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June 3, 1994


The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Larry Winsett brings this pro se petition pursuant to 28 U.S.C. § 2254 seeking habeas corpus relief from his conviction for attempted murder, solicitation of murder, and conspiracy to commit murder. Winsett contends that he was denied a fair trial because the trial court denied a motion in limine to exclude evidence obtained as a result of statements taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). For the following reasons, we deny the petition.

 I. Factual Background

 In early 1985, Arturo Zarinana was murdered. At trial, the prosecution set out to prove that David Robinson paid Winsett $ 20,000 to kill Zarinana (who was married to a woman with whom Robinson was having an affair). In turn, Winsett paid Glen Spruille $ 2,000 to carry out the murder. Although Zarinana survived the attack (which consisted of four bullet wounds), and testified at trial, he was unable to describe or identify his assailant, except to say that the attacker was male and wore a ski mask.

 Winsett was arrested at his home on February 20, 1985 for Zarinana's murder. When the police arrived, Winsett stated that he wanted a lawyer, and instructed his wife to call his attorney. After arriving at the police station, the arresting officers removed Winsett's handcuffs and took him to an interrogation room where they read him his Miranda rights. Winsett refused to sign the waiver form until he spoke with his attorney. Nonetheless, the officers continued to question Winsett for approximately two to two and a half hours. During the questioning, Winsett again asked for his attorney. However, before he was permitted to speak with his lawyer, Winsett made inculpatory statements, including the identification of his accomplice, Glen Spruille. Prior to trial, Winsett moved to suppress his statements, prompting the judge to hold suppression hearings. Despite the police officer's denial that Winsett asked for an attorney either in his home or during the initial interrogation, the trial court found Winsett's testimony, and that of his family, "extremely credible." As a result, the court granted Winsett's motion to suppress his statements as having been taken after Winsett requested counsel. At the same time, the court specifically found that the statements were not involuntary for purposes of possible impeachment under Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46, 28 L. Ed. 2d 1, 4-5 (1971).

 In addition, Winsett filed a motion in limine to exclude Spruille's testimony at trial under the "fruit of the poisonous tree" doctrine. Following a hearing, the trial court denied the motion, finding that the "present state of the law was such that the motion was not well taken."

 At trial, Spruille testified that Winsett solicited him to murder Zarinana for $ 2,000. According to Spruille, Winsett gave him a $ 1,000 down payment, described Zarinana and the car he would be driving, and then paid Spruille another $ 1,000 a week after the shooting.

 On direct appeal, Winsett's counsel did not challenge the trial court's denial of the motion in limine and the conviction was upheld. In 1990, Winsett petitioned for post-conviction relief, claiming that Spruille's testimony should have been excluded as "fruit" of Winsett's illegally obtained statements, and arguing that his appellate counsel had been constitutionally ineffective for failing to raise the issue on direct appeal.

 The same judge who had presided over Winsett's trial held an evidentiary hearing on the post-conviction petition. During the hearing, Michael Fusz, the chief of felony review at the Lake County State's Attorney's office, testified that nothing in the police reports indicated that the victim or eyewitnesses could have identified Spruille as the shooter. Nor was there any indication that the Waukegan police department was aware of Spruille's involvement in the crime prior to Winsett's inculpatory statements. However, the investigation itself, including interviews with Robinson's employees, was ongoing. Ultimately, the trial court denied Winsett's petition, finding (1) that the violations that occurred during Winsett's interrogation were not of constitutional magnitude, and (2) that the state had established inevitable discovery of the challenged evidence.

 The appellate court reversed, holding that Winsett had been denied effective assistance of counsel on direct appeal due to his attorney's failure to challenge the trial court's denial of the motion in limine. According to the appellate court, the police conduct violated Winsett's right to counsel and should have been excluded under the fruit of the poisonous tree doctrine. The court further rejected the trial court's conclusion that Spruille inevitably would have been discovered.

 The Illinois Supreme Court, in a long and thorough opinion, reversed the appellate court, ruling, among other things, that Winsett's counsel had not been constitutionally deficient since any error he might have committed in failing to raise the motion in limine issue on appeal did not result in prejudice. The Illinois high court reasoned that current United States Supreme Court law, although silent on the precise question at issue, directed the conclusion that the alleged events amounted to a violation of a prophylactic rule rather than an infringement of Winsett's Fifth Amendment ...

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