People v. Burnfield

                               NO. 5-97-0206

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the 
                                       )  Circuit Court of 
     Plaintiff-Appellee,               )  Monroe County.
                                       )  
v.                                     )  No. 96-CF-85
                                       )
JAMES F. BURNFIELD,                    )  Honorable
                                       )  Jerry D. Flynn, 
     Defendant-Appellant.              )  Judge, presiding.  
_________________________________________________________________

     JUSTICE RARICK delivered the opinion of the court:  
     James F. Burnfield was convicted in the circuit court of
Monroe County with one count of aggravated kidnapping and two
counts of aggravated criminal sexual assault, all arising out of an
attack on H.D.  Prior to trial, Burnfield filed a motion to
suppress a confession, arguing that he had requested an attorney
but the police refused to make one available and continued to
question him in spite of his request for an attorney.  A hearing
was held on January 21, 1997.  According to Deputy Dennis Schrader,
one of the arresting officers, when Burnfield was arrested, he was
advised that he was suspected of kidnapping and rape.  He was also
read his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1996)).  According to Schrader,
Burnfield stated, "If I'm going to be charged with rape[,] maybe I
should talk to an attorney."  The officers asked no more questions. 
At the conclusion of Schrader's testimony, both the State and
defense counsel stipulated that Officer Michael Douglas, the other
arresting officer, would testify as Schrader had.  Later that day
Sheriff Kelley spoke with Burnfield at the Monroe County jail. 
After again being informed of his Miranda rights, Kelley began
questioning Burnfield.  At no time did Burnfield ask that the
questioning be stopped or that he be allowed to speak with an
attorney.  At one point Burnfield said, "Maybe I should talk to an
attorney."  Kelley responded by telling Burnfield that he probably
should talk to an attorney because he was facing serious charges. 
After a brief period of silence during which Kelley began to gather
some papers, Burnfield said, "I didn't even have sex," and
continued the conversation.  Kelly then proceeded with the
interrogation.
     The trial court denied Burnfield's motion to suppress, finding
that he did not make an unequivocal demand for counsel and that
even if he had, he voluntarily continued the conversation with
police after they had stopped questioning him.
     Burnfield also testified at the hearing.  He denied using the
word "maybe" and said that he told the officers very specifically
that he should have a lawyer and that if they were trying to charge
him with rape, he did not want to talk to them.
     At trial, Bonnie Hoffman testified that she and her husband,
James, lived in Waterloo, Illinois, across a highway from a
cornfield, approximately one quarter of a mile from the Monroe
County Fairgrounds.  At about 12:30 or 1 a.m. on the morning of
August 3, 1996, she heard the doorbell ring and went to answer it. 
At the door she found a young woman who was naked, with her hair
tousled and her lip swollen with a cut.  The woman, who identified
herself as H.D., was frightened and said, "[T]hey are trying to
kill me."  Her eyes were red and her hands and fingernails were
dirty.  While James called the police, Hoffman obtained a sheet for
H.D. to cover herself.
     Michael Douglas, a Waterloo police officer, testified that on
August 3, 1996, he was dispatched to the Hoffman residence.  When
he arrived, he found H.D. sitting in a chair in the living room. 
She was crying hysterically and her face was bloodied and dirty. 
H.D. told Douglas that "some people" had attacked her and that she
had been taken from the fairgrounds by "three or four guys" to a
wooded area.
     Susanne Sweet, also a Waterloo police officer, was dispatched
to the Hoffman residence to assist Douglas.  Sweet found H.D.
seated on a chair and wrapped in a sheet.  H.D. was bloody and
bruised and had a cut lip.  She was covered with dirt and leaves
and was crying.  Sweet repeatedly asked H.D. what had happened, but
H.D. made little response.  Sweet then asked H.D. if she had been
raped, and H.D. indicated that she had.  H.D. indicated that she
did not know who attacked her, but she described him as being thin
with brown hair and a moustache.  She also remembered hearing the
name "Shotzy."  Sweet testified that "Shotzy" was a nickname for a
man named Brian Weltig, whom she described as being thin with brown
hair and a moustache.  During the ambulance ride to the hospital,
H.D. told Sweet that there were about three people involved but
that only one had actually struck her and raped her.  Sweet also
stated that she could smell liquor on H.D.'s breath.
     Sergeant James Trantham of the Waterloo Police Department
testified that he was on duty at the Monroe County Fair on the
night of August 2, 1996.  At approximately 11:30 p.m. Trantham
encountered Burnfield.  At Trantham's request, Burnfield showed
Trantham his driver's license, which he produced from his wallet. 
After speaking with Burnfield for a few minutes, Trantham escorted
him to the east side of the fairgrounds near the ferris wheel and
told him to leave.  Trantham watched as Burnfield walked past the
fairgrounds into the dark.
     Robert Young, a deputy with the Monroe County Sheriff's
Department and the unit's canine handler, testified that around
1:40 a.m. on August 3, 1996, he was called to assist the Waterloo
Police Department in searching the roads and fields adjacent to the
Monroe County Fairgrounds for a possible crime scene.  At around
2:50 a.m. the dog located a wallet and comb.  The area was secured
and a crime-scene technician was called.
     Patricia Young, a crime-scene investigator for the Illinois
State Police, testified that in the early morning of August 3,
1996, she was called to Waterloo to examine a crime scene.  She
noted that cornstalks had been knocked down in two areas, about 10
feet apart.  The wallet located by Deputy Young contained an
Illinois driver's license with the name James F. Burnfield, two
social security cards (one of which bore the name of James F.
Burnfield), two credit cards, some photographs and business cards,
and a grocery store customer card with the signature "J.J.
Burnfield" on the back.
     Later that day Jackson spoke with H.D. at H.D.'s home.  H.D.'s
eyes were swollen and discolored, as was the left side of her face. 
She had discoloration and scratch marks on her back and on both
arms, bruises and discoloration on her knees, and a human bite mark
on the right side of her abdomen.  Jackson also searched
Burnfield's residence.  There she found a pair of blue jeans and a
striped shirt, both of which were damp and covered with mud.  The
shirt also had what appeared to be blood on the front.
     Sheriff Kelly testified that he questioned Burnfield on the
afternoon of August 3, 1996, at the Monroe County jail.  Present at
the time was Deputy Schrader.  When asked if he had had any contact
with a woman at the fair, Burnfield indicated that the only woman
he had spoken with had a name tag that read "Angie."  He was
subsequently ejected from the fair by a couple of police officers. 
He then left, walking east along Highway 156 toward Waterloo, where
he lived.  He went through a cornfield, across the cemetery, and to
his apartment.  The route Burnfield described was in the vicinity
of the crime scene the police had investigated.  When Kelly asked
Burnfield where his wallet was, Burnfield stated that it was in his
apartment.  When Kelly informed Burnfield that it had been found at
the crime scene on top of the victim's clothes, Burnfield hesitated
and then said, "I didn't even have sex."  Burnfield then stated
that he had met a young lady walking along the highway, that she
was crying, and that they agreed to go into the cornfield and have
sex.  She changed her mind and he struck her.  He then got up and
went home.
     H.D. testified that she attended the Monroe County Fair on
August 2, 1996, with two friends.  She drank several beers prior to
going to the fair and drank a beer at the fair.  When she became
separated from her friends, she left the fair and walked along
Highway 156 toward Waterloo, where her car was parked.  Shortly
after beginning her walk, she was grabbed from behind by a man, was
dragged into a cornfield, and was repeatedly bit on the hand and
stomach.  When asked whether she could see her attacker, H.D.
testified that it was dark and she described the man as thin with
a moustache and black or dark hair.  H.D. never saw more than one
attacker and was unsure why she thought there had been more than
one.  Her attacker ordered her to remove her shirt and bra and then
pulled off her jeans and underwear.  While holding her on the
ground, he placed his penis in her mouth, bit her abdomen, and
placed his penis in her vagina.  H.D. was able to free herself and
ran to a nearby house.  The woman there gave her a sheet to cover
herself and then called for the police and an ambulance.  At first,
H.D. thought that Brian Weltig, nicknamed "Shotzy," had attacked
her because of the physical similarity between Weltig and her
attacker.  Nevertheless, she specifically identified Burnfield as
her assailant.
     Dennis Aubuschon, an Illinois State Police forensic biologist,
testified that his testing of H.D.'s clothing and vaginal and oral
swabs from H.D. did not reveal the presence of any semen.  He
testified that this was not inconsistent with vaginal or oral
penetration.  He also testified that a substance on H.D.'s shirt
tested positive for blood. 
     Terry Snodgrass testified that on August 3, 1996, he
transported H.D. to the hospital.  During the ride H.D. stated that
she had been beaten by several people and had been sexually
assaulted.
     James Burnfield testified that he had attended the Monroe
County Fair on August 2, 1996.  After being asked to leave by
police officers, he was walking along Highway 156 when he
encountered H.D.  She was crying, staggering, upset, clearly
intoxicated, and angry at her boyfriend.  They agreed to go into a
nearby cornfield.  H.D. took off her clothes.  While "making out",
Burnfield also removed his clothes.  He placed himself on top of
H.D., kissed her face and body, and began performing a sex act on
her.  At no time did H.D. say no or otherwise object.  He denied
placing his penis in H.D.'s mouth but admitted biting her.  When
H.D. refused to have intercourse, Burnfield began to lift himself
off of her.  At that point H.D. kneed him in the groin.  She began
fighting with him, and he struck her five times.  Burnfield
testified that he initially refrained from telling police about the
encounter with H.D. because he feared being charged with assault. 
At first he denied telling Sheriff Kelly that he struck H.D.
because she refused his sexual advances, but then he stated that he
did not remember whether he had made that statement.
     The jury returned a verdict of guilty of aggravated kidnapping
and two counts of aggravated criminal sexual assault.  The trial
court subsequently vacated the guilty verdict on one count of
aggravated criminal sexual assault.  Burnfield was sentenced to
consecutive terms of 10 years' imprisonment on the remaining count
of aggravated criminal sexual assault and on the aggravated
kidnapping count.
     On appeal, Burnfield argues that the trial court erred in
denying his motion to suppress his confession because it was
elicited in violation of his right to counsel.  Burnfield maintains
that the evidence demonstrates that he made an unequivocal demand
for an attorney and that the police refused his demand and
continued with their interrogation.
     Initially, we must address the State's contention that
Burnfield waived this argument by failing to include it in a
posttrial motion.  Generally, the failure to challenge the
admission of a confession at trial either by a motion to suppress
or by an appropriate objection at trial and then by a posttrial
motion will waive appellate review of the issue.  People v. Miles,
188 Ill. App. 3d 471, 544 N.E.2d 986 (1989).  In the present case
Burnfield filed a motion to suppress, and an evidentiary hearing
was held thereon.  He also made an appropriate objection at trial,
but he failed to include the issue in a posttrial motion.  In
People v. Alexander, 212 Ill. App. 3d 1091, 571 N.E.2d 1075 (1991),
the defendant filed a pretrial motion to suppress his confession,
which was denied after a hearing, but he failed to include the
issue in a posttrial motion.  The court held that this was
insufficient to preserve the issue for review.  In People v.
Torres, 283 Ill. App. 3d 281, 669 N.E.2d 1279 (1996), the defendant
likewise filed a pretrial motion to suppress, but he failed to
include the issue in a posttrial motion.  The court in Torres held
that while a technical waiver existed, the written motion to
suppress and resultant evidentiary hearing was sufficient to
preserve the issue for appellate review.  We find that the Torres
approach is the better one and that Burnfield's motion to suppress
was sufficient to preserve the issue for review.  
     Turning to the merits of Burnfield's argument, the question of
whether a defendant has made a request for counsel is a factual
one, and the trial court's determination thereof will not be
disturbed on review unless it is contrary to the manifest weight of
the evidence.  People v. McDaniel, 164 Ill. 2d 173, 647 N.E.2d 266
(1995).  As the trier of fact in a suppression hearing, it is the
function of the trial judge to determine the credibility of the
witnesses, the weight to be given their testimony, and the
inferences to be drawn from the evidence.  People v. Perkins, 248
Ill. App. 3d 762, 618 N.E.2d 1275 (1993).  Where the evidence is
merely conflicting, the reviewing court will not substitute its
judgment for that of the trial court.  People v. Spivey, 209 Ill.
App. 3d 584, 568 N.E.2d 327 (1991).
     When a suspect requests counsel, all interrogation must cease
and the accused may not be approached for further interrogation
until counsel has been made available to him.  Edwards v. Arizona,
451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).  If the
police do subsequently initiate an encounter in the absence of
counsel (assuming there has been no break in custody), the
accused's statements are presumed to have been made involuntarily
and are therefore inadmissible at trial, unless the State can
demonstrate that the accused initiated further discussions with
police and knowingly and intelligently waived the right he had
invoked.  People v. Winsett, 153 Ill. 2d 335, 606 N.E.2d 1186
(1992).  
     In order to be effective, however, the request for counsel
must be clear and unambiguous.  In Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), the Supreme Court
held that the statement "[m]aybe I should talk to a lawyer" did not
constitute an unambiguous and unequivocal request for counsel and
that the authorities therefore were not required to stop
questioning the petitioner.  Our supreme court likewise has held
that statements such as "maybe I should talk to an attorney" or
"should I see a lawyer?" are not sufficiently clear and unequivocal
to invoke the right to counsel and to require the authorities to
stop an interrogation.  People v. Oaks, 169 Ill. 2d 409, 662 N.E.2d 1328 (1996);  People v. Krueger, 82 Ill. 2d 305, 412 N.E.2d 537
(1980). 
     In the present case Sheriff Kelly and Deputy Schrader both
testified that Burnfield stated that "maybe" he should talk to an
attorney.  Although Burnfield maintained that he unequivocally
demanded an attorney, the trial court found the officers' testimony
more credible.  Burnfield argues that while the officers testified
that he used the word "maybe", they also testified that after his
statement concerning an attorney they ceased questioning him. 
Burnfield contends that the officers' reaction to his statements
demonstrated that they were aware that he was invoking his right to
counsel.  Although it would have been permissible for the trial
court to draw that inference, it did not do so, and it is not the
proper role of this court to substitute our own inferences for
those drawn by the trier of fact.  
     Even if we were to hold that Burnfield had properly invoked
his right to counsel, it was Burnfield himself who continued the
conversation after police stopped questioning him.  He also
admitted that he read, understood, and signed a form indicating
that he had been informed of his rights and that he understood
them.
     Finally, any error in admitting Burnfield's subsequent
statements was harmless beyond a reasonable doubt.  The admission
into evidence of an improper confession is subject to harmless
error analysis.  People v. Mitchell, 152 Ill. 2d 274, 604 N.E.2d 877 (1992).  Whether the error is harmless depends upon the
circumstances of each case.  People v. Traina, 230 Ill. App. 3d
149, 595 N.E.2d 635 (1992).  An error is considered harmless where
the reviewing court can conclude that absent the error the outcome
of the trial would not have been different.  People v. Carlson, 224
Ill. App. 3d 1034, 586 N.E.2d 1368 (1992).
     In the present case, H.D. testified that when she left the
fair she was attacked, was dragged into a cornfield, and was
sexually assaulted.  She escaped and ran to a nearby house.  Bonnie
Hoffman testified that when she answered the doorbell, she found a
young woman naked, dirty, bleeding, and hysterical.  The woman
claimed that she had been sexually assaulted.  Burnfield had been
ejected from the fair shortly before the attack on H.D. 
Burnfield's wallet was found at the scene of the assault.  A search
of Burnfield's apartment produced a pair of jeans and a shirt, both
of which were damp and covered with mud.  The shirt had blood on
it.  Finally, H.D. specifically identified Burnfield as her
attacker.  Reviewing the record, we find that there is overwhelming
evidence to support Burnfield's conviction.
     For the foregoing reasons, the judgment of the circuit court
of Monroe County is affirmed.

     Affirmed.  

     WELCH, P.J., and MAAG, J., concur.