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12/21/89 the People of the State of v. Patrick O. Hicks

December 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

PATRICK O. HICKS, APPELLANT



SUPREME COURT OF ILLINOIS

548 N.E.2d 1042, 132 Ill. 2d 488, 139 Ill. Dec. 486 1989.IL.2005

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Fayette County, the Hon. William D. Kelly, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CLARK, Dissenting. JUSTICE STAMOS joins in this Dissent. JUSTICE STAMOS, also Dissenting. JUSTICE CLARK joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Patrick O. Hicks, was charged with burglary in an information filed April 28, 1987, in the circuit court of Fayette County. Before trial, Hicks moved to suppress certain statements. The trial Judge granted his motion, finding that Hicks had invoked his right to have counsel present during interrogation and that law enforcement authorities had violated his fifth amendment right. The State appealed from the order suppressing evidence. (107 Ill. 2d R. 604(a)(1).) On appeal, the appellate court, with one Justice Dissenting, reversed, holding that defendant had waived his right to counsel and, therefore, the trial court should not have suppressed his statements. (179 Ill. App. 3d 468.) We granted defendant's petition for leave to appeal (107 Ill. 2d R. 315). We affirm.

Defendant was arrested and taken to the Fayette County jail on February 9, 1987. A safe had been taken from the Fayette Service Co-op building and defendant's fingerprints were found on the safe when it was recovered. Upon arriving at the sheriff's department, Deputy Daniel Taylor took defendant Hicks to a visitation room. There, Taylor informed Hicks that he would be questioned concerning the Fayette Service Co-op burglary. Taylor then read to Hicks his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and explained each of them.

Defendant indicated that he understood his rights and signed a written waiver form. Deputy Taylor told defendant that he knew that Hicks had not entered the Fayette Service building itself, but that he knew that Hicks was in some way involved because his finger-prints were found on the safe that had been recovered. At this point, defendant refused to comment further. Deputy Taylor then discontinued questioning. The next morning at his arraignment, defendant requested counsel, which the court appointed.

Because defendant Hicks was on parole, on the day following his arraignment he was returned to Graham Correctional Center in Hillsboro as a parole violator. Deputy Taylor alone transported him there. What transpired during the journey provided the basis for the trial court's suppression.

Deputy Taylor testified that soon after the vehicle left the driveway of the Fayette County jail, defendant voluntarily stated, "Dan, I was not in that Fayette Service building . . . I did not go into the building at all." Taylor responded, "Pat, I told you the day that I placed you, I told you that I knew you were not in the building. However, I cannot talk to you about the case because you have an attorney." Hicks went on to explain that he did not participate in the burglary. He stated that two acquaintances brought the safe to his home, looking for a cutting torch and, at that point, he touched the safe.

Deputy Taylor further testified that shortly after defendant Hicks finished this statement, they drove past the Fayco Enterprises, Inc., building, the site of a different recent burglary. Deputy Taylor testified that he "jokingly" turned to Hicks and asked whether he had any knowledge concerning that burglary. Defendant then said "the talk is that Terry Richards went into the Fayco building," to which Taylor said he responded, "the talk is that Pat Hicks and Terry Richards went into [the] Fayco building." Defendant then, according to Taylor, "kind of hung his head a little bit and he said, 'yes, that's right. Terry Richards and I carried the safe out of the Fayco building.'"

The trial court suppressed defendant's confession, finding that it was "[c]ertainly a violation of rights." The majority of the appellate court disagreed, finding that defendant voluntarily waived his right not to be interrogated in the absence of his attorney. (179 Ill. App. 3d at 471.) The Dissenting Justice contended that the State had the burden of establishing that the defendant specifically waived his right to have counsel present regarding the inquiry about the second burglary. 179 Ill. App. 3d at 471 (Harrison, J., Dissenting).

We are concerned here only with defendant's fifth amendment right to counsel. No question has been raised under the sixth amendment. Our review of the facts in this case reveals that defendant, by voluntarily discussing and inculpating himself in the Fayette Service Co-op burglary, waived his fifth amendment right to have counsel present during further interrogation. The constitutional principles applicable to this case indicate that the trial court erred.

The Supreme Court, in Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, articulated the general rule that once a defendant invokes his right to have counsel present during interrogation, all questioning must cease until counsel actually is present. In our case, defendant Hicks asserted his right to counsel at his arraignment. Law enforcement officials appropriately did not renew questioning. Edwards acknowledged that one may waive this fifth amendment right, however, after it is invoked. To show waiver the State must establish that it was "knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Edwards v. Arizona, 451 U.S. at 486 n.9, 68 L. Ed. 2d at 387 n.9, 109 S. Ct. at 1885 n.9.

The Supreme Court sought to clarify the holding of Edwards by defining the approach courts should take when addressing the question of whether a defendant has waived his right to have counsel present during custodial interrogation. (Oregon v. Bradshaw (1983), 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830.) The preliminary inquiry is whether defendant initiated the conversation in a manner evincing a "willingness and a desire for a generalized Discussion about the investigation." (Bradshaw, 462 U.S. at 1045-46, 77 L. Ed. 2d at 412, 103 S. Ct. at 2835.) Hicks did this by gratuitously offering exculpatory statements. These comments were not merely necessary inquiries "arising out of the incidents of the custodial relationship." Defendant offered these statements, moreover, after Deputy Taylor again admonished him not to speak in the absence of his attorney.

The second inquiry, as noted in Bradshaw, is whether, by defendant's initiation of a conversation, coupled with the totality of the other circumstances, he knowingly and intelligently waived his right to counsel's presence during questioning. We conclude that defendant knowingly and intelligently chose to speak with Deputy Taylor without counsel's presence. The police had warned defendant of his rights on several occasions. These warnings came in both oral and written form. Moreover, defendant was not a stranger to the criminal Justice system. He cannot, therefore, persuasively contend that he did not understand that he had the right to keep quiet until his attorney was present. Furthermore, after defendant initiated the conversation, Deputy Taylor told defendant that he could not talk about defendant's involvement because Taylor had an attorney. Nevertheless, defendant continued to discuss his connection with the crime. We find that the trial court misapplied the law as announced by the Supreme Court.

Clearly, under Edwards and Bradshaw, defendant waived his right to counsel as to the burglary with which he was charged. The question before us is whether this waiver also extended to defendant's fifth amendment right to counsel as to the Fayco Enterprises burglary, about which Deputy Taylor inquired after ...


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