                          NO. 4-06-0026       Filed 4/19/07

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Cumberland County
MARK J. LASHMET,                       )    No. 05CF24
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Teresa K. Righter,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          In February 2005, the State charged defendant, Mark J.

Lashmet, with solicitation of murder for hire in that defendant

(while he was incarcerated at the Cumberland County jail), with

intent that first degree murder be committed, hired David J. Marr

to murder Jimmie L. Cummins (720 ILCS 5/8-1.2 (West 2004)).    In

January 2006, defendant filed a motion to suppress incriminating

statements he made to Marr while Marr was posing as a fellow

inmate and acting on the State's behalf.   Following a hearing

later in January 2006, the trial court granted defendant's

motion.

          The State appeals, arguing that the trial court erred

by granting defendant's motion to suppress.   We agree and reverse

and remand for further proceedings.

                          I. BACKGROUND
           Defendant's January 2006 motion sought to suppress his

incriminating statements to Marr on the ground that the State's

conduct violated his fifth-amendment right against self-incrimi-

nation.   Specifically, defendant's motion alleged as follows:

(1) sometime prior to late December 2004, the State had charged

him with "various felony offenses," regarding which he was

represented by counsel; (2) on December 29, 2004, defendant, who

was an inmate at the Cumberland County jail, made certain incrim-

inating statements to Marr, who was participating in an under-

cover police operation; and (3) Marr did not give defendant

Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.

2d 694, 86 S. Ct. 1602 (1966)) prior to asking him questions.

Attached to his motion was a memorandum in support thereof.        The

memorandum indicated, in part, that in November 2004, defendant

was incarcerated on charges of "aggravated battery, attempted

murder [of Cummins,] and violation of bail bond," regarding which

he was represented by counsel.

           At the hearing on defendant's motion to suppress, which

was held later in January 2006, the parties stipulated to the

following facts.   In mid-November 2004, defendant was incarcer-

ated in the Cumberland County jail.      On November 17, 2004, a

deputy asked defendant to answer questions.      After answering some

preliminary questions, defendant informed the deputy that he did

not want to answer any further questions.      Defendant did not


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waive his Miranda rights after that date.

            On December 29, 2004, police authorities placed Marr in

a cell with defendant.    Marr, who was participating in an under-

cover police operation to obtain information from defendant, was

wearing a recording device.    Defendant sat in a chair while Marr

asked him a series of questions for approximately 45 minutes.

During the meeting, Marr sometimes stood over defendant or stood

within whispering distance.    The State had not yet charged

defendant with solicitation of murder for hire, and he did not

then know that the State was investigating his involvement in

solicitation to commit murder.

            If called as a witness, Marr would testify that prior

to December 29, 2004, he had been incarcerated with defendant at

the Cumberland County jail.    During that time, defendant offered

to pay Marr to kill Cummins.    As part of their agreement, defen-

dant posted bail for Marr, and Marr was released from jail.      If

called to testify, defendant would deny Marr's allegations.

            The trial court also admitted as a joint exhibit a

transcript of the December 29, 2004, jailhouse conversation

between defendant and Marr.    The transcript shows that the

conversation began with small talk about why Marr was purportedly

back in jail (for driving on a revoked license) and how he could

bail out.    At some point during the conversation, the following

colloquy took place.


                                 - 3 -
               "[MARR]:    I can't do it.     I thought I

          could but I can't do it.       You know?   I've

          never shot nobody or nothing.       I can't even

          kill myself, let alone (inaudible).

               [DEFENDANT]:     (Inaudible.)

               [MARR]:    You (Inaudible) for sure.         You

          got to make sure you want it done.

               [DEFENDANT]:     I want it done.

               [MARR]:    What about the old lady?       You

          want her dead too or just him?

               [DEFENDANT]:     Just him."

After more small talk, the following colloquy occurred.

               "[MARR]:    I'm scared as hell.       You know?

          The only way it can happen, you got to get,

          you know, I can't say 'Hey, do it, man; I'll

          owe you.' you know?    (Inaudible.)

               [DEFENDANT]:     (Inaudible.)

               [MARR]:    Says as soon as I got the money

          and I got the picture ...

               [DEFENDANT]:     You still got that paper I

          gave you with all that information on it?

               [MARR]:    Yeah ...

               [DEFENDANT]:     I'm scared, man.      I lay

          there in bed thinking--I wonder--don't take


                                 - 4 -
          this wrong--are you going to get your ass off

          and put me away?    (Inaudible.)     I don't know.

          I don't know, Dave.    I don't know.

               [MARR]:     I know.   I know.   Yeah, I un-

          derstand that.

               [DEFENDANT]:     (Inaudible) my life...

               [MARR]:     (Inaudible.)

               [DEFENDANT]:     I want him dead.

               [MARR]:     You want him dead.

               [DEFENDANT]:     I want him dead."

          After considering the evidence and counsel's arguments,

the trial court granted defendant's motion to suppress.        In so

doing, the court (1) agreed with defendant that the case was

directly on point with the Fifth District's decision in People v.

Perkins, 248 Ill. App. 3d 762, 618 N.E.2d 1275 (1993) (Perkins

II) and (2) found that defendant's fifth-amendment rights were

violated because "he was already represented by counsel in other

matters that were pending, and from his assertion to [the deputy]

that he didn't want to speak any longer with the officers or

answer questions with regards to the issues at hand."

          This appeal followed.

                             II. ANALYSIS

                         A. Standard of Review

          When ruling on a motion to suppress evidence, the trial


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court often must choose between competing versions of fact and

weigh the credibility of witnesses.      We thus defer to the trial

court's factual findings unless we determine that those findings

are manifestly erroneous.     People v. Roberson, 367 Ill. App. 3d

193, 195, 854 N.E.2d 317, 320 (2006).     A "'manifest error'" is

one that is "clearly evident, plain, and indisputable."      People

v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997).

Although we defer to the trial court on questions of fact, we

review de novo whether the law requires suppression of the

evidence under those facts.     Roberson, 367 Ill. App. 3d at 195,

854 N.E.2d at 320.

               B. Defendant's Fifth-Amendment Rights

           The State first argues that the trial court erred by

granting defendant's motion to suppress on the ground that

defendant's fifth-amendment rights were violated.     We agree.

           In Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07,

86 S. Ct. at 1612, the United States Supreme Court held that the

fifth-amendment privilege against self-incrimination prohibits

admitting in evidence statements given by a suspect during

custodial interrogation without a prior warning.     The Miranda

warnings

           "were meant to preserve the fifth[-]amendment

           privilege against self-incrimination during

           incommunicado interrogation of individuals in


                                 - 6 -
           a police-dominated atmosphere.    Courts view

           that atmosphere as generating inherently

           compelling pressures that work to undermine

           the individual's will to resist and to compel

           the person to speak where the person would

           not otherwise do so freely."     People v. Man-

           ning, 182 Ill. 2d 193, 206, 695 N.E.2d 423,

           429 (1998).

           However, in Illinois v. Perkins, 496 U.S. 292, 296, 110

L. Ed. 2d 243, 250-51, 110 S. Ct. 2394, 2397 (1990) (Perkins I),

the United States Supreme Court held that Miranda is not impli-

cated during conversations between suspects and undercover

agents.   The Supreme Court reasoned that the concerns underlying

Miranda are not implicated in such circumstances because "[t]he

essential ingredients of a 'police-dominated atmosphere' and

compulsion are not present when an incarcerated person speaks

freely to someone whom he believes to be a fellow inmate."

Perkins I, 496 U.S. at 296, 110 L. Ed. 2d at 251, 110 S. Ct. at

2397.   The Court further explained as follows:

           "When a suspect considers himself in the

           company of cellmates and not officers, the

           coercive atmosphere is lacking.    [Citation.]

           ***   There is no empirical basis for the

           assumption that a suspect speaking to those


                                - 7 -
          whom he assumes are not officers will feel

          compelled to speak by the fear of reprisal

          for remaining silent or in the hope of more

          lenient treatment should he confess."

          Perkins I, 496 U.S. at 296-97, 110 L. Ed. 2d

          at 251, 110 S. Ct. at 2397.

See also Manning, 182 Ill. 2d at 206, 695 N.E.2d at 429 ("Ploys

to mislead a suspect or lull the suspect into a false sense of

security--that do not rise to the level of compulsion or coercion

to speak--are not within Miranda's concerns").

          In this case, defendant freely chose to speak with

Marr, who was posing as a fellow inmate on the State's behalf.

The record shows no ploys to mislead defendant that rose to the

level of compulsion or coercion to speak.   Thus, in accordance

with Perkins I, we conclude that no Miranda warnings were re-

quired prior to Marr's jailhouse conversation with defendant.

See People v. Easley, 148 Ill. 2d 281, 312, 592 N.E.2d 1036, 1049

(1992) (in which our supreme court concluded that in light of the

Supreme Court's decision in Perkins I, an inmate who was working

undercover for the Department of Corrections was under no obliga-

tion to give the defendant Miranda warnings prior to questioning

him).

          In so concluding, we note that defendant's prior

invocation of his right to remain silent did not require that


                              - 8 -
defendant validly waive that right before Marr questioned him.

In that regard, we agree with Professor LaFave, who wrote the

following:

          "While a concurring opinion [by Justice

          Brennan] in Perkins [I] asserted that if

          'respondent had invoked either [his right to

          remain silent or his right to counsel], the

          inquiry would focus on whether he

          subsequently waived the particular right,'

          that contention is inconsistent with the

          analysis of the Perkins [I] majority ***."

          W. LaFave, J. Israel & N. King, Criminal

          Procedure §6.7(c), at 178-79 (2007).

Critical to that analysis was the Supreme Court's reasoning that,

absent a custodial interrogation, no violation of a defendant's

fifth-amendment Miranda rights can occur and thus "'there would

be no occasion to determine whether there had been a valid

waiver' of those rights."   State v. Hall, 204 Ariz. 442, 452, 65

P. 3d 90, 100 (2003), quoting Edwards v. Arizona, 451 U.S. 477,

486, 68 L. Ed. 2d 378, 387, 101 S. Ct. 1880, 1885 (1981).    In

this case, defendant's jailhouse conversation with Marr, whom

defendant believed to be a fellow inmate, clearly did not consti-

tute a custodial interrogation.   See Perkins I, 496 U.S. at 296-

97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397 ("When a suspect


                               - 9 -
considers himself in the company of cellmates and not officers,

the coercive atmosphere is lacking").    Thus, whether defendant

validly waived his right to remain silent is of no moment because

defendant's Miranda rights simply were not implicated.    To the

extent Perkins II (which involved the Fifth District's decision

following remand in Perkins I) suggests otherwise, we disagree

with it.

            We further note that although the trial court here

recognized the Supreme Court's decision in Perkins I, it accepted

defendant's argument (which defendant now appears to have aban-

doned on appeal) that the Supreme Court's holding was inapplica-

ble because defendant had previously invoked his fifth-amendment

rights.    Both the court and defendant relied on the Fifth Dis-

trict's decision in Perkins II, in which the defendant argued for

the first time that he had previously asserted his fifth-amend-

ment right to counsel.    The Fifth District framed the question on

appeal as follows:    "Where a suspect has asserted his fifth[-]

amendment right to counsel, can he be questioned by undercover

agents on a separate, unrelated, and uncharged offense while in

jail, without the presence of an attorney, and without an oppor-

tunity to waive his right to counsel?"    Perkins II, 248 Ill. App.

3d at 767-68, 618 N.E.2d at 1279.    The Fifth District answered

the question, "No," and further concluded that (1) the defendant

had not validly waived his right to counsel prior to the ques-


                               - 10 -
tioning by the undercover agent and (2) the authorities' actions

constituted custodial interrogation.     Perkins II, 248 Ill. App.

3d at 770, 618 N.E.2d at 1281.

           Perkins II is inapposite.    Contrary to the trial

court's finding, nothing in the record shows that defendant

invoked his fifth-amendment right to counsel.    The parties'

stipulation of facts indicates that on November 17, 2004, after

answering some preliminary questions, defendant informed the

deputy that he did not want to answer any further questions.

Thus, defendant invoked his right to remain silent, not his right

to counsel.   Both the court and defendant seem to have equated

the fact that defendant was being represented by counsel on other

charges (a fact that was not set forth in the parties' stipula-

tion) with defendant's invoking his fifth-amendment right to

counsel.   However, even accepting that defendant was being

represented on other charges, it is well settled that a defen-

dant's invocation of his offense-specific sixth-amendment right

to counsel does not invoke his fifth-amendment right to counsel.

McNeil v. Wisconsin, 501 U.S. 171, 178-79, 115 L. Ed. 2d 158,

168-69, 111 S. Ct. 2204, 2209 (1991).

           Accordingly, we conclude that the trial court erred by

granting defendant's motion to suppress his statements to Marr on

the ground that defendant's fifth-amendment rights were violated.

              C. Defendant's Sixth-Amendment Rights


                               - 11 -
           As noted above, defendant seems to have abandoned on

appeal his fifth-amendment argument.   Instead, he argues for the

first time on appeal that the trial court's granting of his

motion to suppress should be affirmed because his statements to

Marr were elicited in violation of his sixth-amendment right to

counsel.   Specifically, he contends that (1) at some point after

he invoked his right to remain silent in mid-November 2004, he

was represented by counsel on other charges, including attempt

(first degree murder) of Cummins; (2) he was "awaiting trial in

Cumberland County case No. 04-CF-114," in which he was charged

with attempt (first degree murder) of Cummins; (3) his sixth-

amendment right to counsel was thus invoked at the time of his

jailhouse conversation with Marr; (4) evidence relating to

defendant's alleged solicitation of murder for hire was relevant

to defendant's intent or motive relating to the attempt (first

degree murder) charge; and (5) the attempt (first degree murder)

charge was so closely related to the then uncharged offense of

solicitation of murder for hire that his sixth-amendment right to

counsel attached to the uncharged offense.   In response, the

State argues that defendant has forfeited this argument on appeal

by failing to raise it in the trial court.   We agree with the

State.

           "It is quite established that 'the appellee may urge

any point in support of the judgment on appeal, even though not


                              - 12 -
directly ruled on by the trial court, so long as the factual

basis for such point was before the trial court.'"   (Emphasis

added.)   Beahringer v. Page, 204 Ill. 2d 363, 370, 789 N.E.2d

1216, 1222 (2003), quoting Shaw v. Lorenz, 42 Ill. 2d 246, 248,

246 N.E.2d 285, 287 (1969).

          In this case, the factual basis for defendant's sixth-

amendment argument was not before the trial court.   Defendant did

not include this argument in his motion to suppress, his memoran-

dum in support thereof, or his argument at the hearing on his

motion.   In addition, defendant did not present any evidence (1)

relating to the attempt (first degree murder) charge in Cumber-

land County case No. 04-CF-114 or (2) as to how that charge may

have been closely related to the subsequent charge of solicita-

tion of murder for hire.   Nor did the trial court have before it

the charging instrument setting forth the attempt (first degree

murder) charge.   Because the issue of whether defendant's state-

ments to Marr were elicited in violation of his sixth-amendment

right to counsel involved a fact-intensive determination and the

factual basis for defendant's sixth-amendment argument was not

before the trial court, we conclude that defendant has forfeited

this argument on appeal.

                           III. CONCLUSION

          For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings.


                               - 13 -
Reversed and remanded.

McCULLOUGH and TURNER, JJ., concur.




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