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People v. La Fiura

OPINION FILED MARCH 3, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LEONARD LA FIURA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR CIESLIK, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 31, 1981.

Defendant, Leonard La Fiura, was indicted for the offenses of armed robbery and aggravated battery. (Ill. Rev. Stat. 1975, ch. 38, pars. 18-2, 12-4.) After his first trial was declared a mistrial, defendant was retried and found by a jury to be guilty of armed robbery. The trial court sentenced defendant to a 20-year term. On appeal defendant asks this court to consider (1) whether the trial court erred in permitting testimony regarding a post-indictment admission by defendant made in the absence of his attorney, (2) whether that admission is inadmissible because it arose during plea negotiations, (3) whether the court's refusal to permit certain character witnesses to testify was error, and (4) whether defendant's sentence is excessive.

On January 17, 1976, at approximately 4 a.m., Frank Retzler was working alone at a gas station. According to testimony at trial, defendant entered the business office, pulled a switchblade knife from his clothing, and told Retzler that defendant intended to rob him. Retzler resisted and defendant cut Retzler's hand. Defendant then threatened Retzler, forced him into another room, and completed the theft of cash receipts and Retzler's wallet.

Police Officer Thomas Cronin testified that he arrested defendant on March 30, 1976, and charged him with the offenses arising out of the robbery. Cronin further testified that on April 7, he and a partner were assigned to a surveillance detail at a 24-hour convenience store in anticipation of a robbery unconnected with this case. At about 10 p.m., defendant, who was free on bond, entered the store. Cronin greeted defendant. After defendant selected items for purchase, he engaged in conversation with Cronin. According to Cronin, defendant initiated this conversation by asking why the officer took his job so personally. Defendant then asked Cronin why he bothered defendant's parents when defendant's whereabouts were unknown to police. After Cronin responded, defendant asked the officer why the police charged him with aggravated battery. Cronin told defendant he had cut the victim's hand. Finally, defendant stated he "would plead guilty to the robbery but not the aggravated battery because he had never had any violence on his record." Defendant then paid for his purchases and left the store.

Defendant testified at trial that he did not make the statements attributed to him by Cronin. He also denied the commission of the offenses charged.

I.

Defendant initially contends the statement attributed to him should have been suppressed pursuant to his motion because Massiah v. United States (1964), 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199, held such testimony was violative of the constitutional guarantee to effective assistance of counsel. The defendant in Massiah had been indicted for violation of Federal drug laws when Federal agents, working with a co-defendant, acquired defendant's admissions of guilt through the use of electronic devices. A recording of those admissions was introduced at trial. Defendant's conviction was reversed by the Supreme Court which concluded his constitutional rights were violated when evidence of his admissions was "deliberately elicited from him after he had been indicted and in the absence of his counsel." (377 U.S. 201, 206, 12 L.Ed.2d 246, 249, 84 S.Ct. 1199, 1201.) The instant record, however, is without evidence of deliberate elicitation.

The evidence here discloses a spontaneous and voluntary communication initiated by defendant. Cronin and his partner were assigned to the store for purposes independent of defendant's case. Defendant does not allege coercion or trickery. According to Cronin, defendant initiated the exchange. Defendant, although previously indicted, was free to make his purchases and leave the store at any time. Defendant's inculpatory statement was made in the absence of counsel, but absent deliberate elicitation that statement is admissible. (People v. Georgev (1967), 38 Ill.2d 165, 176-77, 230 N.E.2d 851, cert. denied (1968), 390 U.S. 998, 20 L.Ed.2d 97, 88 S.Ct. 1202; People v. Gomez (1980), 80 Ill. App.3d 708, 714, 399 N.E.2d 1368, appeal denied (1980), 81 Ill.2d 585; but cf. People v. Halstrom (1966), 34 Ill.2d 20, 22, 213 N.E.2d 498 (statement inadmissible where defendant incarcerated at time of utterance); People v. Lagardo (1968), 39 Ill.2d 614, 616, 237 N.E.2d 484 (inadmissible where defendant questioned by three police officers while incarcerated).) *fn1 Accordingly, the trial court's admission of defendant's statement into evidence was not violative of defendant's right to counsel.

II.

• 1 Defendant next contends his inculpatory statement is inadmissible because it was uttered during plea negotiations. Supreme Court Rule 402(f) provides:

"If a plea discussion does not result in a plea of guilty, * * * neither the plea discussion nor any resulting * * * plea, * * * shall be admissible against the defendant * * *." (58 Ill.2d R. 402(f).)

Thus, the threshold question is whether defendant's statement was made in the course of or related to a plea discussion.

The Illinois Supreme Court addressed this question in People v. Friedman (1980), 79 Ill.2d 341, 403 N.E.2d 229, where the court adopted a two-prong analysis. A statement is plea related and thus inadmissible if the accused exhibited a subjective expectation to negotiate a plea and that expectation was reasonable under the totality of the objective circumstances. (79 Ill.2d 341, 351.) Furthermore, "[w]here a defendant's subjective expectations are not explicit, the objective circumstances surrounding ...


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