APPEAL from the Circuit Court of Ogle County; the Hon. L.E.
ELLISON, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
On September 5, 1978, an information was filed against the defendant, Dan Smith, and Mary Smith, charging them with the murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) and armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2(a)) of Clifty Davis. These offenses were committed on August 25, 1978. Mary Smith's case was severed from that of the defendant prior to trial. After a trial by jury, the defendant was found guilty of both offenses. The State sought to impose the death penalty, and the defendant waived a jury for the purpose of sentencing. After holding a separate sentencing hearing to determine whether the death penalty should be imposed, the trial court concluded that sufficient mitigating circumstances were present which precluded the imposition of the death penalty. The court subsequently sentenced the defendant to a term of natural life imprisonment on the murder conviction and to a concurrent term of 50 years' imprisonment on the armed robbery conviction. The defendant appeals.
On appeal, the defendant first contends that the trial court erred in not suppressing two incriminating statements which he alleges were elicited in violation of his right to counsel as provided in the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) and section 8, article 1, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. 1, § 8). More specifically, he asserts that his tape-recorded statement of September 3, 1978, was the product of an unlawful intrusion into the attorney-client relationship which occurred when his attorney was refused permission to meet with him at 3 p.m. on Saturday, September 2, 1978. He contends that this interference amounted to a violation of his sixth amendment right to counsel and tainted the subsequent confession of September 3. In this regard, he maintains that there were no intervening circumstances present which were sufficient to dissipate the taint of illegality caused by the police misconduct. Continuing, he asserts that since his September 4 statement was the fruit of the first illegally elicited statement, it too must be suppressed. Finally, the defendant argues that at no time did he waive his sixth amendment right to the assistance of counsel. Inherent in this contention is the assertion that the statements must be suppressed as independently violative of his sixth amendment right to counsel during police interrogation, since adversary judicial proceedings had already commenced.
• 1 The sixth amendment right to counsel attaches at the time that adversary judicial criminal proceedings have been initiated against the accused, whether by way of formal charge, arraignment, preliminary hearing, information or indictment. (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L.Ed.2d 424, 436, 97 S.Ct. 1232, 1239, citing Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82; accord, People v. Burbank (1972), 53 Ill.2d 261, 271-72, cert. denied (1973), 412 U.S. 951, 37 L.Ed.2d 1004, 93 S.Ct. 3017.) This court in People v. Hinton (1974), 23 Ill. App.3d 369, 372, held that a complaint followed by an arrest warrant and the actual arrest of the defendant amounts to a formal charge under the language of Kirby v. Illinois describing the kind of adversary judicial criminal proceedings which vests the right to counsel. (Accord, People v. Marshall (1977), 47 Ill. App.3d 784, 786; see United States ex rel. Sanders v. Rowe (N.D. Ill. 1978), 460 F. Supp. 1128, 1139; People v. Huffman (1980), 81 Ill. App.3d 901, 909; People v. McDonald (1974), 23 Ill. App.3d 86, 90 aff'd (1975), 62 Ill.2d 448.) Here the defendant had been arrested and appeared before a judge at 9:30 a.m. on September 2, 1978, at which time the judge read him the complaint and the charges against him and informed him of his constitutional rights. Based on the cases cited immediately above and the fact that the defendant had appeared before a judicial officer, the defendant's sixth amendment right to counsel attached at the time he appeared before the judge.
Having disposed of this threshold inquiry, the question arises whether the defendant's sixth amendment right to counsel was infringed on September 2, 1978, when attorney Ellerby of the Spiezer law firm attempted to visit or consult with him.
Attorney Carol Ellerby, a partner in the Joseph Spiezer law firm, testified that she went to the Ogle County jail at approximately 3 p.m. on Saturday, September 2, 1978, to visit the defendant and Mary Smith. She spoke with the jailer, whom she believed was John Willard, and informed him that she had come to see Dan Smith and Mary Smith. He told her that she could not see the defendant because he was undergoing withdrawal and was shaking so hard he could not stay on the bed. She took out a business card and wrote on the back of it that she was Joe Spiezer's partner and the defendant was not to make a statement unless one of his lawyers was present. She gave the card to the jailer and asked him if he would see that the defendant received it; the jailer responded that he would do so. Attorney Ellerby did not see the defendant at any time on September 2.
Carol Ellerby then met with Mary Smith shortly after she was refused permission to visit the defendant. Ellerby testified that as of 3 p.m. the Spiezer law firm was representing Mary Smith. After visiting briefly with Mary Smith, Ellerby informed attorney Spiezer that she was not allowed to consult with the defendant. At approximately 3:30 p.m., she returned to the jail with another partner of the Spiezer firm, Robert Thorsen, and attempted to see Mary Smith again. Ellerby and Thorsen met with Mary Smith at 4:30 p.m. and informed her that they did not represent the defendant and asked her if she wanted the Spiezer firm to represent her. Mary Smith responded that she was going to be represented by another attorney provided by her family.
Judge Moore testified that he met with attorneys Ellerby and Thorsen at their request on Saturday, September 2, 1978, at approximately 4. p.m. The judge stated that Thorsen informed him that the Spiezer law firm did not represent the defendant because he did not have any money.
Preliminarily, it should be noted that the trial court made a finding that the Spiezer law firm was representing the defendant as of 3 p.m. on September 2, although the trial court believed that such representation had been terminated an hour or so later after attorneys Ellerby and Thorsen met with Judge Moore. In addition, all the law enforcement officials who testified in this cause stated that the defendant was not undergoing heroin withdrawal on Saturday, September 2, and no valid reason was adduced at trial to explain or justify the denial of personal consultation between attorney Ellerby and the defendant.
• 2 Given these facts, the jailer wrongfully interfered with the attorney-client relationship here. The question remains whether it was a wrongful interference which rose to the level of a constitutional infringement of the defendant's sixth amendment right to counsel such that the statements subsequently obtained from the defendant must be suppressed.
Relying on fourth amendment cases which have applied the taint analysis and suppressed evidence which was obtained after a violation of the defendant's constitutional rights (Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248; Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254), the defendant contends that the statements he gave to Officer Messer approximately 24 hours after attorney Ellerby's attempted visit was the product of the unlawful interference with the attorney-client relationship and therefore must be suppressed, since no intervening circumstances occurred to dissipate the taint of the illegal police conduct. We believe that the fourth amendment precedent for requiring the exclusion of evidence tainted as a result of police conduct which abridges constitutional rights is equally applicable in the sixth amendment right to counsel area. See United States v. Wade (1967), 388 U.S. 218, 239-42, 18 L.Ed.2d 1149, 1164-66, 87 S.Ct. 1926, 1939-40; Maglio v. Jago (6th Cir. 1978), 580 F.2d 202, 207; United States v. Massey (M.D. Fla. 1977), 437 F. Supp. 843, 861-62.
To determine whether there is a sufficient causal connection between the illegality and the subsequent confession given by the defendant on September 3 so as to require its exclusion from evidence, it is necessary to apply the test recently articulated in Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248, and Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254. Thus, the court must consider the temporal proximity of the constitutional violation and the resultant confession, the presence of intervening circumstances, the purpose and flagrancy of the official misconduct and whether Miranda warnings were given. Dunaway v. New York (1979), 442 U.S. 200, 218, 60 L.Ed.2d 824, 839-40, 99 S.Ct. 2248, 2259; Brown v. Illinois (1975), 422 U.S. 590, 603, 45 L.Ed.2d 416, 427, 95 S.Ct. 2254, 2261; accord, People v. McMahon (1980), 83 Ill. App.3d 137, 144.
We note that almost 24 hours passed between the time attorney Ellerby was denied permission to see the defendant on September 2 and the initiation of the questioning session with Officer Messer which resulted in the defendant's statement of September 3. There is no evidence in the record that the police attempted to question the defendant during this 24-hour hiatus. (Cf. People v. James (1980), 82 Ill. App.3d 551, 558.) This is not a case where the police prevented the attorney from conferring with her client and then sought to exploit her absence by interrogating the defendant immediately after or shortly after she departed.
In addition, there were significant intervening circumstances which support the view that the causal connection between the police misconduct and the incriminating statement of September 3 was sufficiently attenuated to permit the use at trial of the statement.
The defendant was given the requisite Miranda warnings by Ogle County deputy sheriff Melvin Messer early on the morning of Saturday, September 2, 1978, and acknowledged that he understood the warnings and his constitutional rights; however, the defendant was unable to respond to Messer's questions in a logical or coherent manner at that time. At approximately 9:30 a.m. on that morning, he was taken before a judge who advised him of his right to remain silent, his right to the assistance of counsel during any interrogation or questioning, his right to a prompt preliminary hearing and the fact that there was no bond in his case. This judge's testimony was that the defendant's answers were responsive to his questions and that he appeared normal and was not sick or staggering. On September 3, 1978, at approximately 2:15 p.m., Officer Messer again advised the defendant of his constitutional rights as contained in the Miranda warnings, and the defendant told him that he understood his rights and that the officer didn't have to recite them. The defendant consented to give a statement and asked that it be recorded. Prior to the start of the formal statement, which took place from 2:35 p.m. to approximately 3 p.m. on that date, the defendant was allowed to meet with Mary Smith for 10 minutes or so. Following this conference with Mary Smith, he was again given the Miranda warnings and stated he understood them and was willing to talk about the case. He then gave the tape-recorded statement in question, in which he confessed that he committed the armed robbery and shot the victim, although he contended that the shooting was accidental.
At 9 a.m. on Monday, September 4, 1978, the defendant was examined by Dr. Srichai, who treated Dan Smith for heroin withdrawal and found him capable of reading, understanding and signing the tape-recorded statement of the previous day, which subsequently had been transcribed. At the request of the defendant, he was again permitted to confer with Mary Smith. In Mary Smith's presence the sheriff again read the defendant the Miranda warnings and the defendant acknowledged he understood them. The defendant and Mary Smith went over the statement together, and the defendant made some corrections and asked for another statement form on which he added a brief statement in his own handwriting, in which he again implicated himself in the murder and armed robbery. Jerry Brooks, sheriff of Ogle County, testified that the defendant appeared normal but a little nervous and that no threats or promises had been made to the defendant. The defendant was not physically mistreated; nor did he complain at any time to the sheriff that he was being prevented from seeing a doctor.
The defendant testified that he took drugs on the morning of the murder of Clifty Davis and that he had been taking drugs throughout Friday, September 1, 1978, the day of his arrest. He stated that he had been using heroin on a daily basis for more than a year prior to his arrest but did not experience problems understanding what people were saying during the period of his drug abuse; he also believed he understood what the police officers were saying to him during the questioning which occurred on the morning of September 2, 1978. On Saturday morning, September 3, 1978, he asked an officer if he could immediately see a doctor. He also admitted that Officer Messer gave him the Miranda warnings on Sunday afternoon and that he understood them. He further testified that after he talked to Officer Messer for a few minutes on Sunday afternoon he asked Messer if he could see a doctor and that Messer informed him that he could see the doctor after he gave a statement, because the statement would not be any good if he gave it while under medication. Approximately 30 minutes after he had given the tape-recorded statement, he was visited by Dr. Warmolts, at which time he was given some Valium. He admitted that he did not mention to Dr. Warmolts that he had to confess to the instant offense in order to get an opportunity to see the doctor. In addition, he testified that on Monday morning, September 4, 1978, he was examined by Dr. Srichai and given medication as a result. Approximately one hour later, he met with Sheriff Brooks. At this time he was allowed to consult with Mary Smith; he then examined the eight-page typewritten statement he had orally given to Officer Messer the day before, made certain corrections and signed each page of the statement. He then requested a blank statement page, made an additional statement and signed it. The defendant further stated that he freely and voluntarily signed the statements and that nobody twisted his arm to get him to sign them.
We emphasize here that the defendant testified that he received the card containing the cautionary message which attorney Ellerby had given the jailer. Apparently the police forwarded from the attorney to the defendant the cautionary message which had warned Dan Smith not to make any statements unless one of his attorneys was present. Although this message may not have been as effective, influential or forceful as a personal admonition, it is a significant event indicating both that the defendant did receive a warning from his attorney and that the police did not completely prevent the attorney from apprising or impressing upon her client that he should not make a statement in the absence of counsel. Furthermore, the police did grant the defendant's request to speak with Mary Smith before he gave the incriminating statement to Officer Messer on September 3. Given the evidence in this case, no inference or suggestion can be drawn ...