People v. Garrett

                                             FOURTH DIVISION
                                             September 19, 1996












No. 1-93-0479

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

GEORGE GARRETT,

          Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 91 CR 8923

Honorable
Thomas F. Dwyer,
Judge Presiding.



     JUSTICE CAHILL delivered the opinion of the court:
     A jury found the defendant, George Garrett, guilty of first
degree murder and attempted first degree murder.  The court
sentenced him to 60 years' imprisonment for first degree murder
and a concurrent sentence of 25 years for attempted murder. 
Defendant appeals.  His main argument is that he was denied his
sixth amendment right to counsel when, unrepresented, he was
placed in a lineup while in custody.  We affirm. 
     The evidence revealed that at 1:30 a.m. on September 1,
1990, Darrell Gurley and his uncle, Thomas Peters, drove to the
Belmonte liquor store in Chicago to purchase beer.  Gurley
testified that Peters parked his vehicle near the liquor store
and they got out.  Gurley saw a group of men playing dice nearby. 
Peters approached the men, and Gurley went to buy beer.
     Gurley bought beer, carried it to the vehicle, and then
joined Peters who had begun playing dice with the group of men on
the street.  Peters finished gambling a few minutes later, and
they left.  As they were walking to their vehicle, Gurley heard a
male voice say "Yo."  He turned and saw two men he recognized
from the neighborhood.  He knew defendant, George Garrett, as
"Poncho" and co-defendant, Antoine Day, as "Twon."  Gurley saw
both men display guns--Garrett had a silver .357 magnum, Day a
black .357 magnum.  
     Gurley yelled "watch out!", to warn Peters.  Both men ran. 
Gurley heard gunfire.  He looked back and saw everyone running
except Garrett and Day.  Gurley saw Garrett aim the gun at him
and saw Day shoot at Peters.  Gurley continued to run until he
reached the house of his cousin's girlfriend.  Gurley later left
the house and went home.  There he was told that Peters had been
shot.  The next morning he learned Peters died.  Gurley then
called the police.  
     Chicago police detective Hugh Conwell responded and brought
Gurley to the police station.  Gurley told Detective Conwell what
happened at the liquor store and named the assailants.  He
described Garrett as a black male, six feet one inch tall,
weighing 200 to 225 pounds, and Day as a bowlegged black male,
six feet tall, weighing 180 pounds.  
     Gurley testified that he was called to the station twice. 
On September 4, 1990, he viewed a lineup and identified Day as
one of the shooters.  On September 10, 1990, he was shown a photo
array and identified Garrett as one of the shooters.  
     Kenneth Jamison testified that he and a friend were driving
northbound on Laramie Avenue at 1:30 a.m. on September 1, 1990. 
He heard gunshots and saw people running.  When he reached the
intersection of Laramie and Lake Streets he saw Peters stumble
into the street and fall down.  Jamison's passenger, Dwayne
Jones, left the car to aid Peters.
     As Jones approached, Peters got up and asked to be taken to
the hospital.  Jones helped Peters into the car, and Jamison
drove him to Loretto Hospital where he was admitted. 
     James Coleman testified that at 12:30 a.m. on September 1,
1990, he and a friend went to the Belmonte liquor store.  Coleman
saw 15 people playing dice near the store.  Coleman watched the
group for a while and then went into the store to buy beer.  He
returned to the game, drank a beer, and began to play dice.  
     Coleman saw Peters playing dice while Gurley watched.  He
then saw three men, including Garrett, approach the group. 
Garrett said something to one of the men in the group.  That
person then left.  Coleman continued to play dice.  He heard
gunshots seconds later and saw Garrett pointing a gun toward the
group.  Everybody started to run.
     Coleman ran to Kinzie Street where he saw Darrell Gurley. 
Coleman felt blood running down his back and realized he had been
shot.  He returned home and asked his sister to take him to the
hospital.  She drove him to Loretto Hospital where he was
treated.
     Coleman spoke with Chicago police detective Richard Curley
at the hospital.  On September 10, 1990, he was shown a group of
photographs from which he identified Garrett as the shooter. 
Coleman also viewed a lineup on April 9, 1991, where he
identified Garrett as the man who shot him on September 1, 1990.
     Doctor Yuksel Konakci, an assistant medical examiner in the
Cook County medical examiner's office, testified that he examined
Peters and determined he died from a gunshot wound to the back.  
     Chicago police officer Bruno J. Muczynski testified that he
was called to Loretto Hospital to investigate the shooting.  He
was unable to interview Peters because of his condition, but
spoke with Coleman.  Coleman told Muczynski that three men were
involved in the shooting.  He described one offender as 6 feet 1
inch to 6 feet 2 inches tall, weighing about 225 pounds.
     Detective Curley and his partner Detective Richard Maher
also investigated the shooting of Peters and Coleman.  On
September 9, 1990, Day was identified in a lineup and charged. 
Curley and his partner continued to look for other suspects.  On
September 10, 1990, Curley received George Garrett's name and his
photograph from Theresa Baines.  
     Curley visited Coleman at his home and showed him a series
of photographs from which Coleman identified Garrett as one of
the shooters.  Curley also showed the photographs to Gurley. 
Gurley identified Garrett as involved in the shooting.  Curley
used the information to obtain an arrest warrant for Garrett and
arrested him on March 14, 1991.
     Curley testified that on April 9, 1991, he arranged to have
Garrett participate in a lineup at Cook County jail.  Coleman was
asked to view the lineup, and he identified Garrett.  In court,
Curley identified Garrett as the same person Coleman identified
at the lineup on April 9, 1991.  
     Detective Conwell testified that on September 1, 1990, he
was assigned to investigate the death of Peters.  He spoke with
Coleman, who accompanied Conwell to North Laramie and pointed out
the crime scene.  Conwell also spoke to Jamison and Jones, who
had taken Peters to the hospital after the shooting.
     Conwell went to Peters' house on September 2, 1990.  He
found Gurley at Peters' home.  Gurley told him that two men named
"Poncho" and "Twon" were the persons who shot Peters.  Gurley
described "Poncho" as a black male, 20 to 23 years of age, six
feet to six feet two inches tall, weighing 200 to 225 pounds.  He
described "Twon" as a bow legged black male, 28 to 30 years old,
five feet ten inches tall, weighing around 180 pounds.  Gurley
also directed Detective Conwell to "Twon's" car on September 3,
1990.  
     Conwell stated that Antoine Day surrendered to police on
September 4, 1990.  He was placed in a lineup and identified by
Coleman and Gurley as one of the shooters.
     Defendant testified.  He stated he was 25 years old, was 6
feet 3 inches tall, and weighed 338 pounds.  He stated that the
photograph used to identify him was taken when he was 17.  He
could not remember where he was on the night of the shooting. 
But, he was sure he was not on Laramie Avenue and did not go to
the Belmonte liquor store.  He said he was arrested at his home
on March 14, 1991, and charged with murder.  He denied
involvement in the shooting.
     Defendant argues on appeal that the trial court erred when
it denied his motion to suppress a lineup identification, motion
for a new trial, and motion for substitution of judge.  He also
argues that the court abused its discretion in sentencing him to
60 years' imprisonment.   
     Defendant first argues that the court erred when it denied
his motion to suppress a lineup identification.  He filed a
pretrial motion to suppress the lineup identification held on
April 9, 1991.  He argued that, at the time of his lineup,
adversarial proceedings had commenced which required the presence
of counsel.  
     The record reveals that Detective Curley, on behalf of
deceased complainant Thomas Peters, filed a complaint for
preliminary examination with the circuit court on September 10,
1990.  An arrest warrant was issued, and defendant was taken into
custody on March 14, 1991.  An assistant public defender from the
pre-arraignment section of that office filed an appearance to
represent defendant on March 15, 1991.  
     A hearing was held on March 18, 1991.  A private attorney,
Jean Hill-McClain, filed an appearance to represent the defendant
on that date, and the court noted her appearance for the record. 
The State moved for a continuance, which was granted, without
objection, until April 11, 1991.  Detective Curley placed the
defendant in a lineup at Cook County jail on April 9, 1991.  
     In ruling on the motion to suppress the identification made
at that lineup, the trial court found that the lineup took place
at 10:20 a.m., that an assistant public defender signed a lineup
packet at 10:45 a.m., that defendant was represented at the
lineup by the public defender, and that since the public defender
had never withdrawn his appearance, the public defender remained
an attorney of record for the defendant on the date of the lineup
and was present for it.       
     Whether the trial court was right or wrong in finding that
the public defender was present at the lineup and remained
counsel for the defendant is not the issue framed by this appeal. 
We must first address defendant's contention that he had a sixth
amendment right to the presence of any attorney at this stage in
the proceeding before we need address the question of whether the
public defender was still his lawyer.
     At the time of the lineup on April 9, 1991, the defendant
was still in custody pursuant to the complaint for preliminary
examination and warrant for arrest issued on September 10, 1990. 
The State asked for and was granted a continuance on March 18,
1991.  Hill-McClain did not object, nor did she request a bond
hearing on that date.  The defendant remained in custody under
the "no bail" order entered by Judge Fox on the complaint for
preliminary examination dated September 10, 1990. 
     A complaint for preliminary examination is not a formal
commitment by the State to prosecute.  People v. Thompkins, 121 Ill. 2d 401, 433, 521 N.E.2d 38 (1988).  A defendant's sixth
amendment right to counsel does not attach until adversarial
proceedings begin.  People v. Hayes, 139 Ill. 2d 89, 123-24, 564 N.E.2d 803 (1990).
     Here, although defendant had been arrested and was in
custody when the lineup was conducted, he had not been arraigned,
indicted, or otherwise formally charged, nor had the State
indicated an intention to charge.  Absent a clear showing that
the State had initiated and participated in an adversarial
capacity, defendant is afforded no sixth amendment right to
counsel.  
     Our supreme court in People v. Wilson, 116 Ill. 2d 29, 506 N.E.2d 571 (1987) held: 
     "[i]n this case the police officer presented a complaint
     for an arrest warrant to a judge *** pursuant to statute. 
     The complaint was presented to the judge ex parte, it was
     done by a police officer rather than by an assistant
     State's Attorney, and the complaint was not filed in
     court until after the defendant appeared in the lineup. 
     We do not believe that the procedure here can fairly be
     construed as the beginning of adversarial proceedings
     between the State and the defendant."  Wilson, 116 Ill. 2d 29, 50-51, 506 N.E.2d 571.   
          Defendant would have us hold that adversarial proceedings
should be viewed as underway, at the very latest, when the State
appeared at the hearing on March 18, 1991, and requested a
continuance.  To do so would require that we hold a request for a
continuance by the State to be a "formal commitment" to
prosecute, even though a formal charge is not filed.  We find no
authority for such a proposition.  Consequently, defendant's
argument that he was deprived of his lawyer of choice at the
lineup is not of constitutional dimension, and his motion to
suppress on constitutional grounds was properly denied.
     Defendant next argues that the trial court erred when it
denied his motion for a new trial.  He argues that the evidence
was insufficient to sustain a guilty verdict.  We review claims
attacking the sufficiency of the evidence under the standard set
out in People v. Young, 128 Ill. 2d 1, 48, 538 N.E.2d 453 (1989). 
Our inquiry is whether, when viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.  Young, 128 Ill. 2d 1, 48, 538 N.E.2d 453.  
     Here defendant was identified by Gurley and Coleman.  They
described defendant shortly after the shooting, identified him
from either a lineup or photo arrays, and identified him in open
court.  Gurley knew defendant's nickname and had seen him in the
neighborhood.  Coleman was able to describe defendant and pick
him out of a photo array shortly after the incident.  We find the
evidence sufficient for a rational trier of fact to find
defendant guilty beyond a reasonable doubt.  See People v. Slim,
127 Ill. 2d 302, 306, 537 N.E.2d 317 (1989).      
     Defendant also argues that the court erred when it denied
his motion for a substitution of judge.  Defendant made the
motion after a hearing on his post-trial motion but before
sentencing.  He argued that the judge was required to disqualify
himself because the judge was being represented by the State's
Attorneys' office in an unrelated matter.  The defendant has
failed to include in the record either a copy of the motion for
substitution of judge, or the required affidavits in support of
that motion.  See 725 ILCS 5/115-5 (West 1992).  The issue was
not raised in the post-trial motion.  Error in overruling
defendant's petition is unreviewable absent an adequate record. 
See People v. Campbell, 323 Ill. 129, 130, 153 N.E.2d 596 (1926);
People v. Schueneman, 320 Ill. 127, 128, 150 N.E.2d 664 (1926).
     Defendant finally argues that the trial court abused its
discretion when it sentenced him to 60 years' imprisonment.  The
trial court's determination of the appropriate sentence is within
its sound discretion, and the decision will not be overturned
absent abuse of that discretion.  People v. Wilson, 143 Ill. 2d 236, 573 N.E.2d 937 (1991).  The weight attributed to each factor
in aggravation and mitigation depends on the circumstances of
each case.  People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882
(1977).  The sentencing judge is in the best position to consider
all factors relating to sentencing and is vested with wide
discretion in making a reasoned judgment concerning the
appropriate penalty.  People v. O'Neal, 125 Ill. 2d 291, 531 N.E.2d 366 (1988).   
     We find no abuse of discretion.  The hearing included
argument from both the State and defendant.  The record reveals
that the court considered factors in mitigation.  They included
that defendant was gainfully employed, had no history of alcohol
or drug abuse, was married and the father of two children, and
that he did not have an extensive criminal record.  We find
nothing in the record to suggest that the court did not give
these matters appropriate weight within the context of the facts
of the case.
     Affirmed.  
     S.M. O'BRIEN, J., concurs.
     HOFFMAN, P.J., dissents.


     PRESIDING JUSTICE HOFFMAN, dissenting:
     Implicit in the majority's opinion is its finding that the
defendant's sixth amendment right to counsel had not yet attached
when he was identified on April 9, 1991, after being viewed in a
lineup conducted at the Cook County jail.  I disagree with the
finding and, therefore, dissent.
     Based upon a complaint for preliminary examination signed by
a police officer charging the defendant with the offense of first
degree murder (720 ILCS 5/9-1(a)(1) (West 1990)), an arrest
warrant was issued and the defendant was taken into custody on
March 14, 1991.  On March 15, 1991, an assistant public defender
filed an appearance purporting to represent the defendant. 
However, when this case came before the court on March 18, 1991,
the defendant was represented by private counsel who filed her
appearance.  After the court appearance of March 18, the
defendant was placed in a lineup at the Cook County jail and
identified by James Coleman, a witness to the crime.  The
defendant's private attorney was never notified that a lineup was
to be conducted.  Instead, the police notified the public
defender's office.  Although an assistant public defender
responded to the notification and presented himself at the jail,
he left prior to the lineup being conducted after being informed
by the defendant that he was represented by private counsel.  
     My reading of the record reveals that this case came before
the trial court on March 18, 1991, for the purpose of conducting
a preliminary hearing.  The defendant's private attorney was
present at that hearing and filed her appearance.  The State
informed the court that it was not ready to proceed and requested
a continuance.  The court granted the State's motion and set the
matter for a preliminary hearing on April 11, 1991.  Counsel for
the defendant demanded trial.  
     A defendant's sixth amendment right to counsel attaches "at
or after the initiation of adversary judicial criminal
proceedings-whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment."  Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); Brewer v.
Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 51 L. Ed. 2d 424
(1977); see also People v. Thompkins, 121 Ill. 2d 410, 432, 521 N.E.2d 38 (1988).  However, the exact point at which adversary
criminal proceedings are said to be initiated for sixth amendment
purposes is not at all clear or well settled.  As this court
noted in People v. Boswell, 132 Ill. App. 3d 52, 58, 476 N.E.2d 1154 (1985):
          "In resolving this issue, we must look to the
     purpose with which the right to counsel serves.  The
     Supreme Court has recognized that the 'core purpose' of
     the counsel guarantee is to assure aid at trial, 'when
     the accused [is] confronted with both the intricacies
     of the law and the advocacy of the public prosecutor.'
     (United States v. Ash (1973), 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573.)  Similarly, at
     certain 'critical' pre-indictment proceedings, the
     Supreme Court has extended an accused's right to
     counsel (Kirby v. Illinois (1972), 406 U.S. 682, 688-
     89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882),
     recognizing that 'the accused [is] confronted, just as
     at trial, by the procedural system, or by his expert
     adversary, or by both' (United States v. Ash (1973),
     413 U.S. 300, 310, 37 L. Ed. 2d 619, 627, 93 S. Ct. 2568, 2573), in a situation where the results of the
     confrontation 'might well settle the accused's fate and
     reduce the trial itself to a mere formality.' (United
     States v. Wade (1967), 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 1156, 87 S. Ct. 1926, 1930, quoted in United
     States v. Gouveia (1984), 467 U.S. 180, 189, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292, 2298.)  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.' (Kirby v. Illinois (1972), 406 U.S. 682,
     689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882.) 
     While the court has indicated the various contexts in
     which the right to counsel is implicated, the court has
     emphasized that '[t]he initiation of judicial criminal
     proceedings is far from a mere formalism.'  406 U.S. 682, 689, 32 L. Ed. 2d 411, 417-18, 92 S. Ct. 1877,
     1882."
          This is not a case, as was the circumstance in the cases
relied upon by the majority, where a defendant was subjected to a
lineup identification without benefit of counsel after his arrest
but before he was brought before a judge .  See People v. Hayes,
139 Ill. 2d 89, 564 N.E.2d 803 (1990), People v. Wilson, 116 Ill. 2d 29, 506 N.E.2d 571 (1987).  In this case, the defendant was
arrested, held without bond for four days before being brought
before a judge for purposes of a preliminary hearing, had counsel
of his choice present at the first scheduled preliminary hearing
date, and, some 22 days after appearing in court represented by
counsel, was placed in a lineup and identified without the
benefit of his chosen counsel.  The fact that the defendant's
preliminary hearing was continued from March 18, 1991, to April
11, 1991, and the line-up identification took place in the
interim, is of no significance.  The preliminary hearing process
had commenced and, to my mind, the defendant's sixth amendment
right to counsel had attached.  See Moore v. Illinois, 430 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977).
     Because I find that the defendant's sixth amendment right to
counsel was violated when he was placed in a lineup without the
benefit of counsel of his choice after adversary judicial
criminal proceedings had commenced, and because evidence of
Coleman's April 9 lineup-identification of the defendant was
introduced at the trial of this cause, I would reverse the
defendant's conviction and remand this case to the circuit court
for a new trial.