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People v. Harbach

July 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DEWAYNE V. HARBACH, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Inglis

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Lee County.

No. 95--CF--4

Honorable Tomas M. Magdich, Judge, Presiding.

Following a trial in the circuit court of Lee County, a jury found defendant, DeWayne V. Harbach, guilty of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1996)). Defendant appeals his conviction and contends that the trial court erred when it denied his motion to suppress inculpatory statements that he purportedly made while in custody prior to the trial. We agree and reverse and remand.

The charge against defendant was based on allegations that, on December 1, 1994, in Lee County, defendant, who was 43 years old at the time, committed an act of sexual penetration with a young woman who was 14 years old at the time. At the trial, the young woman testified that defendant committed the alleged act. The State also presented the testimony of Mark Thatcher, a state police investigator. Thatcher testified that while defendant was in custody in the Lake County jail he made inculpatory statements, including a statement that he had committed an act of sexual penetration with the young woman.

Prior to the trial, defendant filed a motion to suppress the inculpatory statements that he purportedly made to Thatcher. The trial court conducted a hearing on the motion to suppress. At the hearing, Thatcher and another police officer, Jerome Costliow, who was present when defendant purportedly made the inculpatory statements, testified for the State. Defendant and defendant's father testified for defendant.

The record reveals the following undisputed facts. On July 14, 1995, shortly after 3 p.m., defendant was arrested in Lake County. Defendant was subsequently taken to the Lake County jail where he was booked and placed in a cell known as a holding tank. At around midnight, defendant telephoned his mother. Defendant had been advised that he could be bailed out and asked his mother to make arrangements to bail him out.

On July 15, 1995, at around 8 a.m., defendant's father arrived at the jail to post bail for defendant. Although he initially went to the wrong place, defendant's father had posted bail for defendant by around 9 a.m.

On the same date, Officers Thatcher and Costliow arrived at the jail around 10 a.m. They had traveled from Lee County. They asked to speak to defendant. A jailer went to the holding tank where defendant was still being held and asked defendant if he wanted to talk to the officers. Defendant told the jailer that he did not want to talk to the officers.

Five or ten minutes later, a jailer again came to the holding tank and said something to defendant. This time, defendant left the holding tank with the jailer and accompanied the jailer to a foyer area in the jail. In the foyer area, Officers Thatcher and Costliow approached defendant. After a brief conversation, defendant accompanied the officers to an interview room where he purportedly made the inculpatory statements. There is conflicting testimony as to what occurred after the police officers approached defendant in the foyer area.

Thatcher's testimony included the following. Even though Thatcher had been informed only 5 or 10 minutes earlier that defendant did not want to talk to police officers, the reason that he approached defendant was to serve defendant with a notice of eavesdropping. He immediately served defendant with the notice, and defendant then asked the officers questions about the underlying charge. Before the officers engaged in a conversation with defendant regarding the underlying charge, defendant signed a form that the jailers insisted defendant sign before talking with the officers. Thatcher had no knowledge of the content of the form; he believed it was just jail policy to have inmates sign such a form before speaking to police officers. The officers and defendant then moved to an interview room. Thatcher testified that he then advised defendant of his constitutional rights by reading the Miranda warnings to defendant from a card that Officer Costliow carried.

Thatcher further testified that defendant stated that he understood his rights but waived them because he wanted to talk to the officers about the charge. According to Thatcher, only then did the officers discuss the underlying charge with defendant. Thatcher testified that defendant made the inculpatory statements during the ensuing interview. Thatcher testified that the officers did not use any promises, threats, deception, or trickery during the interview. The interview lasted about two hours.

Thatcher acknowledged that the officers did not obtain a written waiver of Miranda rights from defendant. Thatcher also acknowledged that defendant made the purported inculpatory statements orally and that ...


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