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05/24/94 PEOPLE STATE ILLINOIS v. DANIEL MAKIEL

May 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANIEL MAKIEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Paul T. Foxgrover, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

The principal questions we address in this case are (1) whether law enforcement officials may properly initiate interrogation, after Miranda admonitions, of an already-indicted defendant who had accepted counsel for purposes of a concluded extradition proceeding; and (2) whether the trial court conducted a proper inquiry into the competency of a witness and the relevancy of the evidence he would offer before deciding to exclude his testimony. We answer the first question "yes" and the second one "no".

Defendant Daniel Makiel was indicted on April 7, 1989, for the murder and armed robbery of Katherine Hoch, which occurred on October 19, 1988, at the Mobil gasoline station she managed in Calumet City, Illinois. On October 20, 1989, police executed a warrant for defendant's arrest at the Indiana Department of Corrections. Indiana extradited defendant, and Illinois authorities transported him to Cook County. A jury later found defendant guilty of first degree murder and armed robbery, and he was sentenced to a term of natural life in prison for the murder, consecutive to an extended term of 60 years' imprisonment for the armed robbery, both sentences to be consecutive to a 40 year sentence for attempt murder in Indiana.

Prior to trial, defendant moved to suppress his pre-trial statement to the police. Defendant argued that his October 20, 1989 statement was taken in violation of his sixth amendment right to counsel, because an assistant state's attorney began questioning him on the drive from Indiana to Illinois after his extradition hearing where he had been represented by appointed counsel. The circuit court denied defendant's motion.

At trial, Todd Hlinko testified that in October 1988, he lived with defendant at defendant's father's house in Calumet City. On October 19, 1988, he and defendant had possession of a blue Oldsmobile Cutlass 442 owned by their friend, John Miller, who had loaned the car to defendant for transmission repair work. The Cutlass was a distinctive shade of blue, with wide, white striping emblazoned with "442" across the side panels. In later testimony, John Miller stated that he had loaned the car to Hlinko and defendant on October 19, 1988, and noticed from its condition the next day that the car had been driven overnight.

Hlinko testified that he and defendant used the Cutlass to pick up Sammy Ilich from work at about 5 p.m. on October 19, 1988. Defendant drove, Hlinko sat in the passenger seat, and Ilich sat in the back. They drove around Dolton and Calumet City, looking unsuccessfully for parties or somewhere to sell marijuana. They stopped at defendant's house to use the telephone at 7 p.m. At about 7:30 p.m., they drove to the Harrison Park area of Hammond, Indiana, where defendant got out of the car and went up to "some guy's house." When defendant returned to the car, he gave Ilich a "hit" of acid and took some himself. Although Hlinko said that he did not take acid that night, he had used it before.

They drove toward Calumet City, stopping to play pool and still trying to sell marijuana. At approximately 11 p.m., defendant said he "would stop and get some money." They pulled into the Mobil gasoline station at Burnham and Michigan City Roads in Calumet City, parking the Cutlass just off Michigan City Road. They waited in the car for a few minutes, listening to music, until two customers who were in the station left. Then they pulled the car next to a white van, which was parked parallel to the east side of the station. In later testimony, Hoch's husband identified the white van as the vehicle Hoch drove to work that day.

Hlinko followed defendant out of the Cutlass and into the station. As they entered, Hlinko saw Hoch walking from the counter in the mini-mart, towards the back room. Defendant told him to "watch out," pointed a gun at Hoch, grabbed her arm, and led her into the back room. As he acted as lookout, Hlinko heard defendant demand money from Hoch, heard noises like drawers slamming, and heard a single gunshot. Defendant then exited the back room, holding the gun and a purse, and went behind the counter to the cash register. Defendant picked up an envelope from the cash register and took two packs of cigarettes and handed them to Hlinko. Hlinko saw no one else in the station at the time, and estimated that only a few minutes elapsed while they were inside.

When they returned to the car, defendant put the purse under the driver's seat. Although he guessed what had happened in the station, Hlinko kept asking defendant "what the hell was going on." Defendant responded, "Don't worry about it." As he drove, defendant told Hlinko that "something went wrong" at the station. Ilich asked to go to his home in East Chicago, but as they neared his house Ilich changed his mind and they headed instead to the house of Shane Miller (no relation to John Miller), also in East Chicago. En route, they stopped in an alley near Ilich's house, and defendant left the car with the purse and walked to a dumpster. Hlinko did not see what defendant did there, but noticed that defendant returned to the car without the purse.

At about 11:30 p.m., Shane invited Hlinko, Ilich, and defendant into his house, and the four of them smoked a marijuana cigarette. About five minutes later, all four drove in the Cutlass to the Calumet Expressway, with Shane and Ilich in the back seat. Defendant, who was driving, slowed the car down and took the gun from his pants as they crossed the bridge near Calumet City. He handed the gun to Hlinko, and told him to get rid of it. Hlinko threw the gun out the passenger window and into the Cal-Sag River. Shane asked what Hlinko threw out the window, and Hlinko answered that it was a gun.

They then returned to the same Calumet City Mobil station, arguing about who would get out and pump the gasoline. They saw squad cars in the parking lot, and a police officer stopped their car at the entrance, telling them that something had happened and that they would have to leave.

They drove from the station to defendant's house, arriving around midnight. Hlinko and defendant went upstairs to defendant's bedroom, while Ilich and Shane used the downstairs bathroom.

During the moments before Ilich and Shane entered the bedroom, Hlinko again asked defendant what happened, and defendant again told him not to worry, and that something went wrong. After Ilich and Shane entered the room, Hlinko heard defendant tell Shane about the killing. The four then drank alcohol and smoked marijuana.

At about 1 a.m., John Pullyblank and his girl friend arrived at defendant's house, but no one said anything to them about the killing. When the two newcomers offered to go out and buy more alcohol, defendant contributed $20 for himself, Ilich, and Hlinko. Hlinko testified that the $20 surprised him because defendant usually had no money and Hlinko had paid for everything earlier that evening. In later testimony, Pullyblank said that he was friends with Ilich, Hlinko, and defendant, but denied seeing Shane while visiting defendant's house; he also did not know for certain whether he visited defendant's house on the night in question.

Hlinko further testified that, after the night of October 19, 1988, defendant next spoke to him about the killing upon returning from the police station, where the police had questioned him about an unrelated purse snatching. Defendant told him not to worry about the killing because they "got away with it", and because the police showed more interest in the purse snatching than in the killing.

On March 2, 1989, the police arrested Hlinko on a drug offense which also violated his probation. While in custody on March 2, 1989, Hlinko signed a statement in which he stated that on October 19, 1988, defendant went into the Mobil station alone, and that he, defendant, and Ilich drove to defendant's house directly from the station. In the statement, he said he saw a purse at defendant's house when he and defendant went to sleep on October 19, 1988.

The police arrested Hlinko again on March 16, 1989, this time for the armed robbery and murder at the Mobil station. Hlinko testified that he initially confirmed the truthfulness of his March 2 statement. He told the police on March 16 about defendant's statements to him after defendant's interrogation regarding the purse snatching. He might have told the police that defendant and others left the house at around 11 p.m. on October 19, 1988, to buy cigarettes at the Mobil station. Hlinko eventually signed a statement for the police on March 16, 1989, which differed from the March 2 statement. In the March 16 statement, he again placed himself, Ilich, and defendant at the station, but said that he stayed in the car while defendant and Ilich went inside. He told the police on March 16 that he saw defendant throw things out of the car window on October 19, 1988, but did not see a gun.

Hlinko testified that he lied to the police at first about not going into the gas station in an attempt to avoid implicating himself. He felt great pressure on March 16 and signed the statement because the police told his parents he should cooperate or be charged with the murder. He later filed charges of police brutality, alleging that the police beat him in order to obtain his statement. In April 1989, he told his mother, his attorney, and defendant that the police beat him. He said, however, that he had lied about the police brutality in order to discredit his prior statements and to protect his friends.

Beginning in March 1989, Hlinko, Ilich, and defendant were in jail together on the murder charges. Hlinko testified that during that time, defendant persuaded him to sign an affidavit which defendant dictated and which disclaimed all of his previous statements. The affidavit claimed falsely that he had never seen defendant with a firearm, and that defendant had no involvement in an armed robbery or a murder. The affidavit contained nothing about their having gone to Shane Miller's house on October 19, 1988, but instead stated that defendant had babysat at his sister's house that night. Hlinko did not read the affidavit before signing it; defendant took it away as soon as he signed it and later gave him a copy. Describing the babysitting alibi as impossible and untrue, Hlinko testified that his lawyer told him he should not have signed the affidavit.

Hlinko further testified that in October 1990, he entered a plea agreement with the State's Attorney's office. The State's Attorney dropped the armed robbery and murder charges, and agreed to recommend a five-year sentence for the March 2, 1989 drug offense, to run concurrently with the sentence for his violation of probation. In exchange, Hlinko agreed to testify truthfully about the events of October 19, 1988. Hlinko rejected an earlier plea offer out of loyalty to defendant. He entered into the October 1990 agreement because he did not want to go to prison for a shooting that defendant committed. He enjoyed no special treatment or better living conditions in prison because of the agreement. Hlinko denied telling Ilich's mother on October 29, 1990, that he intended to lie to the State's Attorney in order to save his own life. Finally, Hlinko testified that the assistant state's attorneys never told him what to say, and that he signed a statement confirming the truth of his anticipated trial testimony.

Shane Miller testified that he had seen defendant hand something to Hlinko while in the Cutlass on the Calumet Expressway, telling him to get rid of it. He saw Hlinko throw it out of the window into the Cal-Sag River, and when he asked Hlinko what it was, Hlinko told him it was a gun.

Shane stated that the four men stayed at defendant's house for about 25 minutes, during which time defendant told Shane that he, Ilich, and Hlinko had gone to the gas station, and that he had shot the woman manager. Brian Spodach dropped by and gave Shane a ride to Shane's sister's house. Shane said nothing to either his sister or Spodach about the conversation with defendant. Spodach later testified that he neither went to defendant's house nor gave Shane a ride on October 19, 1988. He heard about the Mobil station murder two weeks after it occurred, and at that time deliberately told himself he was not with Shane on the date in question. Spodach admitted that he did not want to testify, but denied telling anyone that if called he would say that he knew nothing about the suspects.

Shane also testified that he did not want to testify, and told this to defendant's lawyers and to Hlinko's mother. He read about the killing in the newspapers but did not go to the police with information until March 1989, when he testified before a grand jury. On March 15, 1989, he signed a statement for the police detailing the October 19, 1988 conversation in defendant's bedroom. The police did not threaten him. He had spoken with Hlinko's mother 15 to 20 times after Hlinko was charged with the murder in March 1989. On February 20, 1990, Hlinko's mother came to his house and persuaded him to sign a statement she had written. Shane denied writing in the February statement that the police forced him to make his statement the previous March by threatening to charge him with withholding evidence and involvement in the murder. Hlinko's mother wrote the February 1990 statement in order "to get her son out of jail." He denied ever reading the statement in its entirety. Knowing it was untrue, Shane signed it anyway, because Hlinko's mother cried and begged him to do so.

Ilich, who had been acquitted of the murder and armed robbery charges in a previous jury trial, did not testify.

Assistant State's Attorney Patrick Quinn testified that on March 21, 1989, in the presence of police investigators, after reading defendant his Miranda rights he interviewed defendant, who was in custody in Indiana after being convicted of attempt murder. Defendant told Quinn that his sister, Laura Kobak, had visited him earlier that day and warned him to expect a visit from state investigators. Defendant denied knowing anything about the murder, or what he did on October 19, 1988. When Quinn prompted defendant with information already given by Hlinko and John Miller concerning that day, defendant said that he remembered. Defendant told Quinn that he and Hlinko dropped John Miller off at his workplace, drove around in John's car, and kept the car with the intention of fixing it. He told Quinn that they quite possibly went to the Mobil station to buy cigarettes. Defendant later told Quinn that when they stopped at the station, Ilich was not with them.

Quinn informed defendant that a witness had seen Ilich with him and Hlinko at the Mobil station at or about the time of the murder. At this point defendant sat up straight, opened his eyes widely, and said he suddenly remembered that Ilich had joined them that night when they stopped at the Mobil station. He told Quinn that he remembered no details of the gas station stop because he drank alcohol all day, smoked marijuana with Hlinko, and dropped acid. Defendant called Ilich and Hlinko his partners, and said that Ilich and Hlinko could not have gone into the station and murdered Hoch without his knowledge.

Quinn testified that he next interviewed defendant on October 20, 1989, after defendant was extradited, while transporting him to Illinois. Quinn read defendant his rights, and defendant again indicated that he understood his rights and agreed to talk. Defendant told Quinn that since the previous interview, defendant's sister had informed him that her birthday fell on October 19. After speaking with his sister, defendant remembered that on her birthday in 1988, he and Hlinko attended the sister's birthday party in Indiana. He said that John Pullyblank and Ilich did not attend the party. Defendant told Quinn that they arrived at his sister's birthday party in the early evening, and returned to Chicago at around 11 p.m. Defendant said that he burned up the transmission in John Miller's car and had it towed.

Allen Martin testified that at about 11 p.m. on October 19, 1988, he and his girl friend stopped at the Mobil station to buy gasoline. He recognized John Miller's distinctively-painted Cutlass 442 parked along the fence on the east side of the station. He saw his friends--defendant, Hlinko, and Ilich--sitting in the Cutlass. After he paid for his gasoline, he waved to the three men still sitting in the Cutlass, got into his car, and drove to a gameroom. He estimated that he stayed at the Mobil station a total of 3 minutes and at the gameroom for 20 minutes before he left to drive his girl friend home.

On the way to his girl friend's house, Martin passed the Mobil station and saw an ambulance and squad cars. He read about the Mobil station murder in the newspaper, and later read about defendant's, Hlinko's, and Ilich's implication in the crime. It took him a while to make a connection between his having seen his friends at the station on October 19 and their possible involvement in the murder.

Martin further testified that he remembered talking to a public defender on January 21, 1991, but denied telling the public defender that he saw Hlinko and defendant smoking marijuana at the gas station on October 19, 1988, or that he had been in a fight with Hlinko.

George Mainwaring, a Chicago Streets and Sanitation Department employee, testified that he worked on the southeast side of the city on October 24, 1988. On that day, he found a purse while emptying a trash can in the alley behind 9315 Chappel Street. He kept the purse and examined it when he returned home that afternoon. He touched numerous items in the purse. Hoch's husband testified that the purse recovered by Mainwaring and its contents belonged to Hoch. Mainwaring delivered the purse to the police after recognizing Hoch's name, as well as her picture, on her driver's license. He accompanied police officers to the location where he found the purse. The address where the purse was found is less than ten minutes from where Ilich lived, and five minutes from where Shane Miller lived. The police took Mainwaring's fingerprints and those of his partner.

Mary Leanne Grey, a forensic scientist and fingerprint expert with the Chicago police, testified that she found neither Mainwaring's nor his partner's prints on the purse or its contents. She found sixteen latent fingerprints and identified eight of them as belonging to Hoch, but she could not identify the other eight. She explained that the inability to find an individual's fingerprints on an item does not necessarily mean that the individual did not touch the item, but only that the individual left no suitable prints.

Dan Engelbrecht testified that he pulled into the Mobil station after 11 p.m. on October 19, 1988. He went inside looking for the attendant, and found no one in the mini-mart area. He opened the door to the back room and found Hoch lying on the floor, her head in a large pool of blood. He told another customer to call 911, and dragged Hoch's body into the mini-mart, where he had more room to perform CPR. He remained at the station for an hour, but did not notice Hoch's white van parked beside the building.

Stephen Lundy, the first police officer on the scene, testified that the crime was reported on the 911 emergency system at 11 p.m. Someone had obviously moved the body from the back room before he arrived. Soon after his arrival, other police officers blocked the driveway to the station in order to prevent anyone from entering. Although he found a .38 caliber shell casing in the back room, no suitable fingerprints were found on the casing. Similarly, the evidence technician who searched the station for prints could find no suitable lifts inside or outside the station. The leader of the Illinois State Police northern diving unit testified that his unit searched the Cal-Sag River for the murder weapon, but did not find it.

Following stipulations, and the admission of exhibits into evidence, the prosecution rested.

Ilich's mother testified for the defense that on October 19, 1988, her family lived in Chicago. Her son's friend, Todd Hlinko, called her from jail on September 29, 1990. Hlinko told her he did not know whether ...


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