Peope v. Jones, Fenton

No. 3-94-0395
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996

PEOPLE OF THE STATE OF ) Appeal from the Circuit
ILLINOIS, ) Court of the 14th Judicial
) Circuit, Henry County,
Plaintiff-Appellee, ) Illinois
)
v. ) No. 93-CF-253
)
FENTON JONES, )
) Honorable
Defendant-Appellant. ) Dana R. McReynolds
) Judge, Presiding
_________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the Court:


Following a jury trial in the circuit court of Henry County,
the defendant, Fenton Jones, was convicted of two counts of
aggravated criminal sexual assault, and sentenced to two concurrent
eight year terms of imprisonment. On appeal the defendant
maintains that the trial court erred in denying his motion in
limine wherein he sought to suppress certain written and oral
statements he made to police investigators following a request for
representation by counsel. We affirm.
FACTS
The defendant was charged with committing acts of sexual
penetration on his niece and step-daughter, both of whom were
approximately eight years old at the time the attacks allegedly
occurred.
At the hearing on defendant's motion to suppress, Lieutenant
Rod Huber of the Henry County Sheriff's department testified that
on July 28, 1993, he called the defendant at his work in Princeton,
Illinois and asked the defendant to meet him during defendant's
lunch break. The defendant agreed and arrived at the Bureau County
Sheriff's office at 11:30 a.m., where he was met by Huber and Lisa
Trevier, an investigator with the Illinois Department of Children
and Family Services.
Huber advised the defendant of his Miranda rights, after which
the defendant signed a written wavier of those rights. Huber then
told the defendant that he and Trevier were investigating an
allegation that the defendant had sexually molested S.J., the
defendant's niece. The defendant denied the allegation, and
shortly thereafter, Huber told the defendant he could leave.
Before the defendant left, however, Trevier informed him that she
was going to talk to his step-daughter, A.S., and other children
who resided in defendant's home.
After Huber and Trevier visited the defendant's home and
interviewed his wife, Melody Jones, and her children, Huber
telephoned the defendant and requested that he agree to a second
interview. The defendant agreed, and a second interview was held
at the Bureau County Sheriff's office shortly after 5:00 p.m.
Huber and the defendant went to an interview room, according to
Huber, they were alone. Huber told the defendant that they needed
to discuss a new allegation that the defendant had sexually
molested his step-daughter. When Huber began to advise the
defendant again of his Miranda rights, the defendant stated that he
wanted to have an attorney present.
Huber testified that, upon hearing the defendant ask for an
attorney, he told the defendant there would be no more questions,
that the defendant was not under arrest and that he was free to go.
Huber then told the defendant that the case would still be under
investigation, that it involved a serious charge, and that the
defendant would be sent to prison if he was convicted. After
hearing these remarks by Huber, the defendant broke down and cried
and said that he wanted to talk. Huber told the defendant that he
could not talk to the defendant because of his request for an
attorney. Huber told the defendant to leave and come back later if
he wanted to talk. Huber testified that at no time during the
discussion did he yell or shout at the defendant.
Huber further testified that the defendant then left the
building. A short time later, an officer told Huber that the
defendant was back and wanted to talk to him. Huber met the
defendant in the lobby and asked what he wanted. The defendant
said he had gone out and given his car keys to a co-worker, who
Huber surmised had accompanied the defendant to the police station.
Huber, Trevier, the defendant and Officer James Whitko then
went into an interview room. Whitko read the defendant his Miranda
rights, and the defendant then executed a written waiver. Huber
questioned the defendant, who admitted to acts of sexual
penetration of both A.S. and S.J. Huber then took a written
statement, and the defendant signed each page of the statement, as
well as a written waiver form allowing them to transport him to
Henry County.
The defendant's testimony at the suppression hearing
contradicted Huber's testimony concerning what transpired after the
defendant requested to speak to an attorney. The defendant
testified that after his request Huber became angry and yelled at
him. Furthermore, Huber told the defendant that he would be going
to prison for a long time, maybe 30 years, that the defendant's
wife and children did not want him around anymore, and that she had
packed some of his clothes, which Huber had in his squad car.
The defendant testified that he then told Huber that a co-
worker was waiting for him in his car. Huber told the defendant to
give his car keys to the co-worker, and tell him that the defendant
would be there for a while. The defendant testified that he left
the building to give his car keys to his co-worker and immediately
returned to the building as Huber instructed. According to the
defendant's testimony, Huber watched him from a window and was
waiting for him at the door of the police station when he returned.
In denying the defendant's motion to suppress, the trial court
made the following findings of fact: (1) Huber reacted to the
defendant's request for counsel, not by yelling, but with "a
different tone of voice;" (2) after the defendant indicated his
desire to speak with an attorney, Huber told the defendant that the
investigation would continue and the defendant could go to prison
for a long time; (3) defendant left the building, spoke to the co-
worker, then returned to the police station and asked someone to
tell Huber that he wished to speak with him.
The court concluded that the defendant's request for counsel
had been honored by Huber, and that the defendant had re-initiated
contact with the police by going back inside the police station and
asking for Huber. The trial court noted that its ruling might have
been different if the court found that Huber had watched the
defendant from a window , as the defendant had maintained, and
waited at the police station door for the defendant to return.
ANALYSIS
The defendant maintains on appeal that the trial court erred
in finding that by returning to the police station after being
allowed to leave, the defendant had re-initiated communication with
Huber, thereby waiving his previous assertion of the right to
counsel under Miranda. We hold otherwise and affirm the
determination of the trial court.
As a preliminary matter, we must first address the
appropriate standard of review. Ordinarily, a ruling on a motion
to suppress will not be disturbed unless it is manifestly
erroneous. People v. Frazier, 248 Ill. App. 3d 6 (1993). Where,
however, the facts and the credibility of the witnesses are not in
dispute, the issue is subject to de novo review. Frazier, 248 Ill.
App. 3d 6; People v. Woods, 241 Ill. App. 3d 285 (1993). Inasmuch
as the facts in this case were in dispute, we will apply the
manifestly erroneous standard.
Next, we address the People's contention, raised for the first
time on appeal, that the defendant that was not in custody or
otherwise deprived of his freedom at the time of his exchange with
Huber, and therefore he was not entitled to Miranda protections.
The People maintain that the defendant's attempt to invoke his
Fifth Amendment right to counsel as stated in Miranda, before he
was subject to custodial interrogation was ineffectual and police
need not stop questioning. P. v. Lucas, 132 Ill. 2d 399 (1989).
The general rule that, in support of a judgment, a prevailing
party may raise any reason appearing in the record does not apply
when the new theory is inconsistent with the position adopted
below, or the party has acquiesced in contrary findings. People v.
Franklin, 115 Ill. 2d 328, 336 (1987). We believe that in this
case, the People acquiesced to a finding by the trial court that
Miranda applied and therefore should not be allowed to maintain a
new theory on appeal that is inconsistent with the position taken
by the People before the trial court.
Moreover, even though we find that the People are bound by the
trial court's determination that the defendant was entitled to
Miranda protections, we nonetheless affirm the denial of the
defendant's motion to suppress, as we find that the trial court's
determination that the defendant re-initiated communication with
the police is not manifestly erroneous.
It is well-settled that once an accused invokes his right to
counsel, interrogation must cease until an attorney has been made
available. Edwards v. Arizona, 451 U.S. 477 (1981). If the
interrogation continues without the presence of an attorney and a
statement is taken, the prosecution bears a heavy burden to prove
that the defendant initiated further communication, exchanges or
conversations with the police. Edwards, 451 U.S. at 484-85.
In People v. Winsett, 153 Ill. 2d 335, 350 (1992), our supreme
court, commenting on Edwards, held that once a defendant invokes
his right to counsel the prosecution is barred from using any
statement later made by the defendant in its case in chief "unless
the State can establish (1) the accused initiated further
discussions with the police; and (2) that he knowingly and
intelligently waived the right he had invoked." (Emphasis in
original.) Winsett, 153 Ill. 2d at 350.
Edwards, therefore, acknowledges that a suspect may waive his
fifth amendment right to counsel after it is invoked. In order to
establish waiver, a two-prong analysis must be considered: first,
the preliminary inquiry is whether the defendant initiated the
conversation in a manner evincing a willingness and a desire for a
generalized discussion about the investigation; and second, the
inquiry is whether by the defendant's initiation of conversation,
coupled with the totality of other circumstances, the defendant
knowingly and intelligently waived the right to counsel's presence
during questioning. People v. Hicks, 132 Ill. 2d 488, 493 (1989)
(citing Oregon v. Bradshaw, 462 U.S. 1039 (1983)).
The burden of proving that a defendant initiated further
conversations with the police after previously invoking his right
to counsel must be borne by the People. People v. Trotter, 254
Ill. App. 3d at 523. Whether a defendant has in fact initiated a
conversation with the police is determined by examining the
totality of the circumstances, and the circuit court's
determination on that issue will not be disturbed unless it is
manifestly erroneous. People v. Allen, 249 Ill. App. 3d 1001, 1016
(1993); People v. Gray, 212 Ill. App. 3d 613, 616 (1991).
In the matter sub judice, the trial court determined that the
defendant knowingly and intelligently waived the right to counsel
after previously invoking that right when he voluntarily returned
to the police station and sought out Huber in order to re-initiate
a conversation with him concerning the investigation. We cannot
say that the circuit court's determination was manifestly
erroneous.
Although the trial court implicitly found that the defendant
was subject to a custodial investigation, it made a factual
determination that the defendant was released and specifically told
by Huber that he was free to leave. The trial court further
determined that when the defendant left the police station he was
not being watched by the police, nor was his freedom to leave
curtailed in any way. The record supports a finding that the
defendant was well aware that the investigation would continue and
that he would continue to be the subject of the investigation, yet
he voluntarily returned to the police station and sought out Huber,
in spite of his previous assertion of the right not to speak to
Huber without the presence of counsel.
The defendant maintains that the brief period of time during
which he was outside the police station was not sufficient to
negate the coercive effect of Huber's statements immediately after
the defendant asked for an attorney. We disagree. Assuming,
arguendo, that Huber's statements constituted impermissible
interrogation, the defendant's leaving the police station was
sufficient to brake the chain of events from Huber's statements to
the defendant's re-initiation of contact. See, People v.
Ravellete, 263 Ill. App. 3d 906, 913 (1994)(an unbroken chain of
events from the improper admonitions by the police to the
defendant's statements negated voluntariness of defendant's waiver
of previously asserted Miranda rights).
In affirming the trial court, we can think of no clearer
example of the defendant re-initiating contact with the police than
the situation here, where the defendant, after asserting his right
to presence of counsel at questioning, is released from custody,
and leaves the police station only to return and seek out the
officer who questioned him, with the intent of answering questions
concerning the investigation. Such acts show a desire for a
generalized discussion about the case, and the totality of the
circumstances indicate that defendant knowingly and intelligently
waived his right to counsel. People v. Hicks, 132 Ill. 2d at 493.
While the defendant disputes many findings of fact, we hold
that the trial court's findings are supported by the record in the
form of Huber's testimony, and based upon the evidence of record,
we cannot say that the court's determination was erroneous.
For the foregoing reasons, we affirm the judgment of the
circuit court of Henry County.
Judgment affirmed.
McCUSKEY and MICHELA, JJ., concurred.