delivered the opinion of the court;
After a jury trial, the defendant, Svondo Watson, was convicted on July 29, 1998, of first-degree murder, attempted first-degree murder and aggravated battery. The trial court sentenced him to a term of imprisonment of 60 years for the murder conviction, 30 years for the attempted murder conviction, and 30 years for the aggravated battery conviction. The 30-year sentences were to run concurrently with each other but consecutive to the 60-year sentence. The defendant appeals his convictions, contending that the trial court erred in failing to suppress his confessions to the crimes. Specifically, the defendant contends (1) that his confessions were the tainted fruit of evidence that was illegally seized earlier in the day, and (2) that the police denied him access to his attorney in violation of his constitutional rights.
The record reveals that the defendant was initially convicted in this case on June 9, 1996. However, on appeal this court reversed the defendant’s convictions and remanded the cause for a new trial, finding that the defendant’s trial counsel was ineffective in failing to file a motion to suppress evidence of bullets that were found in a safe in a bedroom closet in the first-floor apartment located at 1628 North Linder, Chicago, Illinois. See People v. Watson, No. 2 — 95—0809 (unpublished order under Supreme Court Rule 23 (1996)). The building searched was a two-flat building that contained separate apartments on the second floor and first floor, with an additional basement apartment. The search warrant executed by police permitted the officers to search the entire brick, two-story premises at 1628 North Linder in Chicago. However, the complaint requested a search warrant for “the house” that the defendant “was found at in Chicago.” The complaint, written in narrative form by Detective Carl Alagna, also stated that the defendant’s brother, Changa Harris, told police that if the defendant was going to use a gun it would have been a .380-caliber gun that belonged to the defendant’s cousin. According to the complaint, Harris also told police that the defendant’s cousin lived at the same house with Harris and the defendant.
This court found that it was apparent from the officers’ testimony that at the time they requested the issuance of the warrant they knew or reasonably should
On remand for a new trial, the defendant filed motions to quash his arrest, to suppress evidence seized pursuant to the execution of the search warrant, and to suppress statements the defendant made to the police following his arrest. At the hearing on the defendant’s motions, the State presented evidence indicating that Leo McDaniel was fatally shot while sleeping in his apartment during the early morning hours of June 7, 1997. McDaniel’s girlfriend, Keisha Twitty, was present during the shooting and later identified the defendant as the shooter to the police. The defendant had stayed at the apartment the previous couple of nights and was expected to return that night. He had a key to the apartment and was the only other person besides McDaniel and Twitty with a key to the apartment. Twitty specifically remembered locking the door before she went to bed that night, and there was no forced entry. The police found a receipt with the defendant’s address in McDaniel’s apartment. When the police went to the location mentioned on the receipt, they found a vehicle matching the description of the type of vehicle driven by the defendant. Upon arriving at the defendant’s apartment, the defendant told police that “Svondo Watson was not there” and that “Watson had been in jail for the past two weeks.” The trial court granted the defendant’s motion to suppress items seized during the search but denied the motion to suppress the defendant’s arrest.
The hearing then continued on the questions presented by the defendant’s motion to suppress the defendant’s statements to police following his arrest. Lombard police detective Carl Alagna testified that he arrested the defendant and Changa Harris around 10 a.m. on June 7, 1994, at the defendant’s home and brought them to the Lombard police department. Officer Alagna read the defendant his Miranda warnings, and the defendant told the officer that he understood each of his rights, including his rights to remain silent and to have an attorney present. The defendant then voluntarily spoke with Alagna for about 25 minutes. Officer Sticka was also present during the conversation. At that time, the defendant denied involvement in the shooting but acknowledged his association with the victim. Alagna did not remember whether he mentioned to the defendant that Twitty had positively identified the defendant as the shooter. However, Alagna further testified that he did not believe that he did mention Twitty’s identification to the defendant because he would have placed that fact in the police report if he had mentioned it.
Officer Alagna further testified that he again spoke with the defendant around 3:30 p.m. that same day. Officer Dane Cuny was also present for this conversation. Cuny asked the defendant if he still understood his rights, and the defendant responded that he did. According to Alagna, the defendant did not assert any of his Miranda rights while he was present, and Alagna was not advised by anyone that an attorney had called attempting to locate the defendant.
Lombard police lieutenant Dane Cuny testified that he interviewed the defendant at 3:30 p.m. on June 7, 1994, at the Lombard police station. The interview lasted about 10 to 15 minutes. Around 5:30 p.m., Cuny was informed that the defendant wanted to speak with him. When Cuny then went to the interview room, he asked the defendant if he still understood the Miranda warnings that had been read to him earlier that day and if he wanted to talk. The defendant replied that he understood his rights and wanted to tell the truth. When the defendant began describing specifics about where he discarded
Lombard police detective Rick Montalto testified that he and Sergeant Richard Spika took the defendant to the polygraph examining facility about two or three miles from the police station. They were at the facility for about 30 minutes when they decided to return to the station without having the polygraph test administered because they had received a report that the defendant’s brother, Changa Harris, was providing some information to the police. They returned with the defendant to the police station around 2:30 or 2:45 p.m. Officer Montalto did not have any further contact with the defendant until 5:30 p.m., when Officer Cuny asked Montalto to come to the interview room to witness a statement by the defendant. Montalto noted that the defendant recanted the statement he had apparently made to Officer Cuny. Montalto was in the interview room with the defendant for about five minutes. The defendant was then taken to an interview room in the booking area, which was next to the room his brother was in. Between the two rooms was a small two-way mirror and a speaker. The defendant got on the speaker and made some comments to his brother “about giving him up or something to that effect.” When Montalto and the other officers heard the comments, they took Harris to a different room.
Officer Montalto further testified that he brought a McDonald’s dinner to the defendant around 6:30 p.m. The next time he had any contact with the defendant was around 8:15 p.m., when he went into the interview room to collect the defendant’s garbage from dinner and to ask the defendant if he needed to go to the bathroom. When Montalto asked the defendant if he needed to go to the bathroom, the defendant asked Montalto “what was going on.” Montalto told the defendant that the only information he had was that “some of our detectives had gone back to the house on Linder and served a search warrant and had recovered a couple of items, not knowing what they were. And then they were on their way back to the station at this point.” The defendant then told Montalto that he wanted to talk to him, and the defendant then made an admission with respect to the shooting in question. The conversation between the defendant and Montalto lasted from 8:15 until 8:45 p.m. About 8:45 p.m. Montalto called Officer Spika into the interview room and the defendant reiterated his incriminating statements in the presence of Spika. That conversation ended about 9 p.m. The defendant then requested to speak to Assistant State’s Attorney Brian Nigohosian, who had spoken with the defendant earlier in the day. After being paged, Nigohosian arrived at the Lombard police department about 9:20 p.m. According to Montalto, Nigohosian entered through the front door and lobby area of the building because that was the only way to get into the building without a security code. Officers Montalto and Spika then talked with Nigohosian for about 10 minutes about the statements that the defendant had made. With Officers Montalto and Spika present, Nigohosian then spoke to the defendant until 10 p.m., during which time the defendant again made admissions.
Officer Montalto also testified that around 10 p.m. it was decided that the defendant’s statement should be tape-recorded. Montalto and Nigohosian then left the room to find a tape recorder and batteries. While they were looking for batteries, the receptionist in the lobby advised
Assistant State’s Attorney Brian Nigohosian testified that around 1 p.m. on June 7, 1994, he had a 20-minute conversation with the defendant at the Lombard police station. During the conversation, Nigohosian told the defendant that “[T witty] had seen him, or words to that effect, and identified him as being the shooter.” Later that same day, around 9 p.m., Nigohosian was paged and returned to the Lombard police station. He arrived about 9:20 p.m. and entered through the lobby. At the time, he did not see anyone else in the lobby area, including the defendant’s family members. While he was not specifically looking for them, he noted that the lobby is not a very large area.
Nigohosian further testified that, when he arrived at the station, he knew that the police had executed the search warrant and had recovered bullets and a backpack with the defendant’s name on it. Nigohosian did not recall talking to the defendant about the items recovered because their conversation dealt mainly with the defendant telling Nigohosian facts and details. Nigohosian’s conversation with the defendant in the presence of Montalto and Spika ended about 10 p.m., when the defendant agreed to give a tape-recorded statement. While Nigohosian and the other officers were looking for a tape recorder, Nigohosian was informed that attorney Tod Urban had arrived at the police station to see the defendant. At that point, Nigohosian called his supervisor and then spoke with attorney Urban. Nigohosian then went back to the booking area and informed the defendant that an attorney was at the station to see the defendant. The defendant indicated that he wanted to see the attorney.
Nigohosian noted that there was no further conversation with the defendant after Nigohosian was told that an attorney was present. Nigohosian was not informed that an attorney had called earlier that day, and the defendant did not request an attorney or assert his right to remain silent at any point. While he was not positive, Nigohosian believed that Urban showed up after the interview with the defendant while the officers were looking for a tape recorder. Nigohosian recalled that when he went into the lobby area after talking with the defendant around 10 p.m. he saw the defendant’s family members with attorney Urban.
Lombard police sergeant Richard Spika testified that he became aware around 8:30 p.m. on June 7, 1994, that Sergeant Sticka had executed a warrant at 1628 North Linder. Spika stated that, although he did not remember exactly, he probably was advised of the execution of the warrant by either radio, phone, or a transmission from the front desk. He noted that he never asked what was recovered, and he did not receive any information about what was recovered. Spika stated that, prior to the time that he went into the interview room with Officer Montalto, he told Montalto that Officer Sticka had executed the search warrant and was on his way back to the station. Spika noted that he did not tell Montalto about any specific items recovered because Spika did not know what had been recovered.
Officer Spika further testified that, at around 8:45 p.m. Officer Montalto asked him to witness a statement by the defendant. At the conclusion of the statement, the defendant requested to talk with the assistant State’s Attorney. Spika then
Attorney Tod Urban testified that on June 7, 1994, he was in the midst of a trial at the criminal courts building, at 26th and California in Chicago, when he received a message from the defendant’s father. Urban spoke over the telephone with the defendant’s mother about 1 or 1:30 p.m. Urban told her that he was in the midst of a trial and would not be able to get there until later. Urban made some phone calls and found out that the defendant was located at the Lombard police department. Urban had some additional matters pending in the criminal courts building at 4 p.m. He finally left for the Lombard police department around 7:30 p.m.
Urban testified as follows with respect to the telephone calls he made that day:
“Q. Prior to going out [to the Lombard police department] did you make any calls to any of the dispatchers or to the dispatcher?
A. I believe I called — One of the times I called I did inform— Honestly I don’t recall who I talked to but I did tell someone when I was on my way.
Q. What did you say to the best of your knowledge?
A. That I was an attorney and been retained by the family and I was on my way from 26th Street to the police department.
Q. Did you tell them who you were there to see?
A. Yes.
Q. Who did you say you were there to see?
A. Svondo Watson.
Q. Did you give them any other directions at the time?
A. I don’t know what time you are talking about.
Q. When you called the dispatcher.
A. Honestly I cannot say that I did or didn’t for sure.
Q. What time did you arrive at the police station.
A. My memory is maybe 8:30, quarter to nine. Somewhere around there.”
Urban further testified that he did not get to the Lombard police station until it was dark. When he arrived at the station, the defendant’s mother was already there. Urban had a conversation with her when he first walked into the station. Urban then went to the front desk, and, after identifying himself, he asked to see the defendant. Urban stated that he waited “a minimum of probably five minutes and maybe no more than forty-five minutes” before he saw the defendant. Urban claimed that while he waited in the lobby he became very anxious and angry to get in to see the defendant and he went up to the front desk several times. Urban noted that an assistant State’s Attorney eventually came out and explained to him that the defendant had just finished making a statement and they were about to record it. This was the first time that Urban had seen that assistant State’s Attorney. Urban told the police that there would not be a recording of any statement and that all conversations with the defendant would
Delores Harris testified that in June 1994 she lived at 1628 North Linder, in Chicago, in a second-floor apartment with her two sons (the defendant and Changa Harris). She stated that the building is a two-flat but has three separate apartments. She noted that her brother and uncle lived in the basement and the defendant’s sister lived on the first floor. When the police came to arrest her son around 10:30 a.m., she was in the first-floor apartment getting ready for work because the gas had been shut off in her apartment. She noted that the police returned around 6 p.m. and searched the building. When the search was completed, the police took her to the Lombard police station. She did not recall what time she arrived at the Lombard police station. After she arrived at the station, she talked with attorney Urban in the lobby area. She did not know what time it was when she saw Urban at the station.
Based on the foregoing evidence, the trial court denied the defendant’s motion to suppress the statements that he made to the police officers and Assistant State’s Attorney Nigohosian following his arrest. The trial court specifically found that the defendant was not denied his right to an attorney. In that regard, the court found that Urban probably arrived at the Lombard police station sometime after 10 p.m., made his presence known, and was immediately led to the back of the station. With respect to Urban’s claims that he had made phone calls to the Lombard station, the trial court noted that Urban did not testify to anything more than “I’m looking for Svondo Watson.” Moreover, Urban did not ask to speak with the defendant and did not direct that police officers not speak with the defendant. The trial court also found that the defendant initiated the after-dinner conversation with Officer Montalto, that Officer Montalto merely responded to the defendant’s question about what was going on in the case, and that Montalto did not confront the defendant with any specific items that had been recovered in the search. Consequently, the trial court concluded, the defendant was not under “interrogation” when he made the inculpatory statements to the police and was not “confronted” with the proceeds from an unlawful search.
Interrogation/Waiver of Miranda Rights Issue
On appeal, the defendant first argues that the trial court incorrectly determined that in making his inculpatory statements the defendant had “initiated” the conversation with the police and that the conversation had not been an “interrogation.” The defendant further argues that the trial court erred in finding that the defendant had not been “confronted” with illegally seized evidence.
In response, the State points out that the cases cited by the defendant in support of his argument on the interrogation issue are all distinguishable. The State notes that, in each of the cases cited by the defendant, the suspects expressly asserted their rights to counsel and silence, and yet the police nevertheless subsequently obtained incriminating statements from the suspects. See Oregon v. Bradshaw,
Generally, a trial court’s ruling on a motion to suppress will not be disturbed
We note that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Rhode Island v. Innis,
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated the police may not question him.” Miranda,384 U.S. at 444-45 ,16 L. Ed. 2d 706 -07,86 S. Ct. at 1612 .
The Court in Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda,
From the foregoing discussion of Miranda and Innis, it is clear that statements made to the police pursuant to custodial interrogation are admissible provided that the defendant has voluntarily, knowingly, and intelligently waived his rights. Additionally, we note that an express written or oral statement by the accused of his desire to waive the right to remain silent or the right to counsel is not required for a valid waiver, although it is considered strong proof of waiver. North Carolina v. Butler,
The State need prove waiver of Miranda rights only by a preponderance of the evidence. Colorado v. Connelly,
Because we find that the college-educated defendant clearly waived his rights to silence and counsel by stating that he understood his rights and agreeing to talk to the officers throughout the day without asserting those rights until sometime after the statements were made, we conclude that the defendant’s statements were admissible even if the defendant was subjected to “custodial interrogation” at the time of the statements. Thus, the authorities cited by the defendant in support of his argument are all distinguishable and do not indicate that, under the facts of the present case, the defendant’s statements must be suppressed simply because he may not have technically “initiated” the questioning and may have been under “custodial interrogation” at the time of his statements.
The defendant relies on the Illinois Supreme Court’s decision in Olivera in support of his position. Unlike the defendant in the present case, the defendant in Olivera invoked his right to the presence of counsel, and his attorney visited him while in custody and advised him not to make any statements to police. Olivera,
Confrontation/Attenuation Issue
We now turn to the defendant’s contention that his confession was inadmissible because he was “confronted” with the fruits of an illegal search and the confrontation was a factor in his decision to confess. See People v. Bates,
We find that the trial court properly denied the defendant’s attempted impeachment of Montalto in asking Nigohosian who had told him about the bullets. The defendant did not lay a proper foundation for the testimony by first giving Montalto an opportunity to deny that he told Nigohosian about the bullets. We also agree that it was a collateral matter because, even if Montalto had told Nigohosian about the bullets at 9:20 p.m., it would not have shown that Montalto knew about the bullets at the time Montalto told the defendant of the search.
The defendant argues that, even if Montalto only told him that the officers had recovered “a couple of items” during the search, it would still be a sufficient confrontation with “fruit from the poisonous tree” to warrant the suppression of the defendant’s statements.
If a defendant’s knowledge that illegally seized evidence was recovered may have been a factor in his decision to confess, then suppression may be proper. People v. Bates,
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun,371 U.S. at 487-88 ,9 L. Ed. 2d at 455 ,83 S. Ct. at 417 , quoting J. Maguire, Evidence of Guilt 221 (1959).
The question of whether a confession has been obtained by the exploitation of a prior illegal police action must be answered based on all the facts of each case, and no single fact is dispositive. Brown v. Illinois,
In the instant case, the trial court found that the defendant had not been “confronted” with the proceeds from an illegal search. The trial court based its ruling on the fact that the defendant was not being questioned or interrogated at the time the police officer told him about the search, the defendant initiated the conversation with the officer, and the officer merely answered the defendant’s question. Furthermore, the court found that the officer did not mention any particular items that had been recovered during the search and the defendant did not ask what had been recovered. The trial court found that the officer was a credible and truthful witness. The trial court also specifically found that the officer did not know what
In Turner, the police illegally searched the defendant’s parents’ house and seized a pair of bloodstained shoes. Turner,
In Bates, the defendant was confronted with the incriminating statements of his codefendant and the gun and drugs found as a result of the codefendant’s statement. Bates,
In People v. Jennings,
Turning to the present case, we believe that the trial court correctly concluded that the defendant was not confronted with the proceeds of an illegal search as were the defendants in Turner, Bates, and Jennings. Here, Officer Montalto did not mention any specific items that had been recovered during the search and only mentioned the search in passing and in response to the defendant’s question. Although the defendant in Jennings was not technically “confronted” with his jacket, the fact that the police seized the jacket from his person and that he was wearing it inside out at the time suggested that he
The defendant relies upon United States v. Patino,
In Patino, Federal Bureau of Investigation (FBI) agents illegally entered defendant’s apartment, pointed a shotgun at her, and held her in her bathroom while agents searched the apartment and arrested her codefendant. Patino,
In Fazio, the police illegally searched the defendant’s restaurant while the defendant was present. Fazio,
We find Patino and Fazio to be distinguishable from the present case. Unlike the instant case, the police in Patino made an illegal and forceful entry of the defendant’s home while the defendant was present. See Patino,
Furthermore, after considering the Brown factors, we conclude that the defendant’s confessions did not come about by exploitation of the illegal search and were therefore admissible. With respect to the first factor, the defendant’s confessions were given voluntarily and he had been given Miranda warnings. While not conclusive, this is an important factor to be considered. Brown,
Sixth Amendment/Article I — Right to Counsel Issue
The defendant next argues that his right to counsel under the sixth amendment of the United States Constitution and under article I of the Illinois State Constitution was violated when the Lombard police department failed to inform him of his attorney’s efforts to reach him. The defendant claims that the evidence showed that his attorney contacted the police and informed them that he represented the defendant and was coming to see the defendant. The defendant also claims that, once his attorney arrived at the police station, the police failed to timely admit his counsel to see him. The defendant maintains that, under the circumstances, his statements were obtained in violation of his constitutional right to counsel and, therefore, must be suppressed.
In People v. McCauley,
“[A] suspect’s waiver of his right to counsel is invalid if police refuse or fail to inform a suspect *** of the efforts of the attorney, present at the place of interrogation, to render assistance to the suspect. To hold to the contrary would be to condone ‘affirmative police interference in a communication between an attorney and a suspect.’ ” Griggs,152 Ill. 2d at 29 , quoting Moran v. Burbine,475 U.S. 412 , 456 n.42,89 L. Ed. 2d 410 , 443 n.42,106 S. Ct. 1135 , 1159 n.42.
In People v. Milestone,
Applying the rationale of the above-mentioned cases, we find that the trial court did not err in finding that the defendant was not denied his right to ah attorney. The trial court specifically found that the defendant’s attorney did not show up at the Lombard police station until sometime after 10 p.m., that the defendant had already given his three statements by the time the attorney arrived, and that the attorney did not ask to speak to the defendant or give any directions regarding the defendant when he called the station to inquire as to the defendant’s whereabouts. From our review of the record, we are unable to say that the trial court’s factual determinations on these matters were manifestly erroneous.
Relying on McCauley and Milestone, the defendant contends that, once the attorney telephoned the police station and informed the police department that he represented the defendant, the police officers were required to inform the defendant of the attorney’s calls and to give the attorney a reasonable opportunity to be present during interrogation. However, we do not believe that any such requirement exists. Neither McCauley nor Milestone held that the mere fact that an attorney has been retained results in the obligation of the police to inform the defendant of that fact absent any directions from the attorney to do so. In the present case, the record does not indicate that there was any police interference between the communication of an attorney and the suspect. Unlike McCauley and Milestone, the police in the present case did not do anything to prevent the attorney from conferring with his client.
Finally, the defendant argues in his reply brief that his sixth amendment right to counsel attached by 5:30 p.m. on June 7, 1994, “due to Nigohosian’s adversarial involvement in the investigation.”
In People v. Thompkins,
In the present case, as in Garrett and Thompkins, at the time of the defendant’s statements there had been no formal charge, preliminary hearing, indictment, information, or arraignment. There is nothing in the record indicating that the State had made any decision to charge the defendant. Moreover, we do not believe that the prosecutorial involvement in this case was significant enough to warrant a finding that the defendant’s sixth amendment right to counsel had attached. There is no indication that the prosecutor had any significant involvement in procuring the warrant for the search of the defendant’s apartment. The prosecutor did not gather any of the information contained in the warrant and did not personally view the building that was the site of the search. Instead, Officer Alagna gathered all of the information in the warrant through his own investigation. The prosecutor simply assisted Officer Alagna in typing the warrant and then presenting it to the judge. There was also an absence of any prosecutorial involvement in the defendant’s arrest. Additionally, Lombard police officers were mostly responsible for conducting the questioning of the defendant throughout the day. Accordingly, we determine that the defendant’s sixth amendment right to counsel had not attached at the time of his statements.
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
INGLIS and HUTCHINSON, JJ., concur.