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People v. Leverston

OPINION FILED MARCH 29, 1985.

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

v.

LARRY LEVERSTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. R. Eugene Pincham, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of murder, rape, and indecent liberties with a child. The trial court vacated the rape conviction and sentenced defendant to concurrent terms of 50 and 25 years, respectively, on the remaining two convictions. On appeal, he contends that (1) his post-arrest statements should have been suppressed because they were obtained in violation of his sixth amendment right to counsel; (2) he was denied a fair trial by (a) admission of testimony which disclosed, by implication, the substance of privileged communications between him and his attorney, (b) the introduction of highly prejudicial hearsay evidence, and (c) improper prosecutorial remarks in closing argument; and (4) the imposition of extended sentences for both offenses is impermissible.

The charges arose from the strangulation death of 14-year-old Dara Renee Duncan (Duncan) on July 25, 1982. At a pretrial hearing on defendant's motion to suppress certain statements he made, it was stipulated that, pursuant to a warrant issued in Cook County in late July 1982, he was arrested in Beloit, Wisconsin, on August 4, 1982, and that he was represented by local counsel at a hearing in Beloit the following day, at which he voluntarily waived extradition to Chicago.

Officers Duffin and Ptak, Chicago police detectives, testified essentially that on August 5, 1982, they took custody of defendant from the Beloit police and while driving back, when they crossed the State line into Illinois, they advised defendant of his Miranda rights, after which he initiated a conversation with them about this case. When they arrived at Area 3 headquarters in Chicago, defendant received Miranda warnings again and thereafter answered questions and agreed to give a written statement to an assistant State's Attorney. At no time did he tell them that he had retained — or wanted to see — an attorney, but at about midnight, Cassandra Watson called, identifying herself as his attorney and directing them to cease all questioning until she arrived. Watson spoke to them before conferring with defendant, but never asked whether he had made any statements prior to her arrival. On cross-examination, both officers stated that they had been to defendant's mother's home in Chicago on a number of occasions prior to his arrest in Beloit and acknowledged that they had not sought Watson's permission to ask defendant to sign the consent-to-search form which was presented to him later that day by other officers.

Assistant State's Attorney Pietrucha testified that he arrived at the police station at about 11:15 p.m., advised defendant of his constitutional rights, and had a brief conversation with him which ended when he (Pietrucha) was informed that defendant's attorney was on her way to the station. Then, after consulting with Watson privately for a few hours, defendant gave both a written and an oral statement in her presence; however, she left at about 5 a.m., before the written version was typed by the court reporter. On cross-examination, Pietrucha stated that he did not advise the officers to present defendant with a consent-to-search form, nor did he instruct them to interrogate him further, although he was notified later that they did.

Detective Boyle testified that later that afternoon, defendant called from police headquarters at 11th and State streets requesting to speak to either Officer Duffin or Ptak regarding a correction he wished to make in his written statement. Since neither officer was available, he (Boyle) drove to the central detention center, where defendant was being held, to speak to him. On cross-examination, Boyle stated that earlier that day Duffin and Ptak had suggested that he attempt to secure defendant's written consent to search his apartment, and that although he knew defendant had retained counsel, he did not call her for permission to talk to him. When he arrived at the men's lockup, he gave defendant the standard Miranda warnings before asking him if he would sign the consent form; but defendant asked permission to call his attorney first, and after speaking to her, he refused to do so. Boyle then spoke to Watson, who told him that she did not want defendant to sign the form or to speak further with the police. Boyle acknowledged that while his report noted that he went to central detention to question defendant further, it did not indicate that defendant had telephoned him prior thereto.

Cassandra Watson, an attorney specializing in criminal defense, substantially corroborated the testimony of Duffin, Ptak, and Pietrucha regarding the telephone call she made to the police station and the events occurring there after her arrival, adding that her actions were prompted by a call she received at about 1 a.m. from a member of defendant's family. On cross-examination, Watson stated that she spoke to defendant's mother the previous morning, and when she arrived at defendant's mother's home she told the two plainclothes officers who were there investigating the case that she was defendant's attorney. She further stated that the officers to whom she spoke at the station did not tell her that defendant had previously made an oral statement to them, nor did they ask her permission or express their intention to question him further or to secure his written consent to search his apartment.

Freddie Mae Leverston, defendant's mother, testified that on the evening of August 4, defendant called her from Wisconsin, told her that he had been arrested and charged with murder, and asked her to contact Watson. Later that morning, Watson called inquiring about defendant, and when she told her that two detectives were there asking questions, Watson advised her not to say anything to them. The trial court denied defendant's motion to suppress, finding that he had been adequately advised of his constitutional rights and had knowingly and voluntarily waived them prior to making any statements.

At trial, Michael Russell testified that as he was walking his dog in the alley near 72nd and Honore streets, at about 11:30 p.m. on July 25, 1982, he discovered the body of a young girl. When Officer Urquoyo arrived at that location, he found the girl lying faceup with her blouse pulled up and her pants unzipped. He saw no blood nor any objects which might have been used as a murder weapon. A deputy medical examiner then testified that the cause of death was strangulation.

Herbert Hicks testified that at about 7 p.m. on the night of the murder, Duncan and another girl — whose name he did not know — approached him as he was sitting on his porch at 68th and Wood streets and asked him to buy them a quart of beer. When he refused, the girls walked across the street and sat down on the porch of a vacant house. A short time later, defendant — whom he knew for about two weeks — came out of his brother's house on the corner and walked toward an old green and white van parked in front thereof. Duncan and her friend approached the van and conversed with defendant for about five minutes. He (Hicks) then went inside, and when he came out about 20 minutes later, the girls, defendant and the van were gone. Hicks identified certain State's exhibits as photographs of the van he saw and stated on cross-examination that it had been parked about 50 feet from his house, but that he did not see anyone get into it nor did he see or hear it being driven away.

Kip Vantrease, a neighborhood resident, testified that on the day in question he saw Duncan and defendant buying beer in the Brown Sugar Liquor Store on 67th and Ashland streets. When they left the store, they walked west on 67th to Wood Street. He knew that defendant had a green and white van, but did not see it on that day.

Karl Lesley, another local resident, testified that when Duncan and defendant came out of the liquor store at about 8:30 p.m., they walked west on 67th Street to Marshfield Avenue and then south to 68th Street, where they entered a green van — which sounded as though it had a bad exhaust system — and drove away. On cross-examination, Lesley stated that the van he saw them enter was solid green, unlike the green and white van pictured in the State's exhibits.

Officer Ptak testified that in the course of their investigation he and Officer Duffin interviewed between 30 and 35 people in the area where Duncan's body was discovered, several of whom said that they last saw her getting into a green and white van with defendant. They found the van — which was registered to defendant's brother Thomas, who told them that he had loaned it to defendant — on 64th and Wood streets, but were unable to locate defendant. On August 4, 1982, they went to the home of Edmund Williams, who voluntarily accompanied them to the police station and told them that defendant was staying in Beloit, Wisconsin. Ptak reiterated his previous testimony regarding defendant's arrest in and transportation from Beloit, and further testified that at first defendant denied any involvement in the crime, stating that he merely bought some beer for Duncan, after which Williams, whom he referred to as his cousin, took her to his (defendant's) apartment. Later, defendant changed his account of the events, stating that he went back to the apartment and saw Williams kill her by standing on a plunger handle he (Williams) had placed across her throat. He also admitted helping Williams remove Duncan's body from the apartment and dispose of it in an alley. When he told defendant that the girl had been raped and that it could be determined through blood tests whether he had sexual relations with her, defendant admitted that he did so after a discussion between her and Williams about a $15 payment; he stated, however, that he never intended to pay her and that he knew he had "made a mistake" because "she was too young." Defendant's subsequent statements in the car and at the police station were essentially the same. Ptak further testified that they contacted Williams only because they learned he was defendant's friend, not because he was ever a suspect. They checked the alibi he gave them as to his whereabouts on the night of the murder and then drove him home. On cross-examination, Ptak stated that they did not speak to Williams until August 4, and acknowledged that they did not know his whereabouts prior to that date and that he told them he had been to Beloit once in the past. They did not advise Williams of his Miranda rights, nor did they fingerprint, photograph, or take nail clippings or a blood sample from him, and they informed the assistant State's Attorney who questioned Williams at the grand jury hearing that he was not under suspicion for this crime.

Edmund Williams testified that he has known defendant all of his life and occasionally spent the night at defendant's apartment although he did not live there. In the afternoon of the murder, he, defendant, Tom (defendant's brother) and Tom's wife were sitting on Tom's porch drinking beer when Duncan approached and began talking to defendant. After a few minutes they walked away together, and about two hours later, he (Williams) went home. He did not see defendant again until 9:30 that night, when defendant came to his house and asked him to go with him to Tom's house. As they were walking through the park, defendant told him that he had sex with a girl at his apartment and then strangled her until she "passed out." She regained consciousness, however, so he strangled her again, and after she revived a second time he placed the wooden handle of a plunger across her neck and stood on it for about an hour. Defendant also told him that the girl was only 14 years old and that he killed her because she tried to steal his stereo. When he left Tom's house at about 11:30 p.m., defendant was still there, as was Tom's van which, though "broken and noisy," was still driveable. About two weeks later, Officers Duffin and Ptak came to his house to speak to him, but because of the lack of privacy there, he agreed to accompany them to the police station where, over a period of about two hours, he answered questions, furnished them with fingernail samples, and was photographed; Officer Ptak was not present for the latter two procedures. He was not fingerprinted, however, nor did the police give him the Miranda warnings. After the interview, the officers drove him home and returned in the morning to drive him to court for his appearance at the grand jury hearing, before which he was advised of his constitutional rights by an assistant State's Attorney. He admitted to a conviction for misdemeanor theft, but denied any involvement in this crime, stating that he was at home with his family between 7 and 9 p.m. and then at Tom's house with Tom and defendant between 9:30 and 11:45 on the night of the murder.

On cross-examination, Williams at first could not remember having spoken to three assistant public defenders about this case in January 1983, but then recalled the meeting and acknowledged telling them that the police intended to arrest him. He denied traveling to Beloit with defendant and his uncle after the murder, stating that he had never been in Beloit and knew where defendant was staying only because he overheard a conversation between defendant and his step-mother concerning an address in that city. Although defendant never threatened him not to tell what he knew, he was "a little afraid" of him.

Officer Duffin testified, over defense counsel's objection on grounds of hearsay and repetition, to substantially the same events as did Ptak regarding their investigation of this case. He also testified that after reading defendant's written statement, they talked to Williams' relatives "to verify his account of where he was relative to the allegations made against him by [defendant]" and that it (Williams' alibi) "checked out." On cross-examination, Duffin stated that he did not recall Williams telling them that he was at Tom's house on the night of the murder, and acknowledged that Williams was photographed and fingerprinted and that fingernail clippings had been taken to check for skin fragments, but stated that these procedures were not performed because he was a suspect and that nail samples were also taken from Duncan's boyfriend. Duffin also conceded that his report did not indicate that defendant had changed his account of events during the return trip from Beloit and that it was typed from his memory the following day.

Cassandra Watson testified that she withdrew as defendant's attorney the first time this case came up on the trial call, for personal reasons which had nothing to do with the fact that he was charged with murder.

Assistant State's Attorney Pietrucha was recalled at trial to read defendant's written statement in which he acknowledged that he had been advised of his constitutional rights and that, after speaking to his attorney, had signed a written waiver thereof. Defendant then stated that on the day in question, he and Williams were sitting on Tom's porch drinking beer when a girl — with whom he had engaged in sex on two prior occasions after she told him she was 17 years old, but whose name he could not recall — approached and asked for some beer. He identified a photograph of Duncan as the girl to whom he was referring, and stated that since they only had a small amount of beer left, he offered to buy more if she would agree to drink it with them. He and Duncan went to a liquor store near 66th and Ashland streets while Williams — who had the keys to his apartment because he had been staying with him for a few weeks — went there to straighten up and light some incense. They arrived at the apartment at about 3 p.m. and sat together in the living room for about one-half hour drinking beer and listening to the radio, but when Williams left the room with a magazine, Duncan began kissing him and thereafter agreed to have sex with him on the couch. When Williams returned and realized what had occurred, he asked her — and she agreed — to have sex with him in the bedroom. About 15 minutes later, he heard bumping noises and heard Duncan ask, "Why are you doing this to me?" Shortly thereafter, Williams emerged from the bedroom, took a telephone cord from the kitchen drawer, and told him that "he would get some." He (defendant) laughed, believing that Williams was "playing" with her, but when he heard more noise, he went into the bedroom and saw Duncan lying on the floor with her hands and feet tied behind her back and the telephone cord wrapped around her neck. Williams told him not to worry, repeating that he "would get his." A little later, he heard gurgling noises, and upon entering the bedroom to investigate, he saw Williams standing on a plunger handle placed across Duncan's throat and foam — which he thought was beer — coming out of her mouth. He told Williams to untie her and let her go, but when Williams ordered him out of the room, he left, warning Williams, "Don't get no case in my house." Williams then came out and told him that he thought the girl was dead, but when they discovered a heartbeat, Williams untied her, dragged her to the bathroom, and put her in the tub. It was shortly after 6 p.m. when they checked her again and, hearing no heartbeat, he told Williams to get her out of the apartment, but Williams said he could not do so until after dark. He (defendant) then left for about 15 minutes, after which he returned to the apartment and hollered for Williams from outside the window. Receiving no answer, he walked across the park — about nine blocks — to Williams' house where he found him playing cards with his sister. They returned to the apartment twice more that evening, at about 7 p.m. and then again sometime after 8 o'clock, but he did not go inside on either occasion. The first time Williams came out with a bag containing beer cans, the telephone cord, and a pair of shoes, all of which he threw away as they walked to Tom's house. The second time, Williams came down the back stairs with Duncan's body in an Army sack which he pushed under the back porch. He (defendant) then borrowed his stepfather's car, into which Williams loaded Duncan's body and then drove away. About 10 minutes later, Williams picked him up on a corner and they both returned to Tom's house.

After reading the statement, Pietrucha testified — over objection — that the attorney-client privilege prevents an attorney from revealing what was said to him or her by a client, and the court explained that the purpose of this testimony was to clarify that Watson's appearance as a witness for the State did not mean that she was cooperating with the prosecution.

Gad Fields, defendant's uncle, testified for the defense that the day after the murder, defendant suggested that they drive up to Beloit to fish and visit his (defendant's) half-sister, explaining that he wanted to leave town because he was having some trouble with a gang. At about 10 o'clock that night, he, defendant, Williams, his niece, and two friends drove up to Beloit in his car. Cheron Robinson corroborated Field's testimony, adding that the sister in Beloit was her full sister but only a half-sister to Tom and defendant. Defendant's mother also testified that she was divorced from defendant's father for many years and did not know his second family.

Thomas Leverston testified that Williams was at his house at about 9 o'clock in the morning and then again between 2 and 4 p.m. on the day of the murder, but did not return thereafter. He (Thomas) owned a green and white van which he sometimes allowed defendant to drive, but on that day it was very noisy and hardly driveable. He knew that his and defendant's father had remarried after the divorce from their mother, but did not maintain contact with that side of the family and knew of no sister who lived in Beloit.

Alfred Ivy testified that sometime in late July or early August 1982, he and Tom went to Williams' house to talk to him about the murder. When he asked Williams if he knew where defendant was staying, Williams said, "They ain't gonna find him." He told Williams that "it would help him a lot more if he would show up," to which Williams replied, "Cuz [referring to defendant] didn't do it. Before I let Cuz take the fall, I will do the time. What's 20 or 30 years." On cross-examination, Ivy stated that he was not a friend of defendant and knew him only through Tom.

OPINION

• 1 We first consider defendant's contention that his post-arrest statements should have been suppressed because they were obtained in violation of his sixth amendment right to counsel. Although he does not deny receiving Miranda warnings prior to making the first statement during the drive back to Chicago from Beloit, he argues, essentially, that since adversarial judicial proceedings had been initiated against him by the filing of the complaint on the approval of the assistant State's Attorney, his sixth amendment right to counsel had already attached and that the mere recitation of Miranda warnings in the car was not sufficient to form the basis for a valid waiver thereof absent evidence that he was informed that charges had been filed and an indictment was being sought against him, that he understood the significance thereof, and that he nevertheless intentionally relinquished his right to counsel. He further argues that the second and third statements were also inadmissible because they were tainted by the illegal procurement of the first. In response, the State argues that at the time of the first statement, defendant's sixth amendment rights had not yet attached and, alternatively, that even assuming arguendo they had, defendant knowingly and voluntarily waived them.

Initially, we note, and the parties agree, that the sixth amendment right to counsel (U.S. Const., amend. VI) differs from the right guaranteed by the fifth amendment to have counsel present during custodial interrogation (U.S. Const., amend. V) in that the former is not activated until adversarial judicial proceedings, which are described as "formal charge, preliminary hearing, indictment, information or arraignment" have been commenced. Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82; People v. Martin (1984), 102 Ill.2d 412, 466 N.E.2d 228, cert. denied (1984), 469 U.S. 935, 83 L.Ed.2d 270, 105 S.Ct. 334.

The parties also acknowledge that the United States Supreme Court has not resolved the question of whether sixth amendment rights automatically attach upon the filing of a criminal complaint (see Edwards v. Arizona (1981), 451 U.S. 477, 480 n. 7, 68 L.Ed.2d 378, 383 n. 7, 101 S.Ct. 1880, 1883 n. 7), and although the Illinois Supreme Court noted, in People v. Owens (1984), 102 Ill.2d 88, 464 N.E.2d 261, that "there is respectable authority that whether adversarial proceedings commence with the filing of a complaint depends on the degree of prosecutorial involvement" (102 Ill.2d 88, 101, 464 N.E.2d 261, 266), it too declined to conclusively resolve the issue in that case. However, the Owens court did provide considerable guidance on the issue of waiver of the sixth amendment right to counsel, and since the parties both cite Owens as support for their respective positions, we believe that a review of that case is necessary here.

Subsequent to his arrest in Kankakee on a warrant issued by the Will County Circuit Court, the defendant in Owens was advised of his Miranda rights and transported to a Kankakee police station where, on numerous occasions over a period of two days, officers sought to interrogate him. While he declined to answer their questions, at no time did he request an attorney. On the second day, two Joliet police officers whom defendant knew arrived in Kankakee and, according to their testimony, informed defendant that they had a warrant for his arrest for a murder in Joliet. He denied that they so informed him but admitted that he knew he was being held on a homicide charge. It appears that there were also testimonial conflicts as to whether defendant signed the written waiver of his Miranda rights before or after interrogation, but the trial court ruled that the waiver was signed prior to questioning. In his subsequent statement, defendant first denied any involvement in the murder. However, after being told by the police that they possessed a tape recording in which he admitted beating and robbing the murder victim and, according to defendant, after the officers also informed him that the victim had died from a heart attack rather than from the beating, he orally confessed to the attack and thereafter twice repeated his confession — once in writing and once on tape. On direct appeal to the supreme court, defendant did not ...


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