                                No. 2-09-0194  Filed: 4-9-10
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 06--CF--713
                                       )
GARY W. SCHUNING,                      ) Honorable
                                       ) John J. Kinsella,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BOWMAN delivered the opinion of the court:

       On March 23, 2006, defendant, Gary W. Schuning, was indicted for the stabbing deaths of

two victims on February 26, 2006. 720 ILCS 5/9--1(a)(1) (West 2006). On August 14, 2008,

defendant filed an amended motion to suppress certain statements that he made to officers on

February 27, February 28, and March 7, 2006. On January 21, 2009, defendant's motion was denied

in part and granted in part. The trial court denied defendant's motion to suppress the statement that

he made on February 27, 2006, at 2:26 p.m. However, the trial court granted defendant's motion to

suppress the statements he made at or after 5:45 p.m. on February 27, 2006, because the State

violated Miranda with respect to defendant's invocation of his right to counsel. The State moved for

reconsideration, and the trial court denied that motion on February 19, 2009. The State filed a

certificate of impairment and timely appealed the trial court's order pursuant to Supreme Court Rule

604(a)(1) (210 Ill. 2d R. 604(a)(1)). We affirm.
No. 2--09--0194


                                        I. BACKGROUND

       On appeal, the State argues that the trial court erred in partially granting defendant's motion

to suppress, because defendant never invoked his right to counsel. The statements at issue were

given while defendant was hospitalized at Loyola University Medical Center in Maywood, where he

underwent critical surgery and treatment for serious self-inflicted stab wounds to his chest, abdomen,

and neck. Defendant argues that, when he asked if he could use a phone and call his attorney at 5:45

p.m. on February 27, 2006, after an initial interrogation by police earlier that day, he sufficiently

invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386,

101 S. Ct. 1880, 1885 (1981). Therefore, defendant argues, the trial court properly suppressed all

of the statements that he made after that time.

       The following facts are derived from the testimony adduced at the hearing on defendant's

suppression motion. Prior to witness testimony, the State stipulated to the factual allegations

contained on page 5, in paragraphs 14 through 18, of defendant's amended motion to suppress.

Those paragraphs provided:

               "14. In addition, prior to February 28th, on February 27th at approximately 5:45 p.m.,

       [defendant] asked Officer Giertz of the Addison Police to use the telephone to call his

       attorney.

               15. At the time, [defendant] was in the ICU.

               16. Officer Giertz told [defendant] that yes, he could call his attorney.

               17. Despite Officer Giertz's agreement to allow [defendant] to call his attorney, the

       ICU nurse told [defendant] that phones could not be used in the ICU.




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               18. Ultimately, [defendant] fell asleep in the ICU and was unable to make his

       requested telephone call."

       The State further stipulated to the factual allegations contained on page 7, in paragraphs 4

through 12, of defendant's amended motion. Those paragraphs provided that on February 28, 2006,

at 5 p.m., defendant asked Officers Tierney and Brucal of the Addison police department if he could

call his attorney to consult with him about the search warrant that the officers were executing.

Defendant asked that his attorney be present during the execution of the search warrant. On March

2, 2006, at 6:30 a.m., Officer Tierney returned to defendant's hospital room with Officer Anderson

pursuant to the search warrant to obtain additional samples from defendant's body. On that date,

defendant asked Officer Tierney to obtain the telephone number of his attorney, John Carbon. Officer

Tierney complied with defendant's request, and defendant called Carbon but was unable to reach him.

On March 3, 2006, just after 3:34 p.m., defendant asked Officer Brant of the Addison police

department for permission to call his grandmother and was told by Officer Brant that defendant could

place calls only to his attorney. At 3:35 p.m., at defendant's request, Officer Brant called Carbon and

when Carbon's answering service picked up, he handed the phone to defendant. Defendant provided

Carbon's answering service with his hospital room phone number and his room number and requested

that Carbon give the information to his grandmother.

       The State then called its first witness, Officer Brian Goss of the Addison police department.

On February 26, 2006, Officer Goss was called to a home on Yale Street where two persons were

dead and one was injured in an apparent double homicide. Defendant was the injured party and was

taken to Loyola. Officer Goss did not speak with defendant at the scene. He first spoke with

defendant on February 27, 2006, at 2:26 p.m. in defendant's intensive care hospital room at Loyola.



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Officer Sean Gilhooley was present when Officer Goss interviewed defendant. Prior to the interview,

Officer Goss spoke to defendant's nurse about his condition. Officer Goss knew that the day before,

defendant was in a drug-induced coma and underwent open-chest surgery. Defendant also had a

nasogastric tube inserted in his throat. The nurse advised Officer Goss that he was being taken off

Propofol, the coma-inducing drug, which would take 1 to 1½ hours to exit defendant's system. The

nurse also stated that the nasogastric tube would be removed that day. The tube was removed around

1:10 p.m. that day, and the physician removing the tube told Officer Goss to wait a half an hour to

one hour before speaking with defendant. After the tube was removed, Officer Goss observed

defendant answering questions posed by his nurse. His voice was hoarse but he responded

appropriately to basic questions.

       At 2:26 p.m., Officer Goss began to interview defendant. At the time of the interview,

defendant had an intravenous line running into his arm and his index finger and was hooked up to a

heart monitor. Officer Goss had a microcassette audio recorder in the pocket of his jacket. The wire

was strung down his sleeve "in attempts to try to hide the audio recorder so that the defendant didn't

see it." He admitted that he intended to record the conversation with defendant regardless whether

defendant wished to have the interview recorded. The entire interview was recorded.

       We briefly summarize the audiotape of the February 27 interview. Officer Gilhooley

introduced himself and Officer Goss as officers with the Addison police department. Defendant was

asked where he was and he responded "Loyola Hospital." Officer Gilhooley told defendant that they

wanted to ask him some questions and then read defendant his Miranda rights individually, and

defendant acknowledged that he understood each of these rights as they were read. The officers

asked how defendant felt, and defendant stated that his torso hurt. The officers began questioning



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defendant about the events that took place the day before. The officers asked defendant to speak up

at times so that the recording device would record his answers. Defendant sounded coherent and

lucid during the interview.

         Defendant proceeded to tell the police that he came home after being at a nightclub in Chicago

and called some escort services. Defendant then provided details about the events surrounding the

double murder. As the officers began to conclude the interview, defendant said "keep recording."

Defendant acknowledged that he knew the interview was being recorded, and he knew that he did

not have to talk to the officers. The officers asked whether defendant would want to talk again later

or be willing to answer more questions later, and defendant said "I guess." The officers then said that

if they needed to, they would come talk to him again. At 3:11 p.m., the February 27, 2006, interview

ended.

         At 3:25 p.m. on February 27, 2006, the audiotape resumed with officers asking defendant to

authorize that his medical records be released to the Addison police department. Defendant

questioned what records, and the officers stated his medical records from his stay at Loyola.

Defendant then agreed and signed an authorization form.

         Officer Goss's testimony was consistent with defendant's tape-recorded statement from

February 27. On cross-examination, Officer Goss admitted that he and Officer Gilhooley were

assigned to this double-homicide investigation on February 26 and were responsible for keeping

abreast of all of the developments in the case, including the progress of other officers' interviews and

discoveries about the case. Officer Goss acknowledged defendant's exhibit No. 1, which was the

report of Officer Giertz. The report indicated that on February 27, at 5:45 p.m., defendant asked

Officer Giertz if he could phone his attorney. Defendant was denied permission to use the phone by



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the nurse. Officer Goss admitted that officers took no action to enable defendant's wish to speak to

his attorney. Officer Goss admitted that he did not speak with Officer Giertz regarding his report or

regarding defendant's request. In fact, Officer Goss admitted that he had not read Officer Giertz's

report, and was not aware of defendant's request, until several days later, sometime after the March

7 interview.

       Officer Goss testified that on February 28, 2006, at 8:26 a.m., he and Officer Gilhooley

returned to Loyola Hospital to interview defendant. Defendant was administered his Miranda rights,

and defendant acknowledged each right and that he understood each right. Defendant proceeded to

answer more questions related to the double murder.

       We next summarize the audiotape recording of the execution of the search warrant on

February 28, 2006. During the execution of the search warrant, by Officer Tierney and Officer

Brucal, defendant stated that he wanted a lawyer present for the search. An officer told defendant

it was his right to have an attorney present but that the presence of an attorney would not affect the

execution of the search warrant. Defendant informed the officer that he had not been able to make

a phone call since he arrived at Loyola Hospital. He asked how he could obtain a lawyer when he

had not been able to call a lawyer. Defendant reiterated that he wanted a lawyer present but said that,

if they were not going to stop collecting samples, the officers could continue.

       Officer Goss admitted that he did not become aware of defendant's February 28th statements

to Officer Tierney until after March 7, 2006. Officer Goss then acknowledged defense exhibit No.

2, which was a police report by Officer Anderson dated March 2, 2006. In the report, Officer

Anderson indicated that at 6:35 a.m. on March 2, defendant called Carbon. Officer Goss admitted

that he was not aware of defendant's phone call until after March 7.



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        Officer Goss then acknowledged defense exhibit No. 3, a police report by Officer Brant,

which indicated that on March 3, 2006, at 3:34 p.m., defendant asked to call his grandmother.

Officer Brant informed defendant that he could call only his attorney. Officer Brant then dialed

Carbon's phone number and handed the phone to defendant. Officer Goss again admitted that he was

not aware of this exchange until after March 7.

        Defense exhibit No. 4 was a police report by Officer Sinkule, which noted that at 9:33 a.m.

on March 6, 2006, defendant placed a phone call to a former girlfriend. Officer Sinkule heard

defendant tell her that he needed a lawyer but could not afford one. Again, Officer Goss was not

aware of this report until sometime after March 7.

        The State then rested, and the defense called Officer Gilhooley as its first witness. Officer

Gilhooley admitted that when he and Officer Goss returned to defendant's hospital room on February

28, 2006, he was unaware that in the afternoon of February 27, defendant asked Officer Giertz for

permission to call his lawyer. He also was not aware of defendant's subsequent requests to Officer

Tierney on February 28, Officer Anderson on March 2, and Officer Brant on March 3, and Officer

Sinkule's report of defendant's phone conversation with an ex-girlfriend, until after the final interview

with defendant on March 7.

        Officer Douglas Giertz testified that he was assigned to watch defendant while he was in the

hospital. At approximately 5:45 p.m. on February 27, 2006, defendant asked Officer Giertz if he

could use a telephone and call his attorney. Officer Giertz said that he could use a phone but did not

hand him a phone and did not know whether there was a phone in the room. A nurse then entered

the room, and defendant asked the nurse if he could use a phone. The nurse advised defendant that

phones were not allowed in intensive care unit rooms. According to Officer Giertz, defendant then



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fell asleep. Officer Giertz did not advise anyone that defendant had requested to call his attorney.

He did include it in his police report. Officer Giertz could not recall whether he had a cell phone with

him but was aware that there was a phone available at the nurse's station. He admitted that he did

not ask defendant any clarifying questions about the request, because he did not believe defendant

was seeking to invoke his right to counsel.

       Officer Steve Anderson testified that on March 2, 2006, he was guarding defendant's hospital

room. At 5:45 a.m., Officer Mike Tierney arrived to execute a search warrant to collect certain items

from defendant's body. At approximately 6:30 a.m., Officer Anderson heard defendant ask for the

telephone number of his attorney. Officer Tierney obtained Carbon's phone number and gave it to

defendant. Defendant then called Carbon. Officer Anderson included this information in his police

report but he did not verbally inform anyone. The conversation was short and Officer Anderson

heard them discuss money and heard defendant state that he would be receiving a tax refund. On

cross-examination, Officer Anderson denied that defendant was being questioned at the time of his

request for Carbon's phone number and denied that defendant stated anything to the effect that he did

not want to answer any questions without an attorney present.

       Officer Eric Brant testified that on March 3, 2006, he was guarding defendant's hospital room.

At 3:34 p.m. that day, defendant asked to call his grandmother. Officer Brant informed defendant

that he could call only his attorney. Defendant then requested to call his attorney. Officer Brant

dialed Carbon's phone number and handed defendant the receiver. Defendant left a message for

Carbon indicating that he wanted Carbon to tell his grandmother his room number and phone number.

Officer Brant verbally told the officer who took over guarding defendant what had happened and

included the information in his report.



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       Officer Omar Brucal testified that on February 28, 2006, he and Officer Tierney arrived at

defendant's hospital room to execute a search warrant. During the execution of the warrant,

defendant indicated that he wanted an attorney present. The officers responded on two occasions that

defendant could have an attorney present but that they would not stop collecting samples, because

they had a warrant. Officer Brucal did not inform anyone that defendant had asked for an attorney.

       Officer Michael Tierney testified that on February 28, 2006, he and Officer Brucal went to

defendant's hospital room to execute a search warrant. At one point, defendant expressed that he

wanted an attorney present. Officer Tierney responded that defendant was free to contact an attorney

but that it would not prohibit the officers from executing the search warrant. Officer Tierney did not

inform anyone else about defendant's request. He admitted that defendant had stated that he had not

been allowed to contact his attorney and did not believe that his attorney knew where he was. On

March 2, 2006, Officer Tierney returned to defendant's hospital room to collect more samples

pursuant to the search warrant. Officer Anderson was in the room at the time, guarding defendant.

Around 6:30 p.m., defendant asked Officer Tierney to get him Carbon's phone number. Officer

Tierney obtained the phone number by dialing 411 and provided the phone number to defendant. He

did not observe defendant do anything with the phone number. Officer Tierney also did not verbally

report this information to anyone else, because the audiotape was recording.

       Officer John Sinkule testified that he was guarding defendant on March 6, 2006, when

defendant received a phone call from Anna Colonero. Officer Sinkule heard defendant state that he

needed an attorney and that he could not afford one. Officer Sinkule included this information in his

report but did not verbally inform anyone of this information.




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       Sergeant Mark Van Stedum of the Addison police department testified that all the reports

filed by the guarding officers in defendant's case would have or should have gone to Officer

Gilhooley. Sergeant Van Stedum did not recall reviewing the reports by the guarding officers until

sometime in April 2006, when he signed the reports.

       Sergeant Joseph Lullo of the Addison police department testified that he reviewed reports

submitted by some of defendant's guarding officers, signed off on them, and then forwarded them to

the investigations unit, which was supervised by Sergeant Van Stedum. Sergeant Lullo supervised

patrol officers, some of whom were placed on guard duty over defendant. He did not verbally report

anything that was contained in any reports he reviewed to anyone in the investigations unit, which

included Officers Gilhooley and Goss.

       The parties then stipulated to the phone records of Anna Colonero, which supported that she

had called defendant's hospital room on several occasions.

       On January 21, 2009, the trial court issued its ruling. The trial court found that defendant was

undoubtedly in custody at the scene of the crime and every moment after that point. He was treated

at Loyola Hospital for his injuries, undergoing invasive surgery. When defendant was able to speak,

he was interviewed. The first interview took place on February 27, 2006, at 2:26 p.m. The court

found that this first interview was admissible because defendant was properly administered his

Miranda warnings, he knowingly and voluntarily waived his rights, and he answered the officers'

questions. The court did not find that the interview was the product of coercion or that defendant

was under the influence of any medication such that his statement was involuntary.

       The trial court next considered the exchange between defendant and Officer Giertz at 5:45

p.m. on February 27, 2006. The trial court concluded that defendant had invoked his right to counsel



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during this exchange. Defendant indicated that he wanted to use the telephone to call an attorney and

that Officer Giertz informed defendant that he could do so. However, no phone was available so

defendant was unable to contact his attorney. Because defendant invoked his right to counsel, the

trial court ruled, case law provided that he was not to be subjected to further interrogation until

counsel had been made available to him unless he validly waived his earlier request by initiating

contact. Here, the trial court determined that defendant's statement to Officer Giertz was unequivocal

and was not a mere reference to a lawyer. The trial court noted that, while it did not believe that the

officers acted in bad faith in thinking defendant had not invoked his right to counsel, and while

Officers Goss and Gilhooley in good faith did not know of defendant's invocation, that knowledge

was imputed to them. Therefore, because there was no evidence that defendant had initiated any of

the conversations that followed the February 27, 2006, exchange with Officer Giertz, the interviews

of February 28 and March 7 were inadmissible. On February 19, 2009, the trial court denied the

State's motion for reconsideration. The State timely appealed and argues that the trial court erred

because defendant never invoked his right to counsel in his conversation with Officer Giertz.1

                                             II. ANALYSIS

       When reviewing a trial court's ruling on a motion to suppress evidence, we apply a two-part

standard of review. We review the trial court's findings of historical fact and will reverse those



       1
           The parties do not dispute that the invocation of the fifth amendment right to counsel applies

to later interrogations even if the interrogating officers are unaware of the invocation. Arizona v.

Roberson, 486 U.S. 675, 687, 100 L. Ed. 2d 704, 717, 108 S. Ct. 2093, 2101 (1988). Thus, we

evaluate the statements made to Officer Giertz knowing that awareness of such statements is imputed

to Officers Gilhooley and Goss.

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findings only if they are against the manifest weight of the evidence. People v. Crotty, 394 Ill. App.

3d 651, 655 (2009). We review de novo the trial court's ultimate legal ruling as to whether

suppression is warranted. Crotty, 394 Ill. App. 3d at 655. Here, the parties do not dispute what

words defendant stated but only whether his words constituted an invocation of his right to counsel.

Thus, we review only the trial court's ultimate legal conclusion that suppression was warranted, which

we review de novo. See Crotty, 394 Ill. App. 3d at 655.

       A criminal defendant has a constitutional right to counsel at all custodial interrogations, as

provided by both the United States and Illinois Constitutions. U.S. Const., amends. V, XIV; Ill.

Const. 1970, art. I, §10; People v. Flores, 315 Ill. App. 3d 387, 392 (2000). In order to invoke the

Miranda right to counsel, a defendant must be in custody and subject to interrogation or under

imminent threat of interrogation. People v. Villalobos, 193 Ill. 2d 229, 241-42 (2000). Once a

defendant invokes that right, the police cannot interrogate him further unless the accused initiates

further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S.

477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885 (1981). The Edwards rule is designed

to prevent the police from badgering a defendant into waiving his previous assertion of his right to

counsel. People v. Woolley, 178 Ill. 2d 175, 198 (1975). Thus, if the police subsequently initiate a

conversation with the accused in the absence of counsel, the accused's statements are presumed

involuntary and are inadmissible as substantive evidence at trial. Woolley, 178 Ill. 2d at 198. Any

waiver of the right to counsel given in a discussion initiated by the police is presumed invalid.

Woolley, 178 Ill. 2d at 198.

       In applying the rigid, prophylactic Edwards rule, the court must first determine whether the

defendant invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed. 2d 488, 493, 105



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S. Ct. 490, 493 (1984). Whether a defendant has invoked his right to counsel is an objective inquiry.

Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371, 114 S. Ct. 2350, 2355 (1994).

Invocation of the right to counsel minimally requires a statement that can reasonably be construed

to be an expression of a desire for the assistance of counsel. Davis, 512 U.S. at 459, 129 L. Ed. 2d

at 371, 114 S. Ct. at 2355. If a defendant makes a reference to an attorney that is ambiguous or

equivocal such that a reasonable officer in light of the circumstances "would have understood only

that the suspect might be invoking the right to counsel, our precedents do not require the cessation

of questioning." (Emphasis in original.) Davis, 512 U.S. at 459, 129 L. Ed. 2d at 371, 114 S. Ct.

at 2355. The defendant need not articulate his desire in the manner of a Harvard linguist, but he must

articulate his desire in a clear enough manner that a reasonable officer in the circumstances would

understand the statement to be a request for an attorney. Davis, 512 U.S. at 459, 129 L. Ed. 2d at

371, 114 S. Ct. at 2355. The Illinois Supreme Court has affirmatively adopted the Davis objective

inquiry as the threshold analysis in determining whether a defendant has invoked his right to counsel.

In re Christopher K., 217 Ill. 2d 348, 380 (2005).

        We first reject the State's argument that defendant's request to call his attorney was not made

during interrogation or when interrogation was imminent. Defendant at all times during his hospital

stay was guarded by an Addison police officer and was unable to leave. Although he was not being

interrogated at the time of his request, it is clear on the audio recording of the initial interview that

the officers were going to speak with defendant again, as they asked for his cooperation with future

questioning. Defendant had no indication as to when the officers would return. He could not control

when the officers would walk into his hospital room again. Furthermore, the officers did in fact

return less than 24 hours later.



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        The parties do not cite and we do not find any Illinois case with facts that are comparable to

the facts of the case at bar; so, we consider various foreign cases. We find distinguishable the cases

cited by the State in support of its position that defendant could not invoke his right to counsel

between the first and second interviews. First, the State discusses McNeil v. Wisconsin, 501 U.S.

171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). We do not find McNeil particularly relevant. In

McNeil, the defendant invoked his sixth amendment right to counsel at his bail hearing for an armed

robbery offense. McNeil, 501 U.S. at 173-74, 115 L. Ed. 2d at 165, 111 S. Ct. at 2206. Later,

investigators questioned the defendant about an unrelated murder after providing the defendant with

his Miranda warnings. McNeil, 501 U.S. at 173-74, 115 L. Ed. 2d at 165, 111 S. Ct. at 2206. The

Supreme Court discussed that the sixth amendment right to counsel is offense specific and cannot be

invoked for all future prosecutions; the fifth amendment right to counsel pertains to custodial

interrogations about any matter. McNeil, 501 U.S. at 175-77, 115 L. Ed. 2d at 166-68, 111 S. Ct.

at 2207-08. "The purpose of the Sixth Amendment counsel guarantee--and hence the purpose of

invoking it--is to 'protec[t] the unaided layman at critical confrontations' with his 'expert adversary,'

the government, after 'the adverse positions of government and defendant have solidified' with respect

to a particular alleged crime." (Emphasis in original.) McNeil, 501 U.S. at 177-78, 115 L. Ed. 2d

at 168, 111 S. Ct. at 2209, quoting United States v. Gouveia, 467 U.S. 180, 189, 81 L. Ed. 2d 146,

155, 104 S. Ct. 2292, 2298 (1984). The purpose of the Miranda-Edwards guarantee, the Court

explained, is to protect the defendant's interest in dealing with the police only through counsel.

McNeil, 501 U.S. at 177-78, 115 L. Ed. 2d at 168, 111 S. Ct. at 2209. Thus, the Court held that

invoking one's sixth amendment right to counsel for assistance during prosecutorial proceedings does




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not impliedly invoke one's fifth amendment right to counsel during interrogations about any matter.

McNeil, 501 U.S. at 179-80, 115 L. Ed. 2d at 169-70, 111 S. Ct. at 2209-10.

        The case at bar is not factually similar to McNeil, as defendant in no way implicated his sixth

amendment right to counsel before he was charged by complaint on March 7, 2006. The fact that

defendant did not specifically state why he wanted to contact his attorney does not somehow

implicate defendant's sixth amendment right to counsel for prosecutorial proceedings that had not yet

begun. Under the circumstances in this case, defendant's desire to speak with counsel could have

related only to the imminent interrogations that he was facing.

        The State next jumps from McNeil to several other cases that it argues imply that, because

there was a break in direct interrogation, defendant's invocation of his right to counsel was ineffective.

The break in interrogation does not invalidate the effect of the Edwards rule, because it is obvious

to this court (and the trial court) that defendant was still in custody and under imminent threat of

further interrogation. The additional cases that the State cites to support this argument are factually

distinguishable and are nonbinding on this court. See United States v. Grimes, 142 F.3d 1342,

1348-50 (11th Cir. 1998) (the defendant's "claim of rights" form on one charge did not invoke his

right to counsel for purposes of an interview a month later relating to different charges; further, the

interviews were not custodial interrogations); United States v. Lagrone, 43 F.3d 332, 336-37 (7th

Cir. 1994) (the defendant did not request an attorney during custodial interrogation but rather when

asked to sign a consent-to-search form; the consent form was not an interrogation and the defendant's

request to consult his attorney before signing was a right provided by Indiana law; thus, his invocation

of that statutory right was not an invocation of his Miranda right to counsel); Alston v. Redman, 34

F.3d 1237, 1245 (3d Cir. 1994) (the defendant was not being interrogated or facing imminent



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interrogation where the defendant invoked his right to counsel while speaking with a representative

from the public defender's office and was not reinterrogated until three days later); People v. Nguyen,

132 Cal. App. 4th 350, 357-58, 33 Cal. Rptr. 3d 390, 394-95 (2005) (the defendant was not being

interrogated or facing imminent questioning during arrest for possession of drugs when the defendant

tried to call her lawyer before being handcuffed and when it was reasonable to conclude that the

defendant may have wanted to call to arrange bail); Costley v. State, 175 Md. App. 90, 110-11, 926

A.2d 769, 780-81 (2007) (questionable analysis where Maryland court determined only that the

defendant did not invoke the right to counsel during interrogation; the court failed to discuss whether

the defendant was facing imminent interrogation); State v. Relford, 9 Neb. App. 985, 992-93, 623

N.W.2d 343, 348-49 (2001) (court did not believe the defendant was facing imminent interrogation

where the defendant gave a statement to police on August 15, was placed in jail, stated he needed a

public defender on August 16 but declined to call one when offered, and was interrogated again on

August 17); Russell v. Texas, 215 S.W.3d 531, 534-36 (Tex. App. 2007) (the defendant's reference

to calling his attorney was in response to the police officer's request for consent to search, not

interrogation).

       More persuasive are defendant's cases that support his argument that the interruption between

the first and second interviews did not affect the protections afforded to him under Edwards. In

United States v. Kelsey, 951 F.2d 1196, 1198-99 (10th Cir. 1991), the defendant asked to see his

lawyer after he was arrested and police were searching his home. The police told the defendant that

if he wanted his lawyer now, they could not ask him questions and would have to take him to jail.

The police did not ask the defendant questions and did not read him his Miranda warnings until much

later, and the defendant answered questions. Kelsey, 951 F.2d at 1198. Although the defendant



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invoked his right to counsel before he was questioned or given his Miranda warnings, the appellate

court determined that the Edwards rule was triggered because it was clear that the police intended

to question the defendant at some point and that the police understood the defendant was invoking

his right to have counsel present during questioning. Kelsey, 951 F.2d at 1199; see also State v.

Torres, 330 N.C. 517, 527, 412 S.E.2d 20, 26 (1992) (where the defendant was placed in custody

for several hours before questioning, supreme court held that the defendant could invoke her right

to counsel for impending interrogation though she was not actively being questioned at the time);

State v. Hambly, 2008 WI 10, ¶42, 307 Wis. 2d 98, ¶42, 745 N.W.2d 48, ¶42 (finding that the

defendant effectively invoked his right to counsel where he asked for an attorney at time of his arrest

but before interrogation began). Likewise, defendant in this case was under constant police guard,

unable to leave, and facing imminent police interrogations. The fact that defendant requested to call

counsel after the first interview but before the second interview does not invalidate his invocation of

his right to counsel. Defendant was not required to wait for interrogating officers to readminister his

Miranda warnings before he could invoke his rights.

       Moreover, the United States Supreme Court recently addressed breaks in custodial

interrogation in Maryland v. Shatzer, No. 08--680 (U.S. February 24, 2010). In Shatzer, the

defendant was incarcerated when police interrogated him for an unrelated sexual abuse claim. The

defendant invoked his right to counsel, police stopped the questioning, and the defendant was

released back into the general jail population. Two years later, police returned to question the

defendant based on new information, and the defendant confessed. Shatzer, slip op. at 2. The

Supreme Court explained that once a defendant invokes his right to counsel under Miranda,

subsequent requests for interrogation pose a significantly greater risk of coercion. Shatzer, slip op.



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at 7. It acknowledged that this risk often arises when a defendant is arrested for a particular crime,

is initially interrogated, and up to and including the second interrogation is held in custody, "cut off

from his normal life and companions *** where his captors" seem to control his fate. Shatzer, slip

op. at 7. The Supreme Court then announced that police must observe the consequences of Edwards

until there has been a break in custody of 14 days. Shatzer, slip op. at 11.

       With the Supreme Court acknowledging that the potential for coercion exists during custody

and lingers for 14 days beyond the actual custodial period, we cannot agree with the State that,

merely because defendant was not being directly questioned at the time of his request, he did not

invoke his right to counsel under the circumstances. Under the unique facts of this case, defendant

was at all times in custody and was specifically asked to be questioned again by the officers.

Defendant was not given a time or date of the next interview, was not released from custody, was

immobile due to his injuries, and was under constant guard by police. Defendant had asked for his

attorney while in custody and facing further police questioning and was denied the ability to contact

him. Under these facts, we cannot agree that the potential for coercion did not continue throughout

the first interview, throughout the break in questioning, and throughout the subsequent interviews.

Therefore, considering the cases cited by defendant and Shatzer's instruction regarding the lingering

effect of coercive environments, we agree with defendant that his request for an attorney, while in

custody and facing impending interrogation, sufficiently triggered Edwards' protection.

       We next reject the State's argument that defendant's request to call his attorney was

ambiguous because it was unknown why defendant wished to call his attorney. The State argues that

in the absence of a more specific request that an attorney be present during questioning, defendant's

request cannot constitute invocation of his right to counsel under Miranda. We agree with defendant



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and the trial court that defendant's request to call his attorney was an unambiguous invocation of his

right to counsel. Defendant was in custody, had just been interrogated by police less than three hours

earlier, and had been told that they would want to further question him later. Defendant did not

inquire whether he should call his lawyer or ponder whether he needed counsel; he asked

unequivocally to call his lawyer--a request that was unequivocally ignored.

       We find People v. Eichwedel, 247 Ill. App. 3d 393 (1993), persuasive. In Eichwedel, the

defendant asked if he could call Jeff Williams, his noncriminal attorney. Eichwedel, 247 Ill. App. 3d

at 396. Instead of ceasing the questioning, the officer asked the defendant if he knew a criminal

attorney, to which the defendant stated that he did not and asked what would happen if he called a

criminal attorney. Eichwedel, 247 Ill. App. 3d at 395-96. The officer explained that the defendant

would be processed and taken to the Cook County jail and that, if he chose not to call a criminal

attorney, he would sign a Miranda waiver form and the interview would continue. Eichwedel, 247

Ill. App. 3d at 396. The appellate court determined that once the defendant asked to call his attorney,

the questioning should have ceased because the defendant's request was a sufficient invocation of his

right to counsel. Eichwedel, 247 Ill. App. 3d at 397-98. Thus, it reversed the trial court's denial of

the defendant's suppression motion. Eichwedel, 247 Ill. App. 3d at 399.

       Similarly, the appellate court affirmed a suppression in People v. Howerton, 335 Ill. App. 3d

1023 (2003). In Howerton, the defendant was taken into custody by police and he stated that if he

was under arrest, then the police should take him "upstairs" or he wanted a lawyer. Howerton, 335

Ill. App. 3d at 1024. Rather than terminating the interview, the officers continued to badger the

defendant, who five more times indicated that he wanted a lawyer, until he answered the questions.

Howerton, 335 Ill. App. 3d at 1026. The appellate court determined that the only reasonable



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interpretation of defendant's remarks was that he was invoking his right to counsel from the moment

he stated that he wanted a lawyer or to be taken "upstairs." Howerton, 335 Ill. App. 3d at 1026-27;

see also Smith, 469 U.S. at 93, 83 L. Ed. 2d at 492, 105 S. Ct. at 491 (Supreme Court held that the

defendant sufficiently invoked his right to counsel when in response to whether he understood that

he had the right to an attorney's presence during questioning, the defendant stated " 'Uh, yeah. I'd

like to do that' " (emphasis omitted)).

        Like the courts in Eichwedel and Howerton, we find defendant's request to call his attorney

an unambiguous invocation of his right to counsel, as defendant's request was not tainted with

hesitation or uncertainty. We find defendant's request distinguishable from the requests in the cases

cited by the State, which all contain some lack of decisiveness or clarity in the defendants' statements.

See Davis, 512 U.S. at 455, 129 L. Ed. 2d at 368, 114 S. Ct. at 2353 (the defendant stated " 'Maybe

I should talk to a lawyer' "); In re Christopher K., 217 Ill. 2d at 374 (the minor asked the officer " 'Do

I need a lawyer?' "); People v. Oaks, 169 Ill. 2d 409, 452 (1996) (the defendant asked the officer

" 'Should I see a lawyer?' "); People v. Evans, 125 Ill. 2d 50, 73 (1988) (the defendant inquired if

there was time to get the public defender, the officer replied that he would stop questioning and call

one, and defendant stated " 'no, go ahead' "); People v. Krueger, 82 Ill. 2d 305, 311 (1980) (the

defendant stated " '[M]aybe I ought to have an attorney' "). Having just interviewed defendant for

approximately one hour and knowing future interrogation was imminent, a reasonable officer should

have known that defendant was requesting his attorney for assistance at the imminent interrogation.

        Under the circumstances unique to this defendant, he was confined to his hospital bed, under

constant police guard, hooked up to several intravenous tubes, and physically unable to reach a phone

if one were available in his room. The two people who could have assisted defendant in making his



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requested phone call were Officer Giertz and the nurse, neither of whom provided any assistance.

The precarious situation in which defendant found himself is somewhat analogous to one in which

an attorney is appointed or retained to assist a defendant but the police refuse to give him access to

the defendant. Like denying an attorney access to a defendant in custody, the police here essentially

refused to allow defendant access to a phone to contact his attorney, and by the police's conduct,

defendant was led to believe that he could not access his attorney. See People v. McCauley, 163 Ill.

2d 414, 446 (1994) (recognizing that a defendant's rights under Illinois Constitution are violated

where the opportunity to consult with counsel is frustrated by the State, considering that our

"constitutional and statutory policies *** favor a person having the assistance of counsel during

custodial interrogation and contemplate prohibiting interference with that assistance by governmental

authorities" (emphasis in original)); People v. Smith, 93 Ill. 2d 179, 189 (1982) (holding that "when

police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist

a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect

has not been informed that the attorney was present and seeking to consult with him").2




        2
            McCauley and Smith contemplated the denial of an attorney's access to a defendant in

custody, despite the defendant's failure to invoke the right to counsel, in the context of whether police

conduct affected the defendant's waiver of his right to counsel. In this case, defendant did not argue

that the police's failure to allow him to contact his attorney, as opposed to his mere invocation of his

right to counsel, affected the waiver of his right to counsel he allegedly provided at the beginning of

the second interview. Therefore, we do not explore this issue specifically but find the court's rationale

persuasive in regard to fundamental fairness.

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       We also find misplaced the State's reliance on People v. Villalobos, 193 Ill. 2d 229 (2000),

People v. Young, 365 Ill. App. 3d 753 (2006), People v. Farrell, 181 Ill. App. 3d 446 (1989), and

People v. Sommerville, 193 Ill. App. 3d 161 (1990), for the proposition that defendant's statement

was ambiguous. Villalobos is factually dissimilar because it involved the defendant signing a notice-

of-representation form at a bond hearing on an unrelated charge. Villalobos, 193 Ill. 2d at 230-31.

The supreme court determined that at the bond hearing the defendant was neither being interrogated

nor facing imminent interrogation on the unrelated crime. Villalobos, 193 Ill. 2d at 240. In Farrell,

the defendant had not sufficiently invoked his sixth amendment right to counsel at his arraignment

hearing when he said that he would retain his own counsel but could not name the attorney. Farrell,

181 Ill. App. 3d at 449-50. Here, we are not faced with whether defendant invoked his sixth

amendment right to counsel, and if so whether that triggered his fifth amendment right to counsel on

another crime, but rather whether his request to call counsel while in custody and facing imminent

interrogation invoked his fifth amendment right to counsel.

       Young is distinguishable because in that case the defendant claimed his father had invoked his

right to counsel for him where his father, who was in custody along with the defendant's brother, told

police he was waiting for his attorney. Young, 365 Ill. App. 3d at 759. The father's request for an

attorney seemingly applied to his own right to counsel, not to the right of the defendant or his

brother, and therefore the defendant had not invoked his right to counsel. Young, 365 Ill. App. 3d

at 759-60. Similarly distinguishable is Sommerville. In Sommerville, the defendant purportedly told

his girlfriend to call his attorney at the time of his arrest, in the presence of arresting officers.

Sommerville, 193 Ill. App. 3d at 168-69. The appellate court determined that the defendant failed

to invoke his right to counsel when his alleged statement to call his attorney was not made to police



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No. 2--09--0194


but rather a third party. Sommerville, 193 Ill. App. 3d at 169-70. Here, defendant's request for an

attorney was neither made by a third party nor made to a third party. Defendant's request to call his

attorney was unambiguously made by himself, for himself, and to the police officer guarding him in

his intensive care hospital room.

       The State's argument that defendant's request was unclear because he did not state why he

wanted to contact his attorney would require us to ignore the circumstances of defendant's unique

situation, which we decline to do. Although we find defendant's request unambiguous, Officer Giertz

was certainly allowed to ask clarifying questions if he was confused. In fact, we note that the Davis

Court acknowledged that clarifying questions, though not required, will often be good police practice

and "will minimize the chance of a confession being suppressed due to subsequent judicial second-

guessing as to the meaning of the suspect's statement regarding counsel." Davis, 512 U.S. at 461,

129 L. Ed. 2d at 373, 114 S. Ct. at 2356. Perhaps if Officer Giertz had asked defendant an additional

question or verbally conveyed defendant's request to the interviewing officers to allow them to act

on defendant's request, we would not be required to now analyze this issue. However, nothing was

asked and nothing was done, and we can consider only defendant's request to use a telephone to call

his attorney on February 27, 2006, at 5:45 p.m. and the facts and circumstances contained in the

record. Accordingly, we consider defendant's statement an unequivocal and unambiguous invocation

of his fifth amendment right to counsel, triggering the protections afforded by Edwards. Thus, we

affirm the trial court's decision to suppress defendant's subsequent statements on February 28, 2006,

and March 7, 2006.




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       Because we agree with the trial court that defendant effectively invoked his fifth amendment

right to counsel on February 27, 2006, at 5:45 p.m., we need not analyze defendant's subsequent

requests on February 28, March 2, and March 3.

                                       III. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

       Affirmed.

       McLAREN and JORGENSEN, JJ., concur.




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