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People v. Ballard

August 29, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
MARK BALLARD, APPELLANT.



The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 88885-Agenda 32-May 2001.

Modified Upon Denial of Rehearing December 2, 2002.

Following a bench trial held in the circuit court of Du Page County, the trial judge found defendant, Mark Ballard, guilty of first degree murder (720 ILCS 5/9-1(a) (West 1996)); robbery (720 ILCS 5/18-1(a) (West 1996)); concealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 1996)); unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 1996)); and armed robbery (720 ILCS 5/18-2(a) (West 1996)). After finding the defendant eligible for the death penalty and hearing aggravation and mitigation testimony at the subsequent sentencing hearing, the trial judge sentenced defendant to death for the first degree murder conviction. In addition, the trial judge imposed a 5-year sentence for the concealment of a homicidal death, a 7-year sentence for unlawful possession of a stolen motor vehicle, and a 60-year sentence for armed robbery; sentences to be served concurrently. The death sentence has been stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm both the convictions and the sentences.

BACKGROUND

This case involves the murder of Patty Noland. The primary evidence used by the State against defendant came from defendant's own admissions to his family, friends and to police, which can be summarized as follows. In October 1997, defendant was living at a residence owned by John McGuire. Noland had previously lived at this residence, but had recently moved out and was living with her boyfriend. However, Noland had left some of her clothes at McGuire's house and had yet to retrieve them. While McGuire normally resided at his home, he was staying with his girlfriend from approximately October 25, 1997, through the beginning of November 1997, but left the care of his dog with defendant.

On October 29, 1997, around 8 p.m., defendant wanted a car and money so that he could go to Elgin and buy drugs. Defendant thought of Noland. Knowing that Noland would not lend defendant her car and money, he thought of robbing her by first luring her to McGuire's house under the pretense that she could pick up her remaining clothes. Once there, defendant would knock Noland out with chloroform and handcuff her down in the basement. However, thinking that Noland could later identify him, defendant's thoughts ultimately turned to murder. To that end, defendant called Noland at the restaurant where she was a waitress working the 5 p.m. to midnight shift. Defendant told her to come over to McGuire's house to pick up her clothes after she was done with work, but requested that she call him before coming so that he would know when to expect her. Noland agreed.

While defendant waited for Noland's call, he retrieved a bottle of chloroform from McGuire's room and put it in a box next to the front door so that Noland would not recognize it. Defendant then wrapped a hammer in a bath towel and placed it in the entranceway. Defendant also laid a blanket out on the floor in the front living room so that he would have something to wrap the body in. In addition, defendant retrieved a pair of handcuffs from McGuire's room and put them in his back pocket.

Noland called defendant around 10:30 p.m. to let him know that she was on her way to pick up her clothes. Defendant asked her to bring him a soda.

After Noland's call, defendant soaked a rag with the chloroform. When Noland arrived in the driveway, defendant grabbed the rag and held it in his hand. Upon Noland's entrance into McGuire's house, defendant asked her for his soda. Noland responded that she had left the soda in her car and for defendant to get it himself. As Noland proceeded to walk further into the house, defendant grabbed her and put the chloroform-soaked rag over her face. There was a struggle and both fell to the ground onto the blanket that defendant had previously laid down. When defendant realized that the chloroform was not having an effect on Noland, he held her down while he grabbed the hammer and began to hit her on the head. Defendant continued to keep the chloroform rag over Noland's face as he hit her on the head with the hammer. After hitting Noland approximately 30 times, defendant got up to wash the blood off his hands. As he was washing his hands, defendant heard Noland mumbling. Defendant then attempted to stab Noland with a knife in order to "finish [her] off" and to "prevent her from suffering any more," but the blade bent on impact. Defendant then retrieved a three-foot long screwdriver or pry bar and hit Noland in the side/rib area a couple of times. Defendant next proceeded to take a number of McGuire's things, such as a TV, two VCRs, and a stuffed owl. He put the items in Noland's car. Defendant went back into the house and put McGuire's dog in McGuire's room. Worried that Noland's boyfriend might come looking for her, defendant wrapped Noland up in another blanket and dragged her body in front of the couch and out of view from the window. Noland was still mumbling so defendant put the handcuffs on her, thinking she might get away. Defendant then set white plastic bags filled with clothes next to Noland and leaned two bikes against her to conceal her body. Defendant took money from Noland's purse which she had left in the car, and before leaving in Noland's vehicle, defendant turned off the lights and locked up the house.

McGuire testified that he received a telephone call on October 31, 1997, from defendant. McGuire asked defendant for a ride to the store. Defendant drove McGuire to and from the store in Noland's car. McGuire asked defendant how he had possession of Noland's car and defendant responded that he had dropped Noland off at work.

On November 4, 1997, McGuire became concerned about his dog because McGuire had been unable to contact defendant for a few days. McGuire asked a friend to drive him to his house. When he entered his house, he detected a foul odor. McGuire found his dog in his room and noticed that his dog had lost a lot of weight. McGuire had his friend drive him to the store to buy some dog food. After returning to the house, McGuire looked around and noticed some items missing from his home. McGuire also saw blood under a rug that he normally kept by the front door and proceeded to lift up a corner of the blanket covering Noland's body and saw a large mass of blood. At this point, McGuire dialed 911.

Sergeant Jeffrey A. Driskill of the Hanover Park police department responded to the scene. When he arrived, he detected an odor he recognized and associated with decaying human flesh. Noland's body was discovered underneath the bikes, clothes, and blankets; exactly how defendant had left her. Sergeant Driskill carefully noted where each item was placed in and around Noland while the items were being removed and inventoried. In fact, Sergeant Driskill videotaped the scene of the crime before and after the items were taken off the body.

Detective John Dossey of the Hanover Park police department was also at the crime scene and was the lead detective in the investigation. On November 5, 1997, Detective Dossey observed the autopsy of the body and received confirmation that the body was that of Patty Noland. The autopsy revealed that Noland had died from craniocerebral injuries due to multiple blunt-force trauma with the chloroform exposure, and the handcuffed wrists playing a part. Detective Dossey instructed officers to look for defendant.

On November 7, 1997, at approximately 8:15 p.m., officers from the Broadview police department saw Noland's car in a parking lot of a strip mall and detained defendant after a foot pursuit. Defendant was arrested based on a warrant for unlawful possession of a stolen motor vehicle and taken to the Broadview police department, where he remained until Detective Dossey and Detective Edward Piacenza, also from the Hanover Park police department, arrived to escort defendant back to the Hanover Park police station. Upon meeting defendant, Detective Dossey introduced himself and Detective Piacenza as detectives with the Hanover Park police department. Defendant immediately stated that he was "glad it was over" and that he was "tired of running." Detective Dossey told defendant that they would talk later at the Hanover Park police station.

By 9:45 p.m. Detectives Dossey and Piacenza had returned with defendant to the Hanover Park police station. The detectives placed him in a room to conduct an interview. At approximately 9:50 p.m., Detective Dossey gave defendant Miranda warnings, reading verbatim from a preprinted Miranda warning and waiver form. After defendant indicated that he understood his rights and signed the form, he admitted to murdering Patty Noland as detailed above. He also admitted to having committed a number of burglaries.

While Detectives Dossey and Piacenza were interviewing defendant, Sergeant Driskill inventoried Noland's car, and upon finding various items in the vehicle, including bloody clothing and a pair of tennis shoes, coordinated his efforts with those of the investigators who were interviewing defendant. Defendant identified the clothing and shoes to be those he had worn while murdering Noland.

In the early morning hours of November 8, 1997, Assistant State's Attorney Timothy Diamond met with defendant and informed him that he was not his attorney, but was an attorney for the State. Defendant responded that he understood the prosecutor's role. Diamond reviewed defendant's signed Miranda form with defendant, confirming defendant's understanding of his rights. Defendant then relayed the facts of Noland's murder and the burglaries to Diamond and signed a written confession.

At defendant's trial, defendant's biological father, Charles Stophlet, defendant's cousin, Walter Petersen, Jr., and McGuire's girlfriend, Judy Mullins, each testified that prior to defendant's arrest, he had contacted them and admitted to having killing someone. Additionally, via stipulation, forensic examinations of the physical evidence found at the crime scene and in Noland's car revealed that the stains on the pants and shoes defendant admitted to wearing during the murder were indeed human blood, and the sample of liquid taken from the scene was chloroform. Detective Dossey and Assistant State's Attorney Diamond both testified to the circumstances and substance of defendant's confession.

Defendant presented his case through one very short stipulation concerning the testimony of Judy Mullins and Walter Petersen, Jr. Namely, that if called to testify, Detective Edward Piacenza would state that he interviewed Judy Mullins on November 13, 1997, and that Mullins did not want McGuire to find out that defendant had gone with her to her apartment on an occasion prior to the murder of Noland. In addition, if called to testify, Detective Dossy would testify that on November 7, 1997, he and Assistant State's Attorney Diamond spoke with Walter Petersen, Jr., and Petersen stated that on November 1, 1997, defendant told him that he was feeling bad for what he had done. Defendant waived closing argument. A theft charge against defendant was nol-prossed. As mentioned at the outset of this opinion, the trial judge entered judgment on his finding defendant guilty of all remaining charges.

After admonishments from the court, defendant waived a jury for both the eligibility and penalty phases of the sentencing hearing. All evidence presented at defendant's trial was readmitted at the eligibility phase. Upon completion of the first stage of the sentencing hearing, the trial judge found defendant eligible for the death penalty (720 ILCS 5/9-1(b)(6), (b)(11) (West 1996)) because defendant was 18 years of age, the murdered person was killed in the course of another felony, the murdered person was actually killed by defendant, and in performing the acts which caused the death of the murdered person, the defendant acted with the intention to kill the murdered person or with the knowledge that his acts created a strong probability of death or great bodily harm, and that another felony or more was committed, and the murder was committed in a cold, calculated, and premeditated manner, pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of defendant created a reasonable expectation that a death of a human being would result therefrom.

At the second stage of the sentencing hearing, all of the evidence presented at defendant's trial and eligibility phases was readmitted at the penalty phase. After considering evidence in aggravation and mitigation, evidence which we will later discuss in more detail, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death for the murder of Patty Noland. In addition, the trial court imposed a 10-year sentence for concealment of a homicidal death, a 14-year sentence for unlawful possession of a stolen motor vehicle, and a 60-year sentence for armed robbery; the sentences to be served concurrently.

The trial court denied defendant's motion to reconsider sentences pertaining to defendant's sentence of death and his sentence of 60 years for armed robbery. However, pursuant to defendant's motion and agreement by the State and the trial court, the sentences imposed for concealment of a homicidal death and unlawful possession of stolen motor vehicle were modified to five and seven years respectively. Additionally, the trial court denied defendant's motion for judgment notwithstanding the verdict or a motion for a new trial. Defendant appeals directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603). Additional pertinent facts will be discussed in the context of the issues raised in this appeal.

ANALYSIS

I. Suppression of Statements

Prior to trial, defendant filed three motions to suppress his incriminating statements, which the trial court denied. In these motions, defendant claimed that the State: (A) denied his sixth amendment right to counsel (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) and (B) his statutory right to be presented to a judge "without unnecessary delay" (725 ILCS 5/109-1(a), 109-2(a) (West 1996)). Defendant assigns error to the trial court's denial of his motions to suppress.

We address at the outset defendant's argument that we should review this contention de novo. At a hearing on a motion to suppress, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. People v. Galvin, 127 Ill. 2d 153, 163 (1989). Accordingly, the trial court's ruling on a motion to suppress generally will not be overturned unless it is manifestly erroneous. Galvin, 127 Ill. 2d at 162; People v. Evans, 125 Ill. 2d 50, 78 (1988). "Manifestly erroneous means arbitrary, unreasonable and not based on the evidence." People v. Wells, 182 Ill. 2d 471, 481 (1998). However, de novo review is appropriate when neither the facts nor the credibility of witnesses is questioned. People v. Williams, 181 Ill. 2d 297, 309 (1998).

Defendant argues that we should review this contention de novo because the facts are undisputed. We disagree. This contention turns on the credibility of witnesses. Therefore, we must review this contention based on the manifest error standard. See Williams, 181 Ill. 2d at 309.

Evidence at the suppression hearing adduced the following facts. On November 5, 1997, a Hanover Park police officer charged defendant in a criminal complaint, which was reviewed by a prosecutor, with possession of a stolen motor vehicle. Based on this charge, a warrant was issued for defendant's arrest. It was stipulated that at approximately 8:15 p.m. on Friday, November 7, 1997, Broadview police officers arrested defendant based upon the warrant for unlawful possession of a stolen motor vehicle. Defendant was taken to the Broadview police department. No Broadview police officer questioned defendant on any matter.

Detective Dossey testified as follows. He was the lead detective in the investigation. He was assigned to the case on November 4, 1997, the night that Noland's body was found. On November 7, shortly after 8 p.m., Detective Dossey was at home when he received a telephone call from Detective Piacenza regarding defendant. Detective Dossey went to the police station, where he met with Detective Piacenza, other investigators assigned to the case, and Assistant State's Attorney Diamond. Detective Dossey was informed that defendant was in custody in Broadview. He and Detective Piacenza were instructed to go to the Broadview police department and return with defendant.

Detectives Dossey and Piacenza went to the Broadview police department, arriving at approximately 9 p.m. They were taken to defendant. Detective Dossey introduced himself and Detective Piacenza as detectives with the Hanover Park police department. According to Detective Dossey, defendant immediately stated that he was "glad it was over" and that he was "tired of running." Detective Dossey told defendant that they would talk later at the Hanover Park police station.

During the drive back to Hanover Park, the detectives did not question defendant, and defendant did not indicate that he wanted an attorney or wished to remain silent. Initially, there was no conversation at all. Eventually, defendant again volunteered comments such as he "was glad it was over," he "was tired of running," and he "was tired of looking over his shoulder all the time."

By 9:45 p.m. Detectives Dossey and Piacenza had returned with defendant to the Hanover Park police station. The detectives placed him in a room to conduct an interview. At approximately 9:50 p.m., Detective Dossey gave defendant Miranda warnings, reading verbatim from a preprinted Miranda warning and waiver form. Defendant indicated that he understood his rights and signed the form. Detective Dossey then asked defendant if he would be willing to talk with him and Detective Piacenza. According to Detective Dossey, defendant responded that "he would tell us everything."

Detective Dossey "then basically just asked [defendant] what happened." Defendant then related the events of October 29, 1997. The interview was essentially defendant's narrative, which the detectives interrupted only to ask questions for clarification. Defendant was calm and very cooperative. Defendant also told the detectives that he was not under the influence of drugs or alcohol.

At approximately 10:20 p.m., defendant requested and received a cigarette, which he smoked during the interview. At 10:30 p.m., food arrived for defendant. They relocated to another room. The three of them ate and engaged in "casual, small-talk" having nothing to do with the case.

After their meal, Detective Dossey asked defendant if he would be willing to speak with Assistant State's Attorney Diamond. Detective Dossey explained that Diamond was a prosecutor and not a defense lawyer. Defendant responded that he would talk with Diamond.

The interview resumed. At approximately 12:15 a.m. on November 8, Detective Dossey left the interview room to get Diamond. At approximately 12:26 a.m. Detective Dossey returned to the room. Diamond was already there with defendant and Detective Piacenza. Diamond explained to defendant that he was not his attorney. Defendant responded that he understood the prosecutor's role. Diamond then reviewed with defendant the signed Miranda form, confirming defendant's understanding of his rights.

Diamond proceeded to take an oral statement from defendant, which concluded at approximately 1:30 a.m. During the oral statement, defendant indicated that he knew what he had done was wrong and that he should die for it. Diamond then asked defendant if he would be willing to put his statement in writing; defendant responded in the affirmative. Defendant dictated his statement to Diamond, who transcribed defendant's words. During this time, defendant was allowed to use the restroom. Defendant then reviewed the written statement. Defendant indicated to Diamond portions of the statement that were inaccurate and told Diamond exactly what he wanted to say. Diamond then rewrote those sections according to defendant's instructions. Defendant then signed his written statement. The written statement concluded at 4:30 a.m.

The detectives believed that they could go no further until daylight, when they could search for physical evidence that defendant threw away. Defendant was placed in a cell and allowed to sleep. The detectives agreed to meet back at the station later Saturday morning.

At approximately 10:30 a.m., defendant was given breakfast. Detectives Dossey and Piacenza read defendant his rights from a preprinted Miranda warning and waiver form, which he signed. As he ate breakfast, defendant stated that he remembered what he had done with the hammer and some of the other items that the investigators sought. Defendant volunteered to take the investigators to where the items were located. Defendant was allowed to take a shower.

At approximately 1:10 p.m., defendant, Detectives Dossey and Piacenza, and Assistant State's Attorney Diamond drove to Broadview. Defendant led them to where he had dumped some of the evidence. They stopped for lunch. They returned to the police station at approximately 3 p.m. At his request, defendant was allowed to use the restroom. Defendant then voluntarily assisted the investigators in identifying items recovered from Noland's car.

At approximately 4 p.m., Detective Dossey asked defendant if he would be willing to make a videotaped statement at the crime scene; defendant responded that he would. Defendant, the detectives, and the assistant State's Attorney again left the station. While en route to the crime scene, defendant offered to show them some houses that he had burglarized. Defendant made a videotaped statement at the crime scene. At the conclusion of the video, Diamond again reviewed the Miranda warning with defendant.

They returned to the police station at approximately 4:43 p.m. Waiting for them were law enforcement officers from two other jurisdictions. They wanted to speak with defendant regarding some burglaries that occurred in their communities. Detective Dossey advised defendant that he did not have to talk with those officers. However, defendant stated that he wanted to talk with them to make sure that stolen property was returned to the proper people.

Sometime after 4 p.m., a criminal complaint charging defendant with first degree murder was prepared, and Detective Dossey served defendant. At that point, the officers had completed their investigation and no longer attempted to elicit any statements from defendant. According to Detective Dossey, in the course of defendant's interview, from approximately 9:50 p.m. on Friday, November 7, 1997, through approximately 4 p.m. on Saturday, November 8, defendant "continually divulged information regarding the investigation." Detective Dossey did not know of any press release from the Du Page County State's Attorney issued earlier Saturday afternoon.

Du Page County Assistant State's Attorney Diamond testified as follows. On the night of November 4, 1997, Diamond and several other assistant State's Attorneys were called to the crime scene to offer legal assistance to the Hanover Park police department. That night, Diamond first became aware that defendant was being investigated for Noland's murder. From that evening until the evening of November 8, he offered legal and other assistance to the Hanover Park police department during the course of its investigation.

On the evening of Friday, November 7, Diamond was at the Hanover Park police station. He and the police investigators assigned to the case were informed that defendant was in custody in Broadview. He accompanied the investigators to Broadview. Detectives Dossey and Piacenza were in one car and Diamond and another officer were in another. If defendant had remained with the Broadview police department, Diamond likewise would have remained there to assist those officers. He returned with the Hanover Park investigators, with defendant riding with Detectives Dossey and Piacenza.

At the Hanover Park police station, Diamond waited to learn what defendant had told the detectives. He did not speak to anyone at the State's Attorney's office during this time. At approximately 12:26 a.m. he entered the room where defendant was being interviewed and did not leave it until 4:30 a.m. He remained at the police station for about an hour thereafter and then drove home.

At 6 a.m., Diamond telephoned his supervisor, Michael Wolfe. Diamond informed Wolfe that defendant gave a written statement admitting his involvement in the murder, and Diamond related the details of that statement to Wolfe. Diamond also told Wolfe that investigators hoped to recover the murder weapon and would attempt to corroborate the burglaries to which defendant had confessed. Wolfe did not give Diamond any explicit instructions regarding defendant's charge. Rather, the timing of the charge was left up to Diamond when he thought the investigation was complete. Wolfe took information from Diamond for the purpose of preparing a press release, which the office does in all murder cases. Diamond had nothing to do with preparing the release.

According to Diamond, when he, the detectives, and defendant returned from videotaping defendant's statement at the crime scene, "I had determined at that point that we had pretty much dotted all of our I's and crossed all of our T's and the investigation was as tight at that point as it needed to be." Diamond then approved the murder charge against defendant.

The testimony of Wolfe, Du Page County State's Attorney Joseph Birkett, and First Assistant State's Attorney John Kinsella was presented by stipulation. The parties stipulated that if Wolfe were called to testify, he would testify as follows. He received a telephone call from Diamond in the early morning of Saturday, November 8, 1997. It was only during that telephone conversation that Wolfe actually authorized Diamond to charge defendant. They further discussed when charging would occur and whether additional evidence, specifically the videotaped crime scene statement, would be sought. Very soon after Wolfe's conversation with Diamond, Wolfe telephoned State's Attorney Birkett and informed him of the status of the case and related the conversation with Diamond. Birkett agreed to charge defendant with murder and to hold a press conference later that afternoon.

According to the stipulation of State's Attorney Birkett, he received a telephone call from Wolfe in the early morning on Saturday, November 8, 1997. Wolfe informed Birkett of the status of the investigation, and Birkett approved the decision to charge defendant with first degree murder. They also discussed the content and scheduling of a press conference later that afternoon. Birkett then had a telephone conversation with his first assistant, John Kinsella, in which they discussed the press conference.

Laura Pollastrini, the public information manager at the Du Page County State's Attorney's office, testified as follows. At approximately 9:30 a.m. on Saturday, November 8, 1997, Pollastrini received a telephone call from Kinsella informing her that the office would conduct a press conference that day. She received information from Wolfe and completed the press release at approximately 1 p.m. She showed it to the State's Attorney, who approved it. Sometime shortly after 1 p.m. the press release issued to the media and was read at the press conference.

The press release stated: "Joe Birkett, State's Attorney of Du Page County *** announced today that First Degree Murder charges have been filed this afternoon against Mark C. Ballard, 37, of 5712 Bedford Court, Hanover Park. He is charged in connection with the death of Patricia A. Noland, 43, of that same address." (Emphasis added.) In his stipulation, Birkett conceded that the press release erroneously stated that charges had been filed that afternoon. In fact, charges had not yet been filed. According to Birkett, the press release should have indicated that first degree murder charges against defendant were expected to be filed that afternoon.

Defendant was presented to a Du Page County judge on Sunday morning, November 9, 1997; a criminal complaint charging defendant with first degree murder was filed.

A. Sixth Amendment Right to Counsel

Prior to trial, defendant filed a motion to suppress alleging that the State intentionally delayed bringing him before a judge to prevent attachment of his right to counsel under the sixth amendment to the United States Constitution (U.S. Const., amends. VI, XIV) and article I, section 8, of the Illinois Constitution (Ill. Const. 1970, art. I, §8). In his motion, defendant claimed that his right to counsel attached when the State had committed itself to prosecute him "at least as early as the issuance of the press release, and perhaps earlier." Defendant sought suppression of any statements that he made subsequent to the attachment of his right to counsel. The trial court denied this motion.

Before this court, defendant focuses his claim. He relies solely on the sixth amendment. He alleges specifically that the State's "commitment to prosecute was made in the early morning hours of Saturday, November 8, but the filing of charges was intentionally delayed." Accordingly, defendant now claims that only the videotaped statement that he gave on the afternoon of November 8, 1997, should have been suppressed. Defendant seeks a new trial.

The controlling principles are established. The sixth amendment, applicable to the states through the fourteenth amendment, guarantees in relevant part: "In all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defense." U.S. Const., amends. VI, XIV. The purpose of the sixth amendment is to assure that, in any criminal prosecution, the accused shall not be left to his or her own devices in facing the prosecutorial forces of organized society. "By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the `intricacies ... of law' [citation] is needed to assure that the prosecution's case encounters `the crucible of meaningful adversarial testing.' " [Citation.] Moran v. Burbine, 475 U.S. 412, 430, 89 L. Ed. 2d 410, 427, 106 S. Ct. 1135, 1146 (1986).

The sixth amendment right to counsel attaches at or after the initiation of adversarial judicial proceedings-whether by way of a formal charge, preliminary hearing, indictment, information, or arraignment. United States v. Gouveia, 467 U.S. 180, 187-88, 81 L. Ed. 2d 146, 153-54, 104 S. Ct. 2292, 2297 (1984), quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82 (1972) (plurality opinion). In Gouveia, the Court explained:

"Thus, given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings `is far from a mere formalism.' [Citation.] It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'

[Citation.]" Gouveia, 467 U.S. at 189, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298.

As the plurality in Kirby concluded: "It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Kirby, 406 U.S. at 690, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.

In this case, when defendant gave his videotaped statement on the afternoon of November 8, 1997, there had been no formal charging proceeding, preliminary hearing, indictment, information, or arraignment accusing defendant of murder. It has never been held that an arrest, by itself, triggers the sixth amendment right to counsel. Gouveia, 467 U.S. at 190, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298, cited in People v. Wilson, 116 Ill. 2d 29, 50 (1987). Here, the fact that an arrest warrant was obtained prior to defendant's arrest was not sufficient to create trial-like confrontation contemplated by the sixth amendment. See People v. Hayes, 139 Ill. 2d 89, 126 (1990) ("Where the extent of the prosecutor's involvement in the procurement of the warrant is no more than in the assistance and preparation of the complaint *** the arrest must be characterized as purely investigatory without any commitment by the State at this point to pursue prosecution"), citing People v. Boswell, 132 Ill. App. 3d 52, 59-60 (1985).

Further, custodial interrogation, by itself, does not trigger the sixth amendment right to counsel. Moran, 475 U.S. at 431-32, 89 L. Ed. 2d at 427-28, 106 S. Ct. at 1146; People v. Evans, 125 Ill. 2d 50, 79 (1988). These sixth amendment principles apply even if the investigation has focused on or targeted the defendant. United States v. Hayes, 231 F.3d 663, 674 (9th Cir. 2000); State v. Register, 323 S.C. 471, 477, 476 S.E.2d 153, 157 (1996); State v. McCormick, 778 S.W.2d 48, 53 (Tenn. 1989).

However, this court has held that "the level of prosecutorial involvement may be considered in determining whether a defendant's sixth amendment right to counsel has attached." People v. Garrett, 179 Ill. 2d 239, 248 (1997) (collecting cases). In this case, therefore, "defendant has a sixth amendment right to counsel only if there has been significant prosecutorial involvement at the time of the questioned action or if the government has committed itself at that time to prosecute defendant." Garrett, 179 Ill. 2d at 250. Accordingly, our inquiry is into the degree of prosecutorial involvement at the time of the videotaped crime scene statement.

In this case, prior to or at the time of defendant's videotaped crime scene statement, there was not such a constitutionally significant degree of prosecutorial involvement as to trigger defendant's sixth amendment right to counsel. Diamond's initial involvement in the case was solely to assist law enforcement officers in their investigation. Diamond's role was one of investigation and not accusation. Indeed, it was not until Diamond spoke with Wolfe on the morning of November 8, 1997, that Diamond actually received from Wolfe the authority to charge defendant.

Further, having the authority to charge defendant is not the same as deciding to charge him. Diamond was authorized to charge defendant when Diamond believed that the investigation was complete. Wolfe never ...


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