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People v. Wanke

March 24, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICHARD WANKE, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of DeKalb County. No. 91-CF-323 Honorable Philip L. DiMarzio, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

A jury found the defendant, Richard Wanke, Jr., guilty of two counts of burglary. Ill. Rev. Stat. 1989, ch. 38, par. 19--1(a) (now 720 ILCS 5/19--1(a) (West 1996)). The trial court sentenced the defendant to two terms of three years' imprisonment to run concurrently. The defendant appeals his convictions. We affirm the defendant's convictions and modify the defendant's sentence to reflect 25 days' credit toward his sentence.

The following facts are taken from the record. On the night of October 25-26, 1991, the defendant was arrested by a Rockford police officer and taken into custody in connection with two burglaries that had occurred in the city of Rockford, Winnebago County. Rockford police officer Dave Hopkins gave the defendant his Miranda warnings, and the defendant agreed to speak. On October 30, 1991, Hopkins and another Rockford police officer, Gary Lindmark, informed the defendant that a considerable amount of allegedly stolen property had been recovered from the defendant's aunt's house. After the Winnebago County assistant State's Attorney (ASA) agreed to charge the defendant with only one count of burglary, the defendant agreed to speak about items obtained in relation to the Winnebago County offenses. Later in the day, Hopkins obtained a written statement from the defendant.

On October 31, 1991, the defendant met with Detective James Rhoades of the DeKalb city police and Detectives Rudi Ziegler and Norm Berth of the De Kalb County sheriff's police. Rhoades, Ziegler, and Berth were investigating two burglaries that occurred in the city of DeKalb and one burglary that occurred in the county's jurisdiction. Rhoades read the defendant his Miranda rights, and the defendant stated that he understood. The defendant neither made complaints to the officers nor asked for counseling. After the De Kalb County ASA agreed to charge the defendant with, at most, two counts of burglary, relating only to the burglaries in the city of DeKalb, the defendant gave oral and written statements regarding all three De Kalb burglaries.

The defendant's testimony regarding these interviews contradicted the police officers' testimony. According to the defendant, when first taken into custody he told Hopkins that he wanted to remain silent and did not want to speak without someone else present, he asked for the presence of a counselor or his mother, and he asked for help or counseling. On October 30, 1991, Hopkins forced the defendant into an interview room. After Hopkins gave the defendant Miranda warnings, the defendant said that he did not want to speak and asked to have someone present. Hopkins retorted that it would not happen. The defendant told the officers that his cell was overcrowded, he was not getting enough food because he was a vegetarian, he was not given access to a phone, and he had psychological problems. The defendant signed a typed statement in order to get better conditions in jail.

The defendant stated that he spoke with the De Kalb police officers on October 31, 1991, only after being told he would receive better treatment in the jail. According to defendant, he was not given Miranda warnings on that day. The defendant told the officers that he had spent the previous night in the infirmary out of exhaustion and needed counseling. The defendant agreed to speak to the officers only after Rhoades told him he would be charged with only one offense. The defendant believed this agreement referred to the Winnebago County offense. The defendant had only a fleeting awareness of the De Kalb crimes but agreed with Rhoades as he described them and wrote a confession at the officers' direction.

Subsequently, the De Kalb County State's Attorney charged the defendant with two counts of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19--1(a) (now 720 ILCS 5/19--1(a) (West 1996))), alleging that the defendant committed two burglaries at the De Kalb Ace Hardware store. A public defender was appointed, and the defendant was released on bond on March 14, 1992. Upon arraignment, the De Kalb County State's Attorney filed an information to supplant the complaint.

Defense counsel filed a motion to suppress the statements the defendant made on October 31, 1991, to De Kalb County police officers and also moved to continue the proceedings pending a similar motion in Winnebago County where the defendant had also been arrested. On May 11, 1994, the De Kalb County trial court decided not to wait for the outcome of Winnebago County proceedings and set a trial date. On October 27, 1994, the suppression hearing began. The trial court heard the testimony of one witness from the State and continued the case to January 20, 1995.

Before the suppression hearing resumed, De Kalb County Public Defender Ricky Holman was assigned to the defendant's case. On February 1, 1995, after hearing testimony from the defendant, Ziegler, Hopkins, Lindmark, Berth, and Eddie Houi of the Winnebago County jail, the trial court denied the defendant's motion to suppress, finding that the statements in question were made voluntarily after the defendant had knowingly and voluntarily waived his Miranda rights. The trial court found that the defendant's testimony was not credible and not corroborated. A trial date was set for April.

The defendant subsequently filed three pro se motions--a motion for a new suppression hearing, a motion for reconsideration of the ruling on the motion to suppress, and a motion for the appointment of conflict counsel. The last motion alleged, in part, that defense counsel was not adequately prepared for the suppression hearing. After the defendant knowingly waived counsel, the trial court dismissed defense counsel (Holman) and denied the defendant's motion for conflict counsel but, upon the defendant's request for standby counsel, appointed Holman in that capacity. The trial court then vacated the order denying the motion to suppress and reopened proofs for the suppression hearing.

The defendant, proceeding pro se, called the following witnesses to testify regarding the conditions at the Winnebago County jail and the defendant's poor state of mind at the time the defendant made the October 31, 1991, statements: Houi, who testified regarding conditions at the Winnebago County jail; Patricia Davidson, an investigator for the Winnebago County public defender, who stated that on November 1, 1991, the defendant asked to see an attorney; Pastor Bradford Wilson, who testified regarding the defendant's poor state of mind and poor treatment in the Winnebago County jail; William Evans, a family therapist, who stated that the defendant suffered from dissociative disorder and blackouts; and doctors Frank Cushing and Robert Gordon, who also testified regarding the defendant's mental condition. The defendant also called Wilson, Hopkins, Rhoades, Northern Illinois University Detective Curt Underwood, James Meron of the Winnebago County sheriff's department, and Terry Kurt, an attorney who represented the defendant in a civil case against Detective Rhoades. The defendant intended to call other witnesses, but they were not available. The trial court stated that the defendant could reopen proofs at a later time if he obtained affidavits from the missing witnesses. After hearing arguments on the motion to suppress, the trial court once again denied it.

Although the defendant requested the appointment of counsel other than Holman, the trial court reappointed him to represent the defendant. The trial began on December 11, 1995. The trial court granted the defendant's motion to exclude the Winnebago County crimes.

James Wayman, president of the De Kalb Ace Hardware store, testified that the store was burglarized in June and September of 1991. In June, someone had entered the store through an air vent and exited through the back door. The items taken included hand and power tools, tool boxes, garden tools, picnic coolers, a photocopier, storage bins, and rolls of duct tape. In September, similar items were missing. Wayman identified some of the items after they had been recovered by the police.

Lindmark and Hopkins testified that they recovered the Ace Hardware items from a home the defendant identified as his home, which he was remodeling, on Mill Road.

Rhoades and Ziegler testified regarding the defendant's October 31, 1991, statements. According to the officers, the defendant stated that he entered the store through an air vent in June and September 1990 and took numerous items.

Dr. Gordon testified that, in his opinion based on two interviews and various test results, the defendant had no significant psychopathology or mental illness, was able to conform his conduct to the law, and was able to appreciate its criminality on the dates of the alleged burglaries.

Dr. Cushing testified that, in his opinion based on interviews and test results, the defendant suffered from an amnesia-like impairment as to some issue in his life; had auditory hallucinations and signs of paranoid thinking, depersonalization, and derealization; blurred fantasy and reality; and suffered from low-level depression. Dr. Cushing opined that the defendant suffered from dissociative disorder, demonstrated an inability to recall, had a tendency to black out and be unable to account for periods of time and a tendency to lose track of ...


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