The opinion of the court was delivered by: William T. Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Gary Paul Karr ("Karr") filed for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, seeking to
challenge his February 9, 1976 conviction for rape and
aggravated kidnap. Karr, sentenced to 30 to 50 years for those
offenses, claims that: (1) his confession was involuntary and
was taken in violation of his constitutional right against
self-incrimination and to an attorney; (2) his counsel
inadequately represented him at trial and on appeal; (3) the
evidence was insufficient to sustain his conviction; and (4) he
was denied his constitutional right to a speedy trial.
Respondent, Dennis Wolff, Warden of the Joliet Correctional
Center, has moved for summary judgment, pursuant to Fed.R.
Civ.P. 56. The State concedes that Karr has exhausted his
state remedies, as he is required to do before he seeks a writ
in federal court. See, e.g., Duckworth v. Serrano, 454 U.S. 1,
102 S.Ct. 18, 70 L.Ed.2d 1 (1981).
As explained more fully below, Karr's petition for habeas
corpus relief is granted since he was interrogated outside the
presence of an attorney although he had twice asked for legal
counsel. Summary judgment is granted in favor of Karr on his
claim of unconstitutional confession. Respondent's motion for
summary judgment is denied.
Karr was arrested in the afternoon of October 17, 1974, in
McHenry County, Illinois, for an offense committed in that
county. Early that evening, he was taken to see the McHenry
County State's Attorney, but Karr refused to speak to him.
Karr stated that he wanted the advice of counsel before saying
anything. Karr then was taken to "Rights Court," where a
Circuit Court judge advised him of his constitutional rights.
Karr reasserted his right to counsel in open court.*fn1 He
then was returned to his cell.
Meanwhile, authorities in Lake County, Illinois learned that
the McHenry County police were holding Karr, whose alleged
modus operandi was similar to that used in an offense under
investigation in Lake County. Officers George Highland
("Highland") and Ernest Castelli ("Castelli") of the Highland
Park Police Department, Lake County, Illinois, drove to the
McHenry County Jail in order to speak to Karr about the Lake
County crime. At approximately 10:00 p.m. on the same evening,
October 17, 1974, Karr was told by Officer Larry Macheroux
("Macheroux"), of McHenry County, that officers from Highland
Park wished to speak with him concerning a Highland Park
crime. Macheroux told Karr that it was up to Karr to decide
whether he would talk to them. Karr agreed to see them.
The next morning, October 18, 1974, Castelli called the
McHenry County Jail and asked Officer Tyrrell ("Tyrrell") to
inquire of Karr what had happened to the car used in the
commission of the Lake County crime. Tyrrell advised Karr of
his Miranda rights and inquired. At a subsequent suppression
hearing, Tyrrell testified that Karr then waived his rights and
described the car's whereabouts. In fact, the car was found in
the location specified by Karr.
Karr was charged in Lake County with rape and
abduction.*fn2 He subsequently denied that he had confessed
to Highland and Tyrrell. In the alternative, Karr argued that
any statements he made must be suppressed since his
constitutional rights to an attorney and to remain silent had
been violated. Ruling on a motion to suppress the alleged
confessions, the Lake County trial court found that Karr had
asserted his right to counsel concerning the McHenry County
offenses. The court noted that had Karr confessed to crimes in
McHenry County subsequent to his assertion of that right, the
statements could be suppressed. However, the court ruled that
the disputed confessions were not taken in violation of Karr's
constitutional right to counsel since the confessions involved
a crime in Lake County, for which Karr had not asserted his
right to counsel. Judge Foran stated:
when the Highland Park police went in there, they
had to give [Karr] his rights, because he had not
yet waived any rights that he might have had
under Miranda with respect to the Lake County
offenses, that they wanted to talk to him
about. . . . I think the record shows they
did. . . . I rely on the attitude of the courts
that it is not improper to question him about other
crimes, even though he has once asserted his right
to remain silent and his rights under the 5th
Amendment, as well as the right to effective
counsel with other crimes.
The trial court relied for its decision to deny the motion
to suppress Karr's confessions on Michigan v. Mosley,
423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and People v. White,
61 Ill.2d 288, 335 N.E.2d 457 (1975), cert. denied,
424 U.S. 970, 96 S.Ct. 1469, 47 L.Ed.2d 738 (1976).*fn3 The Illinois
Appellate Court affirmed, also relying on Mosley and White.
People v. Karr, 68 Ill. App.3d 1040, 25 Ill.Dec. 453,
386 N.E.2d 927 (2d Dist. 1979). The Illinois Supreme Court denied
Karr's petition for leave to appeal. In light, however, of two
subsequent decisions, Edwards v. Arizona, 451 U.S. 477, 101
S.Ct. 1880, 68 L.Ed.2d 378 (1981) and White v. Finkbeiner,
687 F.2d 885 (7th Cir. 1982) (White III), neither of which was
brought to the Court's attention by the parties, this Court
concludes that Karr's confession was
obtained in violation of his Fifth Amendment right to counsel.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), is the starting point for a review of possible
violations of Karr's Fifth Amendment right to counsel during
his interview with the Highland Park police. In Miranda, the
Supreme Court ruled that when a suspect requests an attorney
during custodial interrogation, "the interrogation must cease
until an attorney is present." 384 U.S. at 474, 86 S.Ct. at
1627. Thus, the Lake County trial court was correct when it
said that had Karr been questioned about the McHenry County
offense after asserting his right to counsel, any confession
would be inadmissible. Karr, however, was questioned about a
Lake County crime, unrelated to the one committed in McHenry
County. This Court must decide whether Karr's Fifth Amendment
right to counsel was violated when he was ...