People v. Perry

563 N.E.2d 1144, 205 Ill. App. 3d 655, 151 Ill. Dec. 38, 1990 Ill. App. LEXIS 1761
Appellate Court of Illinois·Decided November 19, 1990·No. 5-88-0549·Published·Cited by 6 cases

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, defendant, Ernest Perry, was convicted of two counts of murder under section 9 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)) and two counts of home invasion under section 12 — 11(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2)) in connection with the stabbing deaths of Alvin Autery and Mary Irwin. The circuit court denied defendant’s post-trial motions and imposed concurrent sentences of imprisonment for natural life without parole on each of the murder convictions and 30 years’ imprisonment on each of the home invasion counts. Defendant now appeals, and the central question before us on review is whether the circuit court erred in refusing to suppress defendant’s confession at trial. For the reasons which follow, we hold that it did. We therefore reverse defendant’s convictions and remand for a new trial.

The record before us establishes that defendant was arrested on January 6, 1987, pursuant to an outstanding robbery warrant. That warrant was unrelated to any of the crimes for which he was tried and convicted in this case. Defendant was transported to the police station in Alton, Illinois, where he was “booked” and advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant was then interviewed by Alton Police Officer Anthony Ventimigila and a detective named Pyatt, regarding the Autery-Irwin murders. During that interview, defendant gave an oral statement in which he denied any knowledge of the murders.

The following day, defendant appeared before Judge Isbell of the circuit court of Madison County, where he was arraigned on charges of robbery and aggravated battery. These charges were related to the initial robbery warrant pursuant to which defendant was arrested, but they were wholly unrelated to the Autery-Irwin murders. At the arraignment, defendant requested that an attorney be appointed to represent him. The circuit court granted this request, appointed a public defender to represent him, and directed that defendant be transferred to the Madison County jail that day. The Alton police, however, subsequently obtained a “hold order” so that they could keep defendant in their municipal jail for another day and interrogate him further.

On the following day, January 8, 1987, the Alton police interviewed defendant once again regarding the Autery-Irwin murders. Prior to that interview, defendant was again advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.1602. Defendant then proceeded to give a statement in which he confessed to having been involved in the crime which culminated in the murders of Autery and Irwin.

According to defendant’s confession, he accompanied an individual named Thurmon when Thurmon went to the victims’ home to steal their television set. Defendant stated that Thurmon told him to wait outside and act as a lookout while he, Thurmon, broke into the house. Defendant stated that while he was standing outside he heard Thurmon break in through the door. After a few minutes, defendant heard the sound of a man’s voice and woman’s voice “yelling and screaming.” He indicated that he then became frightened and fled the scene, returning to his own house.

Defendant told the police that Thurmon came by his house 15 minutes or so later and told him that he had stabbed the victims. According to defendant, Thurmon later explained that when he had confronted the victims in their home, he demanded money from them. When he found that they had none, he began “beating on them.” Thurmon related to defendant that when the victims then started screaming and threatening to call the police, he stabbed them. In his confession, defendant denied that he was directly involved in these stabbings. He stated that he did not go into the victims’ house and claimed that he “didn’t know that Thurmon was going to kill anyone.”

The day after the police obtained this confession, defendant was charged with murder and home invasion in connection with the break-in of the victims’ house and their subsequent stabbing deaths. Prior to his trial on those charges, defendant filed a motion to suppress his confession, arguing, inter alia, “[t]hat the statements sought to be suppressed were obtained as a result of interrogation which continued after the defendant had elected to remain silent and/or had elected to consult with an attorney prior to further questioning,” and “[tjhat the statements sought to be suppressed were obtained as a result of interrogation which took place outside the presence of counsel and after the defendant had been formally charged with an offense and after the appearance of counsel had been entered of record.”

Following a hearing, defendant’s motion to suppress was denied in an order entered by the circuit court on May 4, 1988. The following month, the United States Supreme Court issued its opinion in Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093. Based upon that decision, defendant filed a motion requesting that the circuit court reconsider its ruling on his motion to suppress. That motion was also denied, and defendant’s confession was ultimately admitted into evidence against him at trial.

We agree with defendant that the circuit court’s suppression order was erroneous. The fifth amendment to the United States Constitution guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) The fifth amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. (Miranda v. Arizona (1966), 384 U.S. 436, 469-70, 16 L. Ed. 2d 694, 721, 86 S. Ct. 1602, 1625-26.) Following Miranda, the Supreme Court held in Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885, that, under the fifth amendment, an accused person in custody who has requested the aid of an attorney and thereby “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” This rule was violated here.

As we have indicated, when defendant was arraigned on robbery and aggravated battery charges on January 7, 1987, he requested that an attorney be appointed to represent him. The court then entered an order appointing the public defender to serve as defendant’s counsel. There is nothing in the record before us to indicate that when defendant made his request he was seeking legal assistance only with respect to the formal legal proceedings which had then been initiated against him.

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People v. Perry, 563 N.E.2d 1144, 205 Ill. App. 3d 655, 151 Ill. Dec. 38, 1990 Ill. App. LEXIS 1761 (Ill. Ct. App. 1990).

563 N.E.2d 1144 (People v. Perry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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