People v. Garrett
Annotate this Case
People v. Garrett, No. 82115 (11/20/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this
matter, it cannot be considered the final decision of the Court. The official
copy of the following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 82115--Agenda 30--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE
GARRETT, Appellant.
Opinion filed November 20, 1997.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County,
defendant, George Garrett, was convicted of first degree murder and
attempted first degree murder. Defendant was sentenced to 60 years'
imprisonment on the first degree murder conviction and a concurrent
sentence of 25 years on the attempted first degree murder count.
Defendant appealed and the appellate court affirmed. 283 Ill. App. 3d
511. We granted defendant's petition for leave to appeal (166 Ill. 2d R.
315) and now affirm the judgment of the appellate court.
Defendant's convictions arise from events that occurred on
September 1, 1990. At approximately 1:30 a.m. on that day, Darrell
Gurley and his uncle, Thomas Peters, went to a liquor store in Chicago
to purchase beer. Outside the liquor store, a group of men were playing
a dice game. Gurley testified that he entered the store while Peters went
to the dice game. Gurley purchased beer inside the liquor store, placed
the beer inside his vehicle, then approached the dice game. After a few
minutes, Gurley and Peters left the game and began walking towards
the vehicle.
Gurley testified that he heard a male voice say "Yo." Gurley
turned around and saw "Poncho" and "Twon." Gurley stated that he
knew these two individuals from seeing them around the neighborhood.
In court, Gurley identified "Poncho" as defendant, George Garrett, and
"Twon" as the codefendant, Antoine Day. Day is not involved in this
appeal. Gurley testified that he saw the two men draw guns from their
waistbands.
Gurley yelled a warning to Peters and the two men began running
in different directions. Gurley heard several gunshots. As he neared the
other side of the street, Gurley looked back and noticed defendant
shooting in his direction and Day shooting in the direction of Peters. The
next morning, Gurley learned that Peters had died from a gunshot
wound; he then called the police.
Chicago police detective Hugh Conwell picked Gurley up at his
home and drove him to the police station. Gurley testified that he
described the shooting to Conwell and gave Conwell the nicknames and
a description of the two gunmen. Gurley stated that on September 10,
1990, Detective Richard Curley came to his house and showed him five
photographs. From those photographs, Gurley identified defendant as
one of the shooters.
James Coleman was also at the dice game outside the liquor
store. Coleman testified that he saw three men, including defendant,
approach the group. Shortly thereafter, Coleman heard gunshots and
saw defendant pointing a gun in the direction of the dice game. Coleman
began to run. He was shot in the back and was later treated at a
hospital. Coleman stated that on September 10, 1990, he was shown a
group of photographs by Detective Curley and identified a photograph
of defendant as the man he believed to be the shooter.
Detective Curley and his partner, Detective Richard Maher,
investigated the shooting. Curley testified that they were looking for an
individual nicknamed "Poncho." On September 10, 1990, Curley learned
that "Poncho's" real name was George Garrett, the defendant. Curley
obtained a photograph of defendant from one of his girlfriends. Curley's
testimony corroborated the testimony of Coleman and Gurley that, from
a series of five photographs, they identified defendant as the shooter.
Based on the identifications by Coleman and Gurley, Detective
Curley filed a complaint in the circuit court on September 10, 1990,
requesting an arrest warrant charging the defendant with murder. An
arrest warrant for the defendant was subsequently issued. Six months
later, on March 14, 1991, defendant was arrested. On March 15, 1991,
defendant appeared at a bond hearing and an assistant public defender
filed an appearance on his behalf.
On March 18, 1991, defendant again appeared in court. Attorney
Joan HillMcClain, a private attorney, was present in court and filed an
appearance on defendant's behalf. During the March 18 hearing, the
State indicated that it was not ready to proceed. Attorney HillMcClain,
on behalf of defendant, did not object to a continuance. The judge
granted the State a continuance and set the matter for preliminary
hearing on April 11. Defendant remained in custody under a "no bail"
order entered on the complaint for preliminary examination dated
September 10, 1990.
On April 9, 1991, two days before the scheduled preliminary
hearing, Detective Curley arranged a lineup in which defendant was a
participant. At the lineup, Coleman identified defendant as one of the
persons responsible for the shooting on September 1, 1990.
Defendant filed a motion to suppress his identification by
Coleman at the April 9 lineup claiming that he was not represented by
counsel at the lineup. At the hearing on the motion to suppress, much
of the testimony concerned a lineup packet prepared by the public
defender's office. A lineup packet consists of seven or eight pages. In the
packet, the public defender is supposed to provide the defendant's name
and the type of crime with which he is charged. There is a sheet to state
whether there is a police officer or State's Attorney present, whether the
public defender has the police reports or case reports, and a list of
witnesses, if any. There is also a sheet to provide details on the
individuals that participate in the lineup. Additionally, there is the
lineup rights sheet. The lineup rights sheet explains the accused's rights
and includes a question as to whether the accused has an attorney.
There is a place at the bottom of the sheet where the accused can waive
the presence of the public defender at the lineup. This packet is
intended to advise the accused of his or her rights during a lineup. The
public defender assigned to cover a lineup is instructed to fill out a
packet at all lineups.
Here, the lineup rights sheet was completed by Assistant Public
Defender Fred DeBartolo and contained the name of attorney
HillMcClain. Defendant's signature appears below the waiver at the
bottom stating that defendant did not want an attorney from the office
of the public defender to be present or to represent him at the lineup.
Next to defendant's signature is the date and the time 10:45. Detective
Curley and two others signed the sheet as witnesses; their names also
appear next to the date and the time 10:45.
Detective Curley testified that he conducted the lineup in which
Coleman identified the defendant. Curley stated that, on the morning
of the lineup, he notified the public defender to be present for the
lineup. It was Curley's understanding that defendant was represented
by the public defender's office. Curley testified that defendant, after
stating that he had another attorney, repeatedly refused to disclose the
name of that attorney. Curley also stated that, to his knowledge,
defendant never attempted to contact any private attorney. Curley
testified that the lineup was conducted at 10:20 a.m. Curley stated that
DeBartolo was present during the viewing of the lineup. Although
DeBartolo was not in Curley's room, Curley testified that DeBartolo was
in one of the three rooms from which the lineup could be observed.
Additionally, Curley testified that he signed the lineup rights sheet at
10:45 a.m. Further, Curley testified that he did not see the lineup rights
sheet when he conducted the lineup at 10:20 a.m., that he would not
have known what information was on the document when he conducted
the lineup, and that he had no knowledge of the name of defendant's
private attorney prior to the time he saw the lineup rights sheet.
Defendant testified that, on April 9, 1991, he was taken to the
area of Cook County jail where lineups are held and told by Detective
Curley that he was being placed in a lineup. While there, defendant saw
Curley, another detective, the Cook County investigator, a Cook County
sheriff and three other inmates. Defendant stated that he told Curley
he wanted to see his attorney, Joan HillMcClain. Defendant then saw
DeBartolo and claims to have told both Curley and DeBartolo several
times that he wanted to call his attorney and that he gave them the
name of his attorney. Defendant testified that he signed the lineup
rights sheet prior to the lineup. He also stated that he told DeBartolo
that he did not want him present and that, to his knowledge, DeBartolo
did not view the lineup.
DeBartolo testified that, on the morning of the lineup, he was
notified by his supervisor to attend a lineup and prepare a lineup packet
for the defendant. DeBartolo testified that he arrived at the jail between
9 and 10 o'clock in the morning for the purpose of viewing defendant's
lineup. DeBartolo met with defendant and completed the lineup packet.
DeBartolo testified that defendant asked him why he was there and
stated that he had another lawyer. DeBartolo stated that defendant
gave him the name of his other attorney but that defendant was not
given an opportunity to call this attorney while DeBartolo was present.
DeBartolo stated that he left the jail and did not view the lineup.
DeBartolo testified that he called attorney HillMcClain when he
returned to his office and informed her that one of her clients was being
placed in a lineup. On cross-examination, DeBartolo testified that he
went over defendant's rights with him at least four times and that
defendant stated that he did not want DeBartolo present during the
lineup. Further, DeBartolo testified that he never heard defendant ask
to make a telephone call. DeBartolo stated that he does not remember
if defendant gave him attorney HillMcClain's phone number or if he
looked it up after he had returned to his office and only then placed it
on the lineup rights sheet.
The trial court denied defendant's motion to suppress the
identification by Coleman at the April 9, 1991, lineup. The trial judge
noted that no one from the public defender's office filed leave to
withdraw its appearance after counsel HillMcClain filed her appearance
on defendant's behalf on March 18, 1991. The trial judge believed that
the public defender's office, having filed an entrance of appearance on
behalf of defendant, still represented defendant at the time of the
lineup. Although DeBartolo denies having viewed the lineup, the trial
judge noted that DeBartolo said he arrived before the lineup, the
uncontradicted testimony of Detective Curley is that the lineup occurred
around 10:20, and the time the lineup rights sheet was signed was
10:45. Under these facts, the trial judge believed that an attorney with
an appearance of record was representing defendant at the lineup;
therefore, the identification testimony was admissible.
Testimony that Coleman identified defendant at the lineup was
introduced at trial. Defendant was found guilty and sentenced to 60
years' imprisonment for first degree murder and a concurrent sentence
of 25 years for attempted murder. The appellate court affirmed. 283 Ill.
App. 3d at 518. The appellate court believed that it was immaterial
whether the public defender continued as counsel for the defendant or
was present at the lineup. 283 Ill. App. 3d at 515. Instead, the appellate
court found that adversarial judicial proceedings had not yet begun at
the time of the lineup; therefore, defendant did not have a sixth
amendment right to counsel at that time. 283 Ill. App. 3d at 516.
In this appeal, defendant argues that his sixth amendment right
to counsel had attached at the time of the April 9 lineup because he was
involved in a critical stage of an adversarial judicial proceeding.
Defendant claims that adversarial judicial proceedings had commenced
at the time of the lineup because he was arrested, brought before a
judge for a bond hearing, and, three days later, brought before a judge
for purposes of a preliminary hearing that was continued until a later
date. Defendant additionally asserts that adversarial judicial
proceedings had commenced because he had counsel of his choice
present at the first scheduled preliminary hearing date and he was
placed in a lineup without the benefit of his chosen counsel 22 days
after his appearance in court with that counsel.
The State argues that defendant's sixth amendment right to
counsel had not yet attached at the time of the lineup because adversary
judicial criminal proceedings had not commenced. The State maintains
that there were no actions by the prosecutor before the time of the
lineup which indicate that the State had made a formal commitment to
prosecute the defendant. The State also believes that the defendant had
an attorney of record present if it should be found that defendant's right
to counsel had already attached at the time of the lineup. Finally, the
State maintains that if there was any error in allowing testimony of
Coleman's identification of defendant at the lineup, it was harmless and
should not affect defendant's conviction.
We must first determine whether defendant's sixth amendment
right to counsel had attached at the time he was placed in the lineup.
The sixth amendment to the United States Constitution states in
relevant part that "[i]n all criminal prosecutions, the accused shall enjoy
the right to *** have the Assistance of Counsel for his defence." U.S.
Const., amend. VI. The Court has made clear that the sixth amendment
right to counsel does not attach until the " ` "government has committed
itself to prosecute, and ... the adverse positions of government and
defendant have solidified." ' " Moran v. Burbine, 475 U.S. 412, 432, 89 L. Ed. 2d 410, 428, 106 S. Ct. 1135, 1146 (1986), quoting United States
v. Gouveia, 467 U.S. 180, 189, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292,
2298 (1984), quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882 (1972) (plurality opinion). "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, 406 U.S. at 689, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.
The Supreme Court has held that the sixth amendment right to
counsel attaches at or after the initiation of adversarial judicial
proceedings--whether by way of a formal charge, preliminary hearing,
indictment, information, or arraignment. Kirby, 406 U.S. at 688-89, 32 L. Ed. 2d at 417, 92 S. Ct. at 1881-82; Gouveia, 467 U.S. at 185, 81 L. Ed. 2d at 152, 104 S. Ct. at 2296. In a later decision, the Court stated
that "[i]t is clear *** [that] the defendant has the right to the presence
of an attorney during any interrogation occurring after the first formal
charging proceeding, the point at which the Sixth Amendment right to
counsel initially attaches. [Citations]." Moran, 475 U.S. at 428, 89 L. Ed. 2d at 425, 106 S. Ct. at 1144.
In the present case, there had been no formal charging
proceeding, preliminary hearing, indictment, information, or
arraignment at the time of the lineup. Our court has held, however, that
the level of prosecutorial involvement may be considered in determining
whether a defendant's sixth amendment right to counsel has attached.
People v. Young, 153 Ill. 2d 383, 404 (1992), citing People v. Hayes, 139 Ill. 2d 89, 125 (1990); People v. Wilson, 116 Ill. 2d 29, 50-51 (1987);
People v. Owens, 102 Ill. 2d 88, 101 (1984).
In Wilson, a police officer presented a complaint for an arrest
warrant to a judge ex parte without the assistance of the State's
Attorney. Wilson, 116 Ill. 2d at 50. Defendant appeared in a lineup the
next day. The complaint was not filed in court until after the defendant
appeared in the lineup. Wilson, 116 Ill. 2d at 50. Under these facts, this
court held that adversarial proceedings had not begun between the State
and defendant and, therefore, defendant had no right to counsel at the
lineup. Wilson, 116 Ill. 2d at 50-51.
In People v. Thompkins, 121 Ill. 2d 401, 433 (1988), before being
indicted or arraigned, defendant was interrogated by and confessed to
the police while in a lockup area awaiting his initial court appearance.
The court found that defendant waived his fifth amendment right to
counsel (Thompkins, 121 Ill. 2d at 434) and addressed whether
defendant had a sixth amendment right to counsel at the time of the
interrogation (Thompkins, 121 Ill. 2d at 432-33). Like the present case,
a complaint for preliminary examination charging defendant with
murder had already been issued when defendant made the inculpatory
statements. Thompkins, 121 Ill. 2d at 433. This court held that
adversary judicial proceedings had not been initiated against the
defendant at the time of his interrogation and found that the complaint
"did not constitute a formal commitment by the People to prosecute
defendant." Thompkins, 121 Ill. 2d at 433. Because defendant's sixth
amendment right to counsel had not attached at the time he confessed
to the police, his statements were properly admitted at trial. Thompkins,
121 Ill. 2d at 433.
In Hayes, a complaint for preliminary examination was filed by
a police officer and an arrest warrant was issued by a judge for
attempted armed robbery. Hayes, 139 Ill. 2d at 122. The State's
Attorney's office had reviewed the application and approved the issuance
of the arrest warrant. Hayes, 139 Ill. 2d at 122. Defendant was arrested
and placed in a lineup, where he was identified as the person
attempting the robbery. Hayes, 139 Ill. 2d at 122. He was also identified
by six witnesses as the man who shot and killed one of the robbery
victims. Hayes, 139 Ill. 2d at 122-23. Defendant was eventually
convicted of murder and six related counts of armed robbery. Hayes, 139 Ill. 2d at 103. This court stated that, "in determining whether an
accused's sixth amendment right to counsel attaches upon the filing of
a criminal complaint, the court must consider the degree to which the
State's prosecutorial forces have focused upon the accused." Hayes, 139 Ill. 2d at 125. The court then noted that the filing of the complaint and
issuance of the arrest warrant for one charge did not indicate that the
State would prosecute defendant for a charge not specified in the
complaint. Hayes, 139 Ill. 2d at 126. The court held that defendant did
not have the right to counsel for the murder charge at the time of the
lineup because there was no proof of "significant prosecutorial
involvement" in obtaining the arrest warrant. Hayes, 139 Ill. 2d at 126.
Applying this court's previous decisions regarding a defendant's
sixth amendment right to counsel to the present case, we do not believe
that adversarial judicial proceedings had commenced at the time of the
lineup such that defendant's sixth amendment right to counsel had
attached. At the time of the lineup, there had been no formal charge,
preliminary hearing, indictment, information, or arraignment. Barring
the occurrence of any of these stages, defendant has a sixth amendment
right to counsel only if there has been significant prosecutorial
involvement at the time of the questioned action or if the government
has committed itself at that time to prosecute defendant. Therefore, our
inquiry is into the degree of prosecutorial involvement at the time of the
lineup.
In the present case, the record does not establish significant
prosecutorial involvement prior to or at the time of the lineup. The
complaint was filed by Detective Curley and the arrest warrant was
issued on September 10, 1990, without the assistance of the State's
Attorney. As in Thompkins, we do not feel that the filing of this
complaint constitutes a formal commitment by the State to prosecute
defendant so as to attach defendant's sixth amendment right to counsel.
The only prosecutorial involvement in this case prior to the April
9 lineup occurred at hearings on March 15 and March 18. At the March
15 hearing, the judge ruled that defendant's bond, set the previous
December, was to stand and denied the State leave to file a "Violation
of Bail Bond." The case was transferred to a preliminary hearings judge
for March 18. At the March 18 hearing, the State indicated it was not
ready to proceed. The court afforded the State a continuance and the
matter was set for preliminary hearing for April 11. Counsel for the
defendant stated that continuance until April 11 "would be fine" and
made no objections. No further action occurred on the case until the
April 9 lineup. While defendant remained in jail for 22 days from the
time of the continuance until the lineup, this, by itself, does not
commence adversarial judicial proceedings and invoke the sixth
amendment right to counsel. Finally, the record does not indicate that
the State's Attorney was present at the lineup in any capacity.
We do not believe that the State's minimal actions at the two
hearings establish significant prosecutorial involvement or a
commitment on the part of the State to prosecute so as to commence
adversarial judicial proceedings. We find that the State's role at the two
hearings was insufficient for defendant's sixth amendment right to
counsel to attach.
In sum, at the time of the lineup there had been no formal charge,
preliminary hearing, indictment, information, or arraignment. Further,
during the filing of the complaint, the two hearings, defendant's
detention, and the lineup, there was neither significant prosecutorial
involvement nor a commitment by the State to prosecute. Under these
facts, adversarial judicial proceedings had not begun at the time of the
lineup and, therefore, defendant had no sixth amendment right to
counsel.
For the foregoing reasons, we find that defendant's sixth
amendment right to counsel did not attach at the April 9 lineup because
adversarial judicial proceedings had not commenced against the
defendant. Accordingly, we affirm the judgment of the appellate court.
Affirmed.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this
matter, it cannot be considered the final decision of the Court. The official
copy of the following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 82115--Agenda 30--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE
GARRETT, Appellant.
Opinion filed November 20, 1997.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County,
defendant, George Garrett, was convicted of first degree murder and
attempted first degree murder. Defendant was sentenced to 60 years'
imprisonment on the first degree murder conviction and a concurrent
sentence of 25 years on the attempted first degree murder count.
Defendant appealed and the appellate court affirmed. 283 Ill. App. 3d
511. We granted defendant's petition for leave to appeal (166 Ill. 2d R.
315) and now affirm the judgment of the appellate court.
Defendant's convictions arise from events that occurred on
September 1, 1990. At approximately 1:30 a.m. on that day, Darrell
Gurley and his uncle, Thomas Peters, went to a liquor store in Chicago
to purchase beer. Outside the liquor store, a group of men were playing
a dice game. Gurley testified that he entered the store while Peters went
to the dice game. Gurley purchased beer inside the liquor store, placed
the beer inside his vehicle, then approached the dice game. After a few
minutes, Gurley and Peters left the game and began walking towards
the vehicle.
Gurley testified that he heard a male voice say "Yo." Gurley
turned around and saw "Poncho" and "Twon." Gurley stated that he
knew these two individuals from seeing them around the neighborhood.
In court, Gurley identified "Poncho" as defendant, George Garrett, and
"Twon" as the codefendant, Antoine Day. Day is not involved in this
appeal. Gurley testified that he saw the two men draw guns from their
waistbands.
Gurley yelled a warning to Peters and the two men began running
in different directions. Gurley heard several gunshots. As he neared the
other side of the street, Gurley looked back and noticed defendant
shooting in his direction and Day shooting in the direction of Peters. The
next morning, Gurley learned that Peters had died from a gunshot
wound; he then called the police.
Chicago police detective Hugh Conwell picked Gurley up at his
home and drove him to the police station. Gurley testified that he
described the shooting to Conwell and gave Conwell the nicknames and
a description of the two gunmen. Gurley stated that on September 10,
1990, Detective Richard Curley came to his house and showed him five
photographs. From those photographs, Gurley identified defendant as
one of the shooters.
James Coleman was also at the dice game outside the liquor
store. Coleman testified that he saw three men, including defendant,
approach the group. Shortly thereafter, Coleman heard gunshots and
saw defendant pointing a gun in the direction of the dice game. Coleman
began to run. He was shot in the back and was later treated at a
hospital. Coleman stated that on September 10, 1990, he was shown a
group of photographs by Detective Curley and identified a photograph
of defendant as the man he believed to be the shooter.
Detective Curley and his partner, Detective Richard Maher,
investigated the shooting. Curley testified that they were looking for an
individual nicknamed "Poncho." On September 10, 1990, Curley learned
that "Poncho's" real name was George Garrett, the defendant. Curley
obtained a photograph of defendant from one of his girlfriends. Curley's
testimony corroborated the testimony of Coleman and Gurley that, from
a series of five photographs, they identified defendant as the shooter.
Based on the identifications by Coleman and Gurley, Detective
Curley filed a complaint in the circuit court on September 10, 1990,
requesting an arrest warrant charging the defendant with murder. An
arrest warrant for the defendant was subsequently issued. Six months
later, on March 14, 1991, defendant was arrested. On March 15, 1991,
defendant appeared at a bond hearing and an assistant public defender
filed an appearance on his behalf.
On March 18, 1991, defendant again appeared in court. Attorney
Joan HillMcClain, a private attorney, was present in court and filed an
appearance on defendant's behalf. During the March 18 hearing, the
State indicated that it was not ready to proceed. Attorney HillMcClain,
on behalf of defendant, did not object to a continuance. The judge
granted the State a continuance and set the matter for preliminary
hearing on April 11. Defendant remained in custody under a "no bail"
order entered on the complaint for preliminary examination dated
September 10, 1990.
On April 9, 1991, two days before the scheduled preliminary
hearing, Detective Curley arranged a lineup in which defendant was a
participant. At the lineup, Coleman identified defendant as one of the
persons responsible for the shooting on September 1, 1990.
Defendant filed a motion to suppress his identification by
Coleman at the April 9 lineup claiming that he was not represented by
counsel at the lineup. At the hearing on the motion to suppress, much
of the testimony concerned a lineup packet prepared by the public
defender's office. A lineup packet consists of seven or eight pages. In the
packet, the public defender is supposed to provide the defendant's name
and the type of crime with which he is charged. There is a sheet to state
whether there is a police officer or State's Attorney present, whether the
public defender has the police reports or case reports, and a list of
witnesses, if any. There is also a sheet to provide details on the
individuals that participate in the lineup. Additionally, there is the
lineup rights sheet. The lineup rights sheet explains the accused's rights
and includes a question as to whether the accused has an attorney.
There is a place at the bottom of the sheet where the accused can waive
the presence of the public defender at the lineup. This packet is
intended to advise the accused of his or her rights during a lineup. The
public defender assigned to cover a lineup is instructed to fill out a
packet at all lineups.
Here, the lineup rights sheet was completed by Assistant Public
Defender Fred DeBartolo and contained the name of attorney
HillMcClain. Defendant's signature appears below the waiver at the
bottom stating that defendant did not want an attorney from the office
of the public defender to be present or to represent him at the lineup.
Next to defendant's signature is the date and the time 10:45. Detective
Curley and two others signed the sheet as witnesses; their names also
appear next to the date and the time 10:45.
Detective Curley testified that he conducted the lineup in which
Coleman identified the defendant. Curley stated that, on the morning
of the lineup, he notified the public defender to be present for the
lineup. It was Curley's understanding that defendant was represented
by the public defender's office. Curley testified that defendant, after
stating that he had another attorney, repeatedly refused to disclose the
name of that attorney. Curley also stated that, to his knowledge,
defendant never attempted to contact any private attorney. Curley
testified that the lineup was conducted at 10:20 a.m. Curley stated that
DeBartolo was present during the viewing of the lineup. Although
DeBartolo was not in Curley's room, Curley testified that DeBartolo was
in one of the three rooms from which the lineup could be observed.
Additionally, Curley testified that he signed the lineup rights sheet at
10:45 a.m. Further, Curley testified that he did not see the lineup rights
sheet when he conducted the lineup at 10:20 a.m., that he would not
have known what information was on the document when he conducted
the lineup, and that he had no knowledge of the name of defendant's
private attorney prior to the time he saw the lineup rights sheet.
Defendant testified that, on April 9, 1991, he was taken to the
area of Cook County jail where lineups are held and told by Detective
Curley that he was being placed in a lineup. While there, defendant saw
Curley, another detective, the Cook County investigator, a Cook County
sheriff and three other inmates. Defendant stated that he told Curley
he wanted to see his attorney, Joan HillMcClain. Defendant then saw
DeBartolo and claims to have told both Curley and DeBartolo several
times that he wanted to call his attorney and that he gave them the
name of his attorney. Defendant testified that he signed the lineup
rights sheet prior to the lineup. He also stated that he told DeBartolo
that he did not want him present and that, to his knowledge, DeBartolo
did not view the lineup.
DeBartolo testified that, on the morning of the lineup, he was
notified by his supervisor to attend a lineup and prepare a lineup packet
for the defendant. DeBartolo testified that he arrived at the jail between
9 and 10 o'clock in the morning for the purpose of viewing defendant's
lineup. DeBartolo met with defendant and completed the lineup packet.
DeBartolo testified that defendant asked him why he was there and
stated that he had another lawyer. DeBartolo stated that defendant
gave him the name of his other attorney but that defendant was not
given an opportunity to call this attorney while DeBartolo was present.
DeBartolo stated that he left the jail and did not view the lineup.
DeBartolo testified that he called attorney HillMcClain when he
returned to his office and informed her that one of her clients was being
placed in a lineup. On cross-examination, DeBartolo testified that he
went over defendant's rights with him at least four times and that
defendant stated that he did not want DeBartolo present during the
lineup. Further, DeBartolo testified that he never heard defendant ask
to make a telephone call. DeBartolo stated that he does not remember
if defendant gave him attorney HillMcClain's phone number or if he
looked it up after he had returned to his office and only then placed it
on the lineup rights sheet.
The trial court denied defendant's motion to suppress the
identification by Coleman at the April 9, 1991, lineup. The trial judge
noted that no one from the public defender's office filed leave to
withdraw its appearance after counsel HillMcClain filed her appearance
on defendant's behalf on March 18, 1991. The trial judge believed that
the public defender's office, having filed an entrance of appearance on
behalf of defendant, still represented defendant at the time of the
lineup. Although DeBartolo denies having viewed the lineup, the trial
judge noted that DeBartolo said he arrived before the lineup, the
uncontradicted testimony of Detective Curley is that the lineup occurred
around 10:20, and the time the lineup rights sheet was signed was
10:45. Under these facts, the trial judge believed that an attorney with
an appearance of record was representing defendant at the lineup;
therefore, the identification testimony was admissible.
Testimony that Coleman identified defendant at the lineup was
introduced at trial. Defendant was found guilty and sentenced to 60
years' imprisonment for first degree murder and a concurrent sentence
of 25 years for attempted murder. The appellate court affirmed. 283 Ill.
App. 3d at 518. The appellate court believed that it was immaterial
whether the public defender continued as counsel for the defendant or
was present at the lineup. 283 Ill. App. 3d at 515. Instead, the appellate
court found that adversarial judicial proceedings had not yet begun at
the time of the lineup; therefore, defendant did not have a sixth
amendment right to counsel at that time. 283 Ill. App. 3d at 516.
In this appeal, defendant argues that his sixth amendment right
to counsel had attached at the time of the April 9 lineup because he was
involved in a critical stage of an adversarial judicial proceeding.
Defendant claims that adversarial judicial proceedings had commenced
at the time of the lineup because he was arrested, brought before a
judge for a bond hearing, and, three days later, brought before a judge
for purposes of a preliminary hearing that was continued until a later
date. Defendant additionally asserts that adversarial judicial
proceedings had commenced because he had counsel of his choice
present at the first scheduled preliminary hearing date and he was
placed in a lineup without the benefit of his chosen counsel 22 days
after his appearance in court with that counsel.
The State argues that defendant's sixth amendment right to
counsel had not yet attached at the time of the lineup because adversary
judicial criminal proceedings had not commenced. The State maintains
that there were no actions by the prosecutor before the time of the
lineup which indicate that the State had made a formal commitment to
prosecute the defendant. The State also believes that the defendant had
an attorney of record present if it should be found that defendant's right
to counsel had already attached at the time of the lineup. Finally, the
State maintains that if there was any error in allowing testimony of
Coleman's identification of defendant at the lineup, it was harmless and
should not affect defendant's conviction.
We must first determine whether defendant's sixth amendment
right to counsel had attached at the time he was placed in the lineup.
The sixth amendment to the United States Constitution states in
relevant part that "[i]n all criminal prosecutions, the accused shall enjoy
the right to *** have the Assistance of Counsel for his defence." U.S.
Const., amend. VI. The Court has made clear that the sixth amendment
right to counsel does not attach until the " ` "government has committed
itself to prosecute, and ... the adverse positions of government and
defendant have solidified." ' " Moran v. Burbine, 475 U.S. 412, 432, 89 L. Ed. 2d 410, 428, 106 S. Ct. 1135, 1146 (1986), quoting United States
v. Gouveia, 467 U.S. 180, 189, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292,
2298 (1984), quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882 (1972) (plurality opinion). "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, 406 U.S. at 689, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.
The Supreme Court has held that the sixth amendment right to
counsel attaches at or after the initiation of adversarial judicial
proceedings--whether by way of a formal charge, preliminary hearing,
indictment, information, or arraignment. Kirby, 406 U.S. at 688-89, 32 L. Ed. 2d at 417, 92 S. Ct. at 1881-82; Gouveia, 467 U.S. at 185, 81 L. Ed. 2d at 152, 104 S. Ct. at 2296. In a later decision, the Court stated
that "[i]t is clear *** [that] the defendant has the right to the presence
of an attorney during any interrogation occurring after the first formal
charging proceeding, the point at which the Sixth Amendment right to
counsel initially attaches. [Citations]." Moran, 475 U.S. at 428, 89 L. Ed. 2d at 425, 106 S. Ct. at 1144.
In the present case, there had been no formal charging
proceeding, preliminary hearing, indictment, information, or
arraignment at the time of the lineup. Our court has held, however, that
the level of prosecutorial involvement may be considered in determining
whether a defendant's sixth amendment right to counsel has attached.
People v. Young, 153 Ill. 2d 383, 404 (1992), citing People v. Hayes, 139 Ill. 2d 89, 125 (1990); People v. Wilson, 116 Ill. 2d 29, 50-51 (1987);
People v. Owens, 102 Ill. 2d 88, 101 (1984).
In Wilson, a police officer presented a complaint for an arrest
warrant to a judge ex parte without the assistance of the State's
Attorney. Wilson, 116 Ill. 2d at 50. Defendant appeared in a lineup the
next day. The complaint was not filed in court until after the defendant
appeared in the lineup. Wilson, 116 Ill. 2d at 50. Under these facts, this
court held that adversarial proceedings had not begun between the State
and defendant and, therefore, defendant had no right to counsel at the
lineup. Wilson, 116 Ill. 2d at 50-51.
In People v. Thompkins, 121 Ill. 2d 401, 433 (1988), before being
indicted or arraigned, defendant was interrogated by and confessed to
the police while in a lockup area awaiting his initial court appearance.
The court found that defendant waived his fifth amendment right to
counsel (Thompkins, 121 Ill. 2d at 434) and addressed whether
defendant had a sixth amendment right to counsel at the time of the
interrogation (Thompkins, 121 Ill. 2d at 432-33). Like the present case,
a complaint for preliminary examination charging defendant with
murder had already been issued when defendant made the inculpatory
statements. Thompkins, 121 Ill. 2d at 433. This court held that
adversary judicial proceedings had not been initiated against the
defendant at the time of his interrogation and found that the complaint
"did not constitute a formal commitment by the People to prosecute
defendant." Thompkins, 121 Ill. 2d at 433. Because defendant's sixth
amendment right to counsel had not attached at the time he confessed
to the police, his statements were properly admitted at trial. Thompkins,
121 Ill. 2d at 433.
In Hayes, a complaint for preliminary examination was filed by
a police officer and an arrest warrant was issued by a judge for
attempted armed robbery. Hayes, 139 Ill. 2d at 122. The State's
Attorney's office had reviewed the application and approved the issuance
of the arrest warrant. Hayes, 139 Ill. 2d at 122. Defendant was arrested
and placed in a lineup, where he was identified as the person
attempting the robbery. Hayes, 139 Ill. 2d at 122. He was also identified
by six witnesses as the man who shot and killed one of the robbery
victims. Hayes, 139 Ill. 2d at 122-23. Defendant was eventually
convicted of murder and six related counts of armed robbery. Hayes, 139 Ill. 2d at 103. This court stated that, "in determining whether an
accused's sixth amendment right to counsel attaches upon the filing of
a criminal complaint, the court must consider the degree to which the
State's prosecutorial forces have focused upon the accused." Hayes, 139 Ill. 2d at 125. The court then noted that the filing of the complaint and
issuance of the arrest warrant for one charge did not indicate that the
State would prosecute defendant for a charge not specified in the
complaint. Hayes, 139 Ill. 2d at 126. The court held that defendant did
not have the right to counsel for the murder charge at the time of the
lineup because there was no proof of "significant prosecutorial
involvement" in obtaining the arrest warrant. Hayes, 139 Ill. 2d at 126.
Applying this court's previous decisions regarding a defendant's
sixth amendment right to counsel to the present case, we do not believe
that adversarial judicial proceedings had commenced at the time of the
lineup such that defendant's sixth amendment right to counsel had
attached. At the time of the lineup, there had been no formal charge,
preliminary hearing, indictment, information, or arraignment. Barring
the occurrence of any of these stages, defendant has a sixth amendment
right to counsel only if there has been significant prosecutorial
involvement at the time of the questioned action or if the government
has committed itself at that time to prosecute defendant. Therefore, our
inquiry is into the degree of prosecutorial involvement at the time of the
lineup.
In the present case, the record does not establish significant
prosecutorial involvement prior to or at the time of the lineup. The
complaint was filed by Detective Curley and the arrest warrant was
issued on September 10, 1990, without the assistance of the State's
Attorney. As in Thompkins, we do not feel that the filing of this
complaint constitutes a formal commitment by the State to prosecute
defendant so as to attach defendant's sixth amendment right to counsel.
The only prosecutorial involvement in this case prior to the April
9 lineup occurred at hearings on March 15 and March 18. At the March
15 hearing, the judge ruled that defendant's bond, set the previous
December, was to stand and denied the State leave to file a "Violation
of Bail Bond." The case was transferred to a preliminary hearings judge
for March 18. At the March 18 hearing, the State indicated it was not
ready to proceed. The court afforded the State a continuance and the
matter was set for preliminary hearing for April 11. Counsel for the
defendant stated that continuance until April 11 "would be fine" and
made no objections. No further action occurred on the case until the
April 9 lineup. While defendant remained in jail for 22 days from the
time of the continuance until the lineup, this, by itself, does not
commence adversarial judicial proceedings and invoke the sixth
amendment right to counsel. Finally, the record does not indicate that
the State's Attorney was present at the lineup in any capacity.
We do not believe that the State's minimal actions at the two
hearings establish significant prosecutorial involvement or a
commitment on the part of the State to prosecute so as to commence
adversarial judicial proceedings. We find that the State's role at the two
hearings was insufficient for defendant's sixth amendment right to
counsel to attach.
In sum, at the time of the lineup there had been no formal charge,
preliminary hearing, indictment, information, or arraignment. Further,
during the filing of the complaint, the two hearings, defendant's
detention, and the lineup, there was neither significant prosecutorial
involvement nor a commitment by the State to prosecute. Under these
facts, adversarial judicial proceedings had not begun at the time of the
lineup and, therefore, defendant had no sixth amendment right to
counsel.
For the foregoing reasons, we find that defendant's sixth
amendment right to counsel did not attach at the April 9 lineup because
adversarial judicial proceedings had not commenced against the
defendant. Accordingly, we affirm the judgment of the appellate court.
Affirmed.
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