Appeal from the Circuit Court of Cook County. Honorable Robert Nix, Judge Presiding.
Rehearing Denied April 25, 1995. As Modified on Denial of Rehearing April 26, 1995.
The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j. And Rizzi, J., Concur.
The opinion of the court was delivered by: Cerda
MODIFIED ON DENIAL OF REHEARING
The Honorable Justice CERDA delivered the opinion of the court:
After a jury trial, defendant, William Albrecht, was convicted of three counts of criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(d) (now codified as 720 ILCS 5/12-16 (d) (West 1992))) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-15(b) (now codified as 720 ILCS 5/12-15 (West 1992))), involving three minors, D.C., E.K., and P.O. Defendant was sentenced to six years' imprisonment for the aggravated criminal sexual abuse convictions and 364 days for each of the criminal sexual abuse convictions with the sentences to run concurrently.
On appeal, defendant asserts that (1) he did not validly waive his right to counsel because the police did not inform him that a retained attorney was present and requesting to speak with him; (2) the State improperly presented extensive evidence of other crimes or misconduct; and (3) the convictions for criminal sexual abuse of D.C. should be reversed because the indictment did not allege that the sexual acts occurred within the statute of limitations.
Prior to trial, defendant filed motions to suppress his statements and evidence, which were denied.
Wheeling police officer Robert Mac Donald testified that he and Officer Jerome Hermes arrested defendant at his home on May 3, 1988, pursuant to a warrant. According to Mac Donald, he did not hear defendant tell anyone to call an attorney, but defendant did tell his son to call Mrs. Albrecht at work.
At the police station, Mac Donald advised defendant of his Miranda rights. Defendant stated that he understood and signed an advisement of rights form. Mac Donald left the interrogation room at 4:30 p.m, but returned at 5:40 p.m. to give Detective William Hubner a note informing him that an attorney was present at the station and was asking to see defendant. Mac Donald testified that the officers did not want defendant to know that an attorney was at the station because defendant had not asked for one. Mac Donald then saw Hubner and defendant come from the interrogation room. When Hubner asked defendant whether he wanted to speak to an attorney, defendant declined. Mac Donald did not hear anyone else say anything to defendant at that time.
Detective Hubner's testimony regarding events at the police station was essentially the same as Mac Donald's. In addition, Hubner testified that he spoke with defendant until 6:15 p.m. at which time he introduced Assistant State's Attorney Diane Romza to defendant and left the interrogation room. Around 7:30 p.m., Hubner returned to the interrogation room at Romza's request to witness defendant's signature on the typewritten statement. Around 8:30 p.m., defendant signed a consent to search form.
Assistant State's Attorney Romza testified that she went to the Wheeling police station at 4:45 p.m. where she saw defendant speaking to Officers Hines and Hubner in an interrogation room. At that time, she learned that defendant had waived his rights. Around 5:30 or 5:45 p.m., Romza received a telephone call from attorney Michael Norris, who said he represented defendant and asked whether any questioning had begun. Romza told Norris that defendant had waived his rights, had not asked for an attorney, and was being questioned by the Wheeling police. Romza also told Norris that she would tell defendant that Norris had called.
After the phone call, Romza informed the police that an attorney had called for defendant. Romza then saw an officer take a note to Hubner in the interrogation room. When Hubner and defendant come out of the room, Hubner asked defendant if he wanted to speak with an attorney. Defendant said that he did not want an attorney and wanted to continue to speak with Hubner. According to Romza, she then told defendant that an attorney had called and asked if defendant wanted to speak with him.
Later, Romza spoke with defendant alone in the interrogation room. After showing defendant the advisement of rights form he had signed earlier and advising him of his Miranda rights, Romza spoke with him for 25 to 30 minutes. Defendant agreed to have their conversation typed in the form of a statement. Around 7:30 p.m., defendant was given the typed statement. After reading a paragraph to prove that he could read, defendant signed the statement without making any corrections or changes. Defendant then signed a consent form to search his house.
Police officer Kuzynowski saw Hubner bring defendant out of the interrogation room at 5:30 p.m. and ask whether he understood his rights and wanted an attorney present during the interview. Defendant responded that he understood his rights and wanted to continue speaking with Hubner. Kuzynowski did not hear anyone tell defendant that there was an attorney present who wanted to speak with him.
Ten or 15 minutes later, Kuzynowski spoke to Norris and defendant's wife in the police station lobby. Kuzynowski told Norris that defendant voluntarily waived his rights, did not say he was represented by an attorney, and did not ask for an attorney. Since defendant never requested an attorney, Norris was not allowed to see him.
Mary Albrecht testified that she called the Wheeling police department around 4 p.m. After Officer Kuzynowski told her that her husband was under arrest, she called attorney Norris, then went to the police station. When she arrived around 4:30 p.m. and the officers would not let her see her husband, Mary informed them that she had contacted an attorney who was coming to the station. At 5:45 p.m., Norris arrived at the police station, but Kuzynowski would not allow him to see defendant.
Defendant testified that he was arrested at his home at 3:30 p.m. on May 3, 1988. After the police officers refused to let him call his attorney, he told his son to call Norris and Mrs. Albrecht to tell them that he was under arrest. At the police station, defendant was informed of his rights. He understood those rights, but told Hubner and Mac Donald that he wanted to speak to an attorney. He was not allowed to call Norris.
The trial court found that defendant did not tell his son to call attorney Norris, but that defendant's wife, Mary Albrecht, had called Norris. The trial court also found that defendant had waived his rights, had never asked to consult an attorney during the interview process, and had made a knowing and intelligent waiver of his right to counsel. In addition, the trial court found that attorney Norris was present at the police ...