APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
517 N.E.2d 570, 164 Ill. App. 3d 555, 115 Ill. Dec. 159 1987.IL.1322
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., concurs. JUSTICE LORENZ, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Following a bench trial the defendant, David Bailey, was found guilty of murder and sentenced to imprisonment for his natural life. He appeals. For reversal he contends that (1) the trial court erred when it denied his motion to suppress his post-indictment, uncounseled lineup identification on June 8, 1983; (2) the evidence failed to prove the defendant guilty beyond a reasonable doubt; and (3) the mandatory life sentence provision under sections 5-8-1(a)(1)(b) and (a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-1(a)(1)(b), (a)(1)(c)) is unconstitutional.
We first address the defendant's contention that the trial court erred in denying the defendant's motion to suppress his uncounseled, post-indictment lineup identification.
The record discloses that Reggie Brownlee and Lisa Kennedy were shot to death in their third-floor residence apartment at 7002 South Harper in Chicago during the early morning hours of May 30, 1983. Biana Castile was visiting in a first-floor apartment in the building and heard the shot. She looked out and saw two men, one of whom had a gun in his hand, running down the stairs from the third floor. The man with the gun was the defendant, David Bailey, with whom Castile was acquainted and knew as "Cochese."
The defendant was arrested on May 30, 1983. He testified on cross-examination on the hearing of his motion to suppress that his arresting officer did not advise him of his right to counsel. He was taken to a police station where, after talking to several assistant State's Attorneys, the last assistant State's Attorneys who spoke to him advised him of his rights. The prosecutor did not ask the defendant to state the Miranda rights which were given him by the assistant State's Attorney.
Michael Pochordo, a Chicago police detective, testified at the hearing of the suppression motion, in response to a question put to him by the trial court, that he arrested the defendant. He further testified:
"THE COURT: Did you advise him of his Miranda rights at that point?
THE COURT: Did you specifically tell him at that time that he had a right to an attorney?
Officer Pochordo did not further expound on the Miranda rights he gave the defendant. A diligent search of the record does not reveal the specific Miranda rights which were given the defendant or that the defendant was even given the complete Miranda admonitions when he was arrested or at any time thereafter.
A complaint for preliminary examination was subscribed and sworn to by Chicago police detective Michael Pochordo on May 31, 1983. The complaint alleged that the defendant, David Bailey, on May 30, 1983, at 7002 South Harper, Chicago, Cook County, Illinois, committed the offense of murder of Lisa Kennedy in that he killed Lisa Kennedy without lawful justification by shooting her with a gun. (Ill. Rev. Stat. 1985, ch. 38, par 9-1(a)(3).) The complaint was filed on June 1, 1983, in Branch 66, a preliminary hearing court of the circuit court of Cook County. The defendant testified that he was taken before that court on that date and that an attorney appeared with him and represented him at that time. The record reveals that the Branch 66 preliminary hearing Judge ordered that the defendant be held without bail in the Cook County Department of Corrections and further ordered that the sheriff of Cook County bring the defendant before the chief Judge of the criminal division of the circuit court of Cook County on June 22, 1983.
On June 3, 1983, however, the indictment was returned by the grand jury and was filed by the court clerk. The first six counts of the indictment charged that the defendant murdered, by shooting, Reggie Brownlee and Lisa Kennedy on May 30, 1983, in Cook County, Illinois. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3).) Counts 7 and 8 alleged that the defendant committed the offense of armed robbery of Reggie Brownlee and Lisa Kennedy on the aforesaid date and place. (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a).) The defendant was charged in counts 9 and 10 with the offense of armed violence upon Reggie Brownlee and Lisa Kennedy on said date and place. Ill. Rev. Stat. 1985, ch. 38, pars. 33A-2, 9-1(a)(2).
On June 1, 1983, the date the indictment was filed with the court clerk, an attorney also filed with the court clerk his written appearance as attorney for the defendant in the case. Although the attorney signed his name on the appearance form somewhat illegibly, he clearly listed his telephone number thereon as 236-7543.
The defendant testified that after he appeared on the complaint in Branch 66 preliminary hearing court on June 1, he was taken to the Cook County jail. He stated that he was visited in the jail by Attorney Steven Vandross, who told the defendant that he might become the defendant's attorney in the case.
Detective Pochordo testified that he and his partner, Detective Catherine Reardon, worked on the Reggie Brownlee and Lisa Kennedy homicides and that he knew the indictment had been returned on June 3, 1983, when he decided on June 7, 1983, to conduct a post-indictment lineup for the witness, Biana Castile, to view the defendant. Detective Pochordo further testified that he also knew that the law guaranteed the defendant the right to have an attorney present and represent him at the lineup.
Pochordo related that on the afternoon of June 7, he attempted to find out who the defendant's lawyer was but he was unable to do so. He stated that he called the clerk's office on June 7 to have the clerk search the court records to determine the defendant's attorney of record but that the clerk was unable to do so.
Pochordo did not identify the court clerk to whom he spoke. Pochordo did not disclose which of the numerous offices of the clerk of the circuit court he called. Nor did Pochordo relate what the clerk did to ascertain the identity of the defendant's attorney. The record does not reveal whether the clerk gave Pochordo the telephone number, 236-7543, which was on the defendant's attorney's appearance form. Although Pochordo was unable to learn who the defendant's attorney was, Pochordo testified further on cross-examination that he made no effort on June 7 to contact the Office of the Cook County public defender to advise anyone there that he planned to conduct a lineup the following morning at the Cook County jail witness quarters with the defendant, who was in the Cook County jail and did not have an attorney, so that the public defender's office would have an attorney present at the lineup to represent the defendant.
There is no evidence that Pochordo utilized any of the information from the defendant's arrest report to notify any member of the defendant's family to have an attorney present to represent the defendant at the lineup on June 8, 1983, at the Cook County jail witness quarters.
Pochordo testified that on June 7, 1983, he called a sheriff's investigator to have the defendant brought from the division in which the defendant was lodged in the Cook County jail to the Cook County jail witness quarters on June 8, 1983, for a lineup. The record does not disclose that Pochordo asked the sheriff's investigator or anyone in the administrative office of the Cook County jail to check the defendant's Cook County jail records to determine if the records revealed whether the defendant had a lawyer, and if so, who he was. Nor does the record in the case at bar disclose that Pochordo asked any Cook County jail personnel to ask the defendant who his lawyer was so that Pochordo could notify him to be present on the following day to represent the defendant at the lineup at the Cook County jail witness quarters.
From the foregoing and the hereinafter mentioned events, it is apparent that Detective Pochordo was determined to conduct a lineup of the defendant whether or not the defendant's attorney was present or the defendant desired his attorney's presence at the lineup.
The defendant testified that at about 10:30 on the morning of June 8, 1983, he was on his tier in Division 6 of the Cook County jail on Sacramento Avenue when he received a pass from the jail officer on his tier. The defendant knew that he had been indicted for murder and he asked the officer where he was to go. The officer did not know because the defendant's destination on the pass was in code instead of stating the usual destination. The defendant was taken to the first floor and then to the witness quarters in Division 1, where the defendant saw Detective Pochordo.
Detective Pochordo testified that on the morning of June 8, 1983, he went to the witness quarters of the Cook County jail for the purpose of conducting a lineup. He testified that his partner, Catherine Reardon, an evidence technician, Assistant State's Attorney Durkin from the Felony Review Unit of the Cook County State's Attorneys office, an investigator from the Cook County sheriff's office and a witness accompanied him. It was stipulated that the witness was Biana Castile. After having been unable the previous day to learn who the defendant's attorney was in order to notify him to be present to represent the defendant at the lineup, after having notified the jail officials to transfer the defendant from his tier to the witness quarters for a lineup, after having accompanied his partner, an evidence technician, and an assistant State's Attorney to the witness quarters for a lineup, and after having escorted the witness Biana Castile to the witness quarters for a lineup, it convincingly appears that Detective Pochordo was determined to have a lineup whether or not the defendant's attorney was present to represent the defendant or whether or not the defendant requested his attorney's presence at the lineup. Inasmuch as Pochordo had been unable to notify the defendant's attorney to be present on June 8, 1983, to represent the defendant at the Cook County jail witness quarters lineup because he did not know who the defendant's attorney was, it would seem that Pochordo would not have taken the witness Biana Castile and the others to the lineup without first ascertaining whether the defendant would agree to participate in the lineup without his lawyer being present. The lineup, however, was already set up when Pochordo first arrived at the witness quarters with the witness Biana Castile.
Pochordo testified that when he arrived at the county jail witness quarters he had a conversation with the defendant. Pochordo then significantly testified (on direct-examination):
"Q. [Do] you recall who else was present when you had a conversation with [the defendant] David Bailey?
A. The other inmates that were standing in the lineup." (Emphasis added.)
Pochordo further stated that there were four Cook County jail inmates in the lineup with the defendant. From this foregoing testimony of Pochordo, it is apparent that the lineup was already formed and in place with the defendant in it when Pochordo asked the defendant about his attorney and whether he wanted his attorney present at the lineup to represent him.
Thereupon, the prosecutor did not ask Pochordo proper nonleading questions, such as to simply relate the conversation he had with the defendant. The prosecutor instead asked Pochordo leading and suggestive questions about the lineup right to counsel admonition he gave the defendant, set forth in Appendix I. From these leading and suggestive questions and Pochordo's answers thereto it is evident that Pochordo did not advise the defendant of his right to have an attorney present at the lineup, the function the attorney would serve at the lineup and thereafter at trial and the consequence of the defendant's relinquishment of his right to have an attorney present at the lineup. Equally important, there was no showing that the defendant was advised of the consequence of his insistence that an attorney be present to represent him at the lineup, i.e., inter alia, that the lineup would not be held if his attorney was not present.
Moreover, from Pochordo's foregoing testimony it is apparent that the defendant did not waive his right to an attorney's presence to represent him at the lineup. The assistant State's Attorney's questions to Pochordo were not only leading and suggestive, they were also circumspect. Pochordo's answers were correspondingly crafty. After Pochordo responded to the aforementioned questions, the prosecutor finalized his direct examination of Pochordo with the following belated but equally suggestive question:
"Q. Did, in your conversation earlier that morning with David Bailey, did he ever tell you that he wished to have a lawyer present during the line up?"
Pochordo answered, "No, he stated he didn't need a lawyer."
First, it was not the defendant's responsibility to initially advise Pochordo that he wished to have a lawyer present at the lineup. Instead, the burden was on Detective Pochordo and Assistant State's Attorney Durkin to first fully advise the defendant of his right to have an attorney present to represent him at the lineup, the function his attorney would serve during the lineup proceedings, and the consequences of the defendant's exercising or waiving his right to counsel at the lineup. Second, the foregoing questions and answers are inadequate to establish (1) that the defendant was fully and adequately advised of his right to counsel at the lineup; (2) that an attorney would be furnished if he did not have or could not afford one; (3) the role and duty his attorney would serve at the lineup; (4) the consequences of the defendant's insistence upon his attorney's presence at the lineup; (5) the consequences of the defendant's waiver of his attorney's presence at the lineup; or (6) that the defendant knowingly, intelligently, freely and voluntarily waived his right to the presence of his attorney to represent him at the lineup. Third, according to Pochordo, this highly probative and extremely important statement attributed by Pochordo to the defendant, i.e., "he didn't need [a lawyer]," on which the State relies to establish that the defendant waived his right to an attorney's presence and representation at the lineup, was significantly omitted from Pochordo's police report. Fourth, this statement attributed to the defendant by Pochordo can be reasonably construed simply as an expression by the defendant that he had a lawyer and thus did not need an additional one.
An analytical reading of the foregoing questions and Pochordo's answers reveals that during Pochordo's exclusive conversation with the defendant, the defendant told Pochordo that (1) he was not then represented by an attorney; (2) the attorney who formerly represented him at the hearing on May 31 in Branch 66 had been fired and no longer was the defendant's attorney; (3) the defendant did not want that attorney to be present during the lineup; (4) the defendant wished to hire another private attorney and that his family was obtaining an attorney for him later that week or the next; (5) the defendant did not wish to have that attorney present at the lineup because the attorney had not yet been hired; and (6) the defendant did not want anyone from the public defender's office present at the lineup to represent him.
No explanation is offered why no one other than the four jail inmates was present during Pochordo's conversations with the defendant. Pochordo's partner, Detective Catherine Reardon, was not present. Assistant State's Attorney Durkin was not present. Nor was the sheriff's investigator or the crime laboratory technician. Whether Pochordo was of the opinion that corroboration of his conversation with the defendant would be unnecessary need not be discussed or decided.
The defendant testified that when he saw Pochordo in the Cook County jail witness quarters on June 8, Pochordo asked him if he had an attorney and the defendant told him that he did and his name was Steven Vandross, that Mr. Vandross had not appeared in court on his behalf, that his family had contacted Mr. Vandross about representing the defendant and Mr. Vandross had visited him in the Cook County jail. Mr. Vandross was not called by the State, nor were any Cook County jail personnel or records presented by the State to refute the defendant's testimony.
The defendant further testified that Pochordo did not ask him if he wanted Mr. Vandross to be present at the lineup and he denied that he told Pochordo that his attorney was being fired and that his family was trying to hire another lawyer. The defendant stated that Pochordo did not tell him that he had the right to have an attorney present during the lineup, but that he asked to have an attorney present at the lineup. The defendant also testified that Pochordo did not ask him if he wanted a public defender to be present at the lineup. The defendant stated that after his conversation with Pochordo he was palm printed and fingerprinted. It is reasonable to assume that the defendant was printed by the evidence technician who accompanied Pochordo to the witness quarters for that purpose.
Supreme Court Rule 413(a)(iii) (87 Ill. 2d R. 413(a)(iii)) provides the procedure for the State to obtain a defendant's palm and fingerprints after the defendant has been indicted. The rule states: "Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to: . . . be fingerprinted . . .." Supreme Court Rule 413(a) was not followed in the case at bar. The Illinois Supreme Court did not contemplate in the promulgation of Supreme Court Rule 413(a) that after a defendant has been indicted and under the court's jurisdiction in the Cook County jail awaiting trial, a police officer would enter the jail and take a defendant's fingerprints and palm prints without prior judicial approval or constitutional safeguards.
The defendant testified that Pochordo did not ask him if he wanted a public defender to be present at the lineup. Conversely, Pochordo testified that when he told the defendant that he "would notify the Cook County public defender's office and advise them of the situation at the jail and have someone from their office present to represent him during the lineup," the defendant stated, according to Pochordo, that he did not want the public defender to represent him at the lineup. Significantly, Pochordo testified on cross-examination that his offer and the defendant's rejection of the public defender to represent the defendant at the lineup were not set forth in Pochordo's police report.
Even though the defendant had told Pochordo, according to Pochordo, that he did not want the public defender present to represent him at the lineup, and immediately thereafter Pochordo told Assistant State's Attorney Durkin that the defendant had told him that he did not want the public defender present to represent him at the lineup, Pochordo nevertheless accompanied Durkin to make a telephone call to the public defender's office to request an assistant public defender to come to the Cook County jail to represent the defendant at the lineup. Pochordo further related that Durkin talked on the telephone to someone in the public defender's office who stated that a representative from that office would appear to represent the defendant at the lineup at approximately 10:50 a.m. Pochordo did not remember to whom Durkin spoke in the public defender's office. Pochordo testified that he waited for the arrival of an assistant public defender to represent the defendant at the lineup.
It is difficult to perceive that Detective Pochordo and Assistant State's Attorney Durkin would attempt to obtain and wait over an hour for an assistant public defender to represent the defendant at the lineup after the defendant had told Pochordo that he did not need a lawyer and that he did not want the public defender to be present or represent him at the lineup. This testimony demands cautious and meticulous scrutiny.
It appears to be more reasonable, certainly it is more persuasive, that when Pochordo talked to the defendant in the presence of the four other Cook County jail inmates in the lineup, the defendant, having been to court and having talked to his lawyer, advised Pochordo that he desired an attorney to be present to represent him at the lineup, as the defendant testified, and thereafter Pochordo informed Durkin of the defendant's desire and Durkin therefore called for an assistant public defender to represent the defendant at the lineup.
The defendant testified that he was not aware that the public defender had been called. The defendant stated that he requested that a lawyer be present at the lineup and that a few minutes before the lineup the sheriff's investigator who escorted him from his tier to the witness quarters told the defendant that someone had called the public defender's office to determine if a lawyer was available to represent him.
Pochordo testified that he was aware that there were time restrictions for conducting a lineup at the Cook County jail, that all lineups at the Cook County jail had to be terminated by 11 a.m. and that they had to get the defendant's lineup over by that hour. He testified that when an assistant public defender failed to appear, no one called the public defender's office to inquire why an assistant had not appeared or if an assistant was going to appear.
The defendant was confined in the Cook County jail on double murder and armed robbery charges in the custody of the sheriff with no bail pursuant to court order. It was unlikely that he was going anyplace and the lineup could have been postponed for the defendant's attorney's presence without any detriment to the State's case. Yet, Pochordo went ahead and conducted the lineup at 10:55 a.m. in the absence of the defendant's attorney. The State stipulated that the defendant's attorney was not present at the lineup.
Pochordo testified that he did not give the defendant his Miranda warnings that morning and there is no evidence that anyone else advised the defendant of his Miranda rights. Pochordo related that he did not have the defendant sign a waiver of counsel for the lineup. The State also stipulated that Biana Castile viewed and picked the defendant out of the lineup as one of the men she saw fleeing down the stairs from the floor on which Reggie Brownlee and Lisa Kennedy resided after hearing gunshots emanating from that floor.
Illinois Supreme Court Rule 413(a) also provides for a defendant's participation in a lineup after indictment. The rule states: "Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to: (1) appear in a line-up . . .." The Illinois Supreme Court recognized that after a defendant was under the jurisdiction of the trial court under an indictment, a most critical stage in the adversarial proceedings, law enforcement officers should not have the unbridled power to subject a defendant to a lineup without constitutional restraints. Supreme Court Rule 413(b) (87 Ill. 2d 413(b)) provides:
"Whenever the personal appearance of the accused is required for the foregoing [purposes of a lineup], reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present."
At the Conclusion of the presentation of the testimony on the hearing of the motion to suppress the lineup identification, the trial Judge agreed, pursuant to the defense attorney's request, to "take judicial notice of the official document in the court file, . . . an appearance on file dated June 1, 1983, by a private attorney." The defense attorney pointed out to the trial Judge that although the attorney's name on the appearance was practically illegible, the attorney's telephone number on the appearance was clear. The telephone number on the attorney's appearance in the record is 236-7543. Although a few of the letters of the attorney's name on the appearance can be discerned, the complete name is illegible and we will not speculate on his identity. The appearance is that of the attorney who appeared as the defendant's attorney on June 1, 1983, in Branch 66, the preliminary hearing court to which reference herein is previously made.
The following stipulation was agreed upon at the Conclusion of the suppression hearing:
"[Assistant State's Attorney]: It will be stipulated between the parties that if Assistant State's Attorney Durkin, D-u-r-k-i-n, were called on to testify, he would testify that he was an assistant state's attorney assigned to the Felony Review Unit, 26th and California, on the 8th of June, 1983, that the proceeded to the Cook County Jail at approximately 9:50 in the morning, witness quarters. He would testify that at 10:05 in the morning he called the Public Defender's Office and asked that the public defender be sent over. They indicated an individual named Jamie Kunz might come over. That at 10:50 in the morning, ...