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04/22/87 the People of the State of v. Denise Behm

April 22, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DENISE BEHM, A/K/A DENISE ABUDU, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1274, 154 Ill. App. 3d 987, 107 Ill. Dec. 905 1987.IL.531

Appeal from the Circuit Court of Jackson County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

The defendant, Denise Behm, also known as Denise Abudu, was found guilty of forgery following a bench trial in Jackson County. She had written a check to Resort Air on the account of Ann Langlianis in the amount of $396 in exchange for airline tickets. She was sentenced to 24 months of probation and ordered to pay restitution to Resort Air in the amount of $396 and a fine of $25 to the Violent Crime Victims Assistance Fund. She appeals raising two issues: (1) whether the trial court erred by ordering her to pay restitution in that amount to Resort Air "where no evidence was presented to show that Resort Air had suffered a loss resulting from defendant's conduct" and (2) whether the trial court erred by ordering her to pay a fine of $25 to the Violent Crime Victims Assistance Fund because she was not convicted of a violent crime. In a supplemental brief she raises the further issue, which we address first, of whether the trial court erred by denying her motion to suppress her confession because she did not knowingly and intelligently waive her right to have counsel present when she confessed.

At the hearing on her motion to suppress the State called as a witness Randy Corey, a detective with the Carbondale police department, who testified that on December 5 and 6, 1984, he was investigating a series of forgeries or deceptive practices involving a checking account in the name of Ann Langlianis and that on December 5, 1984, he had received a telephone call from Tokunbo Abudu, who, he testified, was "involved partially in the writing of some of these checks" and is the husband of the defendant. The witness said, "Abudu stated that his wife, Denise, wanted to speak to me about all of these checks involved on the Ann Langlianis' account and she said it was their desire to pay all of those that they had been personally involved in and to make an admission about the writing of the checks to get it all behind them so that they didn't have to worry about it any more." The witness stated, "I advised that the earliest that I could see her would be the following day in the evening, which would have been the 6th of December. He wanted to go up to the Randolph County jail at that time and I told him that I would be happy to go up there and make an interview." The defendant was incarcerated in the Randolph County jail because she had been arrested on a Perry County warrant and Perry County had no facilities for women. At the time in question there was no active warrant for the defendant in the instant case, which was in the investigatory phase. The witness indicated that he had interviewed Mr. Abudu on three prior occasions and had "asked Mr Abudu to assure me that she, in fact, really did want to make a statement because Chester is an hour away and if she did not wish to make a statement then I did not wish to go up there and I told him to make sure if that was the case and then on the 6th if that still was her position that we would go up there." On December 6, 1984, Tokunbo Abudu came to the Carbondale police station. Asked whether on December 6 Mr. Abudu had indicated to him that Thomas Mansfield had been appointed to represent the defendant, the witness answered, "I think on the ride up to Chester he had mentioned and I believe he did say that Mansfield had been appointed in Perry County for the charges in Perry County." Asked, "Did he at any point in time from your initial contact of December 5th through the time that you talked to Denise Behm Abudu indicate to you that Tom Mansfield did not want you to talk to his wife?" the witness responded, "I don't recall him saying anything like that, no." Asked, "During the entire ride was there any conversation alone [ sic ] these lines as far as Tom Mansfield being appointed and not talking to the wife?" the witness answered, "Well, like I said it was mentioned that Mr. Mansfield had been appointed to represent her in Perry County for those charges in Perry County. I don't recall him every [ sic ] saying anything about Mr. Mansfield not wanting her to speak to me though." Asked whether, when the two arrived at the Randolph County jail, he had prevented Tokunbo Abudu from visiting with the defendant, he said that he had not, stating further:

"Well, in fact, I asked the jailer in Randolph County if it was visiting hours and he said that it was not visiting hours. I said would it be possible -- Mr. Abudu asked me if he could see his wife and I said it was up to the jailer and I asked the jailer if he could speak to his wife after the interview and he said if it was okay with me that it was okay with him so subsequent to the interview they did visit for a while."

Asked, "So on December 6th there was no indication from Tokunbo Abudu that you were not to have any conversation with his wife?" the witness responded, "Certainly I wouldn't have driven to Chester if I was not to have a conversation with her. That was the entire point of the trip. They wanted me to speak to her Mr. Abudu and his wife."

The witness testified that at the jail he "advised her of her rights under the Miranda ruling and placed a form before her which she read. I read from another. She stated that she fully understood and signed the form." He said that she signed the form in his presence and "said that she understood each and every one of these rights and she wanted to speak to me about the Ann Lanlianis [ sic ] account." The defendant was informed that she had a right to talk to a lawyer and to have a lawyer present with her while she was being questioned, that if she could not afford to hire a lawyer one would be appointed to represent her before any questioning occurred if she wished, and that she could decide at any time to exercise these rights and not answer any questions or make any statement. The witness stated that prior to questioning the defendant he had made no promises to her, including any promise of leniency, and did not tell her she would not be punished if she confessed. The witness told the defendant he would submit a copy of the entire interview to the State's Attorney for his consideration. The interview was tape-recorded, part of which was played during the hearing as follows:

"Q. Denise are you aware that this interview is being taped?

A. Yes, sir.

Q. Is this interview being taped with your permission and this statement being made voluntarily without any ...


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