People v. McCauley

595 N.E.2d 583, 228 Ill. App. 3d 893, 172 Ill. Dec. 222, 60 U.S.L.W. 2762, 1992 Ill. App. LEXIS 693
CourtAppellate Court of Illinois
DecidedMay 6, 1992
Docket1-91-0218
StatusPublished
Cited by15 cases

This text of 595 N.E.2d 583 (People v. McCauley) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McCauley, 595 N.E.2d 583, 228 Ill. App. 3d 893, 172 Ill. Dec. 222, 60 U.S.L.W. 2762, 1992 Ill. App. LEXIS 693 (Ill. Ct. App. 1992).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Defendant Aubrey McCauley was indicted for first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). After a pretrial suppression hearing, the trial court suppressed a lineup identification and any statements defendant made to the police after his attorney was denied access to him while he was in police custody. The State has appealed. We affirm and remand.

Attorney William Walters, Chicago police sergeant Fred Bonke, and Detectives Robert Kocan and Thomas Byron testified at the suppression hearing. Their composite testimony is sufficient to establish the facts as follows. At about 5:30 p.m. on November 20, 1988, two police officers brought the defendant into the Chicago police department Area 3 station. Defendant was brought to the station in connection with a shooting death that occurred the previous day. Detectives Kocan and Byron spoke to defendant in an interview room on the third floor of the station and advised him of his Miranda rights. Defendant denied any involvement in the crime and gave the detectives an alibi statement which included the names of people that would corroborate his alibi.

Sergeant Bonke’s office was adjacent to the office occupied by Kocan and Byron, and he was their supervisor. Between 6 p.m. and 6:30 p.m., Kocan and Byron told Bonke that they were leaving the station to check out the people that defendant gave as alibi witnesses. Kocan and Byron then left the station, but defendant remained in custody in the interview room.

At about 7 p.m., someone from the defendant’s family hired Walters to represent defendant in connection with the matter for which he had been arrested. After agreeing to represent defendant, Walters telephoned a police station at 63rd and Racine Streets to determine if defendant was there. The answering police officer told Walters that defendant was not there. Walters then telephoned the Area 3 station located at 39th and California Streets and told the answering police officer that he was defendant’s attorney, and that he wanted to know if the defendant was there and what was the charge against him. Although defendant was in custody at the station, the answering police officer told Walters that defendant was not at the station and that the police were looking for him.

Walters then went to the police station at 63rd and Racine Streets in an effort to find out where the police were holding defendant. At the 63rd and Racine station, Walters was told that defendant was not there but he should tiy the Area 3 station. Walters telephoned the Area 3 station again, and the answering police officer again told him that defendant was not there. Nevertheless, Walters went to the Area 3 station.

Walters arrived at the Area 3 station about 7:40 p.m. He identified himself as defendant’s attorney and asked if he could speak to the defendant. The desk sergeant made a telephone call and then told Walters that a police officer would be down to see him. Sergeant Bonke then came down and spoke to Walters at about 7:50 p.m.

Walters showed Bonke his lawyer identification card and identified himself as defendant’s attorney and asked to speak to defendant. Bonke acknowledged that the defendant was being held in custody but he refused to let Walters see or speak to defendant and refused Walters’ request to let defendant know that he was there and that he wanted to speak to him. Walters told Bonke that defendant’s constitutional rights were being violated but Bonke persisted in refusing to let Walters see or speak to defendant. Walters then left the station.

At about 8:15 p.m., Kocan and Byron returned to the station and told defendant that his alibi witnesses could not be found, and that he was going to be placed in a lineup. At 10 p.m., defendant was placed in a lineup where he was identified by a witness to the crime. At about 2:30 a.m. on the next day, November 21, 1988, defendant was charged with the crime.

Later, defendant filed a pretrial motion to suppress. After a hearing, the trial court suppressed the lineup identification and any statements defendant made to the police after Walters was denied access to him. The State has appealed the suppression order. See 134 Ill. 2d R. 604(a)(1).

The State first contends that the lineup identification should not be suppressed because defendant’s sixth amendment protection for assistance of counsel was not violated. (U.S. Const., amend. VI.) The State argues that the sixth amendment protection for assistance of counsel had not yet attached because the lineup identification occurred before the defendant was formally charged. We agree that the sixth amendment protection for assistance of counsel initially attaches “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.) We, therefore, also agree that defendant’s sixth amendment protection had not yet attached at the time of the lineup. Whether the sixth amendment is apposite, however, does not control our decision.

Our decision is controlled by deciding whether denying an attorney access to his client while he is in police custody violates the self-incrimination protection of the Illinois Constitution. (Ill. Const. 1970, art. I, §10.) On this issue, the State argues that “even if the trial court correctly determined that Walters was denied access to defendant, the trial court’s ruling is still manifestly erroneous.” We disagree.

The State relies upon Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135. Moran, however, is distinguishable from the present case. In Moran, the police were holding a suspect in custody at a police station. Unknown to the suspect, while he was in custody the suspect’s family hired an attorney to represent him. (Moran, 475 U.S. at 415, 89 L. Ed. 2d at 417, 106 S. Ct. at 1138.) The U.S. Supreme Court held that the suspect’s fifth amendment rights were not violated merely because the police unintentionally or intentionally misinformed the attorney about their plans concerning the suspect (Moran, 475 U.S. at 421-24, 89 L. Ed. 2d at 420-22, 106 S. Ct. at 1140-42) or because they failed to inform the suspect of the attorney’s efforts to reach him (Moran, 475 U.S. at 424-28, 89 L. Ed. 2d at 422-25, 106 S. Ct. at 1142-44). Moran is based upon the U.S. Supreme Court’s interpretation of the protection afforded by the fifth amendment of the United States Constitution. Whatever the U.S. Supreme Court believes the law is with respect to the degree of protection afforded citizens by the Federal Constitution, in Illinois, if a suspect’s family hires an attorney to represent him while he is in police custody and the police deny the attorney access to him and later obtain a lineup identification or statements from him, it violates the suspect’s self-incrimination protection afforded our citizens by the constitution of Illinois. Ill. Const. 1970, art. I, §10.

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Bluebook (online)
595 N.E.2d 583, 228 Ill. App. 3d 893, 172 Ill. Dec. 222, 60 U.S.L.W. 2762, 1992 Ill. App. LEXIS 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccauley-illappct-1992.