Appeal from the Circuit Court of Du Page County. 94--CF--1239 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
Modified Upon Denial of Rehearing
After a jury trial, the defendant, Svondo Watson, was convicted on July 29, 1998, of first-degree murder, attempted first-degree murder and aggravated battery. The trial court sentenced him to a term of imprisonment of 60 years for the murder conviction, 30 years for the attempted murder conviction, and 30 years for the aggravated battery conviction. The 30-year sentences were to run concurrently with each other but consecutive to the 60-year sentence. The defendant appeals his convictions, contending that the trial court erred in failing to suppress his confessions to the crimes. Specifically, the defendant contends (1) that his confessions were the tainted fruit of evidence that was illegally seized earlier in the day, and (2) that the police denied him access to his attorney in violation of his constitutional rights.
The record reveals that the defendant was initially convicted in this case on June 9, 1996. However, on appeal this court reversed the defendant's convictions and remanded the cause for a new trial, finding that the defendant's trial counsel was ineffective in failing to file a motion to suppress evidence of bullets that were found in a safe in a bedroom closet in the first-floor apartment located at 1628 North Linder, Chicago, Illinois. See People v. Watson, No. 2--95--0809 (unpublished order under Supreme Court Rule 23 (1996)). The building searched was a two-flat building that contained separate apartments on the second floor and first floor, with an additional basement apartment. The search warrant executed by police permitted the officers to search the entire brick, two-story premises at 1628 North Linder in Chicago. However, the complaint requested a search warrant for "the house" that the defendant "was found at in Chicago." The complaint, written in narrative form by Detective Carl Alagna, also stated that the defendant's brother, Changa Harris, told police that if the defendant was going to use a gun it would have been a .380-caliber gun that belonged to the defendant's cousin. According to the complaint, Harris also told police that the defendant's cousin lived at the same house with Harris and the defendant.
This court found that it was apparent from the officers' testimony that at the time they requested the issuance of the warrant they knew or reasonably should have known that the premises consisted of separate living quarters. Additionally, the officers knew that the defendant occupied only the second-floor apartment. Thus, probable cause existed to search on the second-floor apartment, not the first-floor apartment where the incriminating evidence was found.
On remand for a new trial, the defendant filed motions to quash his arrest, to suppress evidence seized pursuant to the execution of the search warrant, and to suppress statements the defendant made to the police following his arrest. At the hearing on the defendant's motions, the State presented evidence indicating that Leo McDaniel was fatally shot while sleeping in his apartment during the early morning hours of June 7, 1997. McDaniel's girlfriend, Keisha Twitty, was present during the shooting and later identified the defendant as the shooter to the police. The defendant had stayed at the apartment the previous couple of nights and was expected to return that night. He had a key to the apartment and was the only other person besides McDaniel and Twitty with a key to the apartment. Twitty specifically remembered locking the door before she went to bed that night, and there was no forced entry. The police found a receipt with the defendant's address in McDaniel's apartment. When the police went to the location mentioned on the receipt, they found a vehicle matching the description of the type of vehicle driven by the defendant. Upon arriving at the defendant's apartment, the defendant told police that "Svondo Watson was not there" and that "Watson had been in jail for the past two weeks." The trial court granted the defendant's motion to suppress items seized during the search but denied the motion to suppress the defendant's arrest.
The hearing then continued on the questions presented by the defendant's motion to suppress the defendant's statements to police following his arrest. Lombard police detective Carl Alagna testified that he arrested the defendant and Changa Harris around 10 a.m. on June 7, 1994, at the defendant's home and brought them to the Lombard police department. Officer Alagna read the defendant his Miranda warnings, and the defendant told the officer that he understood each of his rights, including his rights to remain silent and to have an attorney present. The defendant then voluntarily spoke with Alagna for about 25 minutes. Officer Sticka was also present during the conversation. At that time, the defendant denied involvement in the shooting but acknowledged his association with the victim. Alagna did not remember whether he mentioned to the defendant that Twitty had positively identified the defendant as the shooter. However, Alagna further testified that he did not believe that he did mention Twitty's identification to the defendant because he would have placed that fact in the police report if he had mentioned it.
Officer Alagna further testified that he again spoke with the defendant around 3:30 p.m. that same day. Officer Dane Cuny was also present for this conversation. Cuny asked the defendant if he still understood his rights, and the defendant responded that he did. According to Alagna, the defendant did not assert any of his Miranda rights while he was present, and Alagna was not advised by anyone that an attorney had called attempting to locate the defendant.
Lombard police lieutenant Dane Cuny testified that he interviewed the defendant at 3:30 p.m. on June 7, 1994, at the Lombard police station. The interview lasted about 10 to 15 minutes. Around 5:30 p.m., Cuny was informed that the defendant wanted to speak with him. When Cuny then went to the interview room, he asked the defendant if he still understood the Miranda warnings that had been read to him earlier that day and if he wanted to talk. The defendant replied that he understood his rights and wanted to tell the truth. When the defendant began describing specifics about where he discarded a weapon, Officer Cuny stopped the interview because Cuny wanted to get a notepad and bring another officer into the interview room. About 5 or 10 minutes later, Cuny returned to the interview room with Officer Rick Montalto. At that point, the defendant denied the previous admissions he had made. However, the defendant did not at any time assert any of his Miranda rights, including his right to remain silent or his right to consult with an attorney. Cuny further noted that he had not told the defendant that he had been positively identified by Twitty.
Lombard police detective Rick Montalto testified that he and Sergeant Richard Spika took the defendant to the polygraph examining facility about two or three miles from the police station. They were at the facility for about 30 minutes when they decided to return to the station without having the polygraph test administered because they had received a report that the defendant's brother, Changa Harris, was providing some information to the police. They returned with the defendant to the police station around 2:30 or 2:45 p.m. Officer Montalto did not have any further contact with the defendant until 5:30 p.m., when Officer Cuny asked Montalto to come to the interview room to witness a statement by the defendant. Montalto noted that the defendant recanted the statement he had apparently made to Officer Cuny. Montalto was in the interview room with the defendant for about five minutes. The defendant was then taken to an interview room in the booking area, which was next to the room his brother was in. Between the two rooms was a small two-way mirror and a speaker. The defendant got on the speaker and made some comments to his brother "about giving him up or something to that effect." When Montalto and the other officers heard the comments, they took Harris to a different room.
Officer Montalto further testified that he brought a McDonald's dinner to the defendant around 6:30 p.m. The next time he had any contact with the defendant was around 8:15 p.m., when he went into the interview room to collect the defendant's garbage from dinner and to ask the defendant if he needed to go to the bathroom. When Montalto asked the defendant if he needed to go to the bathroom, the defendant asked Montalto "what was going on." Montalto told the defendant that the only information he had was that "some of our detectives had gone back to the house on Linder and served a search warrant and had recovered a couple of items, not knowing what they were. And then they were on their way back to the station at this point." The defendant then told Montalto that he wanted to talk to him, and the defendant then made an admission with respect to the shooting in question. The conversation between the defendant and Montalto lasted from 8:15 until 8:45 p.m. About 8:45 p.m. Montalto called Officer Spika into the interview room and the defendant reiterated his incriminating statements in the presence of Spika. That conversation ended about 9 p.m. The defendant then requested to speak to Assistant State's Attorney Brian Nigohosian, who had spoken with the defendant earlier in the day. After being paged, Nigohosian arrived at the Lombard police department about 9:20 p.m. According to Montalto, Nigohosian entered through the front door and lobby area of the building because that was the only way to get into the building without a security code. Officers Montalto and Spika then talked with Nigohosian for about 10 minutes about the statements that the defendant had made. With Officers Montalto and Spika present, Nigohosian then spoke to the defendant until 10 p.m., during which time the defendant again made admissions.
Officer Montalto also testified that around 10 p.m. it was decided that the defendant's statement should be tape-recorded. Montalto and Nigohosian then left the room to find a tape recorder and batteries. While they were looking for batteries, the receptionist in the lobby advised Montalto that an attorney was in the lobby and wanted to speak with the defendant. Montalto immediately told Nigohosian about the attorney, and the defendant was not interviewed any further. This was the first time that Montalto was aware that an attorney for the defendant was at the police station or on the way to the police station. Officer Montalto noted that if a person dialed 911 he or she would receive a dispatch center in Wheaton and not the receptionist at the Lombard station. At any rate, Montalto was also not aware of any phone calls made to the Lombard police station from an attorney that day.
Assistant State's Attorney Brian Nigohosian testified that around 1 p.m. on June 7, 1994, he had a 20-minute conversation with the defendant at the Lombard police station. During the conversation, Nigohosian told the defendant that "[Twitty] had seen him, or words to that effect, and identified him as being the shooter." Later that same day, around 9 p.m., Nigohosian was paged and returned to the Lombard police station. He arrived about 9:20 p.m. and entered through the lobby. At the time, he did not see anyone else in the lobby area, including the defendant's family members. While he was not specifically looking for them, he noted that the lobby is not a very large area.
Nigohosian further testified that, when he arrived at the station, he knew that the police had executed the search warrant and had recovered bullets and a backpack with the defendant's name on it. Nigohosian did not recall talking to the defendant about the items recovered because their conversation dealt mainly with the defendant telling Nigohosian facts and details. Nigohosian's conversation with the defendant in the presence of Montalto and Spika ended about 10 p.m., when the defendant agreed to give a tape-recorded statement. While Nigohosian and the other officers were looking for a tape recorder, Nigohosian was informed that attorney Tod Urban had arrived at the police station to see the defendant. At that point, Nigohosian called his supervisor and then spoke with attorney Urban. Nigohosian then went back to the booking area and informed the defendant that an attorney was at the station to see the defendant. The defendant indicated that he wanted to see the attorney.
Nigohosian noted that there was no further conversation with the defendant after Nigohosian was told that an attorney was present. Nigohosian was not informed that an attorney had called earlier that day, and the defendant did not request an attorney or assert his right to remain silent at any point. While he was not positive, Nigohosian believed that Urban showed up after the interview with the defendant while the officers were looking for a tape recorder. Nigohosian recalled that when he went into the lobby area after talking with the defendant around 10 p.m. he saw the defendant's family members with attorney Urban.
Lombard police sergeant Richard Spika testified that he became aware around 8:30 p.m. on June 7, 1994, that Sergeant Sticka had executed a warrant at 1628 North Linder. Spika stated that, although he did not remember exactly, he probably was advised of the execution of the warrant by either radio, phone, or a transmission from the front desk. He noted that he never asked what was recovered, and he did not receive any information about what was recovered. Spika stated that, prior to the time that he went into the interview room with Officer Montalto, he told Montalto that Officer Sticka had executed the search warrant and was on his way back to the station. Spika noted that he did not tell Montalto about any specific items recovered because Spika did not know what had been recovered.
Officer Spika further testified that around 8:45 p.m. Officer Montalto asked him to witness a statement by the defendant. At the conclusion of the statement, the defendant requested to talk with the assistant State's Attorney. Spika then contacted Nigohosian, and Nigohosian arrived at the station around 9:20 p.m., through the lobby. Officers Spika and Montalto then explained to Nigohosian what had transpired. Nigohosian then interviewed the defendant with the two officers present. When the interview concluded around 10 p.m., Spika left the booking area and within minutes met Officer Sticka coming into the station through the back door of the building with the defendant's mother, Delores Harris, and the defendant's grandmother. They went directly to a conference table in the investigations area. This was an interior part of the station and not part of the lobby. In the presence of the defendant's mother and grandmother, Spika sat at the conference table and counted the money seized during the search. It took about 15 to 20 minutes to count the money. As they finished counting, Officer Spika received a page from the front desk and was advised that attorney Urban was at the station.
Attorney Tod Urban testified that on June 7, 1994, he was in the midst of a trial at the criminal courts building, at 26th and California in Chicago, when he received a message from the defendant's father. Urban spoke over the telephone with the defendant's mother about 1 or 1:30 p.m. Urban told her that he was in the midst of a trial and would not be able to get there until later. Urban made some phone calls and found out that the defendant was located at the Lombard police department. Urban had some additional matters pending in the criminal courts building at 4 p.m. He finally left for the Lombard police department around 7:30 p.m.
Urban testified as follows with respect to the telephone calls he made that day:
"Q. Prior to going out [to the Lombard police department] did you make any calls to any of the dispatchers or to the dispatcher?
A. I believe I called -- One of the times I called I did inform --Honestly I don't recall who I talked to but I did tell someone when I was on my way.
Q. What did you say to the best of your knowledge?
A. That I was an attorney and been retained by the family and I was on my way from 26th Street ...