No. 3-94-0033
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of the 10th Judicial
) Circuit, Peoria County,
Plaintiff-Appellee, ) Illinois
)
v. ) No. 93-CF-613
ADAM J. MILESTONE )
) Honorable
Defendant-Appellant. ) Robert Manning,
) Judge, Presiding
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PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the court:
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The defendant, Adam J. Milestone, was convicted, following a
jury trial, of three counts of murder in violation of section
9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9-1(a) (West 1992))
and one count of robbery in violation of section 18-1 of the Code
(720 ILCS 5/18-1 (West 1992)). He was sentenced to a term of 45
years imprisonment on one count of murder (felony murder); no
judgment was entered on the remaining counts. We reverse and
remand for a new trial for the reasons discussed below.
On appeal, the defendant asserts that: (1) he did not validly
waive his right to counsel because the police did not inform him
that an attorney retained for him was attempting to contact him by
telephone, and because they refused to allow the attorney to speak
to him by telephone; and (2) the trial court erred in using
modified pattern jury instructions on the charges of knowing and
intentional murder.
Prior to trial, the defendant filed a motion to suppress a
confession he gave to the police during interrogation, which was
denied.
The following evidence was presented at the pretrial hearing.
Detective Larry Hawkins of the Peoria County Sheriff's office
testified that he and Detectives Tom Yentes and Harry Sweet went to
the defendant's mother's residence at approximately 8:45 p.m. on
the evening of July 20, 1993, as part of his investigation of the
death of William Swearinger. The defendant was not present when
the police approached his mother. Shortly after the detectives
began to talk to her, the defendant approached the front yard.
Hawkins identified himself and asked the defendant if he would be
willing to accompany the officers to the police station to answer
some questions concerning an investigation they were conducting.
The defendant agreed to do so. Yentes and Sweet took the defendant
to the station while Hawkins made a brief stop elsewhere.
Yentes later testified that the defendant and the two
detectives arrived at the police station at approximately 9:10 p.m.
Yentes took the defendant to an interrogation room and began to
interrogate him regarding Swearinger's death.
Hawkins testified that he arrived at the station at
approximately 9:45 p.m. At approximately 10:00 p.m., Hawkins
received a telephone call from a person who identified himself as
James Shadid. Shadid told Hawkins that he was an attorney and then
asked if the defendant was there. Hawkins told him that the
defendant was present at the station. Shadid next asked Hawkins if
the defendant was being questioned, and Hawkins answered in the
affirmative. Shadid then asked to speak to the defendant. Hawkins
refused, saying "No, he's being interviewed right now; I'm not
going to interrupt the interview." Shadid then asked Hawkins if
the defendant had been advised of his Miranda rights, and Hawkins
indicated that the defendant had been so advised. Shadid then
asked if the defendant had asked to speak to an attorney, and
Hawkins said that he had not. Hawkins testified that Shadid then
said, "I guess that's all I can do," and hung up.
Hawkins testified that it was his opinion that Shadid was not
representing the defendant, but was merely calling to seek
information about the defendant on behalf of a friend, the
defendant's mother. On cross-examination, however, Hawkins
admitted that the questions asked by Shadid were typical of those
asked by an attorney who is representing someone. He further
stated that he did not inform the defendant of Shadid's call
because he did not want to "beg him to run to an attorney."
Hawkins testified that his purpose was "to obtain a confession" and
he expected that if Shadid were allowed to talk to the defendant,
he would tell the defendant not to continue the interrogation.
Hawkins believed that allowing Shadid access to the defendant would
defeat their purpose of obtaining a confession.
Shadid testified that at approximately 10:30 p.m. on July 20,
1993, the defendant's mother called him at his home, told him that
the defendant had been taken in for interrogation by the police,
and retained him to represent her son. Shadid then called the
Sheriff's department and was told that Detective Hawkins was in
charge of the case. Shadid then called Hawkins, identified himself
to Hawkins and asked to speak to his client, Adam Milestone.
Hawkins told Shadid that the defendant was being interviewed and
that the interview would not be interrupted. Shadid asked if the
defendant had been given Miranda warning, and Hawkins said that he
had. Shadid asked if the defendant had asked for an attorney and
Hawkins said that he had not. Shadid then asked Hawkins to tell
the defendant that Shadid wished to speak to him. Hawkins said
that he would not. Shadid again asked to speak to the defendant,
and again was told by Hawkins that he could not speak to the
defendant. Hawkins said that he would let the defendant speak to
Shadid only if the defendant specifically asked to speak to him.
Shadid then terminated the conversation.
Shadid further testified that he considered the defendant to
be his client because the defendant's mother had asked him to
represent her son. He often made contact with clients by calling
the station and asking to speak to them, and he could not recall
ever having been denied access to a client in this manner in the
past. He believed that a telephone call to speak to his client was
more appropriate than travelling to the place where the defendant
was being interrogated as travelling to that location would take
over 20 minutes.
The defendant testified that, as he stood in front of his
mother's house before he was taken in for questioning, his mother
asked him if she wanted him to contact her attorney, Jim Shadid,
and he said yes. He also testified that he was not informed of his
rights until after he gave a written statement, and that when
Hawkins first came into the room, he asked Hawkins if his mother
had contacted an attorney yet. Hawkins responded that she had not.
The circuit court denied the motion to suppress, finding that
People v. Griggs, 152 Ill. 2d 1 (1992), was controlling. In
reaching its decision, the circuit court made a factual
determination that the defendant did not know that an attorney had
been retained for him.
The issue in this matter is whether the trial court erred in
denying the defendant's pre-trial motion to suppress his confession
where the police denied an attorney, retained for the defendant
without his knowledge, access to the defendant by telephone during
the interrogation, and where the police did not inform the
defendant that the attorney was seeking to consult with him by
telephone.
Our supreme court, in People v, McCauley, 163 Ill. 2d 414
(1994), squarely held that a defendant's right against self-
incrimination guaranteed by article I, section 10, of the Illinois
Constitution of 1970 was violated where the police denied an
attorney, retained for the defendant without his knowledge,
physical access to the defendant during the interrogation, and
where the police did not inform the defendant that the attorney was
seeking to consult with him at the police station.
In the matter sub judice we are asked to determine whether the
attorney must be physically present at the police station in order
for McCauley to apply. We hold that the physical presence of the
attorney at the police station is not required, and McCauley
applies when the attorney is attempting to contact the defendant
by telephone, but is prevented from doing so by the actions of the
police.
While our supreme court in McCauley did not directly address
the question of telephonic communication by counsel, the court
nonetheless made clear that its paramount concern was that police
not actively prevent a person under interrogation from having
access to the readily available assistance of counsel. As the
court noted:
"The day is long past in Illinois, however,
where attorneys must shout legal advice to their
clients, held in custody, through the jailhouse
door.*** Our State constitutional guarantees simply
do not permit police to delude custodial suspects,
exposed to interrogation, into falsely believing
they are without immediately available legal
counsel and to also prevent that counsel from
accessing and assisting their clients during the
interrogation." McCauley, 163 Ill. 2d at 423-24.
We find persuasive the appellate court's statement in People
v. McCauley, 228 Ill. App. 3d 893 (1992):
"[W]e do not believe that it should be necessary to
distinguish between situations (1) where the
attorney is present at the police station and
reasonably informs the police that he represents
the suspect and (2) where the attorney reasonably
informs the police telephonically that he
represents the suspect. The key factor should be
whether the attorney has reasonably informed the
police that he represents the suspect and not the
methodology by which the police are informed." 228
Ill. App. 3d at 897-98.
We are not persuaded by the People's assertion that the police
would be unduly burdened in their work by being required to verify
that a person calling and claiming to be an attorney was, in fact,
an attorney. Some method of verification, such as the use of an
attorney's identification number issued by the Attorney
Registration and Disciplinary Commission could be used to identify
properly licensed attorneys. In any event, we do not see this
minor administrative problem as a legitimate reason for denying a
right guaranteed by our constitution.
In short, we do not believe that whether the actions of the
police in denying a defendant access to his or her attorney violate
the Illinois constitution should turn on the attorney's method of
communication. Police who actively prevent individuals from
exercising their constitutional rights are an anathema to our
system, and Hawkins' bold assertion that his goal was to keep
Shadid and the defendant apart so that the defendant would not seek
counsel, is a glaring example of the kind of police behavior from
which the Illinois constitution protects its citizen. Our
supreme court, in McCauley, aptly warned us to beware of such
police practices:
"No system worth preserving should have to fear
that if an accused is permitted to consult with a
lawyer, he will become aware of and exercise [his]
rights. (citations). *** If our system is, indeed,
such a system, we have no reason to fear both
lawful and protected consultation." 163 Ill. 2d
at 446.
We find that the trial court erred in not suppressing
statements made by the defendant after Shadid asked to speak with
him by telephone. We reverse and remand on that basis.
The defendant also maintains on appeal the court erred in
giving an improper jury instruction. We find the defendant has
waived this issue by failing to object to the challenged
instruction and failing to offer his own instruction at trial.
People v. Almo, 108 Ill. 2d 54 (1985).
Finally, although the defendant did not raise on appeal the
sufficiency of the evidence to sustain a conviction, we will
consider the sufficiency of the evidence in order to protect
defendant's constitutional right against double jeopardy. People
v. Reynolds, 257 Ill. App. 3d 792, 806 (1994). Although we are not
making a finding as to defendant's guilt or innocence that will be
binding in a new trial, we conclude that the evidence presented at
trial, including improperly admitted evidence was sufficient for
a jury to decide that defendant was guilty beyond a reasonable
doubt. See, People v. Olivera, 164 Ill. 2d 382 (1995) (for
purposes of double jeopardy all evidence submitted at the original
trial may be considered when determining the sufficiency of the
evidence.)
Accordingly, the trial court's order denying defendant's
motion to suppress is reversed. Defendant's conviction is also
reversed and the case is remanded for a new trial and such further
proceedings as the trial court shall determine. At a new trial,
statements made to the police officers and assistant State's
Attorney before Hawkins received Shadid's telephone call at the
police station, if any, shall be admissible based upon the McCauley
decision.
Reversed and remanded.
McCUSKEY and SLATER, J.J., concurred.