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People v. DeSantis

December 22, 2000


The opinion of the court was delivered by: Presiding Justice Quinn

Appeal from the Circuit Court of Cook County Honorable Robert Bertucci, Judge Presiding.

Defendant, Richard DeSantis, was charged with two counts of obstructing justice for leaving Illinois and concealing himself with the intention of obstructing the prosecution of Frank Caruso, Victor Jasas and Michael Kwidzinski, who were each charged with attempted murder, aggravated battery and hate crimes for the beating of a black child, Lenard Clark. Defendant filed a motion to suppress written and oral statements he made to police during the investigation into the Clark beating. Defendant claimed that he was unable to knowingly waive his fifth amendment right to counsel because he was unaware that his attorney was at the police station attempting to communicate with him. After a hearing on defendant's motion to suppress, the trial court found that the interrogation was not custodial and the statements were given voluntarily. The trial court denied the motion to suppress as to oral statements made by defendant before his attorney arrived, but granted the motion as to the written statement taken and signed by defendant after his attorney arrived, relying on the holding in People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994). The State appeals from that portion of the trial court's ruling granting defendant's motion to suppress the written statement. For the reasons that follow, we reverse and remand.

At the suppression hearing, defendant testified that at about 1 p.m. on Saturday, March 22, 1997, his sister told him that two detectives had come to their house looking for him and she gave him the business card they had left. While at Hey Bud's restaurant at 56th and Pulaski, defendant called the number on the business card. Defendant testified that the officer told him to wait at the restaurant until he could come and pick him up. Defendant stated that he did not call his lawyer after receiving the business card from the police or after calling the police. Approximately 15 minutes later, two officers arrived. Defendant testified that the officers told him to come outside with them, read him his rights, handcuffed him, placed him in the back of their car, and took him to Area One police headquarters.

At Area One, defendant stated that his handcuffs were removed and, over the course of several hours, he was moved to several different rooms within the building. Defendant stated that, throughout the evening, he was questioned by police officers about the Clark beating, which had occurred in Armor Park on the previous evening. Defendant testified that he denied any knowledge of the incident and stated that he requested his attorney on several occasions. Defendant admitted that he spoke to an assistant State's Attorney at the time that he signed the written statement, but claimed that he did not speak to her between the time they were introduced and the time that he signed the written statement. He stated that most of the statement was incorrect but acknowledged that the personal information and the statements regarding his friendship with Caruso, Jasas, and Kwidzinski were true.

Defendant stated that he was placed in a lineup and afterward was again interviewed by the police. After he had been in the lineup room approximately nine hours, he recognized the voice of John O'Malley, his attorney. Defendant heard O'Malley mention his name and ask for him, but the police would not permit O'Malley to speak with him. Defendant claimed that he signed the statement shortly thereafter because the police told him they would let him go if he signed the statement and that he would be charged with a crime if he did not sign the statement.

John O'Malley testified that he was an attorney and longtime friend of the DeSantis family. He stated that on March 23, 1997, defendant's mother came to his home and told him she thought defendant was at the police station. O'Malley testified that he arrived at the station at about 9:20 a.m. He stated that he was directed to the detective unit, where he identified himself as an attorney and asked to see defendant. O'Malley repeated his request approximately 10 minutes later and was told that a detective would be out to speak with him. O'Malley testified that Detective Stanley Turner saw him a few minutes later and told him that he was not sure whether defendant was going to be a witness or suspect, but he would not allow O'Malley to see him. O'Malley continued waiting and asking to see his client. After waiting for some time, O'Malley testified that he again saw Detective Turner and asked him why he could not see defendant. He stated that Detective Turner merely told him he was tired and left. O'Malley testified that he waited at the station for approximately two hours before he was allowed to see defendant in the lineup room.

Sergeant David Jarmusz of the Chicago police testified that Detective Glen Mathews asked Jarmusz to drive him to the restaurant to pick up defendant, a witness to a crime. Only Mathews spoke to defendant in the restaurant, and Jarmusz did not recall what Mathews said. Jarmusz stated that he did not handcuff defendant, no one told defendant he was under arrest, and defendant traveled with them in the police car to the station. During the ride, Jarmusz and Mathews did not speak to defendant. Jarmusz testified that when they arrived at Area One defendant was placed in the lineup room and was never placed in a smaller room. He testified that the lock on the lineup room door is never utilized and that he did not have a key.

Detective Glen Mathews testified that he first learned of defendant early in the afternoon of March 22, from an anonymous caller who said that Jasas, Michael Cutler, and defendant were involved in the Clark beating. However, several other witnesses Mathews had spoken to about the beating had not named defendant. He testified that he and Jarmusz went to pick up defendant at Hey Bud's, where defendant had suggested they meet. At the restaurant, Mathews asked defendant if he would return to the station with them to help them. Mathews stated that defendant agreed to go with them and was not handcuffed.

Mathews testified that defendant was taken to the lineup room, but he was not handcuffed and he was not told he was under arrest. Mathews asked defendant where he had been the previous evening and defendant responded that he had been with his girlfriend. Mathews stated that defendant was then placed in a lineup as a filler and that the subject of the lineup was Caruso. Mathews said that defendant remained in the lineup room after the lineup, but the door was unlocked. Mathews left defendant in the room alone and had a telephone conversation with defendant's girlfriend and her mother.

Mathews testified that he returned to the lineup room at 2 a.m., with Jarmusz. At that time, Mathews advised defendant of his rights under Miranda and told defendant that he knew defendant was lying to him because his girlfriend did not corroborate his story. Mathews stated that defendant then admitted that he saw Caruso strike the smaller of the two black children, then saw Caruso chase them. According to Mathews' testimony, defendant also said that Jasas and Kwidzinski chased Clark, but defendant did not say that he had personally laid a hand on the victim. Mathews reentered the lineup room after 5:40 a.m. to bring defendant breakfast.

Mathews stated that defendant was never handcuffed, placed in a holding cell, or fingerprinted. He stated that he did not fill out an arrest report or obtain a central booking number for defendant. He stated that defendant was never placed under arrest and went home sometime after he gave a handwritten statement. Mathews testified that he never threatened or promised anything to defendant, and defendant never requested to call his lawyer.

Detective Stanley Turner testified that defendant was not a suspect when he was picked up at the restaurant. He stated that one of the victims of the beating, Clevon Nicholson, viewed the lineup in which defendant was a filler, identified Caruso as one of the individuals who beat him, and identified defendant as the person who stopped Caruso, Kwidzinski, and Jasas from beating him. Turner stated that another witness to the lineup identified defendant as one of the crowd present at the beating, but he did not say defendant harmed anyone. Turner said that he spoke to defendant a couple of times in the lineup room. He asserted that defendant was never handcuffed, told he was under arrest, or fingerprinted. Turner also stated that he never prepared an arrest report for defendant. Turner said he did not threaten or promise defendant anything, and defendant never requested an attorney.

Turner testified that he was present at 9:40 a.m., when Assistant State's Attorney (ASA) Kari Mason took a written statement from defendant. He stated that Mason explained who she was, advised defendant of his rights, had defendant read and sign a portion of the statement, and asked defendant questions to which defendant gave answers. Mason wrote down everything in the statement in front of defendant, and when she was done writing she asked defendant to read it. Defendant read the statement and then Mason read it back to him. Turner stated that corrections were made to the statement and defendant, Mason and Turner initialed the corrections. Turner and defendant signed each page, and defendant placed his signature beneath the portion of the statement advising defendant of his rights under Miranda. Turner testified that he never told defendant to sign the statement and he did not tell defendant he could go home if he signed it. Turner testified that he did not speak to defendant again and that he did not speak to defendant's attorney at all that day.

ASA Kari Mason testified that she spoke to defendant, who was not handcuffed, in the lineup room sometime after midnight. Mason's description of the process of taking defendant's statement largely reflected that of Detective Turner and will not be repeated here. Mason testified that the entire process of taking the written statement could have taken as much as three hours to complete. Mason said that she never saw defendant handcuffed, he was always in the lineup room, and he was not charged with any offense on March 22 or March 23. She also stated that she never met O'Malley.

Charles Burns testified that he was the supervisor of the felony review unit of the Cook County State's Attorney's office on March 23, 1997. Burns testified that he arrived at Area One between 12:30 and 1 p.m. that day. While there, Burns spoke to O'Malley in the lineup room. Burns testified that O'Malley informed him that he had spoken with defendant. Burns informed O'Malley that defendant was to appear before the grand jury the next day, and if he did not appear defendant would be subpoenaed. Burns testified that O'Malley did not appear upset and he did not complain that he had not been allowed to see defendant. To Burns' knowledge, defendant was not under arrest at any time, and he did not recall seeing Detective Turner at the station that day.

At the conclusion of the hearing, the trial court made several findings. The court found that the credible evidence was that defendant was not seized or arrested when he called the police and agreed to meet with them on March 22, 1997. The court found that defendant chose the place and time to meet the police, he was not handcuffed, and he agreed to go to the station with the detectives and cooperate with them. The court also pointed out that no arrest procedures took place and that there was no processing or fingerprinting of defendant upon his arrival at Area One or later. The court found that, later in the evening, the police believed defendant's statement that he had no knowledge of the incident was not truthful, and defendant was advised of his rights under Miranda at 2 a.m. The trial court found that defendant waived those rights and chose to continue speaking with the police at that time.

The trial court found that defendant's testimony that he continually asked for an attorney was not credible. The court found it was credible, however, that after defendant became aware that the statements of other witnesses showed that he was present at the incident, he admitted his presence to the police. The court found that defendant voluntarily gave the oral and handwritten statements to the police and ASA Mason, and defendant was not coerced or threatened.

The court found that defendant's attorney was present at Area One and seeking to speak to defendant at the time the statement was being written and that defendant and ASA Mason were unaware the attorney was present. Consequently, the court found that defendant's waiver of his rights for the written statement was voluntary, but not knowing, because defendant was not informed that his attorney was at the station asking to see him. The court ruled that defendant's oral statements made prior to the attorney's arrival would not be suppressed, but that the written statement made after the attorney's arrival would be suppressed, even though defendant was not seized or under arrest. At a subsequent court hearing, the trial court reiterated that defendant "was not a custodial suspect" at the time of the interviews.

We will first address the issue of standing, as the State asserts that defendant had no standing to move to suppress his statements. The law is clear that a defendant has no standing to raise an alleged violation of a witness' fifth amendment rights. People v. Govea, 299 Ill. App. 3d 76, 84, 701 N.E.2d 76 (1998); People v. Adams, 283 Ill. App. 3d 520, 524, 669 N.E.2d 1331 (1996). This is so because the ...

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