in the consid- part took JUSTICE CUNNINGHAM or this case. eration decision of CLARK, concurring: JUSTICE specially

CHIEF I concur. specially I with the agree

I in the result because only concur did not in fact re- attorney the defendant’s State that If had re- attorney actually his client. access to quest client, so inform the to his the failure to access quested would, render invalid my opinion, of this fact client of his constitutional waiver State subsequent the client’s I with each of self-incrimination. deal against privilege in turn. these points

I that mind my convincingly, The State argues, ac Rocco, did not request Anthony attorney, hear testified at suppression to his client. Rocco cess with his speak attempt He failed to mention ing. any wife the defendant’s states opinion client. While his unsuccess “related that Rocco had testified [to her] 146), 2d at it (121 Ill. to see the defendant” ful efforts Officer Meese these efforts were. what not state does to be noti called him and asked Rocco only testified in a He fur lineup. placed defendant was fied before and attempt call Rocco he did fact ther testified on Rocco’s message leaving of the lineup, him notify machine. answering cross-examination,

On Rocco asked Meese whether had that he he, Rocco, also told Meese wanted to see with the defendant before speak interrogation. Meese denied this. his closing on Only during argument to the motion did Rocco suppress directly assert he had asked to see the defendant.

It is elementary that factual determinations the trial on a court motion to are not to suppress be v. Clark unless manifestly (People overturned erroneous. 92 Ill. 2d (1982), 99.) trial court here was enti tled to conclude that to Meese’s as what testimony Rocco had said was more credible than wife’s account hearsay of what Rocco told her he had to said Meese. As for Rocco’s statements during closing v. these were not People Carl

argument, (See evidence. son Ill. 2d 449.) The court's appellate conclusion was contrary misreading based upon record; it is not simply true that the “defendant’s attor *** at the on ney pretrial the defend hearing testified ant’s motion to suppress defendant’s statements that he asked talk to the defendant when he with spoke Officer Meese on telephone.” (Emphasis added.) (147 Ill. He did App. 336.) best, he testify; al leged.

I would therefore reverse the on the appellate court ground that the claimed effort to prevent the attorney from his client conferring with did not take simply place. I also with the agree that the defendant’s other majority claims of error are erroneous. There no affirmative of a finding confrontation physical the Schiller Park officers, and Meese’s statement about the police report had some basis in I fact. Further, that the agree defend- ant, white, who is has no Batson vi- to assert a standing olation based on the exclusion of black jurors. (Batson Kentucky L. U.S. Ed. 2d 106 S. However, Ct. 1712.) since the has chosen to ad- majority issue, I take dress the access attorney opportunity own view its merits. express my

II immemorial sus- holding From time the practice incommunicado has abhorred.' rightfully been pects to prevent have with efforts suspicion Courts viewed clients, with their arrested even lawyers meeting his where the client has not invoked formally right fact, interrogation meet continued with lawyer. con- attorney’s a client who has not informed been with him has been nearly efforts meet temporaneous condemned. universally de- interrogation inevitably

The endorsement of such our of criminal adversary system and deforms grades treat It law enforcement officials to encourages justice. an figure, the defendant’s as a attorney supernumerary of his whose efforts on behalf busybody inconsequential with rejected client can be—and will undoubtedly be — client’s ability It weakens the simultaneously contempt. of his rights and waiver knowing intelligent to make him critical of information. of a by depriving piece an adversarial sys- Such conflicts with interrogation traditional notions of tem of It offends against justice. and fair justice play. to the endorse this

I am therefore see sorry majority practice. it ei- holds opinion,

As the majority’s I understand against self-in- guarantee the constitutional ther: (1) not does in our Constitution contained State crimination to access attorney an police denying the prohibit prohibits Constitution our client, (2) or State his is actually who attorney to an denial access the only to but not an attor- interrogation, the site of present house. Whichever station the merely telephones who ney agree. I do holding, actual is the court’s To it disagreement understand nature of my to review some of the case A re- prior law. necessary of that we history view demonstrates are not com- v. 412, Moran Burbine 475 U.S. 89 L. pelled by Ed. S. Ct. an adopt restric- overly tive view our own constitutional privilege self- against incrimination. Escobedo Illinois 378 U.S. 12 L.

Ed. 2d 84 S. Ct. the United States Supreme Court held that a police refusal to honor the defendant’s to consult with his request during a lawyer custodial in- violated the terrogation sixth amendment right to the assistance of counsel. In Escobedo the defendant was arrested and taken to police headquar- ters. A lawyer retained represent defendant by the defendant’s mother arrived thereafter. shortly When see attempted to client he lawyer his was rebuffed both desk sergeant the homicide detec- tives were who interrogating defendant. Several times the defendant asked the interrogating detectives whether he could see his lawyer, but each time the detec- tives told him that his did not lawyer want to see him. The defendant’s admitted, eventual confession was motion suppress denied.

In Escobedo, Court, Supreme basing its decision counsel, sixth solely right amendment held that the defendant’s confession should be suppressed where n and has denied an suspect requests been opportunity with his to consult lawyer, where the have not warned him of effectively his absolute constitutional right 491, to remain silent. (378 478, U.S. 12 L. Ed. 2d 977, 1758, 84 Ct. 986, However, S. the fact 1765.) the had also denied police lawyer’s the requests to see his client did not unnoticed. The pass Court clearly stated that “it ‘would be if our highly incongruous sys- of tem the justice permitted district the attorney, lawyer 168 State, the to extract confession from

representing with while his own lawyer, seeking speak accused ” 478, him, from him the 378 U.S. kept police.’ was 487, 977, 984, 1758, 1763, 12 L. Ed. 2d 84 S. Ct. quot- 152, 193 148, 13 N.Y.2d (1963), v. Donovan ing People 628, N.E.2d 629. the Su was superseded

While Escobedo partially (1966), decision in Miranda v. Arizona Court’s preme 1602, S. U.S. 16 L. Ed. 2d 86 Ct. 384 that Escobedo retained independ Court indicated clearly Es summarizing After the facts of ent significance. “The also cobedo, prevented the Court stated: police consulting with his client. attorney Independent this action consti other constitutional any proscription, as Sixth Amendment right tutes a violation of counsel and excludes statement obtained any sistance Ed. 2d n.35, its 465 16 L. (384 wake.” U.S. n.35, 1602, 1623 Even in decisions n.35.) 718 86 S. Ct. Miranda, Court continued Supreme later than it now holding, although as a distinct view Escobedo fifth amendment privilege it as rooted viewed rather than the amend self-incrimination sixth against v. See, e.g., (1972), ment Illinois Kirby to counsel. right 411, 417, Ed. 2d 92 S. Ct. 682, 689, 406 U.S. 32 L. 1877, 1882. it far from background surprising

Given this issue State courts examining the vast majority held that waiver suspect’s to Burbine prior if neglected valid rights Miranda would be his attorney inform the suspect or refused to See, (Del. Weber v. State e.g., assist him. attempting 1985), (Fla. v. 674; Haliburton Florida 1983), 457 A.2d So. 2d v. 192; (La. 1982), Matthews 476 So. 2d State 691, 490 Md. Maryland 1274; Lodowski v. McKenna 1228; A.2d Commonwealth App. 560; (Okla. Lewis v. State N.E.2d Mass.

169 v. Haynes (1979), State 528; P.2d 288 1984), Or. Commonwealth v. Hilliard 272; (1977), P.2d 471 Pa. Dunn v. State 318, 370 A.2d 322 (plurality opinion); v. 561; State Jones (Tex. 1985), 696 Crim. S.W.2d App. 19 Wash. P.2d (1978), App. 850, 578 71.

The Illinois Court likewise held that “when Supreme police, prior to or custodial during refuse interrogation, an or retained to assist a ac attorney appointed suspect cess to suspect, the there can be no knowing waiver of the to counsel if right suspect has not been informed the attorney seeking and consult present to v. (People Smith with him.” 93 Ill. 2d 189.) While the United States Court has held Supreme now not that the Federal Constitution does require to inform suspect him, a of an efforts to reach attorney’s the Court carefully stated that “[njothing we say today disables States from different adopting requirements for the conduct of its employees officials as matter of state law.” Moran Burbine (1986), 475 U.S. L. 410, 425, 106 89 Ed. 2d 1135, 1145. S. Ct. declines majority accept invitation to read our State constitutional (Ill. I, Const. privilege art. §10) more than This, the Federal broadly privilege. course, it is entitled to I do. But am troubled that has not majority declined only accept invitation but has declined it in such peremptory fashion. Surely question involving of our interpretation own consti tution by its ultimate arbiter deserves shrift. longer

I have already written at length basis our right give our State constitutional guarantees a more liberal interpretation than the guarantees corresponding in the Federal Constitution (People v. Tisler Ill. 2d 226 (Clark, J., I specially concurring)), see no need to those repeat I arguments. But do note that they have particular application to this case. It is one thing for us to seek guidance from Supreme Court’s con- are predictable

stitutional decisions when those decisions It where the consistent. is another follow blindly from positions previously Court itself has retreated taken. v. Burbine Moran demonstrates,

As the foregoing principles. an of long established simply application is shift in the Su- Instead, significant it a direction of its repudiation a direct thinking, Court’s preme and Miranda. in Escobedo no It was accident statements Illinois, read those State, not every excluding that nearly denial of attor- statements to mean that the undisclosed render Miranda In- waiver invalid. access would ney Escobedo, since Burbine it de- deed, overrules arguably other than that significance the case of prives any Burbine trans- Miranda. More profoundly, precursor Miranda shield into the forms from the defendant’s Miranda warnings presence sword. prosecutor’s which many excuse conduct wiE now apparently e.g., v. Donovan People (1963), 13 (see, State courts even 628) found unacceptable N.Y.2d 193 N.E.2d before Miranda was decided. us to under- upon it incumbent history,

Given this denial of attorney our examination of whether take own against constitutional privilege access our State violates it reasons, I For several believe self-incrimination. does. v. Smith People 2d did 93 Ill.

First, while as an alternate the State Constitution not mention two cases decision, for it cited and discussed ground its v. State constitutions, which did on their own rely v. State Haynes 272, and Or. 602 P.2d (1979), 288 Lewis v. Matthews 2d 1274. also (La. 1982), (See 408 So. Dunn v. State 528; (Tex. State 695 P.2d (Okla. 1984), use of Indeed, 561.) Crim. S.W.2d 1985), App. Smith mentioned was prominently State constitutions 179, 188. Ill. itself. 93 since Burbine was

Second, decided, at least one State it, court has declined to its privi- follow own holding lege against self-incrimination affords defendants People Houston greater Cal. 3d protection. 595, 724 P.2d 230 Cal. 141. Rptr.

Third, I, article section of the Illinois Constitution of 1970 was mark of adopted during high-water politi- liberalism, cal Burbine. To that Burbine prior say must determine our interpretation of our own constitu- is, therefore, tion to credit those who ratified it with Moreover, our clairvoyance. constitution was af- adopted Miranda, Escobedo ter a time when the United States Supreme Court had itself indicated that prevent- an ing attorney seeking client violated the Fed- Constitution, eral all when State held courts same. the committee Interestingly, on sec- presentation tion 10 given to the 1970 constitutional convention by Bernard argued Escobedo who had Weisberg, (3 defendant. Record Proceedings, Sixth Illinois Con- stitutional Convention 1376-77.) He, and other mem- of committee, bers the could not have been unaware the decision in that case. and most

Finally, there are importantly, strong policy reasons for holding that a defendant should be informed of his attorney’s to see him. In attempts general, the State bears the burden of that a proving waiver of con- stitutional is e.g., Brewer v. Williams rights (See, valid. 430 51 (1977), 387, 424, U.S. L. Ed. 2d 97 S. Ct. 1232.) An attorney’s communication to the about his cli- police ent is an event which has direct bearing upon whether a waiver is For, or knowing intelligent. an pass up “[t]o abstract offer to call some unknown very is dif- lawyer ferent to talk refusing with an attorney identified actually available to provide least initial assistance advice, and whatever might be in arranged the run. long A suspect indifferent to the first offer well may react

172 (State Haynes v. to the second.” differently quite 272, is that 278.) significant 602 P. 2d It 288 Or. an amicus brief filed Bar Association the American Burbine, in that the ABA the defendant’s behalf that a be lawyer for criminal mandate justice standards for Criminal (ABA see his client. Standards allowed to this, Beyond ed. ac- 5.1, (2d 1980).) 5—7.1 Justice §§5— Burbine would seem to the proposi- lead ceptance to hold sus- right have an absolute tion incommunicado. pects to distin- attempt

I accept majority’s also cannot calls. While visits personal telephone between guish Smith involved an who appeared true attorney it is Smith cited house, favorably court at the station Matthews v. State So. 1982), cases, (La. two Jones State App. Wash. calls. should involve Nor telephone P.2d which did make dif- any communication attempted manner of and com- of modern age transportation ference. In an nearly as munication, attorney telephones very an who as an attorney with the defendant speak “available” to the station house. any has arrived at actually who to distinguish attempt I case, majority’s note the issue of Smith later consideration preserves privi- a broader grants Constitution our State whether the attor- cases where self-incrimination against lege is actually present. ney SIMON, dissenting:

JUSTICE pow the most among accused are “Confessions of crimes. in the prosecution erful weapons employed finder of the fact upon can Nothing impact else equal charged.” (2 guilt by party admission apparent an (2d ed. of the Accused Cook, Rights Constitutional J. v. Prohaska (con 8 Ill. 2d 1986); People convincing and “high of of is evidence guilt fession Therefore, must to ensure character”).) courts endeavor that confessions that reach the are reliable and vol jury of untary products investigation and police interrogation. used in procedures by police this case obtain force, physical misrepresenta confession — tion, and separation counsel and client —undermine the reliability of the resulting confession and are imper missible both under State and Federal law. The trial court’s failure to suppress the resulting nonvoluntary confession constitutes error defendant to a new entitling addition, trial. all because black prospective jurors were kept service on the jury through the State’s use of peremptory challenges, defendant entitled least to a very hearing whether those were jurors unconstitutionally excluded from the con jury which him in violation of Batson v. Kentucky (1986), 476 victed U.S. 90 L. Ed. 2d 106 S. Ct. 1712. See also Kentucky 93 L. U.S. Ed. 2d Griffith 649, 107 S. Ct. 708 (Batson applies cases retroactively where the conviction had not become final before the new rule was announced).

A review of the circumstances defend- surrounding ant’s confession to the Des Plaines police reveals three factors which combined to induce defendant’s involun- tary confession: physical injuries suffered defendant in while Park custody the Schiller police, misrep- resentations made to defendant by the Des Plaines police confess, order to induce defendant separa- tion of defendant and his attorney during period I interrogation. will address each of these factors separately.

At the suppression testified that hearing, he was beaten Schiller Park He described two police. episodes hit, which he brutality kicked, knocked punched with a ground, night- beaten stick, off the floor raised his handcuffed by elevating

174 him, arms and his hair was Defendant tes- behind pulled. he in his ribs and in pain tified that as result suffered knee, and he of hair. Defendant’s his lost tufts right his attor- claims of mistreatment were corroborated by at first meeting their ney’s testimony he the attor- told him that had been beaten and showed no medi- his knee. Defendant received visibly injured ney the Park while at Schiller injuries cal treatment of his interro- day or Des Plaines stations police examination at and confession. After medical gation in- defendant was following Cermak Hospital day, in the mid- that he had fractured ribs probably formed with sitz area, advised to treat his knee injured chest all the baths, hearing medication. After pain given de- judge at the trial hearing, evidence suppression con- termined that severe “apparently very physical and the warranted police between defendant frontation” defend- statements made suppression inculpatory trial judge Park station. The ant at Schiller Des Plaines declined to statements made suppress station, however, physical no additional because part defend- to have exerted against been cruelty proven Des ant in Plaines. through confessions obtained

It axiomatic force not be used as evidence may or brutality physical v. (Brown the accused. against to secure a conviction Mississippi Ed. 278, 285-86, L. 297 U.S. 80 (1936), People O’Leary (1970), v. 45 464-65; 56 S. Ct. v. Davis People Ill. 2d 125; (1966), Ill. 2d v. People Cunningham (1964), 433, 436; Ill. 2d 205; 579, 585; People v. v. Prohaska People 8 Ill. 2d (1956), Davis (1948), addition, 265, 271.) brutality 399 Ill. statements render not only inculpatory inadmissible may or mistreat beating accused during made which are deemed ment, statements made later but also v. People Thomli- the earlier brutality. be tainted by 555; son 400 Ill. People Santucci Ill. 395.

Here, the defendant approximately confessed within six in the sustaining significant hours while injuries of the Schiller Park asked “Did custody' When police. *** confess because hurt?” the defendant you were you I “Yes, replied, wanted leave me alone.” people just That defendant suffered no brutality additional physical at the Des Plaines fact (a station which defendant dis- putes) does vitiate the coercion physical to which defendant already had been subjected, because especially at the time of his confession defendant had received no medical treatment for his In of injuries. view these cir- cumstances, the numerous Miranda warnings defendant received before his confessing, experience dealing in with the could not police, cure the coercive effect of the actions of the Schiller Park Therefore, defend- police. ant’s Des Plaines confession was tainted the by physical in Park, confrontation Schiller and the trial court erred in concluding the confession was admissible.

The majority’s suggestion that “there no can be coer cion available to infect in the [defendant’s statements]” “absence of an finding affirmative of physical coercion” (121 Ill. 2d at not 157) Here, accurate. it is uncontro verted that defendant sustained numerous while injuries in the hands of Schiller Park police. The trial court’s that a finding severe had “very confrontation” physical taken place necessarily coercion; includes a of finding otherwise, the trial court would not have suppressed defendant’s statements. In this the light, in majority’s sistence an finding” “affirmative is little brutality more than semantic game.

The second factor which rendered defendant’s confes- sion inadmissible is used Des subterfuge Plaines to coerce police defendant into confessing. Offi- cer Meese the Des Plaines admitted at trial that police

176 he in- during made untrue statements defendant which led to defendant’s confession. terrogation Specifi- Des Plaines cally, Meese told defendant had scene of received a his car at the report identifying the crime:

“At that time I to him that we notified indicated were Chicago his in the City vehicle observed incident, could alley involved in a and that he not be rape identified, why explain that he would the ve- but have hicle was there.” its achieved desired result. misrepresentation

Meese’s a statement already deny- defendant had Although given crime, in another gave ing involvement he con- subterfuge statement Meese’s which following fessed. 436, 476, 16 v. Arizona 384 U.S. Miranda 694, 725, 1602, 1629,

L. 2d S. Ct. United Ed. 86 States Court stated that: Supreme threatened, tricked, that the accused was

“[A]ny evidence privilege the fifth amendment cajoled or into waiver [of will, course, show that against self-incrimination] voluntarily privilege.” defendant did waive 412, 421, Moran v. U.S. (See also Burbine 410, 421, (relinquish L. S. Ct. Ed. voluntary “must have been rights ment of Miranda of a free and deliberate that it was the product sense coercion, intimidation, deception”); or choice rather than 815, 3d 647 v. 31 Cal. see, (1982), e.g., People Hogan due 183 inadmissible 93, (confession P.2d Cal. 817 Rptr. Crim. v. Howard (Tenn. State misrepresentation); v. 656 Commonwealth 1981), (same); 617 S.W.2d App. 552, (same).) 527 377 Mass. 387 N.E.2d (1979), Meehan renders In whether assessing misrepresentation inad and therefore involuntary defendant’s confession totality-of-circumstances has missible court applied a factor only test is misrepresentation test. Under this considered, to be with along “age, education and intelli accused, gence duration of questioning, he whether received his or rights constitutional was sub jected to v. any physical punishment.” People Kashney 466-67, 111 Ill. 454, 2d v. Martin quoting People 412, 102 Ill. 2d 427. this test to the

Applying facts this case compels the conclusion that defendant’s confession was inadmissi- ble. Not had the only defendant been subjected to severe physical but also he brutality, was kept incommunicado from his in violation of his attorney constitutional rights. addition, defendant had in police been custody since early and had morning questioned been two dif- by ferent police and at departments least two assistant State’s Attorneys. The fact that defendant had received Miranda is repeated warnings of little significance the face of these coercive conditions and the extended to which the interrogation defendant was subjected.

Based on its reading Spano v. New York (1959), 315, 360 U.S. 3 L. Ed. 2d S. Ct.

Lynumn Illinois (1903), 372 U.S. L. Ed. S. Ct. the majority concludes that the sub terfuge employed Officer Meese did not coerce the defendant’s confession because it was “not employed suggest the defendant suffer would physical, emo tional, or material harm” or that “the defendant or a loved one would be harmed in some if way” the defend ant refused to confess. (121 Ill. 2d at 155.) This is an narrow overly reading Lynumn and Spano; these cases did not establish a requirement the defendant or his loved ones be threatened with harm directly be fore a misrepresentation can be deemed to have a coer cive effect powerful enough invalidate defendant’s Instead, confession. the central under inquiry Spano and whether, Lynumn considering the of circum totality stances, the defendant’s will was overborne the tech-

178 in the confes obtaining ñiques employed by police (Spano, 1271-72, 79 323, at L. Ed. 2d at sion. 360 U.S. 3 Lynumn, L. at 534, S. 9 Ed. 2d 1207; Ct. at 372 U.S. at 926, 920.) 83 S. Ct. at Under this approach, or of the same directness need not establish threats Spano Lynumn es as in in order those or magnitude Here, the effect of tablish that will was overborne. subterfuge, which falsely implied officer’s defendant, must against evidence police eyewitness had was suffer be in of the facts that defendant light judged interrogated and had been ing physical injuries already these cir an statement. Under given exculpatory character cumstances, confession cannot be defendant’s “ a free intellect and ized as ‘the a rational product ” Lynumn, 926, 9 L. 2d at 83 will.’ 372 U.S. at Ed. v. Blackburn Alabama 361 (1963), S. at Ct. quoting 274, 280; 80 Ct. 242, 249, 4 L. Ed. 2d S. 199, 208, U.S. v. Kincaid People 107, 117. 2d (1981), 87 Ill. an Court Supreme

Even before the United States v. Arizona prohibiting in Miranda its nounced decision confessions, had de this court obtaining in trickery to coerce and falsehood trickery nounced the use v. Stevens (See People (1957), confession. denounce and deter Ill. should continue to 27.) 2d We in of such tactics rendering the fruit practices by these confes where, here, defendant’s admissible, as especially misrep and deliberate through knowing sion elicited intent with the specific the police resentation Spano, at See 360 U.S. confession. induce defendant’s an at 1207 (where S. Ct. 324, 3 L. Ed. confes to extract of the officers “undeviating intent *** *** confession obtained must be sion is shown see also Peo scrutiny”); with the most careful examined Kashney ple (Goldenhersh, 111 Ill. 2d (contending in part) J., dissenting concurring part obtaining deceptive practices by that use of v. Martin People Miranda); confessions violates (Goldenhersh, J., Ill. 2d 429 dissenting) (same). The third factor which that defendant’s con- indicates fession was sup- obtained should be improperly in- pressed the in the was way which kept communicado from his I with Chief agree attorney. Justice Clark’s analysis this issue in the con- specially curring opinion, and thus will not repeat those argu- ments I here. disagree concurrence, with the special however, First, on two there points. was sufficient evi- dence to establish that defendant’s attorney requested access to defendant during interrogation period. Defendant’s wife testified at the suppression hearing that the had attorney attempted contact the defend- Also, ant. although the in closing statement attorney’s the suppression hearing (in which he detailed his at- tempts to contact was not defendant) sworn testimony, as an officer of the court the was under a con- attorney tinuing ethical to speak duty and we have no truthfully, reason to doubt his Furthermore, veracity. the trial court recognized that he was introducing facts in his closing in presented testimony, but allowed him to continue over the State’s objection. Under these circumstances had attorney every reason to believe his statement being accepted the court as functional equiva- lent of and I testimony, regard would the statement as such. His attempts contact client were also enu- merated the written motion to suppress defendant’s confession filed before the suppression More- hearing. over, as the appellate noted, court testimony officer who claimed that the had not attorney requested access to the defendant had been severely discredited.

Second, of a because critical factual difference be- case and Moran v. Burbine this tween U.S. 89 L. Ed. 2d 106 S. I am not Ct. con- vinced that Burbine controls the result here Fed- under Burbine, any defendant never expressed

eral law. for an The Court noted attorney. repeatedly desire “At point in its decision: no factor significance *** did the course of the during investigation [defend- *** he an attor- an not want request attorney ‘[did] ant] *** a tele- he had access to called or ney appointed’ *** at no he use he which declined to phone, apparently at U.S. (475 point requested presence lawyer.” 417-18, 420, 417, 418, 420, S. 89 L. Ed. at reiterated the 1138, 1139, Ct. at The Court also 1141.) Miranda the individual indicates requirement “[i]f any any prior manner, time to or during question- silent, if states that he wishes to remain ing, that he] [or must cease.” interrogation attorney, he wants an L. Ed. at at 89 (475 U.S. (Emphasis added.) v. Arizona Miranda S. quoting Ct. 694, 723, 86 S. Ct. 436, 473-74, 16 L. Ed. 2d 384 U.S. 1602, 1627. a Schiller it that undisputed

In the case is present from the sta- wife Park officer called defendant’s police her. and with tion and discussed defendant’s arrest bail line, time on the at which The officer then defendant put attor- his wife to retain specific defendant instructed Burbine, case, it is Thus, in in this unlike his behalf. ney the ad- sought had actively uncontested that defendant interrogation to attorney prior vice and counsel of an case, in unlike the Defendant and confession. Burbine, an at- every expectation in had defendant him. Defendant was per- would be torney contacting successfully had after the police suaded confess only attorney separated prior the defendant and his kept defendant Perhaps during interrogation period. for his actually appear attorney lost that the would hope in simply gave of counsel defense, or. the benefit without interrogators. confess exerted to the pressure Burbine noted Also, in as the Court significant there of coercion, was no evidence and that physical In initiated confession conversation. con- trast, defendant in the present case had been physically earlier, at the of injured police hands a few hours only and had been already subjected repeated interrogation hold, initiated he before confessed. I police would therefore, because the critical factual differences between Burbine and the Burbine does not case, present control the result in this case. We should look to the United States Court’s earlier Supreme statements in Escobedo, Miranda as discussed con- special currence, for the resolution separation attorney e.g., Miranda, See, and client issue. at 476, 384 U.S. 724-25, L. Ed. 2d at 86 S. Ct. at (“Whatever testimony authorities toas waiver of an rights by accused, the fact of lengthy or incommuni- interrogation cado incarceration before a is statement made strong evidence that the accused did not waive his validly rights”). it sum, is clear that the combined conduct of the

Schiller Park Des Plaines this case ren- dered defendant’s confession and that involuntary confession therefore should be In the suppressed. words Chief Justice Earl Warren:

“The of society abhorrence to the involuntary use of confessions does not turn alone on their inherent untrust worthiness. It also turns on the deep-rooted feeling that the police obey law; must law enforcing while the in the end life and be liberty can as much endan gered from illegal methods used to convict thought those to be criminals as from actual criminals themselves.” Spano 315, 320-21, New York 3 U.S. L. Ed. 1265, 1270, 2d 79 S. Ct. 1205-06.

Even if defendant’s confession could be deemed vol- admissible, untary conviction is still peremptory drawn into the State’s use of question to from the Two persons jury. exclude black challenges on a venire only persons black black potential jurors, through of 40 were eliminated State people, an resulting in all- challenges, exercise of its peremptory white contends that the exclusion of Defendant jury. from the violated his fourteenth black persons jury of the and his amendment laws right equal protection cross-sec- representative to a selected from a right jury sixth amendment. The under the community tion not have stand- concludes that defendant does majority violation on equal protection assert Batson ing the excluded prospec- he is white and grounds because defendant’s sixth black, tive are and dismisses jurors this court’s ear- as argument precluded by amendment lier rulings. to the discrimi-

Even if Batson forecloses challenges an challenges equal pro- use of under natory peremptory is not a member tection when analysis way from the it in no endorses jury, the class excluded exclusion of black discriminatory people the continued use pe- The Batson Court noted juries. challenges persons imper- exclude black remptory defendant, to the factors: harm on three missible based Minori- community. and harm to the to the juror, harm Court, independ- have an interest ties, to the according serving jurors: in as ent from the defendant’s harms jurors discrimination selection “Racial are they life summoned liberty whose or only accused *** fit- ‘is unrelated to his simply A race try. person’s Strauder, as long ago As juror.’ ness as a [Citation.] therefore, by denying person recognized the Court race, the of his service account jury participation the ex- against discriminated unconstitutionally State L. Ed. at (Batson, 476 U.S. at juror.” cluded 1717-18.) S. Ct.

183 The also has an interest community preventing dis- exclusion from criminatory service: jury “The harm from discriminatory extends jury selection beyond that inflicted on the defendant and the excluded juror to procedures touch entire Selection community. purposefully exclude persons juries black from un- dermine public confidence in the fairness of our of system Batson, justice. 87, 81, 476 at L. U.S. 90 Ed. 2d at 106 S. Ct. at 1718.

The Supreme Court used sweeping language through- out Batson in renouncing as unconstitutional exclusion of black from the persons a commitment jury, evincing prohibit exclusion tactics in discriminatory their entirety: “the Constitution all prohibits racial purposeful forms discrimination in the selection of jurors.” (Emphasis (476 88, at added.) 82, U.S. 90 L. Ed. 2d at 106 S. Ct. at The 1718.) Court noted that in many State and Federal courts “the [peremptory] be, challenge may and unfortu- at times nately been, has used to against discriminate black jurors,” concluded that view of the heter- “[i]n ogeneous population Nation, of our public our respect criminal justice system and the rule of law will be if strengthened we ensure that no citizen is disqualified service jury because his race.” 476 U.S. at 89,106 L. at 90 Ed. 2d S. Ct. at 1724.

Furthermore, the Batson Court made clear that prohibition against tactics discriminatory now not applies to the selection of only venire, or jury panel but to the selection of equally the petit “While decisions jury. of this Court have been concerned with discrimi- largely nation venire, selection of the during an- principles nounced there also discrimination on account forbid race in the selection a petit added.) jury.” (Emphasis (476 U.S. at 90 L. Ed. 106 S. 1718.) Ct. at Thus, fair venire selection is only threshold require- ment for properly selecting State cannot be jury.

aUowed, venire, seating proper pervert after using challenges selection jury process by peremptory Batson, ensure that minorities are off the kept jury. L. Ed. 2d at 106 S. Ct. at (“the U.S. at State its lists neutral up jury draw may pursuant to ‘other then resort discrimination but procedures stages process’ ”). the selection in Batson would of the logical language A extension through from the jury exclusion of black prevent people whether regardless the of of challenges use peremptory class, the is a of the excluded based defendant member the interests independent on the juror’s community’s inter- in a as well as the defendant’s fairly jury, selected the rationale suggested proper est. Defendant has amend- the of sixth principle: extension the of the com- to a cross-section right ment representative is challenge par- on A sixth amendment the munity jury. case, the in the where ticularly appropriate present black, are be- jurors defendant is white and the excluded of the excluded a defendant need not be a member cause challenge. a fair cross-section class in order to raise v. Missouri Duren n.l, L. 357, 439 359 58 (1979), U.S. Peters 664, n.l, n.l; 666 Ed. 583 99 S. Ct. 2d Kiss 33 L. 92 S. Ct. 407 U.S. Ed. raise amendment defendant could sixth (white blacks). of claim on the exclusion based is entitled amendment, a defendant the sixth Under community jury. of to a fair cross-section v. Louisiana (Taylor L. Ed. 2d 419 U.S. guaran- has interpreted 95 S. been 692.).This Ct. a nondiscrimina- selected in tee that venire be jury manner from a source tory fairly representative though Taylor so far as go does not even community, already But as a representative petit jury. guarantee mentioned, Batson has added an additional dimension a selected a although petit jury this analysis: proper need not reflect a cross-section panel necessarily of the discriminatory tactics to ma- community, designed nipulate ultimate will composition petit jury no be tolerated. As the United States Court of longer for the Second Circuit Roman v. it in Appeals phrased Abrams (2d Cir. 1987), 214, 226, F.2d 229: guarantees possibility sixth only amendment

“[T]he petit of a jury reflecting community a cross section prosecutor and forbids the to exercise his peremptories in a manner discriminatorily that eliminates that possibil- *** ity guarantees sixth amendment [W]hat petit any not that he will have jury par- composition ticular but that he will the possibility have a jury that reflects a fair cross section of the community. prosecutor violates sixth amendment rights when he starts out to eliminate that possibility.” (Emphasis in original.)

The Roman court also articulated the prima facie showing that should required be for a defendant to es tablish a violation of the sixth right amendment to the a possibility of fair on the cross-section To petit es jury. tablish a prima case, a defendant must show that facie “ the ‘(1) to is group alleged be excluded a cognizable in group and community, there is (2) substantial like lihood that the challenges leading to this exclusion have been made on basis of the individual venireperson’s affiliation group rather than because of any indication of a possible to decide the on the inability case basis ” Roman, evidence presented.’ 225, 822 223, F.2d at v. McCray Abrams quoting Cir. (2d 1984), 750 F.2d 1113, 1131-32.

I raised an argument the use of challenging discrimi- natory peremptory challenges the selection of petit juries as violative of the sixth amendment fair cross-sec- tion as requirement, arguments well as that such chal- lenges are forbidden under our State constitution

186 authority that this court should exercise its supervisory are not successful to ensure that tactics discriminatory v. People Payne J., 135, Ill. 140 (1983), (Simon, 99 2d ex I not those here repeat arguments will dissenting). that Batson has on to the effect this court’s cept note decisions sixth amendment prior rejecting prohibition on the use of discriminatory challenges. peremptory Batson, this court nothing precludes

In the wake from the use of holding peremptory challenges exclude black even where jurors, black, of the violates the fair cross-section requirement on major sixth amendment. The relied opinions Wil People v. ity People Payne (1983), 135, 99 Ill. 2d — v. Gaines People liams 252, (1984), Ill. (1983), 97 2d has now Ill. 2d 79 —were based on precedent 105 In those cases defendants argued been overturned. black people use of exclude peremptory challenges their fourteenth amendment violated both jury and their sixth amendment rights equal protection In support to a fair cross-section right jury. relied the defendants arguments, their sixth amendment v. Louisiana Taylor Ed. L. 419 U.S. States Su S. in which the United Ct. to a right Court held that the sixth amendment preme selected right jury trial have petit includes jury of the community. from a cross-section representative ear held that an cases, however, this court all of those Swain v. Alabama case, lier Court Supreme read 824, must be Ed. 2d 85 S. Ct. U.S. L. that Swain controlled res Taylor therefore into a sixth issue under challenge olution of the peremptory Swain, an equal protection Under amendment analysis. of in the use case, peremptory discrimination establish to demonstrate a defendant was challenges, required in case of minorities exclusion systematic purposeful Batson, after case. Swain overruled by has now been in thereby into those cases calling question holdings Swain, Williams, on relying including Payne, Thus, slate, Gaines. this court on it writes a clean would incongruous be for this court not to read the Bat- son decision into the sixth amendment of analysis Tay- thereby the use of chal- prohibiting peremptory lor— to exclude lenges black from under persons petit juries the sixth amendment —after insisting for so long into reading Swain Taylor.

It is not our concern motivation for the ponder State’s to exclude attempt black from the persons jury in a particular case black, when is not but to ensure that it is not simply successful in so. Dis- doing crimination is no against black less people reprehensible because the defendant simply to be As happens white. acknowledged by Batson, Court in black Supreme persons have an in interest as serving jurors independ- ent from and in addition to the defendant to right in jury selected manner from a nondiscriminatory representative cross-section and inter- community, ference with these rights not be should tolerated court reason. any

In view of the long and unjustifiable in this history State of exclusion of persons black service jury through the use (see v. peremptory challenges People Lewis 103 Ill. (Simon, J., dissenting) (listing cases in which peremptory challenges were used to exclude potential black jurors); People Payne (1983), 99 Ill. 2d 135, (Simon, J., dissenting) (same)), I this court not to urge wait until the United States Su preme Court explicitly denounces the use of peremptory challenges exclude minorities from the where the jury defendant is a but instead to take initia nonminority, tive, under the unequivocal condemnation such proce Batson, dures in all outlawing discrimination against black persons selection in this jury system State.

Some courts have held that discrimi- post-Buisoro already challenges prohibited use under natory peremptory v. e.g., Roman Abrams See, (2d the sixth amendment. v. Booker Jabe 214; 1987), (6th 1986), Cir. F.2d Cir. v. People Fields 871; (Colo. 1987), F.2d P.2d 1145.

At should sent back to very least matter be trial court for a to determine whether black hearing on the were excluded from service improperly persons For reasons I dissent. these jury. respectfully

(No. 64240. MITCHELL B. McCASTLE, Appellant, JAMES al., et M.D., LTD., SHEINKOP, Appellees. Rehearing Opinion December filed 1987.— 5, 1988. April denied

Case Details

Case Name: People v. Holland

Court Name: Illinois Supreme Court

Date Published: Dec 21, 1987

Citation: 520 N.E.2d 270

Docket Number: 64182

Court Abbreviation: Ill.