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No. 3--02--0059

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

Defendant Stephen A. Howerton was charged in a 10-countindictment with the first degree murder of Dwight Vice (720 ILCS5/9--1(a)(1), (a)(2) (West 2000)) and the attempted murder ofDarrell Vice (720 ILCS 8--4(a), 9--1(a)(1) (West 2000)). Defendant filed a motion to suppress statements. The circuitcourt granted the motion, and the State appeals. We affirm.

At the suppression hearing, Galesburg police investigatorDennis Shepherd and Detective Tony Riley testified that theypicked defendant up at his home on June 15, 2001, for questioningin connection with the homicide investigation. According toShepherd, Brian Boyd was in custody for the offenses, and Boydhad implicated defendant. Shepherd said he did not telldefendant he was under arrest when he picked him up. However, hebrought defendant to the Public Safety Building and advised himof his Miranda rights, including his right to an attorney, beforeinitiating the interview.

Shepherd told defendant he did not believe defendant killedanyone, but that he (defendant) was a "victim." Shepherd said heneeded to know if defendant was in a place he did not want to beand had been threatened. He told defendant it was important totell the truth. Defendant said if he was under arrest, he wanteda lawyer. Shepherd testified that he did not consider defendantunder arrest at the time. However, he admitted that a videotapedrecording showed that around 6:12 p.m., about a half hour afterthe interview began, Shepherd told defendant he was under arrestand defendant first stated he wanted a lawyer. The videotaperevealed that defendant subsequently told Shepherd to get him alawyer and take him "upstairs" (to a jail cell). Shepherdignored the request and continued the interrogation. During thebalance of the interview, defendant asked for a lawyer on threemore occasions, all of which were ignored by Shepherd and Riley.

Detective Riley testified that he was present duringShepherd's interrogation of defendant. He said he recalled onlyone instance when defendant said he wanted to see an attorney ifhe was under arrest. He denied that defendant was charged withanything in his presence, but admitted on cross-examination thatdefendant was told he was under arrest on more than one occasion. Ultimately, Shepherd and Riley left the interview room and StatePolice officers Kenneth Kedzior and Laurence Knicl entered toresume the interrogation.

Kedzior testified that he was aware that the defendant hadmentioned a lawyer during questioning by Shepherd and Riley, buthe said defendant never requested a lawyer in his presence. Kedzior said defendant was not formally arrested until after theinterview was completed. The following day, Kedzior haddefendant brought to the Henderson County sheriff's office forfurther questioning. Defendant did not initiate the interview ormake any further requests for counsel. In addition to theofficers' testimony, the videotape of interviews conducted onJune 15 and 16 was admitted into evidence.

Following arguments of counsel, the trial court found thatdefendant was in custody when he was brought to the Public SafetyBuilding for questioning on June 15, 2001. The court furtherfound that defendant's statements were not involuntary, but thatOfficers Shepherd and Riley reasonably should have believed thatdefendant was requesting counsel when he first stated that if hewas under arrest, he wanted a lawyer. Accordingly, the courtruled that all statements made to the officers after 6:12 p.m. onJune 15 were taken in violation of Miranda and must be suppressedin the State's case in chief.

On appeal, the State argues, as it did in the trial court,that defendant's references to counsel were no more thanambiguous or equivocal requests. Defendant contends that hisnumerous requests could not have been a clearer invocation of hisrights to counsel and to remain silent. Any discrepanciesbetween the officers' testimony and the police videotape areresolved by the videotape, which we have viewed in its entirety. Accordingly, the relevant facts are not in dispute on appeal; theissue before us is a question of law, and our review is de novo. People v. Oaks, 169 Ill. 2d 409, 662 N.E.2d 1328 (1996).

In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.Ct. 1602 (1966), the Supreme Court announced the procedures thepolice must follow once a suspect is taken into custody and hisrights and waiver warnings are given. If the suspect indicatesthat he wishes to remain silent, interrogation must cease. Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Likewise, if he invokes his right to counsel, all interrogationmust cease until an attorney is present. Miranda, 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602; see also Minnick v.Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486(1990). The mere mention of a lawyer during interrogation is notan invocation of the right to counsel. Davis v. United States,512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). However, the police may not continue questioning a suspect whounambiguously indicates that he does not wish to speak in theabsence of an attorney. Davis, 512 U.S. 452, 129 L. Ed. 2d 362,114 S. Ct. 2350.

In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101S. Ct. 1880 (1981), the Court expanded Miranda, holding that"once a person invokes his right to counsel during custodialinterrogation, he 'is not subject to further interrogation by theauthorities until counsel has been made available to him, unlessthe accused himself initiates further communication, exchanges,or conversations with the police.' " People v. Villalobos, 193Ill. 2d 229, 233, 737 N.E.2d 639, 642 (2000), quoting Edwards,451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880,1885. A defendant's waiver of the right to counsel in a furtherdiscussion initiated by the police is presumed invalid, andstatements obtained pursuant to such a waiver are inadmissible inthe prosecution's case in chief. The Edwards rule is designed toprevent the police from badgering a defendant into waivingpreviously asserted Miranda rights. People v. Winsett, 153 Ill.2d 335, 606 N.E.2d 1186 (1992). To ensure that proceduraldictates are followed, the supreme court has declared thatstatements taken in violation of the principles established inMiranda and Edwards may not be used as substantive evidenceagainst the accused at trial. Winsett, 153 Ill. 2d 335, 606N.E.2d 1186.

In this case, the police videotape establishes thatdefendant clearly and unequivocally invoked Miranda rights onfive occasions during the interrogation by Officer Shepherd. Immediately after being told that he was under arrest, defendantindicated that he wanted to terminate the interview or speak withan attorney. He stated, "Take me upstairs then if I'm underarrest. Either that or I want a lawyer because--." Rather thanrespecting defendant's assertion of his rights, Shepherdinterrupted, "Are you that stupid?" Shepherd then persisted inbadgering defendant to disclose what he knew about the murder andattempted murder under investigation. A few minutes later,defendant stated, "Get me a lawyer. Take me upstairs, becausethere's nothing I can tell you." Ignoring defendant's requestagain, Shepherd repeated his exhortations to tell the truth andprotect himself. Defendant repeated his request, stating, "Takeme upstairs and let me get my lawyer because there's nothing Ican tell you." Shepherd told defendant he was being charged withthe same offenses that had been charged against Boyd. Inresponse, defendant said, "Well, can I have a lawyer then?" Shepherd once again ignored the request and continued haranguingthe defendant to admit that he was at the scene of the murder. Finally, defendant told Shepherd, "Just book me. I'll have toget a lawyer and try it in court." A short time later, Shepherdand Riley left the room, only to be replaced by the State Policeagents, who ultimately extracted defendant's inculpatorystatements.

Based on this evidence, the trial court correctly concludedthat the only reasonable interpretation of defendant's remarkswas that he was invoking his right to counsel from the pointwhere he first indicated that, if he was under arrest, he wantedeither to go "upstairs" or have a lawyer appointed. CompareWinsett, 153 Ill. 2d 335, 338, 606 N.E.2d 1186 (defendant'sstatement, "I want a lawyer," made upon arrest at defendant'shome, required suppression of statements subsequently made atpolice station in violation of Miranda), with Davis, 512 U.S.455, 129 L. Ed. 2d at 368, 114 S. Ct. 2353 (Court held thatdefendant's comment, "Maybe I should talk to a lawyer," was not aclear invocation of right to counsel), and Oaks, 169 Ill. 2d at451, 662 N.E.2d at 1347 (following Davis, court ruled thatdefendant's inquiry, "Should I see a lawyer?" was an equivocalrequest for counsel). Pursuant to Edwards, suppression of thestatements given by defendant both on the evening of June 15 and on the morning of June 16 was required by Miranda's exclusionaryrule. Accordingly, we hold that the trial court did not err ingranting defendant's motion to suppress statements.

For the foregoing reasons, we affirm the judgment of thecircuit court of Henderson County.

Affirmed.

LYTTON and SLATER, JJ., concur.