Appeal from the Circuit Court of Cook County; the Hon. Anthony
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant, James Hammock, Jr., was convicted of murder, and he was sentenced to 28 years in prison. We reverse the conviction and remand the case for a new trial because the State violated defendant's fifth amendment right to have counsel present during custodial interrogation, *fn1 and because the second of two videotape reenactments of the homicide was admitted into evidence after the State failed to produce the first videotape.
Defendant admits shooting and killing Anthony Taylor while Taylor was in the back seat of an automobile. According to defendant, at the time of the shooting, he was leaning into the automobile and struggling with Taylor. Defendant claims that during the struggle Taylor threatened to kill him and that Taylor drew a gun and aimed it at him. Defendant also claims that, in fear for his life, he drew his own gun and killed Taylor. After the shooting, defendant fled the scene.
The homicide occurred in Brookfield, Illinois, at about 7 p.m. on Friday, June 23, 1978. Later that evening, defendant was arrested in Chicago on a speeding charge for traveling 60 miles per hour in a 55-mile-per-hour zone. He was asked to take a breathalyzer test, and he refused on the basis that he wanted to see his attorney first. He was then taken, without further interrogation, to a police station in Chicago where he remained locked up for about 12 hours. On Saturday afternoon, he was taken to the county jail, where he remained until Sunday afternoon. At about 5 p.m., three Brookfield police officers appeared at the county jail. One of them advised defendant that he was wanted in connection with the homicide that occurred in Brookfield. The officer gave defendant Miranda warnings, and defendant's response, as reflected by his uncontradicted testimony, was as follows:
"A. I told them that my people will have a lawyer out there. Probably Monday because today is Sunday and I don't think I can reach my lawyer on a Sunday.
Q. At that point. They simply told you the rights, you answered saying that you didn't know if you could get your lawyer because it was on a weekend or Sunday?
A. Sunday afternoon, right.
Q. And but that your family would be producing a lawyer over at the police station, is that correct?
Q. Was anything else said at that point * * *?
The Brookfield police officers then took defendant to the Brookfield police station, where they arrived at about 7 p.m. At the police station, defendant was taken into a conference room and given Miranda warnings again. According to his uncontradicted testimony, defendant responded: "I would really not say anything until I have my lawyer." Thus, within a few hours at most, defendant had been given Miranda warnings at least twice, and on each occasion he asserted his constitutional right to counsel.
At that stage, an assistant State's Attorney, the supervisor in charge of felony review, arrived at the police station. According to his testimony, he ascertained that defendant "had been advised of his rights by the police officers per the Miranda Decision." Then, for no stated reason, he readvised defendant of "the same rights," and he resumed the interrogation of defendant.
The record indisputably manifests that the resumption of defendant's interrogation was not in any way initiated by defendant. It was plainly not at defendant's suggestion or request. According to the testimony of the assistant State's Attorney at the suppression hearing, here is what happened:
"Q. After giving the defendant his Miranda Rights and determining that he had been given those rights by the police officers what was the next ...