People v. Shepherd ( 2018 )

2018 IL App (3d) 160724
Opinion filed March 8, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellant, )
) Appeal Nos. 3-16-0724
v. ) 3-16-0725
) Circuit Nos. 10-CF-903
CHRISTIAN L. SHEPHERD, ) 10-CF-1029
)
Defendant-Appellee. ) Honorable Daniel L. Kennedy,
) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Carter concurred in the judgment and opinion.
Justice Wright specially concurred, with opinion.
OPINION
¶1 This appeal raises two questions: (1) Did attorney Anthony Tomkiewicz violate some
ethical duty owed to defendant? and (2) If so, did this alleged ethical lapse trigger the
exclusionary rule? We answer the questions no and no. In a previous appeal (People v. Shepherd,
2015 IL App (3d) 140192), a panel of this court held that defendant failed to establish that
counsel violated Rule 1.18 of the Illinois Rules of Professional Conduct of 2010 (Ill. R. Prof’l
Conduct (2010) R. 1.18 (eff. Jan. 1, 2010)) “and his motion to suppress evidence should have
been denied on that basis.” Shepherd, 2015 IL App (3d) 140192, ¶ 32. On remand, defendant
shifted gears and argued that counsel violated Rules 1.7 and 1.9 instead of Rule 1.18. The trial
court, again, utilized the exclusionary rule to suppress evidence based on counsel’s alleged
violation. We now reverse the trial court for a second time.
¶2 BACKGROUND
¶3 On May 3, 2010, the State charged defendant, Christian Shepherd, with one count of
criminal sexual assault and three counts of criminal sexual abuse. The State’s information
alleged that between November 4, 2006, and June 1, 2008, defendant (born Jan. 16, 1979)
“knowingly placed his mouth on the penis of A.V., a minor,” who was “at least 13 years of age
but under 18 years of age” while defendant held a position of trust, authority, or supervision over
A.V. Count II alleged that defendant sexually gratified himself in front of A.V. during the same
time period. Count III alleged that defendant sexually gratified himself in front of A.V. between
January 1, 2004, and December 31, 2005, when A.V. “was under 13 years of age.”
¶4 The parties agree that defendant met with attorney Anthony Tomkiewicz at the Will
County jail on May 4 and May 11, 2010, to discuss legal representation in the sex offense case.
During these meetings, defendant neither paid a retainer nor signed a client agreement. However,
defendant told Tomkiewicz that his father would pay the retainer.
¶5 Tomkiewicz represented Franklin Bryant, also an inmate in the Will County jail. On May
14, less than two weeks after the State charged defendant, Bryant informed sheriff’s detectives
that defendant solicited him to kill four witnesses in the sex offense case—two investigating
officers from the Crest Hill Police Department, A.V., and A.V.’s mother. Bryant also turned over
documents that defendant gave him, which included a map to A.V.’s mother’s house and a note
to read to her before he killed her.
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¶6 The sheriff’s detectives relayed Bryant’s information to Assistant State’s Attorney
Michael Knick. Knick asked Bryant to wear a wire in order to gather more evidence against
defendant. Before agreeing to cooperate, Bryant asked to speak with his lawyer. Knick reviewed
Bryant’s file, which indicated that Tomkiewicz represented him. Knick arranged a meeting with
Tomkiewicz on May 14. Knick also reviewed defendant’s file, which indicated that the public
defender’s office represented him—the assistant public defender filed a speedy trial demand on
defendant’s behalf shortly after the State filed charges.
¶7 During their meeting, Knick and Tomkiewicz discussed Bryant cooperating with the
investigation against defendant. Before the meeting, Tomkiewicz did not know that defendant
contacted Bryant or that Bryant contacted sheriff’s detectives. Tomkiewicz disclosed to Knick
that he met with defendant twice about representing him in the sex offense case. However,
Tomkiewicz indicated that he would not represent defendant or file an appearance in his case.
Tomkiewicz then informed defendant’s father that he would not accept a retainer or represent
defendant.
¶8 Tomkiewicz met with Bryant the same day. He also filed an appearance in Bryant’s
pending criminal case. After the meeting, Bryant agreed to cooperate if the State agreed to his
furlough request to see his dying mother. The State agreed. Tomkiewicz did not attend the
hearing where the court authorized the State’s eavesdrop request. Knick fitted Bryant with the
wire before he reentered the correctional facility’s general population on May 15. That day,
Bryant recorded a conversation in which defendant “wished to hire Bryant to kill witnesses.”
¶9 The State charged defendant with four counts of soliciting murder for hire. The criminal
complaint alleged that defendant offered Franklin Bryant $6000 to murder the four witnesses in
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defendant’s pending sex offense case. A grand jury issued a bill of indictment on the murder for
hire and sex offense charges against defendant.
¶ 10 In January 2013, defendant filed his first “Motion to Dismiss or in the Alternative
Suppress Evidence.” Defendant’s motion sought to suppress the contents of Bryant’s recording
under the exclusionary rule. Defendant claimed that Tomkiewicz violated Rule 1.18, which
prohibits attorneys from disclosing communications from prospective clients, even if no
attorney-client relationship ensues. Ill. R. Prof’l Conduct (2010) R. 1.18(b) (eff. Jan. 1, 2010). It
also prohibits attorneys from representing “a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful to that person in the matter.” Ill.
R. Prof’l Conduct (2010) R. 1.18(c) (eff. Jan. 1, 2010).
¶ 11 The trial court concluded that Tomkiewicz violated Rule 1.18 and suppressed Bryant’s
recording in the sex offense case, but not in the murder-for-hire case. During the hearing, Knick
informed the court that he met with Tomkiewicz to discuss Bryant’s cooperation. In light of
Knick’s disclosure, the court allowed defendant to file an amended pleading.
¶ 12 On February 20, 2013, defendant filed his amended motion. He argued that the meeting
between Knick and Tomkiewicz rendered Bryant’s recording inadmissible in the murder-for-hire
case. Defendant argued that the State furthered Tomkiewicz’s ethical violation in order to
persuade Bryant to cooperate with the State’s investigation and that the State’s misconduct
justified excluding the recording in the murder-for-hire case under the exclusionary rule.
¶ 13 The court found that Knick took advantage of Tomkiewicz’s “ethical lapse” to obtain
evidence against defendant. The court suppressed Bryant’s recording in both cases.
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¶ 14 On appeal (Shepherd, 2015 IL App (3d) 140192), a panel of this court reversed the trial
court’s order. Defendant’s evidence failed to establish that Tomkiewicz violated Rule 1.18.
Defendant never proved that Tomkiewicz “received confidential information that was
significantly harmful to the prospective client.” Id. ¶ 31. Defendant’s “speculation as to
information that Tomkiewicz might have learned” could not justify suppressing evidence in
either case. Id.
¶ 15 On remand, defendant filed a third motion to suppress. This time he claimed that
Tomkiewicz and defendant established an attorney-client relationship. After they formed the
relationship, Tomkiewicz allegedly engaged in a conflict of interest by representing Bryant. See
Ill. R. Prof’l Conduct (2010) Rs. 1.7, 1.9 (eff. Jan. 1, 2010). Defendant also alleged that the State
furthered this conflict of interest, since Tomkiewicz acted as the State’s agent. Defendant asked
the court to suppress Bryant’s recording under the exclusionary rule.
¶ 16 The motion claimed that defendant developed “subjective expectations” that he and
Tomkiewicz formed an attorney-client relationship prior to May 14, 2010, the date Tomkiewicz
discovered Bryant provided the State with information that incriminated defendant. However, the
motion conceded that “Tomkiewicz was not aware that Bryant had met with law enforcement or
intended to cooperate with them regarding the Defendant” prior to meeting with Knick.
¶ 17 At the hearing, defendant testified that he discussed the sex offense case with
Tomkiewicz during their May 4, 2010, meeting. Specifically, defendant told Tomkiewicz that
police coerced his confession. Tomkiewicz discussed filing a motion to suppress the confession.
During the same meeting, defendant agreed to pay Tomkiewicz an $8000 retainer. Defendant
considered Tomkiewicz his attorney after the May 4 meeting.
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¶ 18 Defendant also testified that his father intended to pay the retainer. Although on May 14
Tomkiewicz instructed defendant’s father not to pay the retainer, defendant’s father waited
weeks to inform defendant that Tomkiewicz refused to represent him. Defendant still believed
that Tomkiewicz represented him on May 15, when Bryant obtained the recorded statements.
¶ 19 Tomkiewicz testified that both meetings with defendant took place by video in the
correctional facility’s visitor center. Tomkiewicz spent most of the first meeting discussing his
background and legal experience. They did not discuss the case’s underlying facts. Tomkiewicz
offered no specific legal advice. However, he admitted that “it would not be unusual” for him to
discuss filing a motion to suppress, even in a consultation, if a potential client mentioned coerced
statements.
¶ 20 Tomkiewicz agreed to represent defendant once he paid the retainer fee and signed the
client agreement. In his practice, Tomkiewicz believed the attorney-client relationship formed
only after a potential client completed these tasks. Tomkiewicz never disclosed defendant’s
communications to Bryant or the State before or after Bryant recorded defendant’s statements.
¶ 21 The court found that Tomkiewicz and defendant formed an attorney-client relationship
based on defendant’s subjective expectations. The court also determined that Tomkiewicz
violated Rules 1.7 and 1.9. In its findings, the court determined that Bryant “was acting as an
agent of the State” and Tomkiewicz “aided and abetted in that.” The State obtained defendant’s
recorded statements in violation of his “due process rights and the right to effective assistance of
counsel.” The court suppressed “all of the evidence that was obtained from the wearing of the
wire by Mr. Bryant in his conversations with *** defendant in both the sexual assault case and
the murder for hire case.” The State now appeals the suppression order.
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¶ 22 ANALYSIS
¶ 23 We employ two standards in reviewing a trial court’s order to suppress evidence. We
review the trial court’s factual findings for manifest error, and we review the court’s legal
conclusion to suppress evidence de novo. People v. Pitman, 211 Ill. 2d 502, 512 (2004). This
appeal presents two questions. First, did Tomkiewicz commit an ethical violation? If so, did the
violation trigger the exclusionary rule? The answer to both questions is no.
¶ 24 I. Ethical Violation
¶ 25 Defendant claims and the trial court found that Tomkiewicz violated Rules 1.7 and 1.9 of
the Illinois Rules of Professional Conduct of 2010 (Ill. R. Prof’l Conduct (2010) Rs. 1.7, 1.9 (eff.
Jan. 1, 2010)). In relevant part, Rule 1.7 prohibits lawyers from representing a client directly
adverse to another current client (Ill. R. Prof’l Conduct (2010) R. 1.7 (eff. Jan. 1, 2010)); Rule
1.9 forbids lawyers from representing a client with interests “materially adverse” to those of a
former client in “the same or a substantially related matter” (Ill. R. Prof’l Conduct (2010) R. 1.9
(eff. Jan. 1, 2010)). For either rule to apply, defendant needed to establish that he and
Tomkiewicz had formed an attorney-client relationship.
¶ 26 Although an attorney-client relationship requires no formal written agreement or payment
(Herbes v. Graham, 180 Ill. App. 3d 692, 698-99 (1989); Westinghouse Electric Corp. v. Kerr-
McGee Corp., 580 F.2d 1311, 1318 (7th Cir. 1978)), both the attorney and the client must
express their intent to form it. The relationship is voluntary and contractual; it requires both
parties’ consent. Rubin & Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶ 37. Because
the relationship is consensual, the client must manifest authority for the attorney to act on his
behalf, and the attorney must accept it. People v. Simms, 192 Ill. 2d 348, 382 (2000).
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¶ 27 In Simms, the defendant’s wife stated in an affidavit that she spoke to an attorney three
times about representing the defendant at his sentencing hearing—he faced the death penalty.
The attorney agreed to represent the defendant for $15,000, including a 30% retainer. The
defendant’s wife eventually told the attorney that she could not raise the money. The attorney
replied “that she did not give free advice and there was nothing more to talk about.” Id. at 383.
Defendant never paid the attorney’s retainer, nor did he ask the trial court to appoint the attorney
as counsel. The supreme court concluded that the wife’s testimony, even if true, failed to
establish an attorney-client relationship between the defendant and the attorney. Id.
“Consequently, defendant did not have a right to conflict-free representation from [the
attorney].” Id.
¶ 28 Here, the record shows that Tomkiewicz’s agreement to represent defendant was
contingent on defendant paying the retainer fee and signing a contract. Defendant never testified
that he manifested authority for Tomkiewicz to act on his behalf, or that Tomkiewicz manifested
acceptance of this authority. They never discussed the facts of his case or any specific defense
strategy. Defendant merely stated that he subjectively considered Tomkiewicz his lawyer. Simms
indicates that a party’s subjective belief is not enough to form a consensual attorney-client
relationship. Id. at 382-83.
¶ 29 We also note that defendant’s claim that Tomkiewicz acted unethically defies common
sense, “and common sense often makes good law.” Peak v. United States, 353 U.S. 43, 46
(1957). Even had defendant told Tomkiewicz that he intended to solicit someone to murder
witnesses in the sex offense case, Rule 1.6 would have required Tomkiewicz to disclose the
communication to authorities. Rule 1.6(c) states, “A lawyer shall reveal information relating to
the representation of a client to the extent the lawyer reasonably believes necessary to prevent
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reasonably certain death or substantial bodily harm.” Ill. R. Prof’l Conduct (2010) R. 1.6(c) (eff.
Jan. 1, 2010). A client who seeks to commit a future crime or fraud “will have no help from the
law.” See Clark v. United States, 289 U.S. 1, 15 (1933); People v. Radojcic, 2013 IL 114197,
¶¶ 42-43. The ethical rules do not protect defendant’s incriminating statements even if he made
them to his attorney. Statements regarding intent to murder witnesses are simply not privileged.
Yet, defendant argues that the ethical rules protect him from statements he made to a fellow
inmate. Regardless of whom Tomkiewicz represented, the ethical rules do not protect
defendant’s murder-for-hire plot. We find no ethical violation in this record.
¶ 30 II. Exclusionary Rule
¶ 31 Assuming that Tomkiewicz committed some ethical violation, as far as we can tell, we
would be the first reviewing court in the free world to find that defense counsel’s ethical
violation triggers the exclusionary rule. In the first appeal, defendant argued that Tomkiewicz
violated Rule 1.18. A panel of this court reversed the trial court’s suppression order after finding
that defendant failed to prove the ethical violation. On remand, defendant convinced the trial
court that Tomkiewicz violated Rules 1.7 and 1.9, which required suppressing Bryant’s
recording. In desperate hope that it might avoid a third interlocutory appeal, we hold that nothing
Tomkiewicz did, based on the record before us, triggered the exclusionary rule.
¶ 32 Defendant correctly recognizes that only “the State’s wrongdoing” justifies suppressing
evidence under the exclusionary rule; the purpose of the rule is to deter police (or the State’s)
misconduct. See United States v. Leon, 468 U.S. 897, 916 (1984). However, the Illinois Rules of
Professional Conduct of 2010 specifically forbid parties from using ethical violations as
“procedural weapons” in litigation. See Ill. R. Prof’l Conduct (2010), Preamble, ¶¶ 19-20. The
exclusionary rule cannot apply unless the State or the State’s agent wrongfully obtains evidence.
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¶ 33 Defendant argues that the State “played a lead role in facilitating the [Illinois Rules of
Professional Conduct] violations in this matter.” Once he knew that Tomkiewicz met with
defendant, Knick should have required Tomkiewicz to withdraw as Bryant’s attorney or pursued
alternate investigative methods. Because Knick took neither course, defendant claims that
Tomkiewicz improperly acted as the State’s agent and deprived defendant of his constitutional
rights to counsel and a fair trial. No!
¶ 34 Tomkiewicz never acted as the State’s agent. Meetings between Tomkiewicz and
defendant had nothing to do with the solicitation or Bryant’s decision to aid police. Had
Tomkiewicz withdrawn as Bryant’s attorney, Bryant no doubt would have retained another
attorney; the result would have been the same. Tomkiewicz did what any defense attorney would
have done—allowed Bryant to voluntarily cooperate with the State. That is, defendant suffered
no prejudice as a result of anything Tomkiewicz did or failed to do. No evidence indicates that
Bryant’s cooperation with the State or defendant’s recorded statements resulted from
Tomkiewicz revealing privileged information or otherwise acting against defendant’s interests.
Even if they did, the use of the information or resulting evidence is barred by the privilege itself,
not the exclusionary rule. See Weatherford v. Bursey, 429 U.S. 545, 552 (1977). But, again, after
two hearings, there is no evidence that Tomkiewicz revealed any privileged information to
anyone at any time.
¶ 35 Defendant primarily relies on People v. Knippenberg, 66 Ill. 2d 276 (1977), where the
State obtained an investigator’s notes summarizing his interview with the defendant. The
investigator worked for the defendant’s counsel; the notes were unquestionably privileged. To
“exacerbate *** the offensiveness of the violation,” the State never informed defendant that it
acquired the privileged notes. Id. at 286. The court concluded that a defendant suffers “grave and
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inexcusable” prejudice when his or her attorney discloses privileged attorney-client
communications to aid the prosecution. Id. at 285. In such circumstances, defendants are denied
their rights to effective assistance of counsel and a fair trial. Id. (“ ‘[T]he essence of the Sixth
Amendment right is *** privacy of communication with counsel.’ ” (quoting United States v.
Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973))).
¶ 36 Knippenberg is distinguishable. Here, Tomkiewicz never disclosed defendant’s
privileged communications. Defendant volunteered nonprivileged information and documents to
Bryant; Bryant opted to report defendant’s statements and evidence to the State without
counsel’s advice. The State possessed evidence and pursued additional evidence against
defendant before Tomkiewicz found out about the investigation. Nothing related to
Tomkiewicz’s relationship with defendant aided the State’s investigation. Also unlike in
Knippenberg, the State had no duty to disclose Bryant’s cooperation to defendant. We find no
evidence in this record to support defendant’s claims that Tomkiewicz acted as the State’s agent
or that the State improperly obtained evidence.
¶ 37 To be clear, we are not holding that a lawyer’s actions could never trigger the
exclusionary rule, but State misconduct is a necessary ingredient. In most cases, it will be the
privilege, not the exclusionary rule, that prevents the State’s use of improperly disclosed
attorney-client discussions. The State properly obtained defendant’s recorded statements.
Defendant does not allege or suggest that the State entrapped him or failed to obtain proper
authority (i.e., the eavesdrop order) to record his incriminating statements. Nothing done in
obtaining this recording, by either the State or Tomkiewicz, offends the Constitution, the Rules
of Professional Conduct, or common sense. We reverse the trial court’s order suppressing
defendant’s recorded statements.
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¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, we reverse the judgment of the circuit court of Will County
and remand for further proceedings.
¶ 40 Reversed and remanded.
¶ 41 JUSTICE WRIGHT, specially concurring:
¶ 42 I concur in the judgment.
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