Appeal from the Circuit Court of Cook County; the Hon. Richard
J. Petrarca, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendants James Curtis and Andrew Ryder were found guilty of armed robbery in a bench trial. We reverse the convictions and remand for a new trial because of the violation of defendants' sixth amendment right to counsel after adversarial judicial proceedings had been initiated against them and because of the exploitation of the results of that constitutional violation at trial.
On July 18, 1979, two men entered a liquor store at about 10 p.m., near closing time. They pretended to be customers and then wielded guns and removed a gun from a part-time security guard, Fred Kennie. They also took money and checks from the store manager, Thomas Buckle, a cashier, Rosalind Harris, and another employee, Gregory Webb. The entire incident lasted from 15 minutes to a half hour. After the robbery, the police were called and Buckle related that the robbers were a white man and a black man. Buckle also gave a general description of the robbers to the police.
Nineteen months later, in early February of 1981, Kennie informed the police that he was a participant in the robbery and that his accomplices were defendants Ryder and Curtis. On February 10, 1981, two arrays of five photographs were shown to Buckle. One array included a photograph of Ryder, and the other array included a photograph of Curtis. According to the testimony of a police officer, Buckle made a tentative identification of Ryder from the first array. The same police officer testified, however, that Buckle was not sure and that, in effect, he wanted to see the man in the photograph in person before he made a positive identification. After looking at the second array of five photographs Buckle said, "this one here resembled" Curtis.
On February 11, 1981, an array of five photographs, which included a photograph of Ryder, was shown to Harris. She stated that the photograph of Ryder "looked like the guy" she saw in the store. After being shown another array of five photographs, which included a photograph of Curtis, she stated, "I thought this was the picture of the black guy."
On February 17, 1981, felony complaints were prepared and submitted before a judge of the circuit court, naming Ryder and Curtis as defendants. The complaints charged defendants with armed robbery. After conducting a hearing, the judge determined that there was probable cause for filing the complaints. He gave the assistant State's Attorney leave to file the complaints, and he issued arrest warrants.
At about 5 p.m. on the same day, Ryder was arrested pursuant to the warrant and taken to the area police station. He requested an attorney and declined to give a statement until he talked to his attorney. He telephoned his attorney, and he was told not to give any statements. Also, Ryder's attorney testified that he told a police officer on the telephone that he was in the process of working on another matter, but that he would appear at the police station and represent Ryder and he would attend a proposed lineup involving Ryder. About an hour and 15 minutes later, around 8:30 p.m., before the attorney arrived at the police station and without a waiver from Ryder, a lineup which included Ryder was conducted at the police station. Ryder's attorney appeared at the police station at 11 p.m., but the lineup had already taken place.
At the lineup, Buckle identified Ryder as one of the robbers. Ryder was the only person in the lineup who was in the array of five photographs that had been shown to Buckle seven days earlier on February 10, 1981.
Curtis was also arrested on February 17, 1981. After his arrest, he was taken to the same area police station but he did not arrive there until about 6:45 p.m. At the police station, when he was read his Miranda warnings and asked if he wanted to give a statement, he said: "I told them no, until I see my attorney." When he was asked if he wanted to call an attorney, he said: "I told them I had three attorneys and I didn't know which one to call at that time of night, whether they'd be in the office or not." Later, he attempted to call two of the lawyers but he was not able to reach them because no one answered the phone calls. About one-half hour to one hour later, Curtis was taken to a room where he was told, "[Y]ou're going to have to be in a lineup and * * * to stand where I wanted to." Curtis did not voluntarily participate in the lineup. He was told he "had to stand the lineup."
At the lineup, Buckle told the police that Curtis "resembled the man." At no time did Curtis tell anyone that he did not want an attorney or that he waived his right to an attorney. An assistant State's Attorney was present during the lineup involving Curtis, as well as during the lineup involving Ryder.
The police officer who arrested Curtis testified that after he read Curtis the Miranda warnings in an interview room at the police station, the following occurred:
"A. I told him there is going to be a lineup in about an hour or two and that there'd be several people viewing the lineup and he had the right to contact an attorney.
Q. What did he say to that?
A. He stated he had three attorneys and didn't know which one he wanted to call, and I offered him the phone to call all three if he wished.
Q. What did he say to that?
A. He stated he wanted to wait and see what happened. Meaning, I assume, he meant after the lineup. I don't know.
Q. Okay. So did he make any calls at that time?
A. He did make some phone calls.
Q. Did he tell you anything after that?
Q. Okay. By the way, did he indicate whether he wanted to give any statement when you advised ...