The opinion of the court was delivered by: Justice South
Appeal from the Circuit Court of Cook County Honorable William Prendergast, Judge Presiding.
the opinion of the court:
Defendant, Darryl Matthews, was charged with the first degree murder of Michael Thurmond. Following a jury trial, he was convicted and sentenced to 36 years in the Illinois Department of Corrections.
Prior to trial defendant filed a motion to suppress his inculpatory statement. During that motion the State called Detective Luther Samuel of the Maywood Police Department, who testified that he was assigned to investigate the murder of the victim, Michael Thurmond. On March 16, 1996, he received a phone call from Attorney Barry Schmarak, who informed him that he represented Darryl Matthews and that he would be in the station with the defendant at 10:00 a.m.
At 10:00 a.m. Attorney Schmarak arrived alone. He told Detective Samuel that he had spoken with defendant's father and only wanted to know what the charges against defendant were and if, in fact, an arrest warrant had been issued against him. According, to Detective Samuel the attorney never indicated that he had spoken with defendant. Defendant never appeared at the Maywood police station that day.
Defendant was in fact arrested approximately two weeks later on April 4, 1996, after further investigation. At the police station both Detective Samuel and Detective Gude advised defendant of his Miranda warnings from a pre-printed form. They read the rights out loud to him and then had him read the form. Defendant was then asked if he understood his rights, to which he responded he did. Defendant initialed each right stating he understood it and signed and printed his name at the bottom of the rights form.
Defendant agreed to waive his rights, and at that time the detective notified Assistant State's Attorney Fioti of the Felony Review Unit. When ASA Fioti arrived at the police station, he also read defendant his Miranda rights from a pre-printed form, which defendant initialed and signed, evincing that he understood his rights and wished to waive them. At that time, defendant gave an inculpatory statement. Defendant stated that he had not been made any promises or threats in return for his statement and that he had been offered something to drink and eat and had been allowed bathroom privileges.
Detective Samuel further testified that at no time subsequent to defendant's arrest did he indicate that he wanted to invoke his right to remain silent, that he had an attorney, or that Barry Schmarak was his attorney, or that he wanted to wait for his attorney to arrive before being questioned. Attorney Schmarak never appeared at the police station on April 4th, nor did he call.
During cross-examination, Detective Samuel testified, contrary to his direct examination, that Attorney Schmarak never indicated to him that he represented defendant but that he had spoken with defendant's father. It was Detective Samuel's understanding that the only reason the attorney was there was to find out if there was an arrest warrant for defendant. At no time did the attorney tell him that he did not want defendant interrogated outside his presence. He admitted they exchanged business cards but that it was his impression that the attorney wanted to know if "anything developed in the case." After defendant was arrested on April 4th, he never informed him that an attorney had been in contact with the police on his behalf.
Attorney Barry Schmarak testified on behalf of defendant. He was retained by defendant's father to represent defendant on March 13, 1996, for the amount of $500. Defendant came to his office on March 15, 1996, and at that time Attorney Schmarak telephoned the Maywood Police Department and informed them defendant would surrender to them the next day. On March 16, 1996, Attorney Schmarak appeared at the Maywood Police Department and spoke with Detective Samuel, informing him that he represented defendant who was scheduled to surrender himself at 10:00 a.m. However, by 11:00 a.m., defendant did not appear, and Attorney Schmarak exchanged business cards with the detective and told him that he had instructed his client not to talk to the police and that he did not want the police to interrogate defendant in the event he was arrested and that he, the attorney, wanted to be present during any questioning of his client. Although defendant was subsequently arrested on April 4, 1996, the attorney, was never notified by either the defendant's father or the police department. Although the attorney never filed an appearance on defendant's behalf or did any other legal work for him, he did represent him at the time of his arrest on April 4th. When the attorney spoke with defendant's father several months after defendant's arrest, he was informed that the family had retained another lawyer to represent Darryl.
Defendant, Darryl Matthews, testified that he was arrested on April 4, 1996, and brought to the Maywood Police Station. At that time, he was represented by Attorney Barry Schmarak, whom he had met and spoken with on several occasions before that date. The attorney told defendant that he did not want him to speak with anyone and that he had already informed Detective Samuel that the defendant was not to be questioned without his lawyer being present. The attorney had also advised him to surrender to the police. On the date of his arrest, he requested that Detective Samuel allow him to make a phone call. That request was denied because the detective informed him that he was only being questioned and that a phone call was unnecessary.
Detective Samuel told defendant to sign a waiver, which, according to the detective, was a routine matter. The waiver was a copy of the Miranda warnings. The rights were read to him by Detectives Samuel and Gude. However, defendant refused to sign a waiver regarding his right to an attorney and informed them that he, in fact, had a lawyer. Detective Samuel told defendant that his lawyer had been in contact with the police department, at which time defendant replied that he wanted his attorney present. Detective Samuel persisted in his request that defendant sign the waiver, insisting that a lawyer was not necessary because this was a routine matter. Eventually, defendant signed the waiver because he believed that it was normal procedure to sign such a waiver. He gave a statement, both written and oral, about the facts surrounding the shooting and testified that he did so willingly and voluntarily. Again he requested that he be allowed to make a phone call. Again, this request was denied. The first time defendant was allowed to make a phone call was when he was at the Cook County Jail, and that phone call was made to his mother, not his attorney. In fact, defendant never contacted Attorney Schmarak. Defendant was questioned by both the police officers and an assistant state's attorney, who also advised defendant of his Miranda warnings. When the ASA told defendant he had a right to a lawyer, defendant responded that he had one, to which the ASA responded that defendant was "under the influence" and that "it was still routine." While in defendant's presence, Detective Samuel told the ASA that he had spoken with defendant's lawyer; however, the ASA continued to question defendant
Defendant also testified that when he first appeared before a Judge in court, he did not inform him that he was represented by a lawyer nor did he ever attempt to contact Attorney Schmarak.
In rebuttal, Detective Samuel testified that defendant never asked to make a phone call while he was in custody, and that had he made such a request, it would have been granted. He also testified that he never told defendant that it was just routine procedure to initial and sign the Miranda warnings.
The motion was denied, and the matter proceeded to trial.
Keith Herron gave a statement to the Maywood Police, Assistant State's Attorney Karen Stratton and testified before the Grand Jury that on March 5, 1996, he and Michael Thurmond were walking eastbound on 4th Street in Maywood, Illinois, when they met the defendant. In his statement, Herron indicated that he had known defendant for approximately two years when he and defendant were members of the Gangster Disciples. Defendant and the victim began arguing, so Mr. Herron walked away from them. He took approximately 4 or 5 steps when he heard gunshots. When he looked back, he saw the victim fall to the ground and defendant standing over him pointing a chrome or nickel- plated gun at the victim. At that time Mr. Herron started running, and as he did so, he heard two more gunshots coming from the direction of the victim and defendant. He ran a distance of two blocks to his grandmother's house and ran onto the back porch. When he got to the porch he heard at least one more shot. He thought that he heard some scuffling and someone moaning as he left the porch. Herron ran to his cousin's house and then went back to his grandmother's home. As he walked up the front porch, he saw the victim laying face up and Officer Wade was standing over him. He overheard the victim tell the officer that defendant was the one who shot him.
At trial, Keith Herron denied everything and testified that the only reason he said the things he did was because he had been locked up ...