People v. Lashmet ( 2007 )

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.
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"[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
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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
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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
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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
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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
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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-
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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
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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
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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.
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Reversed and remanded.
McCULLOUGH and TURNER, JJ., concur.
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