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10/30/87 the People of the State of v. Kevin Macnab

October 30, 1987





516 N.E.2d 547, 163 Ill. App. 3d 153, 114 Ill. Dec. 392 1987.IL.1612

Appeal from the Circuit Court of Cook County; the Hon. Howard Lewis Fink, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.


Following a bench trial, defendant Kevin MacNab was convicted of attempted murder and possession of explosives and was sentenced to a six-year prison term plus three years' mandatory supervised release. On appeal defendant contends that the trial court erred in failing to suppress certain statements allegedly made by defendant.

We reverse and remand for a new trial.

Prior to trial defendant filed three motions to suppress his statements. The following pertinent evidence was adduced at those hearings.

Elk Grove police investigators Michael Severns and William Zimmerman testified that on December 2, 1983, they were investigating the placing of a pipe bomb the day before in Daniel Terket's truck. Terket suspected defendant because of some antagonism between defendant and defendant's former girlfriend, who was the sister of Terket's girlfriend. In June of 1983 Investigator Severns had investigated complaints of threatening telephone calls allegedly made by defendant to these two women. Based on this information, the investigators considered defendant a suspect and were seeking to question him. The investigators went to the vicinity of the Des Plaines courthouse, where defendant's parents had told them the defendant had a court date.

At about 11 a.m., another investigator, Mr. Mersel, saw defendant walking near the courthouse and began talking to him. Mersel summoned Severns, Zimmerman, and another investigator to that location. They all arrived in separate unmarked police cars. Severns, who knew defendant from the telephone-threat investigation, asked if defendant would come to the police station to discuss the bomb incident. Defendant agreed, got into the front seat of Severns' car, and was driven to the Elk Grove police station. At the station, he agreed to submit to a polygraph examination. He was then driven to the offices of John Reid and Associates, where a polygraph examiner, Louis Senese, administered a polygraph examination. At about 4:30 p.m. Senese told the investigators defendant was attempting to "disrupt the machine" and wanted to talk to them. Defendant told the investigators that he had given approval for someone else to place the bomb, but only in an attempt to scare Terket, not to hurt anybody. Defendant was then arrested and informed of his Miranda rights. He told the investigator he did not want to say anything, and was not questioned further at that time.

The investigators denied coercing defendant or physically or mentally abusing him in any manner during these events. He was not handcuffed until he was arrested at John Reid and Associates. Louis Senese testified that, when defendant came to his office, the investigators left defendant sitting alone in the lobby, without handcuffs, while they discussed the case with him. During the examination he concluded that defendant was distorting the results by controlling his breathing and manipulating the electrodes on his fingertips.

Defendant was transported back to the Elk Grove police station where, at about 9:30 p.m., Assistant State's Attorney Casimir Bartnik spoke to him in the presence of Investigators Zimmerman and Severns. Bartnik testified that he advised defendant of his Miranda rights and defendant read and signed a printed list of those rights, indicating that he understood them. Defendant then either asked, "When can I speak to a lawyer?" or "Can I speak to a lawyer?" Bartnik told him he could any time. Bartnik recalled that defendant also either asked if he could speak to a public defender or when he could speak to a public defender, mentioning that Assistant Public Defender Mary Danahy had represented him on some case. Bartnik told him no public defender was available in the police station and if he wanted to "keep his mouth shut" he could talk to a public defender when he came to court. According to Bartnik, defendant then said that he could speak for himself and wanted to tell his own side of the story. After over two hours of questioning, defendant gave an incriminating statement. Bartnik then asked him if he would sign a written version of the statement. Defendant asked to speak to an attorney, and after a telephone conference, declined to give a written statement, stating he was acting on the advice of the attorney. This occurred at about 12:30 a.m.

Investigator Severns testified that at about 2 a.m. he and other officers executed a search of defendant's mother's house, pursuant to her signed waiver. They brought along the defendant, who, in response to their questions, gave several additional incriminating statements.

Testifying for defendant, Assistant Public Defender Mary Danahy stated that on the morning of December 2, 1983, she was representing the defendant on a misdemeanor charge at the Des Plaines courthouse. Defendant told her that he recognized an Elk Grove police officer who kept coming into the courtroom. He believed the police intended to arrest him, as he had heard that they had been looking for him at his parents' home in connection with a car bombing. Danahy advised him that if arrested he should tell the police ...

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