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UNITED STATES EX REL. MURRAY v. GRAMLEY

July 25, 1994

UNITED STATES OF AMERICA ex rel. GUY MURRAY, Petitioner,
v.
RICHARD GRAMLEY and ROLAND BURRIS, Attorney General of the State of Illinois, Respondents.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

 I. FACTUAL BACKGROUND *fn2"

 On September 27, 1987, petitioner and three accomplices went to the parking lot of a hotel to steal cars for use in committing jewelry store robberies. While they were in the process of stealing the cars, one of petitioner's accomplices fatally shot the parking lot attendant, Vipinchadra Patel.

 On October 1, 1987, petitioner and an accomplice were arrested in Chicago for a recent armed robbery of a store in Villa Park, DuPage County, Illinois. The defendants were appointed a public defender to represent them. While in the custody of the Villa Park police for that robbery, petitioner was advised of his Miranda rights and interrogated by police. Petitioner at that time made incriminating remarks about the homicide of Vipinchadra Patel. An Assistant State's Attorney wrote up the statement, and petitioner signed the statement and a written waiver of his Miranda rights. Subsequently, petitioner was indicted for the murder and armed robbery of Patel.

 Petitioner filed several motions to suppress his statement given to police. At one such hearing, petitioner testified that he had repeatedly requested counsel before he made the incriminating statement during his custodial interrogation. Several police officers, however, testified that petitioner neither requested counsel nor expressed a desire to remain silent. Denying the motion, the state trial judge stated that he believed the police officers. After a bench trial, the judge convicted the petitioner of the murder and armed robbery of Patel.

 In petitioner's post-conviction proceeding he claimed that his Sixth Amendment right to effective assistance of counsel had been violated. Appellate counsel was appointed from the public defender of Cook County after the circuit court had denied petitioner's pro se post-conviction petition. Appellate counsel filed a motion to withdraw, asserting that there were no appealable issues in the case. On February 3, 1993, the Illinois Appellate Court granted appellate counsel's motion for leave to withdraw as counsel, and affirmed the circuit court's judgment denying petitioner's post-conviction petition. People v. Murray, No. 1-92-3042 (Ill. App. Ct. Feb. 3, 1993) (unpublished order).

 II. DISCUSSION AND ANALYSIS

 A. Fifth Amendment Right to Counsel

 Petitioner argues that his conviction for first degree murder was obtained in violation of his Fifth Amendment right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). First, he contends that his Fifth Amendment right to counsel was invoked at his custody transfer hearing and that knowledge thereof should be imputed to the police officers who subsequently interrogated him. Furthermore, petitioner claims that prior to his custodial interrogation, he did in fact request an attorney pursuant to his rights under Miranda. The court discusses each of these claims separately.

 1. Fifth Amendment Right to Counsel Invoked at His Custody Transfer Hearing

 In McNeil, the defendant was arrested and charged with an armed robbery. Counsel from the Wisconsin Public Defender's office represented McNeil at his initial court appearance. Two days later, a detective visited the defendant while he was in jail to question him about a homicide he had been investigating. McNeil waived his Miranda rights and confessed to being involved in the homicide. The defendant was subsequently charged and convicted of second degree murder and armed robbery, and sentenced to sixty years in prison. McNeil, 111 S. Ct. at 2206-07.

 The Supreme Court's resolution of the case is dispositive of the issue before this court. First, the Court noted that the defendant's acceptance of counsel at his initial court appearance was an invocation of his Sixth Amendment right to counsel -- a right which is offense-specific. "Offense specific" signifies that it has the effect of invalidating subsequent waivers in police-initiated interviews concerning the same charge. McNeil, 111 S. Ct. at 2207-08 (citing Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986)). Therefore, the defendant's statements about an unrelated charge, to which the Sixth Amendment right had not yet attached, are admissible at trial on those offenses. 111 S. Ct. at 2208 (citing Maine v. Moulton, 474 U.S. 159, 180, n.16, 106 S. Ct. 477, 489, n.16, 88 L. Ed. 2d 481 (1985)). Likewise, in the instant case, the Sixth Amendment is no bar to the admission of petitioner's statements.

 However, as the petitioner in McNeil did, petitioner Murray relies upon "a different 'right to counsel,' found not in the text of the Sixth Amendment, but in the Supreme Court's jurisprudence relating to the Fifth Amendment guarantee that 'no person . . . shall be compelled in any criminal case to be a witness against himself.'" McNeil, 111 S. Ct. at 2208. As the McNeil Court noted, in Edwards v. Arizona the Supreme Court held that once a defendant asserts his Fifth Amendment Miranda right to counsel, "not only must the current interrogation cease, but he may not be approached for further interrogation 'until counsel has been made available to him.'" Id. (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981)). Moreover, the Court observed that the Edwards rule is not offense-specific. That is, "once a suspect invokes the Miranda ...


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