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People v. Visnack

OPINION FILED MAY 21, 1985.

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

v.

DANIEL VISNACK ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Richard Samuels, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 20, 1985.

Defendant Daniel Visnack was convicted of murdering his wife, Sharon. He was also convicted of soliciting the murder and of conspiracy to commit the murder. He was sentenced to natural life imprisonment. He appeals his conviction and sentence. Defendants Randall Weidner and James Kubick were convicted of rape, conspiracy to commit murder and murder. Defendant Weidner was sentenced to concurrent prison terms of 80 years for murder and 60 years for rape. Defendant Kubick was sentenced to consecutive prison terms of 40 years for murder and 30 years for rape. All three defendants were tried jointly before a jury.

On the morning of August 7, 1979, Sharon Visnack's body was found in the Calumet City apartment she shared with her husband, defendant herein, Daniel Visnack. It was subsequently determined that she had been raped and had died of asphyxiation, the result of having two plastic garbage bags fastened around her head with duct tape. The State sought to prove that defendant Daniel Visnack had hired Weidner and Kubick to rape and kill his wife. All three defendants confessed to their parts in the murder. Visnack and Weidner moved to suppress their confessions, and their motions were denied after hearings before the trial court. At trial, all three defendants denied involvement with the crime.

Defendant Visnack contended that his confession had been coerced and that his waiver of his Miranda rights was ineffective because he had not been informed that his attorney wished to confer with him at the time he confessed. Defendant Weidner contended that his confession had been coerced. The trial court denied defendants' motions to suppress.

Much of the testimony at defendant Visnack's suppression hearing was devoted to determining the time at which defendant had given his statement to the police and whether defendant's attorney had been waiting at the police station to see him during this time. However, examination of this question was limited by the court because defendant Visnack's motion to suppress contained no allegation that his attorney had been denied access to him during his interrogation. The testimony established that defendant was taken to the police station for questioning at approximately 12 p.m. on August 10, 1979. Defendant was given his Miranda rights and was questioned.

Officer Kelly Matthews testified that when defendant was told that the police had obtained information which indicated that he had solicited the murder of his wife, and that two persons had been arrested in connection with the murder, defendant began to cry and stated that his wife deserved what she got because she was unfaithful. These statements were not recorded or transcribed. A thirty-minute conversation followed, whereupon the State's Attorney's office was contacted. Three assistant State's Attorneys, Timothy McMahon, Michael Madden and Cliff Johnson, arrived at the station about an hour later. Defendant was again advised of his Miranda rights and gave a statement confessing to the crime. This statement was taperecorded. Defendant completed his confession at approximately 2:45 p.m.

Defendant Visnack's motion to suppress his statements contained numerous allegations of threats and coercion by the police during his interrogation. Officer Matthews denied these allegations. Matthews also testified that defendant did not ask to see a lawyer, although Matthews knew that defendant was represented by attorney William Freeman. Matthews went on to testify that he saw defendant's father and brother in the police station foyer between 12:30 and 1 p.m. This testimony was corroborated by that of Officer Ronald Dorsey, Matthews' partner in the investigation, who had been excluded from the courtroom during Matthews' testimony. Dorsey did not remember seeing defendant's father and brother at the station, but saw attorney Freeman after defendant had confessed.

Assistant State's Attorney Michael Madden testified that he arrived at the police station at approximately 1:30 p.m., and that he did not hear defendant being threatened or coerced by the police. He also testified that defendant did not request an attorney and that defendant was not asked if he had retained counsel. Madden believed the taped confession began between 2 and 2:15 p.m. He stated that he saw Freeman in the waiting area of the police station after defendant's confession had been given, and that the confession ended at 2:45 p.m. Assistant State's Attorney McMahon's testimony concerning defendant's confession conformed to that of Madden.

Defendant's father testified that he went to the police station after defendant had been taken there and called Freeman to obtain Freeman's representation for defendant. Defendant's father did not reach Freeman, but left a message on Freeman's answering machine. Defendant's father's testimony as to what time he called Freeman was uncertain. He stated at various points in his testimony that he first called Freeman at 12:05, 2 and 4 p.m.

Defense attorney Freeman testified that he had received defendant's father's call sometime after 1 p.m. and that he thought he had arrived at the police station at approximately 1:30. He stated that he requested a conference with defendant, but was kept waiting until shortly before 3, when he was told that defendant had confessed.

The trial court found that Freeman had arrived at the station "at or about — well, certainly after 2:00 o'clock," and that by 2:45 p.m., defendant had "spilled his guts," and denied defendant's motion to suppress. The court also denied defendant Weidner's motion to suppress. On appeal, defendant Visnack contends that the waiver of his Miranda rights was not made knowingly and intelligently because he had not been informed that his attorney had requested consultation with him. Defendant Weidner contends that his confession was involuntary because it had been obtained as the result of threats and coercion by the police. Several additional issues are raised concerning the proceedings at trial.

• 1 Defendant Visnack first contends that the trial court erred in denying his motion to suppress his confession on the ground that he had not been informed that his attorney was in the police station demanding to see him. However, defendant failed to raise this argument in his motion to suppress, and in his post-trial motion. Defendant's motions relating to his confession contained only general allegations that the confession was involuntary and had been obtained in violation of defendant's Miranda rights. The motions do not mention defendant's claim that he was not informed that his lawyer wanted to speak with him.

"Issues, including constitutional issues, not raised in the trial court are generally considered waived on appeal and cannot be urged as grounds for reversal on review." (People v. McGrew (1984), 128 Ill. App.3d 464, 469, 470 N.E.2d 1157.) The Code of Criminal Procedure of 1963 requires a written motion for a new trial specifying the grounds therefore. (Ill. Rev. Stat. 1979, ch. 38, par. 116-1.) Failure to raise with specificity the issues posed on appeal denies the trial court the opportunity to correct alleged errors and to give the reviewing court the benefit of the trial court's judgment. (People v. Irwin (1965), 32 Ill.2d 441, 443-44, 207 N.E.2d 76.) Because defendant failed to address the particular issue now presented for appellate review, this issue had been waived.

We will, however, consider this issue as one affecting substantial rights under Supreme Court Rule 615(a). 87 Ill.2d R. 615(a); People v. Foster (1979), 76 Ill.2d 365, 380, 392 N.E.2d 6.

In the instant case, it is undisputed that defendant was informed of his Miranda right to consult with an attorney and that he waived this right. It is also undisputed that defendant was never informed by his interrogators that his lawyer was present and seeking the opportunity to consult with him.

If defendant's attorney had in fact been at the police station asking to speak with defendant, and if the police had not informed defendant of this fact, any statements obtained from defendant after the police themselves knew of counsel's efforts to reach defendant could not be rendered admissible on the theory that defendant had knowingly and intelligently waived his right to consult with counsel. (People v. Smith (1982), 93 Ill.2d 179, 187, 189, 442 N.E.2d 1325, cert. denied (1983), 461 U.S. 937, 77 L.Ed.2d 312, 103 S.Ct. 2107.) The resolution of this issue therefore involves the question of whether defendant's attorney was in fact present at the police station and asking to speak with defendant prior to defendant's confession, because any statement obtained from defendant once the police learned of counsel's presence is inadmissible. 83 Ill.2d 179, 187.

The trial court in the instant case heard the testimony of several witnesses in its attempt to determine the time at which defendant's counsel appeared at the police station. The testimony of the police officers and assistant State's Attorneys established that the assistant State's Attorneys had arrived at the station between 1:30 and 1:45 and had not seen defendant's attorney, and that defendant's confession was recorded over a half-hour period between 2:15 and 2:45. ...


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