People v. Harbach

No. 2--96--1361
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lee County.
)
Plaintiff-Appellee, ) No. 95--CF--4
)
v. )
)
DEWAYNE V. HARBACH, ) Honorable
) Tomas M. Magdich,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Following a trial in the circuit court of Lee County, a jury
found defendant, DeWayne V. Harbach, guilty of aggravated criminal
sexual abuse (720 ILCS 5/12--16(d) (West 1996)). Defendant appeals
his conviction and contends that the trial court erred when it
denied his motion to suppress inculpatory statements that he
purportedly made while in custody prior to the trial. We agree and
reverse and remand.
The charge against defendant was based on allegations that, on
December 1, 1994, in Lee County, defendant, who was 43 years old at
the time, committed an act of sexual penetration with a young woman
who was 14 years old at the time. At the trial, the young woman
testified that defendant committed the alleged act. The State also
presented the testimony of Mark Thatcher, a state police
investigator. Thatcher testified that while defendant was in
custody in the Lake County jail he made inculpatory statements,
including a statement that he had committed an act of sexual
penetration with the young woman.
Prior to the trial, defendant filed a motion to suppress the
inculpatory statements that he purportedly made to Thatcher. The
trial court conducted a hearing on the motion to suppress. At the
hearing, Thatcher and another police officer, Jerome Costliow, who
was present when defendant purportedly made the inculpatory
statements, testified for the State. Defendant and defendant s
father testified for defendant.
The record reveals the following undisputed facts. On July
14, 1995, shortly after 3 p.m., defendant was arrested in Lake
County. Defendant was subsequently taken to the Lake County jail
where he was booked and placed in a cell known as a holding tank.
At around midnight, defendant telephoned his mother. Defendant had
been advised that he could be bailed out and asked his mother to
make arrangements to bail him out.
On July 15, 1995, at around 8 a.m., defendant s father arrived
at the jail to post bail for defendant. Although he initially went
to the wrong place, defendant s father had posted bail for
defendant by around 9 a.m.
On the same date, Officers Thatcher and Costliow arrived at
the jail around 10 a.m. They had traveled from Lee County. They
asked to speak to defendant. A jailer went to the holding tank
where defendant was still being held and asked defendant if he
wanted to talk to the officers. Defendant told the jailer that he
did not want to talk to the officers.
Five or ten minutes later, a jailer again came to the holding
tank and said something to defendant. This time, defendant left
the holding tank with the jailer and accompanied the jailer to a
foyer area in the jail. In the foyer area, Officers Thatcher and
Costliow approached defendant. After a brief conversation,
defendant accompanied the officers to an interview room where he
purportedly made the inculpatory statements. There is conflicting
testimony as to what occurred after the police officers approached
defendant in the foyer area.
Thatcher's testimony included the following. Even though
Thatcher had been informed only 5 or 10 minutes earlier that
defendant did not want to talk to police officers, the reason that
he approached defendant was to serve defendant with a notice of
eavesdropping. He immediately served defendant with the notice,
and defendant then asked the officers questions about the
underlying charge. Before the officers engaged in a conversation
with defendant regarding the underlying charge, defendant signed a
form that the jailers insisted defendant sign before talking with
the officers. Thatcher had no knowledge of the content of the
form; he believed it was just jail policy to have inmates sign such
a form before speaking to police officers. The officers and
defendant then moved to an interview room. Thatcher testified that
he then advised defendant of his constitutional rights by reading
the Miranda warnings to defendant from a card that Officer Costliow
carried.
Thatcher further testified that defendant stated that he
understood his rights but waived them because he wanted to talk to
the officers about the charge. According to Thatcher, only then
did the officers discuss the underlying charge with defendant.
Thatcher testified that defendant made the inculpatory statements
during the ensuing interview. Thatcher testified that the officers
did not use any promises, threats, deception, or trickery during
the interview. The interview lasted about two hours.
Thatcher acknowledged that the officers did not obtain a
written waiver of Miranda rights from defendant. Thatcher also
acknowledged that defendant made the purported inculpatory
statements orally and that the statements were not written or
otherwise recorded.
Thatcher testified that while they were interviewing defendant
Thatcher and Costliow were not aware that defendant's father was at
the jail to post bail for defendant. According to Thatcher, no one
interrupted the interview to tell them that defendant's father was
there to post bail for defendant. Thatcher acknowledged that when
he and Costliow were leaving the jail defendant's father approached
them and talked to them briefly on his son's behalf.
Costliow's testimony generally corroborated Thatcher's
testimony. However, Costliow testified that he was unaware that
defendant had initially declined to talk to the officers.
Defendant testified that no one advised him of his Miranda
rights at any time during his custody following his arrest.
Defendant specifically denied that either Officer Thatcher or
Officer Costliow ever advised him of his Miranda rights.
Defendant's testimony also included the following. Prior to
his arrest on July 14, 1995, he had never been arrested or jailed.
He was kept in the holding tank at the jail the entire night
following his arrest. During the night, numerous loud, drunk men
were also placed in the holding tank. Defendant was unable to
sleep at all during the time he was kept in the holding tank. In
the morning, the other men in the holding tank were taken to court.
Defendant was not taken to court because he expected to be bailed
out.
Defendant further testified that, after he told the jailer
that he did not want to talk to the state police officers, about 5
or 10 minutes later the jailer returned and told defendant that the
officers were still waiting to talk to him. Defendant testified
that, because he was very tired, he did not say anything in
response, but instead just followed the jailer to the foyer area.
Defendant testified that the officers approached him in the
foyer area and pleaded with him to go with them to an interview
room and talk to them. According to defendant, Thatcher had some
papers folded up that Thatcher said were very important and that
defendant should see and that if defendant went into a room and
talked to the officers they would show defendant the papers.
Defendant testified that the reason he went into the interview room
with the officers was that he wanted to see the papers and the
officers told him that they would not show him the papers unless he
went into the room with them. According to defendant, when he went
into the interview room with the officers, he was not aware that
his father was at the jail with the money to bail him out, and no
one informed him until after the interview that his father had
posted bail for him. Defendant testified that if he had been
advised that his father was there to bail him out he would not have
talked to the officers. Defendant testified that the officers did
not show him the papers until the end of the interview. He
recalled that the papers the officers finally showed him had
something to do with eavesdropping.
Defendant's father's testimony included the following. At
around 9 a.m., "or a little sooner," on the morning of July 15,
1995, he posted bail for his son at the jail. He was not allowed
to see his son at that time. Later, while he was sitting and
waiting for his son to be released, he saw Officers Thatcher and
Costliow enter the jail. Through glass doors he could see the
officers interviewing his son. The interview lasted for about two
hours. After the interview, as the officers were leaving the jail,
defendant's father spoke briefly to Officer Thatcher on behalf of
his son. Defendant was released after the officers left.
The trial court found that defendant was given Miranda
warnings and that defendant was not tricked into talking to the
officers. The trial court then denied defendant's motion to
suppress the inculpatory statements that he purportedly made to
Thatcher.
On appeal, defendant contends that reversible error occurred
when (1) the trial court denied his motion to suppress the
inculpatory statements that he purportedly made to Thatcher; (2)
the prosecutor made improper remarks during closing argument; and
(3) the State failed to prove him guilty beyond a reasonable doubt.
We first address the trial court's denial of defendant's
motion to suppress. Defendant asserts that the trial court erred
because the totality of the circumstances shows that the purported
statements were involuntary. More specifically, defendant argues
that the following factors indicate that the statements, if made,
were involuntary: his inexperience with the criminal justice
system; his lack of sleep prior to his interrogation; the failure
of anyone to advise him of his Miranda rights; the failure of the
officers to scrupulously observe his desire not to talk to them;
the use of deception by the officers to get him to talk to them;
and the failure of anyone to advise him that his father had made
bail for him prior to the interrogation.
The State responds that the trial court did not err in denying
defendant's motion to suppress because defendant voluntarily
confessed to Officers Thatcher and Costliow. The State contends
that the trial court properly determined that defendant was advised
of his Miranda rights and that no deception was used to induce
defendant to talk to Officers Thatcher and Costliow. As to being
advised that his father had posted bail, the State maintains that
defendant presented no evidence that the Lake County jail failed to
follow its standard practices with respect to defendant's bail and
that defendant only speculates that the officers were aware that
bail had been posted for defendant when they questioned him. The
State argues that this record shows that defendant waived his
Miranda rights and voluntarily made the inculpatory statements.
It is a fundamental principle of criminal procedure that a
confession must be voluntary or else it is inadmissible. People v.
Melock, 149 Ill. 2d 423, 447 (1992). Whether a statement was made
voluntarily is judged by the totality of the circumstances. People
v. Williams, 181 Ill. 2d 297, 309 (1998). The test for the
voluntariness of a confession is whether the statement was made
freely, without compulsion or inducement, with consideration given
to the characteristics of the accused and the details of the
interrogation. People v. Thomas, 137 Ill. 2d 500, 516 (1990). No
single factor is dispositive; a voluntariness determination is
based on the facts of each case. Melock, 149 Ill. 2d at 447-48.
The State has the burden of establishing the voluntariness of
a defendant's confession by a preponderance of the evidence.
People v. Gilliam, 172 Ill. 2d 484, 501 (1996). Generally, a
reviewing court will reverse a trial court's ruling on a motion to
suppress a statement only if the ruling is against the manifest
weight of the evidence. Williams, 181 Ill. 2d at 309. De novo
review is appropriate only when neither the facts nor the
credibility of the witnesses is questioned. Williams, 181 Ill. 2d
at 309.
In this case, the trial court was required to resolve
conflicting testimony and to determine the credibility of the
witnesses. Therefore, even though the critical facts are largely
undisputed, we will determine whether the trial court's decision
was manifestly erroneous.
Based on the totality of the circumstances, we believe that
the trial court's denial of defendant's motion to suppress the
inculpatory statements he purportedly made was against the manifest
weight of the evidence. While no single factor is dispositive, a
major factor is certainly the failure of anyone to advise defendant
that bond had been posted for him and that he was, or would soon
be, free to go. We note that this failure was ongoing through the
entire morning. No one advised defendant of his impending release
before the officers attempted to talk to him, and no one advised
him after he had invoked his right to remain silent. Defendant
stated that, had he known that he was free to go, he would not have
talked to the officers. We also find that the second police
contact, coming hard on the heels of defendant s refusal to talk
and after a sleepless night, exacerbated the situation and is a
factor weighing against the voluntariness of defendant s
statements.
It is undisputed that defendant's father posted bond for him
at least one hour before Officers Thatcher and Costliow first asked
to speak to defendant. It is also undisputed that when the
officers first asked to speak to defendant he clearly indicated,
even though he had never been advised of his constitutional rights
or that bail had been posted for him, that he did not want to speak
to the officers. Nonetheless, after only 5 or 10 minutes, the
officers again asked to speak to defendant. During the ensuing
interview, which lasted about two hours, defendant was never
advised that bail had been posted for him. Defendant was not
advised that bail had been posted for him until the interview
ended, up to three hours after bail had been posted.
A person for whom bail has been set has a right to be released
from custody, subject to the conditions of the bail bond, when the
appropriate amount of bail has been properly deposited. 725 ILCS
5/110--7(a), (b) (West 1996). We realize that a reasonable amount
of time must be allowed for the authorities to process the bail
once it has been posted. See People v. Tripplett, 12 Ill. App. 3d
834, 836 (1973) (declining to adopt per se rule rendering
inadmissible any statement gained when right to bail is violated,
but instead determining if delay was reasonable). In view of the
facts of this case, we find that a delay of more than an hour in at
least advising defendant that bail had been posted for him was
unreasonable. We need not determine whether the officers who
interviewed defendant were aware that bail had been posted for
defendant when they began to talk to him. After defendant
initially refused to talk to the officers, someone should have
informed defendant that bail had been posted for him before the
officers were again allowed to try to talk to defendant.
Nothing in the record shows that defendant, who had little if
any prior experience with criminal procedure, had been advised of
his Miranda rights before the officers asked to speak to him.
Defendant had been in custody overnight for about 18 hours. During
that period, he had been unable to sleep. When the officers asked
to speak to him, defendant clearly stated that he did not want to
speak to them. After only 5 or 10 minutes, the officers again
asked to speak to defendant. Not knowing that bail had been posted
for him about an hour earlier, defendant accompanied the jailer and
met the officers. We believe that if defendant had been advised,
as he should have been, that bail had been posted for him he would
not have gone with the jailer and would not have met with and
talked to the officers. Based on these facts, defendant's
purported subsequent inculpatory statements were involuntary and
therefore were inadmissible notwithstanding the trial court's
findings that the officers advised defendant of his Miranda rights
and did not resort to deception while speaking to defendant.
We are further troubled by the officers insistence on
speaking with defendant in the face of his clear and unequivocal
invocation of his right to remain silent. In our view, this was a
clear violation of defendant's right to remain silent. See
Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321
(1975); People v. R.C., 108 Ill. 2d 349 (1985) (law enforcement
authorities must scrupulously honor an accused's right to remain
silent). Here, under the guise of serving defendant with a notice
of eavesdropping (see 725 ILCS 5/108A--8(a) (West 1996) (requiring
service of notice of eavesdropping order)), the officers
reinitiated contact with defendant mere moments after defendant
refused to speak to them. This blatant ploy was designed solely to
offer the officers one more chance to overbear defendant s resolve
and wring a statement out of him before he escaped the coercive
environment of the jail house. In light of the extremely short
period of time that elapsed between defendant s initial refusal and
the officers next contact, we fail to see how defendant s right to
remain silent was scrupulously honored. R.C., 108 Ill. 2d at 353
(one of the factors to determine whether the authorities have
scrupulously honored an accused's right to remain silent is the
amount of time that elapsed between interrogations). Based on the
totality of the circumstances surrounding the giving of defendant s
statements, we conclude that the statements were involuntarily
given.
The State does not argue that any error in admitting the
statements would be harmless. Consequently, we need not address
that issue. We conclude that the denial of defendant's motion to
suppress the statements in question was reversible error.
Because the trial court's error in admitting the statements
was reversible, it is not necessary for us to address defendant's
remaining contentions of error. However, we note that the evidence
adduced at trial was sufficient for the jury to conclude that
defendant was guilty beyond a reasonable doubt. We are not making
a determination of defendant's guilt or innocence that is binding
on retrial. See People v. Rodriguez, 289 Ill. App. 3d 223, 240
(1997). Rather, our examination of the sufficiency of the evidence
eliminates any risk that defendant would be subject to double
jeopardy on retrial. See People v. Taylor, 76 Ill. 2d 289, 309-10
(1979).
The judgment of the circuit court of Lee County is reversed,
and the cause is remanded for further proceedings consistent with
this opinion.
Reversed and remanded.
GEIGER, P.J., concurs.
JUSTICE DOYLE, dissenting:
I respectfully disagree that the trial court's decision to
deny defendant's motion to suppress statements was manifestly
erroneous. Implicit in the majority's analysis is the assumption
that the trial court erred in its assessment of the credibility of
the witnesses.
If we accept the officers' version as factual, as the court
did, a sound basis for denial of the motion becomes evident.
According to the officers, they went to the jail to meet with
defendant, unaware that his bond had already been posted. When
defendant declined to come out of his cell, they again asked for
defendant to appear, not to question him but rather to serve him
with a legal notice. Although defendant characterizes this legal
notice as "an irrelevant court paper," the eavesdropping statute
requires that the issuing judge shall cause the notice of request
for use of an eavesdropping device to be served upon persons named
in the application not later than 90 days after the termination of
the period of the order. 725 ILCS 5/108A-8 (West 1994). Here, the
period of the order expired on December 24, 1994, and defendant was
not apprehended until July 14, 1995. In effectuating the court's
notice, as statutorily mandated, the officers had both a right and
duty to serve the notice on defendant. In my view, it is
speculation to assume that their doing so was a ploy.
When defendant appeared, the officers did not begin to
question him about the crime. Instead, defendant began asking the
officers questions about the charges. Before any questioning,
defendant signed the authorization form provided by the jailers and
was given Miranda warnings. Defendant said that he understood his
rights but waived them because he wanted to talk to the officers
about the charges.
I fail to see how this sequence of events, which is the
version found credible by the trial court, can be viewed as an
improper "reinitiation" of questioning in violation of the rule of
Michigan v. Mosley (423 U.S. 96, 46 L. Ed. 2d 313, 96 S.C. 321
(1975)). According to the officers, the discussion of the crime
was voluntarily initiated by defendant.
The circumstance that defendant was interviewed in the jail
after his father had already posted his bond admittedly presents a
closer question in resolving the suppression issue. I agree with
our majority that even if the questioning officers were not aware
that defendant's father had arrived with bond money, the jailers
should have informed defendant of that fact. On these facts, it is
not unreasonable to conclude that defendant was questioned during
a period of unlawful detention. However, unlawful detention does
not of itself invalidate a confession. It is only one circumstance
to be evaluated in the totality of the circumstances in determining
voluntariness. People v. House, 141 Ill. 2d 323, 378 (1990);
People v. Nicholls, 44 Ill. 2d 533, 538 (1970). Statements that
are otherwise voluntary may, in some instances, still be
admissible. The focal issue remains whether defendant's will was
overborne.
Every delay in admitting a defendant to bail will not
constitute a violation of the defendant's constitutional right to
bail, even where questioning has occurred during the period of the
delay. People v. Tripplett, 12 Ill. App. 3d 834, 835-36 (1973).
Defendant cites no authority holding that even a violation of this
constitutional right would render per se inadmissible his otherwise
voluntary statements, and this court has not adopted such an
exclusionary rule. See Tripplett, 12 Ill. App. 3d at 836.
Adopting the officers' version, as the trial court did, there
is no significant indication of involuntariness here. Defendant
was cooperative and willing to have a conversation with the
officers. I note that defendant admits he knew that his father was
going to post bond, which would appear to be consistent with the
voluntariness of his participation as opposed to any
misapprehension that his custodial situation was hopeless.
Within the parameters of Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), confessions given during
periods of unlawful detention have sometimes been upheld even where
interrogation was preceded by the possible trauma of an illegal
arrest. Here, any coercive effect of the detention presumably
would be less significant where defendant was not subjected to an
illegal seizure but was already in lawful custody and was aware
that he would soon be released on bond.
In view of the conflicting testimony, I see no basis for
overruling the trial court's determination of the facts, and it is
my opinion that those facts support the denial of defendant's
motion to suppress statements. I would affirm the trial court's
order.