People v. Racanelli

sort its regarding terms. Accordingly, defendants’ argument deficiency judgment subject was to later modification on account of a of jurisdiction reservation must fail. with views, consonance these we are the opinion that arguments

defendants’ regarding validity deficiency judgment (wherein defendants claim that a judgment such was prohibited by the note, installment inconsistent the judgment January 1983, and pleaded) properly precisely the types matters which not be may raised defense of a proceeding supplementary under 1402(a). section Ill. Rev. Stat. ch. par. 1402(a). 2— 2— reasons, For these we conclude the trial court in enjoining erred of the deficiency enforcement judgment. judgment of the circuit court of County Lake is reversed.

Reversed. JJ., REINHARD,

LINDBERG and concur. ILLINOIS, THE PEOPLE OF THE STATE OF Plaintiff-Appellee, v. al., Defendants-Appellants. JOSEPH RACANELLI et 83—972, (5th Division) First District Nos. — 9 77 cons. 83 15, 1985. Opinion filed March PINCHAM, J., dissenting. Defender, Doherty, Chicago (Judith Stewart,

James J. Public of A. As- Defender, counsel), sistant appellants. Public of for Daley, Attorney, Chicago (Linas Kelecius, Richard M. State’s Assist- J. ant Attorney, counsel), State’s for People. the opinion

PRESIDING JUSTICE MEJDA delivered the of the court: Defendants, Watters, were Joseph Johnny charged Racanelli and burglary 1979, 38,

with home Stat. (Ill. par. 11(a)(2)), invasion Rev. ch. 12 — ch. (I 1), (Ill. Rev. Stat. and murder par. Rev. ll. 19— 1). trial, Stat. par. ch. a verdicts were re Following jury 9— turned each home and finding guilty defendant invasion burglary and not of murder to each guilty as defendant. Each burglary sentenced to concurrent terms five for and 12 years years for home on that the invasion. Each defendant asserts trial appeal court motion denying suppress erred in to his oral and written confessions, that a proved guilty beyond he was reasonable affirm. doubt the of the confessions. We absence evening 20, 1981, 12-year-old Jimmy On the an August Lopez, victim, eyewitness, Reynolds. to the apartment went Robert Lopez Later, Racanelli, watched television with the victim for awhile. cousin Lopez’ by marriage, the stopped by apartment. Lopez testified that around 10 he p.m. went to in the victim’s bedroom. Some- sleep time later he up woke saw victim Watters the bed- room. The victim was staggering about the room with a stab wound in his back. then saw Lopez Watters stab the victim in the chest with began a butcher knife. Lopez screaming at Watters to At this stop. point, called, Racanelli looked into the go,” bedroom and “Let’s Watters. stated that Racanelli a knife Lopez had in his hand. Defend- ants then through exited the front door of the apartment. left,

After dressed, defendants testified that he Lopez pad- locked bedroom door Racanelli and left requested, apartment. On his out of the way apartment, he noticed that two tele- sets, stereo, vision a radio, a headphones, speakers and a clock were missing. stated Lopez that he then walked through apart- vacant ment next door to that of the get victim to to the door of the back building. Lopez recognized some articles in this apartment, including the headphones and a lamp which had been in the victim’s bedroom before he went to sleep. He opened cupboard in the vacant apart- ment and saw knife Watters used to stab victim on the lying shelf. After leaving building through door, back Lopez went his father’s house. that

Lopez testified him telephoned a few later days tell- him ing his mouth “keep quiet” and that “it wasn’t supposed happen like that.” Until the police arrested Lopez September he did not talk with the police about incident. After the in- police formed him that he was a in the prime suspect murder and that they intended to him try adult, as an he told them about Racanelli and then Lopez gave Watters. written statement Assistant State’s Mahon, Francis Attorney Jr.

An public defender, Kunz, assistant William that testified on Jan- 11, 1982, he was uary present during a conversation with Lo- Jimmy pez at the defender’s public office. He testified that him Lopez told he did not the stabbing see but rather found the victim next lying dead bed, to him on the that he had sex victim for money evening, the police him, had beaten and that had made a police statement that the had instructed him to make. On cross-exami- nation, Kunz there conversation, stated was no of the although record he could have summoned a court if he reporter had chosen to do so. Lopez that he testified did not recall talking with from the anyone public defender’s office. He further testified he the victim knew was a homosexual but that he had never had sexual relations with

him. stated that he Lopez public never told the defender’s office that he did not see the stabbing.

Lopez’ regarding the items found in the testimony adjacent apart- ment was corroborated Zonhair Dajani, manager vic- tim’s apartment building. Dajani testified that he found a lamp headphones the unlocked apartment August 23. He also found a bloody knife on the shelf of a Ellis, cabinet. Sharon a microanalyst, testified that the victim’s blood type matched that of the blood found on the knife and on the victim’s bed.

I argues Defendant Racanelli that the trial court erred in denying the motion to his oral and written suppress statements because the him police prosecution charges failed to inform pending against him. At hearing on his motion to Racanelli testified that suppress, 12, 1981, on September Tennessee, while in he Detective phoned Sap- one panos Lopez because said the wanted him to be a Johnny police him Sappanos witness. then told he to use him as a wanted witness but did not tell him there was a agreed warrant for him. Racanelli come to Chicago be witness. On he September called and his who came Sappanos partner, house to meet Johnny Lopez’ warrant, them. did tell him They him, about the did not handcuff cross-examination, nor tell him he was under arrest. On Racanelli tes- tified that he could not remember whether State’s had Attorney him told that he He that he just witness. stated admitted bur- glarizing an apartment only after he had been told that he could go home after he made a statement. Racanelli remembered told being that he could see a not sure when that lawyer but was occurred.

Detectives Thomas Keane and Thomas Sappanos testified that Ra- canelli called them on September at the station 18 and that police they arranged meet him at for the Lopez’ apartment purpose Sappanos Racanelli’s surrender. testified that he had informed Ra- canelli of the warrant during telephone conversation on Septem- 18 and in an earlier him ber conversation with on September 12. Dur- conversation, the earlier ing his, Racanelli asked Sappanos what Racanelli’s, alternatives were. After being told that an arrest warrant issued for arrest and that he been his had the to continue option surrender, to flee or to Racanelli stated he would prefer surrender Chicago. testified that his Sappanos although police did not report arrest, reflect that he had told Racanelli there awas warrant for his did state that Racanelli report planning surrender himself in the near that Racanelli un- future. Keane was told was testified

129 der they arrest when left and went Lopez’ apartment police with handcuffed, He willingly. fingerprinted placed in a cell at station. Keane he also police stated that told Racanelli there was a warrant for his arrest and mur- regarding apartment burglary der. Both detectives testified that Miranda warn- given Racanelli was times, understood, he ings several which he indicated he and that requested lawyer. never a station,

After arriving police the detectives called Assistant arrived, State’s Robert After he Attorney spoke Kaiser. Kaiser with Racanelli. Detective Keane present. was also Kaiser stated that Ra- canelli indicated he still wanted to talk to him after Kaiser had ex- plained his office to Racanelli given and had him Miranda warnings. Racanelli indicated that he the warnings. understood After talking minutes, with him for about 15 Racanelli communicated his willing- ness to make a statement. again Kaiser gave warnings. Miranda signed stated understood them and of rights waiver form. Racanelli then made a statement in presence of a court re- porter, Sappanos, Keane and Kaiser his admitting involvement in the apartment burglary. Kaiser stated that he did not tell Racanelli he was only a witness and denied him telling that he would not need a lawyer. After all the hearing the trial testimony, court denied Racanel- li’s motion to suppress the statements made to the police.

It is the function of the trier of fact to determine the credi witnesses, of the bility weight given be their and the testimony inferences to be drawn from that evidence. (People (1976), Akis 63 296, 298, Ill. 2d 733.) N.E.2d Where the evidence is merely con flicting, a court review will not substitute its for judgment that of the trier (63 296, 298-99, of fact. Ill. 2d 347 N.E.2d 733.) the in case, stant Racanelli’s regard contention with to the motion to sup press essentially question of The trial credibility. court specifically stated at the conclusion of hearing that he believed the testimony prosecution witnesses. Viewing case that posture, the ev idence indicates that Racanelli made a knowing and intelligent waiver rights making his before his statement. If a defendant chooses speak and does not request lawyer being after informed of and un his derstanding Miranda a court rights, may properly find that he un derstood those rights and chose not to exercise them. v. Win (People 673, 682, case, ston 106 Ill. App. 1327.) 435 N.E.2d In this the decision of the trial court was well within the limitation on review that a trial court’s on a motion findings suppress should not be dis turbed contrary weight (106 unless to the manifest of the evidence. 673, 683, Ill. App. 3d 435 N.E.2d this 1327.) Accordingly, contention is without merit. We find that the trial court did not err in denying motion to his oral suppress Racanelli’s and written state- ments.

Raeanelli urges that additionally authorities’ failure on September to inform him of the charges pending against him violated his sixth amendment right to counsel. He maintains that formal adversary proceedings were initiated against him on Septem ber when the murder complaint was signed against him and a mur der warrant was issued for his argues, therefore, arrest. He that he was entitled to of the pending know charges and have counsel present during telephone conversations the police on Septem ber and 18. The State responds that Racanelli’s sixth amendment right to counsel did not September 3, attach on when an arrest war rant was issued on a complaint signed police officer, aby but instead it attached on 2 November when Raeanelli was indicted.

An individual’s sixth amendment right counsel attaches at or after the initiation of adversary judicial proceedings criminal whether by way charge, formal indictment, preliminary hearing, information or arraignment. (Kirby v. Illinois (1972), 682, 689, 406 U.S. 32 L. Ed. 411, 417, 2d 92 1877, S. Ct. 1881-82.) The initiation of adversary pro- is ceedings determined to the by looking at point govern- which the ment has committed itself to prosecute and positions adverse parties 689, 682, 411, have solidified. 406 U.S. 32 L. Ed. 2d 92 S. Ct. 1882. provides

Hlinois law that felony prosecutions must be com menced indictment or information and not by complaint. (Ill. Rev. Stat. ch. pars. 2.) Further, only the State’s At 111— 111— torney has the to file a authority felony charge, and a officer police Without that authority prosecute charge. such a (People Pankey v. (1983), 12, 19, 94 284.) Thus, Ill. 2d 445 N.E.2d the State cannot be said to have filed a formal charge committing itself to prosecution of Raeanelli simply filing of a a complaint by police officer.

Illinois courts have expressly held issuance of an arrest warrant does not formally charge a defendant with a crime. v. (People (1983), 44, 47, Mitchell 116 App. 934; Ill. 3d 451 N.E.2d v. People Dockery (1966), 72 App. 345, 355, Ill. 2d 219 687.) N.E.2d An excep tion to this rule filing has been found when the of a complaint by a police officer is made at the direction of the State’s Attorney. (People Owens 102 Ill. 261.) N.E.2d In the case at bar, the complaint for warrant was not filed at request State’s and the rule of not Attorney applicable. Owens is We therefore find that Racanelli’s to counsel not right apply telephone did to the was not to counsel and that his sixth amendment conversations violated.

II erred in that the trial court de Defendant Watters contends in light oral and written statements nying suppress the motion to his Watters, old the time of homi of his at intelligence. years low arrested at 5 cide, hearing that he was suppression at testified holding gun a to his a.m. he was awakened a officer police when in a station, placed was handcuffed head. At the Watters police him Miranda gave an officers police small room for about hour. Two The police a lawyer. that he asked see warnings. Watters testified Home, Audy he to the told him that he could see a when went lawyer not a testified that he did under juvenile detention center. Watters statements make him. might stand that he could be used any warning He that he could tried as an also did understand the be adult. stated that he understand that he could have law Watters did if later a yer he to talk. testified that sometime man wanted Watters room, him to rights, sign came into the read him and asked Miranda man it. statement. The read the statement told Watters read printed page Watters initialed bottom of each his statement his name at the end. Keane Sappanos

Detective testified that he and Detective con- ducted the initial at the station police advising interview with Watters him Watters indicated that rights. rights. of his understood reasonably intelligent Watters seemed and de- Sappanos testified lawyer Audy nied that he have Home. telling Watters would Watters, a Assistant State’s Attor- During second interview with he attorney that was not his ney Mahon testified he told Watters but the his that he with He advised of Miranda police. worked Watters he his and that was rights. rights Watters stated that he understood old, told he willing to talk. Because he 16 Mahon Watters years was that he Prior to could be tried as an adult. stated understood. Watters statement, agreed, Mahon taking written which Watters Watters’ of the court re- asked him when explained questions what would be porter arrived. Mahon, a youth of- presence

A in the of third conversation ensued again Muscolino, read reporter. ficer named and a court Watters in but stated burglary, his He admitted rights. his involvement signing In addition to had stabbed the writ- victim. form. statement, rights ten a waiver Mahon signed Watters written a nor he request did not to see did lawyer testified that Watters ask 132 read,

that questioning cease. asked if he Watters re- When could sponded affirmatively.

Paula Court Bailey, County Cook Juvenile testified psychologist, that she administered a battery standard tests to psychological Watters. testified She did not exhibit but that any psychoses his results were level. She further that he preschool testified an I.Q. 54, which is in the retarded In her moderately range. opin- ion, Watters understand Miranda not probably warnings could unless were they explained simpler cross-examination, On language. Bai- ley stated that because these tests not designed specifically understood the Miranda determine if Watters rights, she had no per- sonal knowledge as to he in whether fact understood them. She also testified that Watters would understand the that he warning could adult, “court,” be tried an as but understood the probably words “silent,” “free,” “judge,” “lawyer,” “no The charge.” witness testified that six three prior adjustments, Watters had station prior court, referrals to probably “street-wise.” At the juvenile conclusion of the the trial hearing, court found that waived Watters Miranda his rights and denied his motion to his suppress statements police made while in custody. waived Miranda

The determination of an has his whether accused rights depends whether fact and volun knowingly whether, those tarily rights. waived defendant know inquiry ingly and those focuses on of the voluntarily rights totality waived (Fare v. Michael C. surrounding circumstances interrogation. 707, 724-25, 197, 212, 2560, 442 61 L. 2d S. Ct. U.S. Ed. 99 (1979), reh’g denied 2571-72, 887, 121, (1979), 444 62 L. Ed. 2d 100 U.S. S. 186, North v. Butler 369, 373, Carolina quoting (1979), 441 U.S. Ct. 286, 292, 60 L. Ed. 1757.) 2d 99 S. Ct. When the to regarding circumstances, both tality the characteristics of the accused and People v. Stone interrogation details of must be considered. (1978), 3d App. 61 (cid:127) 5. 378 N.E.2d 263.

The characteristics which be examined accused must upon knowledgeable those which bear to make and in ability dependent age, decisions. Pertinent factors are the defendant’s intelli law prior experience criminal and emotional gence, stability. (People v. Stone 654, 659, App. 263.) 61 Ill. 3d 378 N.E.2d Al (1978), though subnormal alone does not a confession capacity mental render it is involuntary, determining a factor to be considered volun Murphy tariness and the confession. (People admissibility 677; People v. Hester (1968), Ill. 381 N.E.2d Ill. 2d are to be care- 466.) N.E.2d Juvenile confessions

133 coerced, sug voluntary that and not fully they reviewed ensure of his rights, adoles gested, product juvenile’s ignorance or the of a App. Ill. 3d (People Avery (1980), cent or 88 fright despair. fantasy, heavy a bur N.E.2d the bears 1093.) prosecution 410 While intelligently made establishing knowingly, den of that a statement was of after the application where a trial court so finds voluntarily, finding to whether that is standard, review is limited proper legal of the evidence. v. Kincaid weight People to the manifest contrary cert, 455 107, 116-18, (1982), 429 denied (1981), 87 Ill. 2d N.E.2d 144,102 L. Ed. S. 1726. U.S. 2d Ct. found the confession case,

In the instant the trial court that was and stated that: voluntary me a woman claims that

“I have before from who testimony test, he demon- from her at times some the testing, part I five-year-old seven-year-old. strated of a have ability that part totality, to take into consideration. That but his and the of diffi- questions degree I think responses he with questions might appear that have that culty might I to a think I have to con- person intelligence, difficult low sider all of that.” trial in fact apply

This statement demonstrates that the court did evaluating standard in of the statements. proper admissibility This was finding supported evidence that Watters could understand words, that that appeared warnings, various he understand he that he that he police warnings, fact told understood testi fied knew could talk with a and that he had had lawyer, that he he Although the criminal court Bai system. some prior experience behalf, ley specifically testified on the trial court stated that Watters’ her accept was The trial court need not an testimony persuasive. not App. conclusions 121 Ill. 3d expert’s (People (1984), of fact. v. Grice trial 1122.) 459 N.E.2d court’s decision was Accordingly, weight not the manifest the evidence. 127 Ill. cites v. Redmon People App.

Watters Redmon, 1310, in In the defendant ex support of his position. N.E.2d he did un during police stated an interview with the pressly lawyer while be derstand his talk to and be represented explained, questioning After this he asked ing questioned. form. rights signed cease. Defendant never written waiver case, times during the instant indicated at all contrast Watters his own that he testi rights. According understood questioning trial, he at that he questioned at understood the time mony if to talk with the Testi- willing police. could an he was attorney have trial mony revealed that Watters had several prior experiences with the law while the Redmon defendant not. We find Redmon inapposite.

Ill Both defendants advance argument they were not proved guilty beyond a reasonable doubt in absence of their con disagree. Furthermore, fessions. We earlier, discussed trial court did not err in either denying defendant’s motion to suppress his statements in admitting participation A reviewing homicide. court will not reverse a criminal conviction unless the improb evidence is so able toas raise a guilt. a reasonable doubt a defendant’s v. (People cert, (1977), 564, 578, Manion 67 1313, Ill. 2d 367 N.E.2d denied (1978), 937, 435 533, U.S. 55 L. 2d S. a 1513.) jury Ed. 98 Ct. trial, it is the function of the jury credibility determine the and the weight witnesses to be given testimony. (People their v. Akis 296, (1976), 63 Ill. 2d 347 A 733.) N.E.2d court will review substitute its judgment for that of the trier of fact where the evidence is conflicting. 63 Ill. 2d merely 298-99, 347 N.E.2d 733.

The material elements of offense of burglary entry into a or building without authority, remaining after to en authority ter has been withdrawn, with the intent a to commit felony theft. (People Sansone 94 Ill. (1981), App. 3d N.E.2d 862.) Defendants’ into entry apartment, although the victim’s initially with the victim’s authority, authority they exceeded that when attacked the (See victim and his People removed v. Hudson property. (1983), 113 1041, 1044-45, Ill. 3d 178.) App. confessions, N.E.2d Defendants’ coupled inferences drawn from Lopez’ testimony, establish the intent specific Lopez to commit a testified that burglary. certain items which apartment were when he arrived were when missing left. recognized He several these articles the vacant next-door apartment building. as he exited the We find there was sufficient evi dence to establish doubt that beyond reasonable defendants were guilty burglary.

Home invasion is the without entry authority dwelling place of another a person peace acting not a officer in the line of duty, knowing present one or more persons intentionally causing injury any person dwelling place. (Ill. within such Rev. Stat. par. ch. 38. 11(a)(2).) authority” words “without 12— have the same meaning under the home invasion statute as do they under the burglary App. statute. v. Hudson 113 Ill. (People Therefore, 178.) presence 448 N.E.2d defendants’ the victim attacked they once authority was without apartment knew defendants Both from the belongings apartment. removed that he saw testified Lopez time. at the present that the victim was find fled. We Watters the victim before stab Watters that defendants establish sufficient to that the evidence invasion. of home reasonable doubt beyond proved guilty guilty of defendants finding stated, the judgment For the reasons are affirmed. invasion and home burglary

Affirmed. J.,

SULLIVAN, concurs. PINCHAM, dissenting:

JUSTICE granted severance. defendants should have been I dissent. These trial each defend- joint their violated conflicting during Their defenses Moreover, the trial. impartial to a fair and ant’s constitutional commis- of law to establish their a matter was insufficient as evidence addition, con- Joseph Racanelli’s or home invasion. sion of burglary State of his Federal and him in violation fession was extracted from should have therefore to counsel. His confession constitutional suppressed. been

I in an indict- charged Racanelli and Watters Johnny Joseph theft, murder, robbery, burglary, armed offenses of ment with the to have alleged The offenses were and armed violence. home invasion 21, 1981, Rey- and Robert August in Cook on County been committed the alleged nolds was victim. indictment, public defender arraignment

On their on and appointed attorney Joseph pri- for County was Cook appointed represent Johnny Harris was Wat- Robin attorney vate guilty. of not a plea entered ters. Each confessed, each defendant denied but separately The defendants the other. it to and attributed of the deceased stabbing the fatal from the trial of his for a severance filed a motion Defendant Watters that Racanelli grounds on the his codefendant Racanelli trial of Watters; that Ra- implicating” and written statements made “oral antago- and with, inconsistent with “in conflict defense was canelli’s “a fair and could not obtain and that Watters Watters nistic toward” created the prejudice because of trial impartial Racanelli] [with Racanelli’s attor- defenses.” antagonistic and inconsistent, conflicting ney filed a similar severance motion requested and that Racanelli be separate tried from his codefendant Watters. Both defendants filed motions to suppress confessions, their respective and after evidentiary their hearings suppression motions were denied.

Four days later, on 1982, the July defendants’ severance mo- tions were before court, at which time Thomas the assistant Davy, State’s court, stated to the Attorney, “I believe both counsels [for have filed motions for statements, severance on based defendants] based on State, inconsistent defenses. The having reviewed the mo- tions and the applicable law, I believe that a motion for severance would lie in particular this case so we would objecting not be to that.” granted court the severance motions.

Assistant State’s Devlin, however, Donald Attorney December 14, 1982, requested the trial judge to reconsider his allowance of the defendants’ severance motions and asked the court to the mo- deny tions. After considerable argument attorneys support of and in opposition to the State’s request that the court reconsider its sev- erance ruling, trial judge denied the motion for reconsideration stated, “I’m going let order of my severance stand.” There- upon, in apparent dissatisfaction with the court’s ruling, Assistant State’s Devlin Attorney requested “that both defendants be tried in front of juries two at the same time.” Defense counsel objected, after stating that he it,” “time to think needed about the trial judge set a trial date for both defendants.

On February Assistant State’s re- Attorney again Devlin quested the trial judge to reconsider his allowance of severance motions. The defendants again objected, but this time the trial judge granted the State’s request defendants to be “allow[ed] for joined” trial. the State’s Thereupon, motion to the armed nol-pros theft robbery, and armed violence counts was allowed. The selec- jury tion began and was concluded on March 1983.

A thorough search of the record on fails to what le- appeal reveal gitimate prosecutorial advantage sought joint obtained however, trial of these defendants. It is that the infe- quite apparent, licitous advantage sought and obtained the trial of the defend- by joint ants was the presentation to the of the defendants’ in- jury confessed volvement in the offenses and each defendant’s attribution of the fatal stabbing of the deceased to the other. trial, witness, the

During a State’s testified that at Jimmy Lopez, 20, 1981, about or 8 p.m. August he went to 93 at apartment Clarendon, 4240 North deceased, the apartment Rey- Robert nolds; that he had known for about a and a half and Reynolds year Reynolds testified that Lopez knew that he was homosexual. arrived, T.Y. in the Reynolds he and watched present when he Racanelli, defendant, came to living room, Joseph that later the and T.V., at about 10:30 watching the that after apartment. Lopez stated Lopez testi- sleep. into the and went went bedroom p.m. (Lopez) he he saw Robert following morning the fied he awakened that when in the bedroom and Watters Reynolds Johnny and wound in his floor a stab with Reynolds staggering “was around that Watters yelling,” back.” testified that he “started Lopez (Lopez) that Reynolds in the knife and stabbed chest with butcher Reynolds hand, in his Racanelli, knife fell on the stated that with a Lopez bed. Watters, go.” “Let’s Ra- then head in the and said stuck his door got front door. stated that he Lopez canelli left out the and Watters and also left. He stated that in dressed, apartment locked the door empty he an leaving building through apartment apart- went floor, ment on the floor he Reynold’s prop- on the same and there saw set, radio erty T.V., radio, a stereo alarm headphones, speaker, —a clock, the knife with stabbed Reynolds and which been Wat- ters.

The testimony Lopez elicited on cross-examination of and the other are ex- prosecution attorneys witnesses defense classic shifting of for the from one amples responsibility offenses defend- defendant, course, ant to other.1 But each of in his defense had himself from to endeavor involvement the of- exculpate else, fenses offenses someone and attribute commission a codefendant. The for each defendant obli- including attorney and gated staunchly vigorous tenacity present pursue with rights obligation such defense. These of the defendants and this curtailed, their were not not be restricted or di- attorneys and could trial of the defendants. expediency joint minished witness, Mahon, State’s Francis J. a State tes- Attorney Assistant facts and surrounding tified to the circumstances Watters’ written him, after he read Watters’ confession to the confession to which a.m., at about jury.2 August confessed that on 5:30 Watters Reynolds’ apartment Joseph was in at 4240 North Clarendon Reynolds’ Racanelli to take and Racanelli property. Reynolds up woke in the stabbed him chest told Racanelli to Lopez with a butcher knife. radio, stop. put Reynolds’ T.V., earphones Watters Jimmy Lopez Appendix cross-examination set forth in 1 Excerpts of the are A and B. Appendix set C. 2 Excerpts Johnny forth Watters’ confession other in an door and left. Ra- property empty apartment next When canelli’s that the trial to inform the attorney requested judge jury Watters, judge confession the trial Watters’ was admitted as to only “The be instructed at time.” responded, jury proper will Kaiser, witness, testi- Assistant State’s a State Attorney Robert surrounding fied to facts and Racanelli’s confession circumstances September 18, on 1981.3 Kaiser was then to read Racanel- requested li’s confession to the Watters’ asked the to jury. trial attorney judge admonish the jury that Racanelli’s was not to confession be consid- ered evidence Watters. against judge again The trial responded, will be at the Ra- “They instructed time.” Kaiser then read proper canelli’s confession to the jury. confession the evening August Racanelli stated that on invitation, went to house Reynolds’ Reynolds’ Racanelli drinking

and started Racanelli Reynolds, Reynolds and that and drank about a of Bacardi. quart got drunk and went Reynolds after moved sleep, Reynolds’ which Racanelli Watters household to an was in empty articles While Racanelli empty apartment. returned apartment, Lopez Reynolds’ heard holler. Racanelli “to see that apartment what was he saw happening,” Reynolds from away Watters, fall hand. who had knife in his Watters stabbed Watters, and Racanelli Later Reynolds “Why asked did do it?” [he] morning that Racanelli Watters for Watters’ share of gave $30 articles. Racanelli sale or purloined disposed property by Reynolds’ gift.

The created joint impermissible trial of Racanelli and Watters an avoided, imbroglio that could been and have rightly have should been by a The it three ver- simply jury conflicting severance. before sions the brutal Reynolds presented by and heinous homicide of i.e., version, version, State, and the Lopez Watters de- contradictory aggravated version. These renditions were witness, fense attorneys’ pursuant cross-examination State’s duty clients, their their an zealously represent respective even Their mistrial antagonistic defense numerous motions posture. imperviously overruled. their presented

Neither defendant testified. The only testimony Kunz, defender, was that public defense an assistant William i.e., did prove up Lopez’ that had said that he impeachment, Lopez Bai- witness, not see The Reynolds’ stabbing. other defense Paula clinical tested con- ley, a testified she Watters and psychologist, 3 Exeerpts Appendix Joseph D. Racanelli’s confession are set forth subnormal. intellectually that he eluded jury, to the argued vociferously Attorneys State’s The assistant the evi- convincing persuasion, to be they perceived with what of murder of each defendant the guilt established abundantly dence doubt.4 a reasonable the other offenses beyond one regarding gave jury trial judge admonition the only was Illi- the other inadmissible being confession defendant’s 1981), Criminal, (2d No. 3.08 ed. (IPI), Instruction Pattern Jury nois not be considered may one defendant statement made “[a] nothing instruction was but This any other defendant.” you instructed The trial also judge of words. collocation futile and trivial person No. 5.03), (IPI Criminal accountability on jury “[a] *** he person another when the conduct of for legally responsible *** or commission planning in the the other knowingly person aid[s] the account- encompassed of the offense.” The trial thereafter judge the State’s burden instruction in the issues instructions on ability murder, home and burglary, to sustain the invasion charges proof 7.02, 14.06, Ra- Nos. 11.22 and as to defendant IPI Criminal 2d instructions as to the defendant the same canelli, repeated and then Watters. and re- repeated The defendants’ retired to deliberate. jury occasioned mistrial, for a of the

newed motion because prejudice trial, again overruled. joint defendants’ in- deliberation, accountability their sent out the During jury note read: along struction with a handwritten which clarify will “Judge, purpose, you please for home invasion — of, if (1) injury intentionally?, caused intentionally definition — personal entering premises? (2) injury or if intent on present or monetary?” read, “You which jury with a note to judge responded

The trial are you all the instruction heard all evidence and received have sent During following day, jury their deliberation the entitled to.” the in- notes, instructions. One of with two along the trial two judge 5.03, previously IPI 2d No. accountability, was on Criminal structions 3.05, IPI 2d No. which set forth. The other instruction was Criminal con- read, give separate them and “You should given which been his case decided defendant. Each is entitled have sideration to each evidence Any to him. applicable and the law which is on the evidence considered by you should not be which was limited to one defendant trial ing and more-so during closing argument, defense counsel for implied Watters or tried to prove Joseph framing Watters, Johnny and that Joseph murder, Racanelli committed the home invasion and burglary Jimmy Lopez.”5 with

The conflict between these defendants was not by resolved did not terminate on the jury’s burglary and home guilty invasion findings, or the imprisonment sentences imposed fact, thereon. In af- judge ter the trial had admonished the defendants of their right ap- to Racanelli’s an peal, attorney, public defender, assistant responded, I “Mr. Racanelli intends to have not appeal. prepared the notice of ap- at time. I it to Honor later on peal present your today this Could for added.) for signing (Emphasis appointment public of defender?” stated, “Judge, Watters’ court-appointed thereupon private attorney assume, Mr. Watters going is also but I other appeal, somebody, than the public would have appointed.” to be (Emphasis defender added.) Nevertheless, court, before this on this appeal, both defend- 5 Excerpts arguments attorneys jury of the of Ap defense to the are set forth in pendices F and G. defender attorney, public the same represented by

ants denial the trial court’s joint in the defendants’ brief County, and Cook de- their antagonistic prejudice motions and of their severance attorney their assigned appeal on their trial are not joint fenses for reversal. grounds Ill. 2d R. (87 Court Rule Supreme

It is in Illinois provided substantial affecting errors that on “Plain 615(a)) appeal, defects brought to the attention they were not rights may although be noticed added.) The trial court’s denial (Emphasis the trial court.” their antagonistic motions and defenses severance defendants’ case, this trial court in the instant but to the attention brought 615 to this inoperative Rule be before Court Supreme would cause here. v. Crossno People court; rather, application it enhances its 827; v. 808, People 3d N.E.2d (1981), App. 93 Ill. Benniefield (1967), 455; Lagardo 3d v. (1980), People 88 Ill. 410 N.E.2d App. 119, 226 App. 82 Ill. N.E.2d 492.

II Thus, question the threshold sua this sponte presented appeal ability firmly is the of the defendants’ advo- attorney loyally the interest of each this court. I present cate defendant before this however, it, I it issue; unnecessary my opin- find resolve because findings ion the evidence is insufficient sustain the legally guilty and home invasion. burglary

In their accused each other of commit- confessions the defendants the homicide. Each defenses in trial ting assigned antagonistic for Their attor- grounds separate court as their severance motions. their en- arguments jury, cross-examination and neys, to exonerate their clients to the respective by affixing guilt deavored court, this single attorney other defendant. Can now before and inter- zeal, integrity, simultaneously rights fidelity pursue ests of both defendants? Echols 74 Ill. 2d 385 N.E.2d People Johnny Echols,

Wilson, brother, Kenneth Echols and his William were tried All for a June of Decatur tavern. jury burglary before During represented by public three defendants were defender. trial, the rear presence the evidence established the defendants’ The trial further burglarized door of tavern. evidence established three men the drive-up the of unidentified window presence The arrested some from the closed tavern. defendants were distance automobile, the in an trunk of from bur property tavern the which A was of fingerprint piece tavern was discovered. found on glarized broken from glass the tavern’s window. The on drive-up fingerprint the glass broken matched the on a fingerprint card fingerprint (State’s exhibit No. 11) bearing the name An officer Kenneth Echols. that testified he assisted Kenneth on Echols in his placing fingerprint the card. asked the fingerprint person When whom as- identify placing exhibit, sisted in his fingerprint the the officer not did Echols, identify the defendant Kenneth rather he identi- mistakenly fied the Wilson. out of pres- defendant the Johnny Thereupon, jury’s ence, the State sought to obtain the of fingerprints Wilson Their Echols. resisted the effort. attorney successfully that Testimony admitted the on the fingerprint fingerprint card was identical to the found on tavern’s print drive-up the broken glass. closing argument, window the defendants’ attorney argued that the of ambiguity fingerprint the evidence diminished its probative value to all the He did not that the not argue print defendants. did belonged It belong fact, belong to Wilson. In it did not to Wilson. belonged Kenneth Echols. that the argued print The State to the jury Echols the officer confused the resemblance between Echols and Wilson. The Echols brothers guilty and Wilson found of reversed burglary. supreme court and held: that the this contends case demonstrate “[Wilson] facts of hostility such between interests and those the Echols of brothers that not public adequately could represent defender three. agree, public repre all We and hold that the defender’s sentation prevented public Echols brothers of defender [Wilson], loyally representing thereby denying [Wilson] from guaranteed by assistance counsel the sixth and effective of Constitution, amendments the United States fourteenth (Ill. section 8 I article our constitution Const. of I, 8). sec. art.

* * * hostility such to ex- shown [WJhere [between defendants] ist, joint representation conflicting interests denies a counsel, assistance and such denial is effective prejudicial. to be presumed [Citations.]

* * * that once the oc- also argues Finally, confusion [Wilson] obvi- source it became fingerprint regarding curred both loyalty undivided give ous counsel could Kenneth We Johnny agree. Wilson and Echols. the State As concedes, known, the public and as defender should have now window fingerprint on the was not None- [Wilson].

143 the court’s the State’s and theless, the defender resisted public re- the occurred that fact clear. Once efforts make confusion and those interests fingerprint, garding [Wilson’s] of specula- It no dramatically. requires diverged Echols brothers coun- competent, independent tion to reach the conclusion confusion, and to resolve sel would have advised [Wilson] balance, that, given all argued closing have would evidence, the tavern. never entered [Wilson] interests Thus, hostility between the there was a material Echols, com public and the and Kenneth [Wilson] defender’s prevented public mitment to Kenneth Echols defender from there representing loyalty. with undivided [Wilson] [Wilson] counsel, was denied the assistance which denial fore effective prejudicial and was not waived silence.” [Wilson’s] 319, 326, 74 People (1978), (Emphasis Echols Ill. 2d 326-29. added.) Echols,

In between the defendants arose hostility during trial, out of the State’s efforts to convict the defendants. the case bar, between the hostility long defendants occurred before trial, when confessed they exculpated themselves and inculpated each antagonism other. Their their throughout joint intensified trial. Their before this court is therefore hostility even more devastat- ing.

In People (1980), v. Nelson 82 Ill. N.E.2d separate public assistant defenders represented the two defendants on their McLean County joint The burglary charge. Rogers defendant John pleaded trial, On the guilty. defendant William Nelson’s the code jury fendant Rogers was called as a Rogers defense witness. had not been sentenced on his guilty plea, and relied on his constitutional privi lege against self-incrimination in to answer the refusing questions of attorney. appeal Nelson’s found Nelson On before the jury guilty. court, in the supreme joint Nelson for reversal that argued represen court, tation of the in the trial defendants defenders public there was a conflict of guaran interest which denied his constitutional tee Nelson, effective assistance of counsel. In the supreme disagreed court with Nelson’s contention, in so stated: doing but rule,

“The long established in this jurisdiction, is that a crimi- nal defendant need of representation is entitled to have ap- pointed for him counsel who free from adverse interests might which such prejudice representation. In fur- [Citation.] therance of this principle, it has likewise held long been that an attorney should not be required represent codefendants inconsistent, whose since do so would inevitably defenses

prejudice the at least one client. defenseof ***. The question to be addressed in cases where codefend- ants are jointly represented one attorney entity is ‘ whether there was an “actual conflict of interest manifested ’ at trial.” Once such an actual is identi- [Citations.] conflict fied, it is unnecessary to demonstrate that for prejudice resulted in order to sustain a finding therefrom violation to counsel. In formulating that [Citations.] rule, this court relied on Glasser v. United States 60, 75-76, U.S. 680, 702, 86 L. Ed. 62 S. Ct. where it was said: ‘To determine the precise degree of prejudice sustained

*** is at once difficult and unnecessary. The right have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount ” of prejudice arising from its denial.’ People v. Nelson 67, 82 Ill. 2d 71-73. (1980), (Emphasis added.) stated, I As do not resolve this before conflict of issue attorney because the convictions should be The reversed. evidence is in- legally sufficient to establish that either defendant committed or burglary home invasion.

Ill The next sua sponte presented issue this appeal is the validity of the trial court’s denial of the defendants’ severance motions. Sec (Ill. tion 114—8 1981, 38, Rev. Stat. ch. par. 8) provides: 114— “Motion for Severance. If it appears a defendant or the State is prejudiced a joinder prosecutions related or in single defendants or charge by joinder separate charges or defendants may trials, for trial the court order separate defendants, grant a severance of other relief provide jus- require.” tice may

It quite apparent from the contents of the defendants’ confes- sions, their severance motions and the assistant State’s Attorney’s initial in the acquiescence defendants’ severance motions that the defendants would be in (and fact) their prejudiced by joint trial and that their severance motions should have been al- permanently Instead, the grievous lowed. trial committed a judge error when he shifted, order, his abandoned initial reversed himself and denied the motions. severance contest between only trial of the defendants joint

The lateral cross-accusation also a defendants, it was but State and awas of the defendants trial joint match the defendants. between State between adversary system of the display and farcical mockery the defend- to prove burden the State’s the accused. It eviscerated doubt. a reasonable guilt beyond ants’ of Bruton decision Court landmark Supreme In the United States 88 S. Ct. United States L. Ed. 2d 391 U.S. (1968), at a joint aof defendant the conviction was “whether question presented code that a instructed although jury set aside trial should be disregarded had to be inculpating fendant’s confession tried jointly Bruton and Evans were determining guilt or innocence.” in A robbery. postal of armed charge postal on a Federal jury before Bruton to him that he and orally testified that Evans confessed spector to Delli Paoli v. United States Pursuant robbery. committed 294, the trial instructed judge 77 S. Ct. 352 U.S. 1 L. Ed. Bruton hearsay that Evans’ confession was inadmissible jury guilt. innocence or determining Bruton’s disregarded and had to be Belli Paoli The court affirmed. The Court overruled appeals Supreme reversed, holding: instruc- “[Bjecause jury, despite of the substantial risk extrajudicial looked to the contrary, incriminating tions to of Evans’ determining petitioner’s guilt, statements admission right in this trial violated of cross-ex- joint petitioner’s confession secured the Confrontation Clause Sixth amination Amendment. *** Texas, 380 U.S. Pointer v. 400, we confirmed ‘that the [I]n of an accused in in the cross-examination is included right of him’ secured against a criminal case to confront the witnesses id., the Amendment, 404; major underlying the Sixth ‘a reason charged give confrontation rule is to a defendant constitutional against the witnesses crime an to cross-examine opportunity him.’ *** added the introduction of Evans’ confession sub- Plainly, in stantial, critical, to the Government’s case perhaps weight even cross-examination, since did not take subject form not Evans a of con- right thus was denied his constitutional the stand. [Bruton] frontation.

* * * a posed of confession substantial Here the introduction Evans’ him, the witnesses right to confront threat [Bruton’s] concededly the ignore. Despite and this is a hazard we cannot 146

clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating [Bruton], in the joint context a we accept trial cannot limiting adequate instructions as an substi- petitioner’s tute constitutional cross-examination. The for is effect the same as if had there been no (Em- instruction at all.” phasis added.) Bruton v. United States U.S. 126- 476, 479-80, 485, 20 L. Ed. 2d 1622-23, S. Ct. 1628. v. People Miller (1968), 40 Ill. 2d 238 N.E.2d the motion

of defendant Babitsch a for trial from separate his codefendant Miller on the ground that Miller had post-arrest made a statement incriminating Babitsch was denied. The trial court ordered the prosecutor to delete from Miller’s any statement reference to Babitsch. Nevertheless the offi cer who arrested Miller testified Miller committing that denied the abor tion for trial, which the defendants were on that but Miller admitted that defendant Babitsch performed said, the abortion spent ‘We money.” supreme The court reversed and held: argues

“The defendant Babitsch that the court should have a granted severance because the incriminating statement of Miller and also that the in admission evidence this incriminat ing statement It rule constituted error. is the that prejudicial when motion that separate trial on the a co- based for foot implicates moving a sever defendant’s confession ance should be granted unless prosecution declares that the admission will not be trial, offered evidence at the or if offered there will be eliminated therefrom and all any reference to Clark, for a party applying (People severance. Ill. 2d In the 490.) granted Clark case severance was but con fession a co-defendant the defendant was admitted implicating with a it cautionary evidence instruction that should be con guilt insofar jury sidered defendant’s was concerned. such We held the admission of evidence reversible error of the spite cautionary instruction. case, In the Babitsch a severance present requested ***. that Miller’s statement upon possibility incriminating based might him be admitted in evidence. The court denied request very which Babitsch had separate thing for a trial and the feared The officer that Miller told him that testimony occurred. highly prejudicial the abortion was so Ba- performed Babitsch that a trial is contends that the bitsch new State required. not to admonished consider evidence. Even jury properly relies could be so con- ruling if the on which State evidence

147 remain and would testimony strued, the effect prejudicial added.) People (Emphasis reversal.” require sufficient would be 407. 154,158-59, 238 N.E.2d 40 Ill. 2d (1968), Miller v. for severance as the grounds assigned defenses

Antagonistic 708, 424 N.E.2d 3d App. 98 Ill. McVay (1981), in v. People motions Jones People Ill. 3d (1980), App. v. McMullen People each case in The conviction N.E.2d 1325. 81 Ill. (1980), App. motion. the severance judge the trial denied reversed because the instant MeVay applicable is of the court following language case: deline- in this situation are weU severance concerning

“The rules as follows: authority, expressed long standing ated and of '*** an out by accomplice or admissions made Confessions not admissible of a defendant are presence side the have tried, and we jointly or not the parties latter whether for trial based separate held that when a motion repeatedly the mov implicates on the fact that a codefendant’s confession defendant, granted prose a severance should be unless ing confessions not be cution declares that the admissions or will trial, offered, if that there will in evidence at time of offered party ap and all reference to the any therefrom be eliminated 17 Ill. 2d v. Clark (People ***.’ for a severance. plying Ill. 2d (1968), 40 486, 489-90, 413; People v. Miller 162 N.E.2d 154,158-59, 407.) 238 N.E.2d the convic- Miller, court reversed supreme Clark and both mo- failure to a defense grant

tions based trial court’s upon impli- tion for a severance admissions a co-defendant where Also, cases, concluded that cated the defendant. in both the court con- given instruction required despite cautionary reversal Clark, As noted court cerning evidence. [Citations.] <*** cautionary injustice by the court’s efforts to ¿eSpi[te prevent evidence, the effect prejudicial as to limitations on the instructions ***.’ remained. inevitably of the codefendant’s confessions [Cita- this rule severance long-standing requiring The basis tion.] for and im- guarantee is the constitutional such situations fair conclusion, plainest princi- trial and the on the partial founded impli- that admission of a co-defendant’s statement ples justice, and unfair the other defendant works substantial cating party on the other prejudice party. [Citations.]

[*] * * and stated in Bruton the severance rule established While [cita- as secured right rested on a defendant’s to cross-examination tion] clause, confrontation Rlinois rule requiring severance in such situations antedates and is premised upon Bruton far justice principles and the to a fundamental defendant’s merely trial and not upon a violation the right fair confront adverse witnesses. Even with the ability to cross-exam [Citations.] ine, the a prejudice to defendant from incriminating admission remains, aby codefendant and a severance should be granted.” (Emphasis added.) People v. McVay (1981), 708, 98 Ill. 3d App. 715-17.

Parker v. 442 Randolph (1979), U.S. 60 L. Ed. 2d S. 99 Ct. 2132, decided three before years not McVay, does validate of the denial defendants’ severance motions and Parker, their joint unfair trial. In defendants’ confessions were found court by “interlock,” for which reason the court held defendants’ severance were motions denied properly and that defendants were not their prejudiced by joint trial. The not there opinion does reveal whether were contra- any in the dictions conduct attributed to in the defendants the commission in confessions, the offenses the different however. Whether confessions (like the case) confessions in the instant which reveal that violence no prearranged and which attributed infliction of the fatal unplanned codefendant, “interlocking” blow to can be considered confessions addition, not in bar, Parker, decided Parker.6 In in the case at unlike in the defendants’ and the confessions defense attorneys’ cross-examination and to the were arguments flagrant, prejudicial and jury inflammatory to exculpate by shifting efforts one defendant commission of the offenses B, E, Moreover, F A, to the other and (See Appendices G). defendant. bar, to a pro- at each confession was Parker, subjected unlike the case re- other were redaction references to the defendant cess of in which or “another person.” with the words placed “blank” have bar, the case defendants’ severance motions should their trial. Their prejudiced by joint irreparably allowed. were They been reversed. should therefore be convictions

IV trial, however, new for the remanded for a cause should not This be findings the defendants’ guilty on which State’s evidence reason fails of law utterly as a matter insufficient predicated legally App. N.E.2d Parker Ill. which cited 6 Peoplev. Sanders affirming “interlocking authority, confession” doctrine as the basis for relied on the as Sanders, required during defendants the trial the were not convictions. In defendants’ authority other, they bar. is not for against the case at Sanders each defend inflammatory joint prejudicial trial in case at bar. the defendants’ invasion. or home burglary guilt either defendant’s to establish of murder findings guilty to obtain opportunity State’s enhanced determined, The jury met with failure. trial joint their the defendants either did not prove the evidence province, its within guilty, found doubt and both a reasonable beyond of murder guilty Lopez, conflicting three versions because perhaps the reason on Although speculation stabbing. fatal Reynold’s Watters curiosity, may satisfy of murder guilty of not verdicts jury’s for the unproductive. is otherwise conjecture such Rev. (HI. robbery. with armed charged also

The defendants were that, “A person 18—2 2.) provides Section 1979, ch. par. Stat. 18— the person from property he or she robbery when commits armed [takes immi- threatening the force or by the use of of another presence person, or her on or about his he or she carries nent use of while force] Although may there dangerous weapon.” or is armed with a otherwise it could to the which presented jury sufficient evidence have been Reynolds robbery have found the defendants of armed of Robert guilty doubt, nol-pros the State nevertheless elected to beyond reasonable charge. robbery armed (HI. the defendants. Rev. Stat. charge against a theft

There was also “A commits provides, person 16—1 1979, 38, 1.) Section par. ch. 16— control over exerts unauthorized or (a) he obtains knowingly: theft when *** property over threat control owner; (c) of the or obtains property *** owner; permanently the owner (1) deprive and intends to am- ***.” There also have been may the use and benefit the property found could have jury to the on which ple presented jury evidence a beyond guilty Reynolds’ property the defendants of theft of Robert doubt; the theft as nol-pros charge the State chose to yet, reasonable in or theories for the State’s declination engage suppositions To well. would not be charges the theft and armed beneficial. robbery prosecute chose to proceed of its discretion prosecutorial State in exercise The murder, and home invasion only burglary on the defendants as follows: charge, pertinent part, in charges. burglary The 21, said G. August county Joseph 1981 at and within “That burglary committed the offense of and Johnnie Watters Racanelli entered, building, into authority, knowingly in that without a they Reynolds with the intent to commit the dwelling to wit Robert therein, 38, 19—1 of the Ill. in of ch. sec. crime violation of theft added.) as (Emphasis Rev. Stat. 1979 amended.” 1979, 38, 1), ch. which par. The statute Stat. burglary (Ill. Rev. 19— violated, the defendants allegedly provides: authority without he know- burglary “A commits when person 150 ***

ingly enters or without authority remains within a building with intent commit felony therein a or (Emphasis theft.” added.) allegation 21, 1981,

The home invasion was that on August and Watters:

“Committed the offenses of home in they, invasion that not be ing officers in the peace acting duty, authority line of without knowingly dwelling place entered the Robert Reynolds, know and reason to that or ingly know one more were persons therein, and present intentionally stabbed killed Robert Reynolds, knife, said in dwelling place, 38, within with violation of ch. sec. 11(a)(2) 1979, of the Ill. Stat. Rev. amended.” (Emphasis 12— added.) 1979, 38, The home invasion statute (Ill. Rev. Stat. ch. 12— par. ll(aX2)) provides: person acting

“A is not a officer line of peace who duty commits home invasion without or authority when she know- ingly dwelling enters the another when he she place or knows or reason to know one or persons present has more *** . (2) Intentionally any injury any person persons causes added.) such dwelling place.” (Emphasis

within statute, From the it is manifest that one of the foregoing essential elements of the offenses of invasion home is the into burglary entry (or edifice) other dwelling authority. (People without v. Clark (1964), 216, 219, 631; 30 Ill. 2d 195 N.E.2d v. People (1981), Sansone 94 Ill. N.E.2d App. 862; People Bailey 3d v. 80 Ill. (1980), App. 724; 3d People (1975), N.E.2d Harris Ill. App. 129.) As the Illinois Supreme 338 N.E.2d Court ex recently pressed People v. Del Percio 105 Ill. 2d “The State allege failed to that the defendant entered the home without au victim’s material element of home invasion.” thority, necessary and charged entering case at Rey- defendants bar Yet, not iota of dwelling authority. pre- nolds’ without one evidence was sented to the Racanelli or Watters entered jury Reynolds’ dwelling fact, without the State’s authority. affirmatively evidence established Reynolds’ that Racanelli’s into entry dwelling authority complete invitation. Racanelli’s into Reynolds’ Lopez’ testimony entry as follows: Reynolds’ apartment first went

“Q. Reynolds’ When to Robert who you apartment, was there? Reynolds.

A. Just Robert

* * * to the Q. apartment? And then did else later come anyone A. Yes.

Q. And who was that?

A. Racanelli. Joey

* * * Q. Now, Reynolds’ after Racanelli came into Robert 20th, you on the what did do? apartment, evening August I A. went bed.

* * * Q. And what did after went to the you you do bedroom? A. I went to sleep.

Q. you About what time would estimate this to be?

A. About 10:30.” into Rey- other evidence in the record on Racanelli’s only entry is Racanelli’s which was admitted into evi- apartment nolds’ confession State’s Kaiser. Ra- through testimony Attorney dence of Assistant apartment canelli stated in his confession that he was Reynolds’ invitation, as Reynolds’ follows: *** Q. night August on the who Okay, Joseph, were with that you evening?

A. Johnnie Watters.

Q. And what at that you did and Johnnie Watters decide to do time?

A. the man’s Rob house.

Q. you going How did decide that to do this? you A. I went over and with him. drinking started Q. Did both to his house? you go over I A. Not at first. did.

Q. part your right? This was plan, A. Yes.

Q. going You were to drink with him? time, at that I it in- planning A. Not was not because me to drink with him. vited But,

Q. and Johnnie then decided to rob Mr. you Rey- Watters nolds?

A. Yes.

Q. Now, you Reynolds how much did and Mr. drink? quart

A. About a Baccardi. Q. that? did Mr. happened you Rey- What after drank What nolds do? drunk, got sleep.

A. After he he went Q. did do then? you What

A. I was I him a talking gave on the and somebody phone half hour to make sure he was asleep.

Q. you What did do then?

A. I called Johnnie over. Watters

Q. Where was he when called you him?

A. Over to Johnny Lopez’house.

Q. over, When Johnnie Watters came did and him you what do?

A. We started unplugging TV and the stereo and stuff and set them the door.” confession,

From Racanelli’s it is that he not enter apparent Rey- did nolds’ via a apartment subterfuge, ruse or nor did he induce Reynolds’ invitation; rather, he entered at “motivated” Ra- Reynolds’ invitation. canelli imbibed in intoxicants with Reynolds over an extended It period. was sometime after Racanelli had entered the apartment Reynolds and gone become inebriated and that Racanelli and Watters sleep planned covertly pilfer property. Racanelli’s confession was Reynolds’ given and to the of Assistant freely voluntarily, according testimony Kaiser, State’s the trial the cir- Attorney Although court so found. cumstances of relatively Racanelli’s into entry Reynolds’ apartment clear, in any ambiguity regarding entry Racanelli’s confession should have been clarified prosecuting skills of this trained interrogatory attorney. His failure to have done so cannot held against be Racanelli.

There is no competent evidence in the record how which establishes Watters entered Reynolds’ apartment. The State obligated to prove (and a reasonable doubt that Watters’ beyond Racanelli’s) entry was Instead, the is silent record authority. entry. without Watters’ following morning Reynolds’ that he awakened testified Lopez He testified: apartment. up? if see when woke

“Q. you you And what did anything I I Watters up Reynolds A. woke and saw Robert and Johnnie in the bedroom.

Q. And would like you describe what Robert Reynolds him, what first saw when woke you you up? floor, staggering

A. He was around the with a stab wound his back.” single did not utter a testimonial word on into

Lopez entry Watters’ mere in the Reynolds’ apartment. Lopez’ testimony presence Watters’ a reasonable apartment satisfy requirement proof does beyond entered, doubt that Watters without apartment authority. written, gave Watters confession to Attor- signed State’s Assistant Mahon, Jr., Francis J. and Mahon testified that so ney freely Watters did knowing thorough understanding and with a voluntarily inhibi- no restrictions or Thus, there were rights. of his Miranda waiver Yet, Mahon did not ask Wat- inquiry tions to Mahon’s Watters. curb into Reynolds’ apart- of entry on Watters’ mode single question ters a or without force, or whether it was with ment, invitation or whether as follows: his confession inquired during Mahon Watters authority. Robert 21st, 1981, you apartment “Q. August On morning? 5:30 in the about at 4240 North Clarendon Reynolds A. Yes.

Q. there? you doing What were (Emphasis and stuff.” robbing, taking speakers A. I was some added.) “got in his that after drunk Reynolds

Racanelli stated confession started they] went to he “called Johnnie Watters over sleep,” [and [and] them the door.” by and the stereo and stuff and set unplugging TV whether, confession, Racanelli It need not decided from Racanelli’s be Ra- Reynolds’ apartment could authorize Watters’ into because entry Ra- against canelli’s confession not admissible as evidence Watters. was Racanelli. only against canelli’s was as evidence confession admissible The trial so instructed judge correctly No man can confess for another. considered by “A statement made one defendant not be jury: may other defendant.” you against any 123, n.3, (1968),

In Bruton v. United States 391 U.S. 128 20 L. Ed. n.3, 1620, n.3, 2d 88 S. Ct. 1623 Court com Supreme confession as evidence mented on the of a codefendant’s inadmissibility as that hear against emphasize Bruton follows: “We [the codefendant’s] inculpating against statement inadmissible say clearly was [Bruton] [Bru evidence, rules The Illinois Supreme under traditional ton] [citations].” 486, 490, People (1959), Court v. Clark 17 Ill. 2d N.E.2d made an outside accomplice stated that admissions “[confessions against of a defendant not admissible the latter presence are ***.” parties Accordingly, whether or not are tried the case jointly means as set Reynolds’ apartment at bar the via which Watters entered There re forth in Racanelli’s confession is inadmissible Watters. mains then and Watters’ confession the cir only Lopez’ testimony about cumstances of into Both are silent entry Reynolds’ apartment. Watters’ Thus, on this the State’s evidence fails to that subject. legally establish the defendants committed or home invasion. burglary “The elements acknowledges (1)

The that material majority opinion into a building authority”; of the offense of without burglary entry with the (2) entry apartment initially “Defendants’ into the victim’s [was] authority”; (3) entry victim’s and “Home invasion is the without author- however, dwelling of the of another.” The ity place majority, necessarily resorted to rationale to affirm the and home in- phantasmagoric burglary vasion convictions. The holds that “Defendants’ into the majority entry ex- apartment, although initially authority, victim’s with the victim’s ceeded that when attacked the victim and removed his authority they *** Therefore, property. presence apartment defendants’ in the was authority belong- without once attacked the victim and removed his they from the ings apartment.” majority magically The concludes that that, Reynolds’ apartment defendants entered without authority therefore, the defendants proved guilty beyond a reasonable doubt and home invasion. burglary (1983), v. Hudson 113 Ill. People App. reliance majority’s relied on v. Fisher People 448 N.E.2d Hudson misplaced. The court authority. 83 Ill. App. 3d 404 N.E.2d (which Hudson), “[djefend out in Fisher also occurred in pointed evening gained misrepresentation ants’ was as a result of entry *** allowing were deceived into defendants subterfuge. [The residents] into their and such was not accordance with will apartment, entry is therefore unauthorized.” The court concluded in occupants into the though entry apartment Hudson and Fisher that even invitation, because such invitation was obtained subter initially by Fisher, it fuge, the was without Also in Hudson and entry authority. invitation into the promptly defendants’ induced surreptitiously after that the firearms apartment defendants threatened the residents with case, premises. and ransacked the instant was not de Reynolds defendants into his allowing apartment. ceived into into entry Rey not or dwelling gained surreptitiously by misrepresentation nolds’ induced Racanelli or Wat invitation nor was subterfuge, Reynolds’ to the owners rob Fisher, planned the defendants In Hudson and ters. into extend the owners deceived They before entered the they premises. their pur in order to dwelling accomplish them an into the ing invitation Fisher are in the instant case. Hudson and pose. Such are not the facts the instant case. therefore to grossly inapposite 552, 472 case, App. A recent v. 129 Ill. 3d People Sanders Sanders, to the case at bar. In there was is also inapposite N.E.2d Macon, in guest established that the invited evidence which competent the other defendants into the McGee home, Sanders and the admitted stated, is no compe As there family. to rob the McGee before dwelling of the circumstances in the instant case which established tent evidence Hudson, If the Fisher dwelling. court Reynolds’ into entry Watters’ the repeal requirement to by judicial interpretation and Sanders intended home from the offense of authority” into a without “entry dwelling of

155 the the and not legislature of invasion, responsibility is the exclusive such Invasion,” offense, coupled the “Home Furthermore, title of courts. authority,” “without that the be entry expressed requirement with the “Inva- dwelling be into entry that the establishes unequivocally Sanders, Hudson, how- and Fisher fiat by judicial The court sion.” “Home In- offense from change and ever, to rewrite attempted has to Invitation.” vasion” “Home charges in its of which

It that the State erred selection is obvious it be, may Unfortunate as this charges prosecute. and nol-pros which function, choice, or duty responsibility and it is was the State’s correct Be- prosecutorial misjudgments. this or such rectify of court to evidence, law, fails to that the defend- cause the as a matter establish invasion, their convic- the offense of or home burglary ants committed tions should be reversed.

V this that his statements and Racanelli contends before court Joseph him were obtained from in violation his State and Federal confessions On the evidentiary to the assistance of counsel. hear- right constitutional confessions, it was es- his statements of his motion ing suppress for ex- signed complaint Ford Chicago detective police tablished amination, with the murder charged Racanelli apparently which 3, 1981, Ford Reynolds. September Detective before appeared On complaint Judge Murphy, circuit court who issued presented for arrest. All the statements and confessions were warrant Racanelli’s filed complaint extracted from Racanelli after murder had been had the warrant for his ar- against Judge him and after issued Murphy Therefore, and confessions were ob- urges, rest. statements instituted tained from him been judicial proceedings adversarial after him, counsel, of his constitu- without Ms in violation benefit of right. tional

It in the to the provided sixth amendment Constitution of the prosecutions, that “In all criminal shall enjoy States accused UMted *** of counsel for Ms the assistance defense.” This to have the right “in assistance counsel all constitutional sixth amendment States binding obligatory criminal is made prosecutions” Constitution, wMch to the UMted States fourteenth amendment life, states, deprive any person liberty prop- “Nor state any shall (Gideon Wainwright (1963), of law.” erty, process without due 792, 795.) L. Section 8 of U.S. Ed. S. Ct. “In prosecutions, article 1 of the Constitution criminal provides, Illinois in person by shall have the to and defend right appear accused counsel; I, ***.” Ill. sec. Const. art. 8.

The trial not judge did address Racanelli’s properly constitutional right to argument counsel when he suppress denied his motion to his Indeed, confession. the trial judge tacitly intertwined Racanelli’s constitu- tional right to with his Federal and State constitutional right counsel against right self-incrimination and his to Miranda thereunder. warnings But this inextricable maneuver not simple did resolve this issue. The trial judge reasoned: “*** far as the adversary proceedings and Sixth [A]s *** Amendment, ¡Racanelli] informed that he had a right

consult with a lawyer, right had a to have a lawyer mean, his I what present during interrogation. else does the police then have department do, bring in a well lawyer say, this man is a Do lawyer. you want this to represent you man during I interrogation. our don’t think ***. goes case law that far. any The motion will denied.” be

The rationale this is by majority ruling predicated which affirms legal erroneous The concepts. majority holds that at the time Ra- confessions, canelli made statements and his constitutional right counsel not yet judicial proceedings attached because adversarial had not against been instituted him. The majority reasons:

(1) the State’s has file a “Only Attorney authority felony charge.”

(2) “|T]he State cannot said to filed a charge be have formal committing to the simply itself of Racanelli with the prosecution of a filing complaint by police officer.” (3) was not filed at the State’s complaint request “[T]he Attorney.”

(4) “We therefore find that right Racanelli’s to counsel did not to the conversation and that his sixth amendment apply telephone not counsel was violated.” not There is one iota of evidence in the record as to Detec- whether tive complaint Ford did did file the “at the re- quest of the State’s Attorney.” majority opinion incorrectly states, “Illinois law provides that must be commenced indictment or information

felony prosecutions added.) and not Section 111—1 the Illinois by complaint.” (Emphasis ch. (Ill. par. Code of Rev. Stat. Criminal Procedure “*** (a) a com 1) provides, prosecution may be commenced 111— information; added.) It plaint; (b) (c) (Emphasis pro an an indictment.” 2(a) vided in section Stat. ch. (Ill. par. 2(a)), Rev. 111— Ill— that “All of felonies information or indict- prosecutions shall be by must felony prosecutions does not “that provide ment.” But this statute and as by complaint,” or information not indictment by be commenced “No fact, 2(a) further provides, pros section the states. majority 111— a has preliminary hearing information unless by be may pursued ecution *** to believe hearing probable at that cause and held or waived been found, the of and provisions an offense was the defendant committed Section with.” 111— complied have been of this Code section 109—3.1 indictment, information bemay by provides, prosecutions “All other 2(b) 1979, 38, 2(b). ch. par. Ill. Stat. or Rev. complaint.” Ill — 1979, 38, 3(b)) par. pro ch. 3(b) (Ill. Rev. Stat. Section Ill — 111— vides, Jury the foreman of the Grand signed by shall be “An indictment ***. A Attorney the com be State’s signed by and an information shall (Emphasis the ***.” signed by complainant be sworn to and plaint shall added.) 1979, 38, Stat. ch. (Ill. pars.

It section 109—1 Rev. provided is that, arrested on a warrant shall be (bX3)) person 1(a), (bX2), “[a] 109— *** the unnecessary judge judge taken before delay without [a] [and] *** indigent shall the to counsel and advise of if defendant attorney at law this appoint public shall a or licensed State defender *** hold in those cases represent preliminary hearing him [and shall] jurisdiction try is without the offense. ***.” judge (Empha where the added.) sis A is for section provided 3(a) (Ill. examination preliminary 109— 1979, 38, states, ch. par. judge

Rev. Stat. which “The shall 3(a)), 109— to answer to the of the of having jurisdiction hold the defendant court it there appears probable fense if from the evidence is cause to believe *** defendant, if an offense committed the the offense is a has been felony.” Pankey v. Ill.

People (1983), 94 2d 445 N.E.2d author for ity holding the the has majority’s Attorney State’s author “only to file a ity felony charge filed, ***.” In Pankey, arresting the officer offenses, for a uniform citation used traffic an de inadequate legally the battery against charge aggravated fective defendant. Later that circumstances, the suspicious appeared defendant extremely day, under the from State’s court, representative in the absence of the before fined costs. plus and was office, $50 entered Attorney’s plea guilty information, filed an sworn following Attorney The the State’s day, officer, charged the of arresting properly aggravated-battery which fense. The moved to dismiss information on double jeop ardy Attorney The State’s contended that defendant’s former grounds. invalid information was the defendant procured under the prosecution prosecu- of the office and that knowledge proper prosecuting without tion of the defendant therefore was not under the subsequent barred valid pointed information. The court out that State’s Attorney, “[t]he a representative People Illinois, of the State has the duty ‘[t]o actions, suits, commence and all prosecute indictments and prosecutions, criminal, civil and in the circuit court for his in which the county, people State be county may (Ill. concerned.’ Rev. Stat. ch. 5(1).)” par. (People Pankey (1983), 16.) 94 Ill. The court held trial that the court did not acquire jurisdiction orig over the State in inal guilty plea proceedings because the State’s was not Attorney present, knew of and did not nothing proceedings. acquiesce also court held that officer police was without authority prosecute charge therefore double clause of the State and jeopardy Const, V; (U.S. Const., I, Federal constitutions Ill. sec. 10) amend. art. bar the prosecution. did not is not for the subsequent Pankey authority proposition that majority “only Attorney State’s has the authority file felony charge.” set forth Accordingly, previously assertions of majority are erroneous. court clearly holding The trial erred in that telephone subsequent Racanelli’s conversations and were not confessions in obtained violation of the defendant’s State Federal constitutional right majority counsel. The here err in the trial affirming likewise court’s erroneous ruling. 977, (1964), 478,

Escobedo v. 378 U.S. L. Ed. 2d 84 S. Ct. Illinois 1758, is initially appropriate authority for Racanelli’s contention in right his statements and confessions were obtained violation of his Escobedo, counsel. the defendant was in station His re- police custody. to see his and his station to see Es- quest lawyer lawyer’s police request confession, suppress were denied. motion to which cobedo Escobedo’s made after denials, was the aforesaid The Court Supreme was overruled. out that pointed interrogation here conducted before peti- “[t]he case, in tioner was indicted. But the context this fact formally 485, 977, 982, (378 478, should make no U.S. 12 L. Ed. difference.” 1758, Also, Escobedo, it 84 S. Ct. So is in the case at bar. 1762.) further, accused, court out “Petitioner and the pointed had become despite of the was to him’ to confess his purpose interrogation ‘get guilt 478, 485, to do 12 L. Ed. 2d right (378 his constitutional so.” U.S. 982, 977, 1758,1762.) The Court further held: Supreme 84 S. Ct.

“The of counsel’ essential to advise ‘guiding petitioner hand Alabama, 287 rights of his in this delicate situation. Powell v. 45, ‘stage legal U.S. 69. This was when aid and advice’ most critical was a as criti- stage It petitioner. surely [Citation.] cal arraignment Alabama, as was the v. 368 U.S. Hamilton and the v. 373 U.S. 59. hearing Maryland, White preliminary ‘affect interrogation certainly could at this happened What Alabama, ‘may rights at since trial,’ supra, v. whole Hamilton asserted, are they there lost, if not then and as irretrievably be for strate- a right counsel waives an accused represented when *** make the over substance to It would exalt gic purposes.’ form circumstances, on whether counsel, depend under these right to authorities had secured interrogation, the time formal had, already practical purposes, all indictTnent. Petitioner for added.) 378 U.S. charged (Emphasis with murder.” been 1758,1762. 977, 983, 84 S. 12 L. Ed. 2d Ct. bar, in fact with murder charged

In the case at Racanelli had been judicial accused in in a tribunal. Un- allegations pending and he was the circumstances, right his constitutional it was a violation of der these him in the of his counsel. interrogate counsel to absence abridged to counsel should not be right The treasured constitutional judicial at which adversarial manipulation point the rhetorical of the initiated, to the return of complaint from the of a filing proceedings confession. The indictment, in order to an extracted salvage illegally an 682, 688, 32 stated in v. Illinois 406 U.S. Supreme Kirby Court 1877,1881: 92 S. L. Ed. 2d Ct. stemming

“In line in this Court back of constitutional cases Alabama, 287 U.S. the Court’s landmark in Powell opinion Four- it has that a Sixth and firmly person’s been established attaches at or after only teenth Amendment to counsel initiated time that have been adversary judicial proceedings against him.” de- Chicago police in the case at bar filing complaint Rey- Racanelli with Judge charged

tective Ford before which Murphy, murder, for Racanelli’s ar- nolds’ and the issuance of a warrant judge’s to an thereon, investigation suspect Racanelli from a police rest elevated constitutional defendant, and at that time Racanelli’s judicial adversarial to counsel attached. right crime witnesses in displayed post-indictment

The defendants were to in presence counsel’s United States lineups, without the benefit of their 1926, 218, 1149, 87 S. Ct. 388 18 L. Ed. 2d (1967), v. Wade U.S. U,S. 1178, 263, 18 L. Ed. 2d 87 S. Ct. (1967), 388 Gilbert California held that such post-indictment Court both cases Supreme 1951. The and, prosecution of the criminal when stage were a critical proceedings counsel, the defendant of a defendant’s denied conducted in the absence counsel, necessitating to thus rights fourteenth amendment his sixth and and in-court identification. lineup of the suppression 411, 414, 32 L. Ed. 2d 406 U.S. Kirby (1972), In v. Illinois S. 1877, 1879, Ct. the Court was asked “to Supreme extend the per Wade-Gilbert se to rule identification based exclusionary testimony a upon police station that took the defendant showup place had before been indicted or otherwise criminal formally charged any with offense.” (Emphasis The added.) Supreme so. In the Court declined to do case at bar, however, Racanelli had been formally charged with criminal of- in a for preliminary fense The complaint charge examination. formal police and the arrest of Racanelli not “a routine investiga- Kirby. tion” as was the identification in The following defendants’ lan- Kirby Court in is most guage Supreme applicable Racanelli: “The initiation judicial proceedings criminal of far from mere It is starting point the our whole system formalism. of of adversary justice. criminal For it is only then that the govern- ment then has committed itself to that prosecute, only ad- verse of and defendant have positions government solidified. It is then the prosecutorial that a defendant finds himself faced with forces of of organized and immersed in the intricacies sub- society, point, law. It is this stantive therefore, procedural criminal prosecutions’ marks the that commencement ‘criminal of which alone the explicit guarantees the Sixth Amendment are applicable.” 682, 689-90, (Emphasis added.) U.S. 32 L. Ed. 2d 411, 417-18, 1877,1882. 92 S. Ct. bar, of judicial the case at “the initiation criminal proceedings” filing

was Detective Ford of complaint charged which Ra- canelli with who judge murder before issued the warrant for Ra- canelli’s arrest. It our “starting point system whole adver- criminal sary justice.” .

In People v. Burbank (1972), 53 Ill. 2d 291 N.E.2d defendant had not murder when charged been identified as offender lineup. right The court held his supreme counsel held, additionally therefore not attached. The court supreme how ever:

“The [Supreme] charge, Court enumerated ‘formal preliminary indictment, Kirby v. Rli information, or hearing, arraignment’ [In of initiating adversary judicial criminal ways proceedings. nois\ [Kirby] Palmer be modi This decision requires holding the Wade and rule right Gilbert fied and apply broadened [of only post-indictment lineups lineups to not but con counsel] adversary judicial ducted initiation criminal proceed after ings against an accused whatever means.” added.) (Emphasis People v. Burbank 53 Ill. 2d 291 N.E.2d 161. in the holds case at bar Racanelli’s to counsel majority

161 that his indictment the return of the attached only upon crimi- adversary judicial the “initiation upon did not attach counsel of means,” i.e., the upon whatever by an accused against nal proceedings Murphy. Judge complaint against murder filing the before of to and abso- in direct contravention This contention is added.) (Emphasis court in Burbank. holding supreme ignores lutely 786, 784, 47 Ill. People v. Marshall (1977), App. Furthermore, in court held: N.E.2d this 365 erred in deny- the trial court contends initially

“Defendant such identifications because suppress lineup his motion to ing placed a had been charge were effected after identifications was not the defendant the defendant and at a time when January that on counsel. The record reveals represented in a lineup arrested and identified defendant was Ap- counsel. represented this defendant was during lineup for prelimi- this a lineup, complaint one week before proximately and an armed charging robbery examination defendant with nary had issued. arrest warrant been v. Illinois Supreme Kirby [citation],

In the United States of counsel at a requirement presence lineup held that Court criminal ‘adversary judicial proceedings any extends to —whether indictment, infor- hearing, charge, preliminary of formal by way v. Kirby, People this court mation, arraignment.’ Relying complaint, the issuance Hinton held that [citation], followed actual arrest an arrest warrant and the defendant Kirby required purview within the charge’ formal believe, in the in- similarly We lineup. counsel at the presence of case, judicial proceedings adverse lineup at the time stant counsel.” have been and that should begun afforded (Emphasis added.) conflict with the is in direct holding of this court the case bar in Marshall. holding

court’s also holds that “the rule of Owens is not applicable The majority v. 88, 101, Ill. 2d People Owens (1984), case.” instant on a court warrant County was arrested Will N.E.2d the defendant counsel, His mo suppression he confessed. charge. Without on murder guilty. appeal, supreme A found him On jury tion was overruled. issue, right to counsel stat the sixth amendment court declined to decide ing: nor date, Court that, Supreme neither

“We note [citation] coun- rights sixth amendment has resolved whether this court [to Nor do we complaint. of a filing attach automatically upon sel] find it necessary to resolve that issue here ***.” People Owens (1984), 88,101, 102 Ill. 2d 464 N.E.2d 261.

The Supreme States, Court of the however, United held Moore v. 220, 228, Illinois 434 U.S. 54 L. Ed. 2d 98 S. Ct. *** 464, that prosecution was commenced under Illinois law when “[t]he the victim’s complaint Stat., was in court. Ill. Rev. ch. sec. Ill filed and that (1975),” the defendants’ sixth amendment right to counsel at Moore, tached at that In time. six after days rape and other sex offenses home, been committed the victim in upon her the victim was taken court, officer to by police signed where she a complaint which charged being Moore with her assailant. Later that day, when the defendant’s called, case was defendant appeared without counsel and the victim identified him as her attacker. The hearing was continued. The defendant was later his pretrial indicted and motion to suppress his identification the victim assigned was overruled. He as error ruling on his ap The peal. Court of Illinois affirmed. In Supreme reversing, Supreme Court of the United States held:

“In Kirby Illinois, (1972), 406 U.S. 682 the plurality opinion made clear that the right to counsel announced Wade and Gil- bert attaches only corporeal identifications conducted ‘at or af- ter the initiation of adversary judicial criminal proceedings— charge, whether of formal way preliminary hearing, indictment, information, or arraignment.’ U.S., 406 at 689. This is so because initiation of such ‘marks the com- proceedings mencement of the prosecutions” “criminal to which alone the ex- plicit guarantees Id., of the Sixth Amendment are applicable.’ Thus, Kirby 690. held plurality prosecution’s evi- dence of a victim’s robbery one-on-one stationhouse identification of an suspect uncounseled after the shortly arrest suspect’s was admissible because criminal adversary judicial proceedings had not yet been initiated. * * * *** Appeals Court of read as Kirby holding that evidence

of a corporeal identification in the conducted absence of defense counsel must be excluded if only the identification is made after the defendant is indicted. ***. a reading Such cannot squared be Kirby itself, which held that an accused’s rights under Wade and Gilbert attach to identifications conducted ‘at or the ini- after tiation adversary judicial criminal proceedings,’ including ‘by way charge instituted proceedings preliminary [or] of formal hearing.’ U.S., at 689. The in this prosecution case com- menced under Elinois law when the victim’s complaint was filed Stat., (1975). in court. See Ill. Rev. ch. sec. Ill * * * *** Here, rights Amendment were violated petitioner’s Sixth conducted the initiation adver- corporeal identification after counsel.” sary judicial proceedings criminal the absence of 220, 226-31, added.) (1977), Moore v. Illinois 434 U.S. (Emphasis 424, 432-35, 458, 463-66. 54 L. Ed. 2d 98 S. Ct. contradicts directly in the case at bar holding

The majority under suppressed confession should have been holding. Moore Racanelli’s Moore. 142-43, 432 N.E.2d Ill. App. v. Harrell People as her rob in a the victim lineup by was identified the defendant of this identification. sought suppression The defendant

bery assailant. The court held: adversary judi when at a attaches lineup counsel

“[T]he the defend have been initiated proceedings cial criminal indictment, in hearing, ant, charge, preliminary of formal ‘by way or, the Illinois formation, Supreme arraignment’ [citation], last This stated, whatever means.” “by Court has [Citation.] the list of Burbank, to show that employed used in phrase, with dispense It does not Kirby in is not exclusive. proceedings right to the to as a judicial proceedings prerequisite the need for *** the complaint against ***. criminal Sharp counsel swore out a that defendant, 17, dated arrest warrant also issued April and an defendant, the Based this uncontradicted upon testimony, day. documents approved the two judicially whether apparent it is pre we cannot lineups. after the Since before or were obtained shown of affirmatively is not of error which sume the existence against the record the silence of [citation], record we must resolve and issuance filing complaint a appellant. [Citation.] be treated must against an arrest warrant therefore Thus, adversary judicial no lineups. having occurred after had, instituted, counsel at the right and no to been proceedings reasons, sixth For these lineups had attached. defendant’s added.) Peo ***.” (Emphasis not violated rights amendment 142-43, 432 N.E.2d 138, 104 Ill. 3d (1982), App. v. Harrell ple 1163. the ar- issuance of bar, and filing complaint

In the case at conversa- his telephone Racanelli occurred before rest warrant instituted had been proceedings Adversary judicial tions and confessions. and to the officers attached he talked to counsel had when right and His violated. to counsel was right constitutional confessed. Racanelli’s 164

conviction should therefore be reversed. 275,

This court held in People (1979), v. Giovannetti 70 Ill. 3d App. 282, 387 N.E.2d 1071: law

“The is clear that with the filing complaint charging murder, Giovannetti counsel, with defendant was entitled to a point concedes, which the State to v. pursuant Illinois Kirby (1972), 682, 411, 406 U.S. 32 L. 2d S. Ct. and People Ed. 92 (1972), v. Burbank 53 Ill. 2d 161.” N.E.2d People This court held in v. 86 Ill. 3d (1980), Faulkner App. 138-39, 407 N.E.2d 126:

“Faulkner trial first contends the court erred when it denied his to motion He that his suppress identification contends testimony. constitutional right present during lineup have counsel identi- fication was activated his arrest pursuant judicially issued counsel, concludes, warrant. the absence of he identifica- any resulting tion from the testimony lineup should have been sup- pressed. agree. We

After Faulkner was he charged by complaint rape, entitled to Testimony regarding lineup counsel. iden- [Citations.] prohibited tification in violation of that entitlement under is Gil- 263, 273, v. (1967), bert 388 U.S. 18 L. Ed. 2d California 1186, 87 1951[, Therefore, S. Ct. defendant’s motion to 1957]. such suppress testimony granted.” should have been in Ill. People This court held Jumper App. 531: N.E.2d

“The upon filing counsel attaches of a criminal com- plaint information and the issuance of an arrest warrant.” People (March 29, 1985), This court held in v. Curtis & Ryder Nos. 83—2339 at 9 10: slip op. 83— filed, “Plainly, charged after has complaint person accused, had, fact, being merely every ceased an re- spect become a formal defendant need of an attorney protect stage his interests as a citizen at critical any subsequent proceedings criminal him the State. brought against ***. would incongruous felony be conclude after a com- [T]t court, is in plaint approved and filed the circuit adversa- judicially rial judicial proceedings against have been commenced charge.’ defendant ‘by way formal [Citations.] Accordingly,' judicial we believe that adversarial proceedings by charge of formal in cases after the filing commence way felony *** in felony the court. complaint circuit circumstances, that ju- Under the since we believe adversarial against been initiated defendants proceedings already dicial had that their sixth amend- lineups before the took we conclude place, at the already ment counsel had attached to assistance of right so, had constitutional being time of defendants lineups. the This lineups the counsel the ***.” presence entitlement to ad- the case that holding This at bar diametrically opposite court’s the of the mur- filing not initiated judicial proceedings by versarial were en- Racanelli, constitutionally and that he was not complaint against der confessed, he to the officers and cannot be titled to counsel when talked set forth. previously reconciled with this court’s decisions filing complaint resort to the judiciary, by State’s to and re- defendant, adjudicate as the forum within against which defendant, State entitled controversy solve the between the and counsel, that contro- by Attorney, State to be State’s represented constitutions, defendant, Ra- Under the Federal versy. and State canelli, contro- represented was also entitled counsel in that be right had when talked versy. counsel attached he Racanelli’s His counsel was officers when confessed. constitutional counsel, extracted, con- illegally violated the admission without re- fession as should be evidence him. His conviction therefore versed.

APPENDICES A. Lo- Excerpts Jimmy cross-examination of State’s witness McNamara, assistant defender John for defendant public attorney pez Racanelli: Joseph

“Q. police you and the told they going You were arrested murder, did not? they with this charge you

A. Yes.

Q. told them only It was after been arrested that you you Watters, is about Johnnie correct? that anything A. Yes. Jo-

Q. they also at that time wanted they you And told Racanelli, seph did not? they

A. Yes.

[*] * * Wat- that Johnnie Q. told gentlemen ***. You these ladies ters, cor- there, is that stabbing, man the one who did rect?

A. Yes.

* * * And Johnnie Q. you only people two [Watters] that stabbed, room when that was being man is that correct?

Q. Yes. afterward, MR. McNAMARA: Johnnie told you [Watters] put door, on the that padlock bedroom isn’t correct?

A. No. Well,

Q. do you talking remember with an Assistant State’s Mahon, Attorney, name of M-a-h-o-n?

A. Yes.

Q. 2nd, 1981, And that September at 1:38 in the after- noon, do you remember that?

A. Yes.

* * * Q. Do you following question being remember asked and the following given? answer BY

‘Q. MR. tell MAHON: Did Johnnie Watters you any- thing? He I

A. told me when left to lock on the put a door.

Q. Did do you that?

A. Yes.’

Do remember those you questions and those answers?

A. No.

Q. that the Is it tell way happened, did Johnnie Watters you the lock on the lock put you put door door?

A. No.

* * * Q. And this is knife that saw Johnnie Watters stab you with, Mr. Reynolds is that correct?

A. Yes.

Q. again, And when he Reynolds, stabbed Mr. Johnnie you room, Watters were the two other in the is that only people cor- rect?

A. Yes.” B. of State Excerpts cross-examination witness Jimmy Lopez Harris, Brad for defendant Johnnie attorney Watters: 2nd, from

“Q. August So August period about two weeks, didn’t tell didn’t you any police officer do the you or that do the stabbing Joseph stabbing, Racanelli didn’t but it, Watters that right? Johnnie did is

A. Yes. Watters, Johnnie

Q. You are not are you? related A. No. Racanelli,

Q. right? you Joey But related Yes. A.

[*] * * is brother? Lopez your Q. And Johnnie A. Yes. Racanelli? Joey related to wife, Bertha, is she

Q. And A. Yes.

Q. How? mother. Racanelli’s Joey

A. That time, one to court with come you that is who Q. Okay; mother, right? Joey Racanelli’s here, no.

A. Not to court?

Q. But to

A. Yes.

[*] * * Joey conversation with phone have a HARRIS: Did you MR. 21st? incident, after the after this days couple Racanelli a A. Yes.

Q. was that? And when Saturday.

A. the 21st? after the 20th or Q. days Two A. Yes. place? father’s

Q. he called at you your And A. Yes.

* * ^[*] case, on right, this regarding to do Q. you something told Joey that conversation?

A. Yes.

* * ^[*] to do? did he tell you HARRIS: What MR. say mouth don’t my quiet, me to keep He told

A. [Racanelli] nothing. him, right? listened to

Q. And you

A. Yes. keep told you the first that that he

Q. Was that [Racanelli] it? quiet about

A. Yes. didn’t he tell

Q. happened, that this morning What about the to keep about it then? you quiet

A. No. this, clear you so we are did you, I want to ask

Q. Jimmy, three-way had a conversation you officer that tell any police ever this incident? regarding brother your Joey Objection, answered, MR. DEVLIN: asked and Honor. your Yes, did, THE COURT: said he never twice.

* * * Q. testified, Then at you evening some that came point, Joey by himself, over right? is that

A. Yes.

Q. He and Mr. Reynolds drinking?

A. No.

Q. In event, over, after any Joey came you went the bed- room, is right? Yes.

A.

* * * Harris, THE COURT: Mr. I am aware entitled to you cross examination but it also is still with the discretionary court. am And I beginning going find we are over the same material Mr. McNamara went over. Well,

MR. HARRIS: there is some overlapping. Well, be, THE COURT: I you don’t think should or the same two Defense go over the material. lawyers same

* * * Now, Q. I am if going ask you you remember couple questions other and answers that were asked of answers that you, you gave this statement before that same Assistant State’s At- torney.

‘Q. happened what Okay, after that?

A. They keep my quiet.’ told me mouth Q. Who told that? you I

MR. McNAMARA: object, your Honor. Judge, MR. HARRIS: he told him testified to be nobody quiet about the until he spoke Joey incident Raeanelli two days afterwards This is telephone. going impeach that.

THE COURT: overruled. Objection MR. right. HARRIS: AH

‘Q.Okay,what after that? happened A. They quiet. told me to mouth keep my Q. Who told that? you Joey

A. Racanelli.’ you Do being remember those questions you by asked Assistant State’s those Attorney you giving answers? Honor, object.

MR. McNAMARA: Your I THE COURT: I because I objection will have sustain it don’t find impeaching. nobody told previously HARRIS: he testified Judge,

MR. him to— I Judge, Attorney]: State’s would AMDUR:

MISS [assistant argue jury. front of rather have side bar?

MR. HARRIS: can we Okay, All right.” THE COURT: Johnnie Watters: of defendant

C. of the confession Excerpts apartment in the 21st, you were “Q. All On right. August 5:30 in the at about 4240 North Clarendon Reynolds of Robert at morning?

A. Yes. there?

Q. you doing What were robbing, taking speakers

A. I was some and stuff.

Q. And were you alone?

A. No.

Q. you were Who with? Me and Joey.

A.

Q. Joey Is that Racanelli?

A. Yes.

Q. Reynolds And was in the at the time? apartment A. Yes. he?

Q. Where was

A. In his bedroom. he

Q. doing? What

A. He was sleeping. before this?

Q. right. asleep All How know that he was you did A. I went there.

Q. he alone? Was

A. No.

Q. Who was with him? some other forgot

A. Was dude. I name.

Q. it Jimmy Was Lopez?

A. Yes.

* * * Q. And when he happened? woke what up, A. He looked around and looked face. Joey’s Q. you? Did look at

A. Yes. you standing?

Q. Where door. Right

A. hands? Q. your have you anything Did A. No.

Q. Did Joey have anything in his hands?

A. A knife.

Q. What kind of a knife?

A. Butcher knife.

* * * Q. And what did he do with the knife?

A. Stabbed him.

Q. How many times did he stab him?

A. One is all I seen.

Q. Where did he him, stab do you know?

A. Somewhere the chest.

Q. And did fall Reynolds over then? A. Let’s see. He Then, laid back. he got up. back Q. What happened after got up? back IA. don’t know. I left.

Q. get Did he again? stabbed

IA. don’t know.

Q. What did you do after Reynolds was stabbed?

A. Got the TV and went downstairs.

Q. Is that all you took? What,

A. a TV? Yes. Q. Was the little boy, Jimmy Lopez, awake when the victim was stabbed?

A. He woke after up the victim was stabbed.

Q. And did he say anything?

A. Stop, stop.

Q. Who did he say to?

A. Joey.

Q. And what happened after that?

A. The got boy dressed.

Q. said, When Jimmy stop, did stop, Joey stop?

A. Yes.

Q. He didn’t stab him again after that?

A. Not that I know of.

Q. All right. What did do after you left the you apartment, af- ter the stabbing?

A. I carried the TV downstairs.

Q. To where?

A. To the cab.” D. Excerpts of the confession of Racanelli: Joseph

“Q. ***. Okay, Joseph, on the night August 1981, who you with that evening? A. Johnnie Watters. do at decide to Watters and Johnnie

Q. you And what did time? the man’s house.

A. Rob to do this? going were Q. you you How did decide him. drinking with A. I over and started went house? Q. go over to his you Did both I did. A. Not at first. right? is that

Q. plan, This part your was Yes. A. him?

Q. going Youwere to drink with he had in- time, I it because planning A. Not at that was him. me to drink with vited Mr. But, Rey- then decided to rob

Q. Johnnie Watters you nolds?

A. Yes. drink? Reynolds and Mr.

Q. Now, you how much did A. of Baccardi. quart About Rey- did Mr. drank that? What

Q. happened you What after nolds do? drunk, got sleep.

A. After he he went Q. did do then? you What I him a talking phone gave

A. I somebody asleep. half hour to make sure he was

Q. did do then? you What

IA. called Johnnie Watters over.

Q. was he when called him? you Where A. Over to house. Johnny Lopez’ him over, did

Q. you When Johnnie Watters came what do? the stereo and stuff and

A. started the TV and unplugging We the door. set them

* * * Now, the stuff Q. you moving was Johnnie while were where apartment empty apartment? out of the into the A. He was in the bedroom. doing while Johnnie was in the

Q. and what were Okay, you bedroom? Carrying things

A. out. at that time? else in the bedroom Q. And was anybody Yes, asleep. He was Jimmy Lopez. A. in, right? that the chest was

Q. That is the same bedroom A. Yes.

Q. Now, what happened moving while the stuff out you of the apartment of Mr. Reynolds empty into apartment?

A. I heard Jimmy hollering.

Q. What did do then? you

IA. came back to see what happening.

Q. What you did have in when your hands went to see you what was happening?

A. The knife.

Q. When came in the you back bedroom what did see you hap- pening?

A. I seen from Reynolds falling away Johnnie.

Q. What did do you then? A. We went and moved the rest of the out. things Q. Mr. you Reynolds When saw fall from Johnnie did Johnnie have his hand? anything

AA. knife.

Q. was the matter Mr. Reynolds? What A. Johnnie stabbed him.

Q. Mr.Was Reynolds bleeding?

A. Yes.

Q. Did see you Johnnie stab him?

A. No.

Q. Lopez doing? What was Jimmy A. He standing hollering. was there Q. did after you you What do saw all this? got

A. I I left. panicky and

Q. you What did to Johnnie say Watters?

IA. asked him why did he do it?

Q. What did do you about the stuff in the apartment?

A. finished it. taking We

Q. say Jimmy? What did to you say nothing.”

A. I told him not to Assistant argument by Attorney State’s opening E. Excerpts Linda Amdur: on to then went Lopez, they

“After the talked to police Jimmy locate Johnnie and under arrest. placed Watters Johnnie Watters *** What did tell the Attorney Johnnie Watters assistant State’s *** when he was interviewed? what Johnnie Watters told Basically, the assistant state’s attorney Reynolds’ was that he was in Robert apartment August on the 21st of at about 5:30. He was there with were, words, Racanelli, robbing in his they and defendant time he also said stuff, and and speakers taking place, *** Watters asleep. was Lopez and asleep was Reynolds Robert stab the he saw back, that’s when he came that when says *** get and on downstairs go soon he was with the victim knife Racanelli. scenewith leave the in a cab and defendant admission, his own this statement under you I submit burglary committing He’s of murder. guilty Watters defendant works with as he burglary, the commission during was Reynolds in this case Robert Racanelli, the victim defendant to death. stabbed

* * * Rey- was that Robert told the police what Racanelli Basically he and He said that apartment. him to his nolds had invited over which, in call, to, Reynolds rob they then what planned Watters law, burglarize Reynolds’ apartment. would be and he apartment on over to started Reynolds’

Racanelli went him, lot that He they night. and he said drank a drinking with *** drinking. fell from asleep until Reynolds waited over, and Watters came him to come and told He called Watters they through apartment, they go on over and started take wanted. exactly they started to what

[**] ^[*] Watters one those says, grabbed now Johnnie [Racanelli] *** victim stabbing Watters knives that he saw fall from John- Reynolds away and he saw back Reynolds, Robert knife. holding nie and Johnnie Watters Watters * * * in this statement. He confesses did Racanelli What confess let him into He tells how Robert things. you Reynolds to a lot of apartment, He consent to enter the but given apartment. they with Watters what would do.” planned tells how he defender argument public assistant closing F. of the Excerpts Racanelli: McNamara, Joseph for defendant attorney John that makes me something very angry “There’s about this case that that is the attitude of the prosecutors, as an and attorney, let say, in front of let’s you can throw this case they just the jury it out and decide who attorneys fight two defense those attitude of the prosecutors take It’s the going to down. in this case. don’t have any- have murder We any we don’t say, fact, so can’t prove anything, in this case. we prove to thing well, counsel, prove let them tell the two defense you, just we’ll innocent and who is not. who is

* * * The State brought has evidence of statements both of *** men, these both of these young Joseph men. was Racanelli there when Watters made a statement? Was Racanelli Joseph able no, true, to see that say, statement and it’s not it is true? In yes, *** fact, he has stated it is not true not by pleading guilty. what does he [Jimmy Lopez] actually say Joseph about Racanelli? Does he he saw him he he was in say say stab No. Does anyone? the bedroom at the time of stabbing? No. What do we know *** Then, about Jimmy Lopez and his first to the he story police? said, well, it; I [Lopez] didn’t do it was Johnnie Watters.

* * * they expect now us to it out fight amongst each other.” [A]nd Harris, G. Excerpts closing argument by Robin for attorney Johnny Watters: “*** so went out and they got everybody’s who scapegoat is, Watters, this case Johnnie after they got statement from him, him, charged then but not from testi- they Jimmy Lopez’ not on what he mony, said. Racanelli. [Jimmy Lopez] Joseph

Remember that is related They wife. Lopez’ Racanelli’s mother is brother’s Joseph Jimmy I will instruct got judge are related. Has he a motive? believe in this people may can look at motives that have you you Has He He has more certainly motive to lie? does. he agot case. him, than I asked would he like he like to—as one. Not would only him- wants to certainly protect he Racanelli, but protect Joseph to rob Mr. know, planned Joey he and self. For all we Reynolds. ***. door. the bedroom

Then came back and locked [Jimmy Lopez] Maybe protecting he was Maybe protecting brothers. at all know. know he doesn’t care Racanelli. We don’t We Joey him, try protect no reason to got He’s about Johnnie Watters. it He’s on Johnnie Watters. put in the world reason every but not related to him. object. I have to

MR. McNAMARA: All right.

THE COURT:

* * ^[*] witness, police, didn’t call Lopez, who Jimmy This honest Watters, but because he Johnnie protect he wanted because and was related to. or those he loved either protecting himself * * * you of the statement copy This is got You’ve a statement. from link in their going get Johnnie Watters. That’s another going chain. You are also to have Mr. Racanelli’s statement.

* * * [W]hy give would two statements that were people saying they committing burglary, stabbing? but the other did the You guy why? know

[*] * * Jimmy Lopez could have made that wound. It was —either knife one of them. two They only deep. and a half inches His brothers could have made them. Racanelli could have made it.

* * * You heard testimony phone about a call Joseph Racanelli from the morning murder, of the to the killing, Lopez apartment. do have testimony Joseph was alone [W]e apartment with Jimmy Lopez and the deceased sometime later, and I if you, you your sense, submit use common sometime killed, later after Mr. Johnnie ‘the Reynolds scapegoat’ Wat- ters is called there he’s the guy, over because dumbbell who can take the heat thing.” for this INVESTORS, INC.,

UNITED Plaintiff-Appellee, TSOTSOS, v. PAUL

Defendant-Appellant. (1st Division) First District No. 84 — 1295 Opinion 29, 1985. filed March notes “What inquired, of the jury’s to the other defendant.” One Appendix argument E. prosecutor’s opening are set forth 4 Excerpts of the degree of murder is being tried? What latitudes given reference to a lesser charge?” stated, The other note jury’s “One of their state- ments is contradictory of the other.” The trial judge pondered whether the jury was referring the defendants’ (confes- statements sions), which the had in the jury room. The jury judge directed the jury continue its deliberation. The prosecutors’ perception persuasiveness of the State’s evidence was erroneous. The ignominious prosecutorial advantage the defendants’ trial failed joint achieve the fully ultimate intended purpose. The jury returned verdicts finding both defendants not guilty However, of the murder. both defendants were found of bur- guilty invasion, and home glary findings which the court sentenced each defendant to concurrent imprisonment terms of five and 12 re- years, spectively. Joseph Defendant Racanelli asserted in post-trial that, his motion First, “The court erred for two reasons. the statements which were then allowed into evidence in the trial of each defendant were incon- sistent and each deprived confrontation. Bruton v. United States (1968), 391 U.S. 20 L. Ed. 2d 88 S. Second, Ct. 1620. the defenses were single so inconsistent that a trial deprived each man of a fair trial. ***. More the two importantly, defendants were put into a position antagonistic defenses, accus- ing each other of the crimes charged. On least five occasions dur-

Case Details

Case Name: People v. Racanelli

Court Name: Appellate Court of Illinois

Date Published: Mar 15, 1985

Citation: 476 N.E.2d 1179

Docket Number: 83—972, 83—977 cons.

Court Abbreviation: Ill. App. Ct.