People v. Brickhouse ( 2018 )

2018 IL App (3d) 150807
Opinion filed July 20, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-15-0807
v. ) Circuit No. 08-CF-420
)
DAMEKO S. BRICKHOUSE, ) The Honorable
) Kathy S. Bradshaw-Elliott,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 After a jury trial, defendant, Dameko S. Brickhouse, was convicted of two counts of
armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) and was sentenced to two concurrent terms
of 30 years in prison. On direct appeal, defendant’s convictions and sentences were affirmed.
People v. Brickhouse, 2011 IL App (3d) 100289-U, ¶ 2. Defendant filed a postconviction
petition, alleging that he was denied ineffective assistance of trial counsel because trial counsel
failed to file a motion to suppress defendant’s statements to police. After a third-stage
evidentiary hearing, the trial court denied defendant’s postconviction petition. Defendant
appeals. We affirm the trial court’s judgment.
¶2 FACTS
¶3 In July 2008, defendant was charged with two counts of armed robbery. The charging
instrument alleged that defendant, while carrying a handgun, knowingly took money from the
person or presence of Rochelle Hicks (count I) and Jeffrey Hicks (count II) by the use, or
threatened use, of force.
¶4 In May 2009, defendant’s case proceeded to a jury trial. The evidence presented at the
trial can be summarized as follows. Rochelle Hicks testified that on July 1, 2008, she and her
husband, Jeffrey Hicks, went to a credit union or bank in Bourbonnais, Illinois, where Jeffrey
withdrew $1000 from his account to pay bills. Jeffrey gave $500 to Rochelle and kept the
remaining $500 for himself. Thereafter, Rochelle and Jeffrey went to a currency exchange in
Kankakee, Illinois, so that Jeffrey could pay the electric bill and Rochelle could pay the
telephone bill. While in the currency exchange, Rochelle saw defendant and Curtis Phillips walk
past the building. Rochelle had known defendant for approximately three years, through her
uncle, but had never talked to defendant and had known Curtis for several years. According to
Rochelle, on the date of the robbery, defendant was wearing a white T-shirt, blue jeans, and a
black White Sox hat.
¶5 When Rochelle and Jeffrey left the currency exchange, they started walking toward
Jeffrey’s sister’s house. As Rochelle and Jeffrey were walking down an alley behind some
houses, they ran into Curtis, who was alone at the time. Jeffrey and Curtis had a brief
conversation. After the conversation ended, Curtis went on his way, and Jeffrey and Rochelle
continued down the alley. When they got to about the middle of the alley, defendant jumped out
from between two garages with a small silver handgun, which Rochelle also described as a
“silver caliber handgun.” Defendant pointed the gun at Rochelle and Jeffrey and told them to
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give him all of their money before he killed them. Jeffrey told Rochelle to give her money to
defendant, and Rochelle did so. Jeffrey did not give defendant the remaining $500 that he had in
his possession. After defendant received the money, he told Rochelle and Jeffrey to walk away.
As they did so, defendant ran up the alley. When Rochelle and Jeffrey got to Jeffrey’s sister’s
house, Rochelle called the police.
¶6 At the police station, Rochelle identified defendant from a photographic lineup. Rochelle
told the police that defendant had a short silver gun. The police showed Rochelle a photograph of
a gun, but Rochelle stated that the gun in the picture was not the gun used in the robbery.
Rochelle also identified defendant’s hat from a police photograph.
¶7 On cross-examination, Rochelle admitted that she received social security payments
because she had a learning disability. Additionally, Rochelle admitted that she did not know
what a “silver caliber handgun” meant, but Jeffrey had told her the name of the gun.
¶8 Jeffrey Hicks testified, similar to Rochelle, that on July 1, 2008, the couple went to a
credit union to withdraw some money and then to a currency exchange to pay some bills. After
leaving the currency exchange, Jeffrey and Rochelle were walking into an alley to take a shortcut
to Jeffrey’s sister’s house, when they were approached by Curtis. Jeffrey and Curtis had a brief
conversation, and then Curtis left and went in the other direction. As Jeffrey and Rochelle
continued down the alley, they were confronted by defendant. Defendant jumped out of the
bushes, demanded money, and threatened to shoot the couple with a silver-colored handgun.
Jeffrey thought that the gun was a .38 caliber. Jeffrey told Rochelle to give her money to
defendant, and Rochelle complied. Defendant directed Jeffrey and Rochelle to walk away. As
they did so, defendant ran in the opposite direction.
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¶9 Later, Jeffrey told the police that the assailant wore a black White Sox hat, white T-shirt,
and blue jeans. Jeffrey identified defendant from a photographic lineup. On cross-examination,
Jeffrey remembered telling the police that the assailant had braids in his hair.
¶ 10 Curtis Phillips testified that he knew defendant, Rochelle, and Jeffrey. On the morning of
the robbery, Curtis was walking to the hospital to visit his girlfriend when he met up with
defendant on the street. Defendant was wearing jeans and a T-shirt at the time. Curtis and
defendant walked together for a while, went past the currency exchange, and then split up and
went in their own directions. As they split up, defendant told Curtis that he was “trying to go and
hustle up him some money,” which Curtis took to mean that defendant was going to try to find
some work or some money. Curtis did not see defendant with a gun that day.
¶ 11 Shortly after Curtis and defendant separated, Curtis saw Rochelle and Jeffrey walking
behind him. Curtis spoke to Jeffrey briefly and then went on his way. About four or five minutes
later, as Curtis was crossing the street, he heard Jeffrey yelling. Curtis looked back and saw
Jeffrey, Rochelle, and some other people standing on the street corner calling for the police.
Curtis tried to find out what was going on, but the police officer told Curtis to move along.
Rochelle and Jeffrey told Curtis that “Dameko” had robbed them. Having been told to move
along, Curtis continued on his way to the hospital.
¶ 12 When Curtis returned home from the hospital, he found his uncle and defendant at his
house. Curtis’s uncle had a construction business. Defendant appeared to have been working, had
different clothes on, and had putty on his hands. The police showed up a short time later and took
Curtis to the police station, where he identified defendant from a photographic lineup as the
person who was with him earlier that day in front of the currency exchange.
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¶ 13 After Curtis returned home from the police station, he received a phone call from a
person identifying himself as defendant. The person asked Curtis to “see if they want the money
back *** so they can drop the charges.” About an hour or two later, Curtis had another
conversation with defendant. Defendant asked Curtis to talk to Rochelle to see if she would take
the money back so that the charges could be dropped. Curtis did not contact Rochelle about the
matter, however, because he did not want to get involved.
¶ 14 When asked on the witness stand about whether defendant had braids in his hair on the
date of the robbery, Curtis testified that defendant always had his hair cut as it was in court and
that he did not remember defendant having braids. Upon further questioning, Curtis indicated
that he cut defendant’s hair and that he knew for a fact that defendant did not have braids.
¶ 15 Detective Tim Kreissler testified that on the date of the armed robbery, later in the
afternoon, he conducted an audio- and video-recorded interview with defendant. Before the
interview began, Kreissler read defendant a Miranda form that explained defendant his rights.
Defendant indicated that he understood his rights and signed the Miranda form.
¶ 16 During Kreissler’s testimony, the State introduced the audio and video recording of
defendant’s interview. Shortly after the start of the recording, a clunk or bang could be heard, the
video cut out, and only the audio was available. As the interview continued, Kreissler obtained
defendant’s name and some background information. Kreissler asked defendant for permission to
record the interview. Defendant stated that he did not do anything wrong and told Kreissler that
Kreissler could call defendant’s parole officer. 1 Kreissler again asked for consent to record the
1
Although not quite clear from the record, it appears that the portion of the recording where
defendant mentioned parole may have been redacted and not played for the jury to hear.
5
interview. Defendant consented but then stated to Kreissler, “I can’t ask for a lawyer?” The
following conversation ensued:
“KREISSLER: Well, we’ll get to that point, but um we’re not at that point
yet. Right now we’re just getting over whether we’re gonna, you know, audio and
video, so just sign there—you said, yeah, we can audio-video it—and then we’ll
read you your rights, which we’ll get to that point [inaudible].
DEFENDANT: Read me my rights? I ain’t did nothing.
KREISSLER: Well, you just said, you know, can you have your lawyer
present. If you didn’t—[pause].
Dameko, put your initials there, where it says that, yes, we can audio and
video it.”
Kreissler then read defendant his Miranda rights, including the warning that defendant had the
right to an attorney and that one would be provided for him if he could not afford one. In total,
about 30 seconds had passed from the point where defendant had made the question or comment
about a lawyer and the point where Kreissler had read defendant his Miranda rights. After the
statement of each right, Kreissler asked defendant if he understood the right, and defendant
indicated affirmatively. Kreissler confirmed that defendant could read and then told defendant
that he could read the Miranda rights form again if he wanted to do so. Defendant placed his
initials next to the statement of each right and then signed the form without saying anything
further about a lawyer.
¶ 17 After the rights form had been completed, Kreissler stepped out of the interview room for
a moment, realized that the video had cut out, and then he and another person came back into the
interview room and spent a few minutes fixing the video. The interview proceeded at that point
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and was both audio- and video-recorded. During the remainder of the first interview, defendant
denied that he had committed the armed robbery. Defendant told Kreissler that at the time of the
offense, he was doing drywall work with Curtis’s uncle at a house near the intersection of
Cottage Avenue and Chestnut Street. At one point in the interview, Kreissler made comments to
defendant about working and about there being some type of stains or marks on defendant’s
person. Kreissler was asked further about those comments during his testimony at trial and stated
that at the time of the interview, defendant had plaster or drywall material on his pants and on his
forearms. The stains or marks that Kreissler was referring to in his testimony were clearly visible
on defendant’s person in the video.
¶ 18 Later in the day on July 1, 2008, Kreissler conducted a search of defendant’s bedroom.
Inside the bedroom, Kreissler found a black White Sox hat, a black BB gun, and five $20 bills.
Kreissler and another detective photographed the items that had been discovered.
¶ 19 On July 2, 2008, Kreissler interviewed defendant a second time. Defendant refused to
allow the interview to be recorded but signed a Miranda waiver form and agreed to speak to
Kreissler. During the interview, defendant allegedly told Kreissler he was sorry that he had
robbed Rochelle and Jeffrey. Defendant indicated that he would give the money back and turn
the gun over to the police if the charges were dropped. Kreissler responded that he could not
make any kind of deal like that with defendant.
¶ 20 On cross-examination, defense counsel questioned Kreissler thoroughly about
inconsistencies in the victims’ statements and in their descriptions of the person who had robbed
them; about Kreissler’s failure to follow standard procedure, to reduce defendant’s second
statement to writing, and to have defendant read and sign a written copy of his second statement;
about the lack of an investigation of the scene of the robbery and the lack of physical evidence
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(the gun); and about the fact that Curtis was released without charge, even though he had lied to
police and even though Kreissler and the victims suspected that Curtis may have been involved
in the armed robberies.
¶ 21 Police officer Robin Passwater testified that he attempted to interview defendant a third
time on July 3, 2008, about the location of the gun used in the robbery. Defendant asked
Passwater to reduce the charges in exchange for his signature on the Miranda waiver form.
Passwater told defendant that only the State’s Attorney could change the charges. Defendant
indicated that he could retrieve the gun but did not tell Passwater where the gun was located.
Ultimately, defendant refused to sign the Miranda waiver form.
¶ 22 On cross-examination, defense counsel questioned Passwater extensively about
Passwater’s conversation with defendant, about omissions in Passwater’s report relative to that
conversation; about Passwater’s failure to recover the gun used in the instant offenses despite
defendant’s alleged claim that he knew where the gun was located or could obtain the gun, about
Passwater’s failure to reduce defendant’s third statement to writing and to have defendant read
and sign a printed copy of that statement, and about Passwater’s failure to recommend that the
prosecution negotiate with defendant to try to get the gun used in the instant offenses off the
street.
¶ 23 After being duly admonished, defendant elected not to testify at the trial and presented no
further evidence.
¶ 24 Following closing arguments, the case proceeded to deliberations. During the
deliberations, the jury asked two questions. In one of the questions, the jury requested, and was
allowed to review, several items, including defendant’s audio- and video-recorded interview. In
the other question, the jury requested to review the police reports of Kreissler and Passwater. The
8
trial court denied that request. After about two hours of deliberations (including any time spent
reviewing the items requested), the jury found defendant guilty of both counts of armed robbery.
¶ 25 In June 2009, defense counsel filed a motion for new trial, which was subsequently
amended. The motion alleged, among other things, that a new trial was warranted because
defendant believed that counsel had made a mistake in failing to move to suppress defendant’s
statements to the police. The following month, defendant sent an ex parte letter to the court,
which made various allegations of ineffective assistance of trial counsel.
¶ 26 At a later hearing on the motion for new trial, the trial court read defendant’s letter into
the record as the court inquired into defendant’s claims of ineffective assistance. The following
conversation ensued:
“THE COURT: *** The second issue is my lawyer also failed to suppress
the statement of the police officer’s statement and testimony saying that I called
Curtis Phillip[s] to get the gun back used in the crime, which even Phillips denied
himself, and that I confessed to committing this offense because it is hearsay. And
there is absolutely no evidence corroborating any of this. All right.
How about the motion to suppress his statement?
[DEFENSE COUNSEL]: Okay. I did not do a motion to suppress any of
the three different statements that were—were done. And, specifically, the two
that he’s talking about were the further statements where the police went back to
him and took—and talked to him and wrote down what they said he said. They
were not actual statements made by him and signed. They were not video
statements. So at that point we simply had police officers’ reports saying we went
9
back and talked to him and this is what he said. And I did not attempt to suppress
any of those statements.
THE COURT: Is there a reason why? I guess I—
[DEFENSE COUNSEL]: I guess because they appeared to be voluntary
on his part. In other words, Mirandized but not—not to the extent of his first
statement, which was voluntarily Mirandized and agreed to videotaping. Then the
second one he didn’t agree to the videotaping. And the third one he kind of said,
look, I don’t want to talk to you guys anymore. Then they wrote that down.
They appeared to be more or less those two statements in the nature of the
police reports. There wasn’t a sup—an actual statement of the defendant to
suppress such as a written statement that we believed he had not made or that was
not Mirandized. And I did not attempt to suppress those.
THE COURT: Okay. Basically because you didn’t think they were
statements that would—could be suppressed. Is that what you’re saying?
[DEFENSE COUNSEL]: I didn’t believe there was a basis to suppress
them at the time prior to it going to trial.
THE COURT: And those are the last two. Is that right, versus the first
one?
[DEFENSE COUNSEL]: Right, the last two. I don’t know that there
was—if—if—if he’s claiming a failure to suppress the first one, I—
***
Judge, if he—if he has a problem with that, if this encompasses all of the
them, the reason I didn’t attempt to do that is because, one, there was a consent;
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and, two, I actually thought it was probably to my client’s benefit for the jury to
see that statement. Because in it he was saying he didn’t do it, consistently giving
places, times, and was covered with plaster, dust and material from the job that he
claimed he had been at. And I believed it was as exculpatory as it was
inculpatory.”
¶ 27 At the conclusion of the hearing (on a subsequent date), after having had an opportunity
to review the transcripts, the trial court denied the motion for new trial, stating that it did “not
find there [was] any neglect here based on the evidence presented in this case.” In response to a
question by defendant and some further discussion, the trial court commented:
“And in all the cases it’s not the defendant that makes the decision on a
motion to suppress, it’s always the defense attorney. And I’m assuming you
[defense counsel] had a reason for not doing that.
Last time you said you just didn’t believe there was a basis for it I believe,
as I look at my notes here. You said you didn’t attempt to suppress the first one
because it was to [defendant’s] benefit, as [the prosecutor] has responded.
[Defendant] was saying he couldn’t have done this crime because he was painting
with this Alfred Phillips and when he was arrested he had on clothing that looked
like there was plaster or paint spots. And as to the other two statements you did
not believe there was a basis to suppress and I believe that is trial strategy. And
that’s up to you to do.”
¶ 28 Following a sentencing hearing, the trial court sentenced defendant to two concurrent
terms of 30 years in prison. We affirmed defendant’s convictions and sentences on direct appeal.
Brickhouse, 2011 IL App (3d) 100289-U, ¶ 2.
11
¶ 29 In August 2011, defendant filed a pro se postconviction petition. In the petition,
defendant alleged, among other things, that he received ineffective assistance of trial counsel
when counsel failed to move to suppress his statements to police. The trial court summarily
dismissed the petition in the first stage of review. We reversed that decision on appeal and
remanded the case for further proceedings on defendant’s postconviction petition. People v.
Brickhouse, 2013 IL App (3d) 110584-U, ¶ 2. One justice dissented in that decision. Id. ¶¶ 34-38
(Schmidt, J., dissenting).
¶ 30 On remand in the trial court, defendant was appointed an attorney to represent him on the
postconviction petition. The attorney amended the petition, 2 and the petition was docketed for
second-stage proceedings. The State filed a motion to dismiss the petition, which the trial court
later denied. In so doing, the trial court stated:
“As I reviewed the people’s motion to dismiss, basically cited the dissent
in the appeal which reversed my summary dismissal of the PC. And I have to look
at the second stage whether there’s some showing—a substantial showing of
constitutional violation. I’m going to let it go to the third stage because you
cited—not that I disagree with you, but I can’t go with the dissent at this point.”
After denying the State’s motion to dismiss, the trial court scheduled the case for a third-stage
evidentiary hearing on defendant’s postconviction petition.
¶ 31 At the evidentiary hearing, the testimonies of defendant, Kreissler, and defense counsel
were presented. Defendant testified that he was asking for an attorney when he made the
statement to officer Kreissler about a lawyer, but the police did not call an attorney for him.
2
In the amended petition, postconviction counsel alleged that appellate counsel was also
ineffective for failing to raise on appeal trial counsel’s failure to file a motion to suppress.
12
Defendant continued to talk to the police after that point. On cross-examination, when defendant
was questioned further about the matter, he stated:
“I asked him [Kreissler] about a lawyer. I thought he was gonna go get a
lawyer or stop the interview like what he supposed to do but when he didn’t, I
didn’t want—he the police. I didn’t want to do anything wrong.”
Defendant acknowledged, however, that Kreissler told defendant that they would get to that and
that Kreissler had defendant read and sign a paper that had defendant’s rights listed on it,
including the right to have an attorney present. Defendant acknowledged further that after he was
read his Miranda rights, he never stated that he wanted an attorney. According to defendant, he
did not do so because he “had already asked [Kreissler].”
¶ 32 Police officer Kreissler testified that he had been a Kankakee police officer for 13 years
and had been trained in interrogation. Kreissler had learned from his training that after a suspect
was advised of his Miranda rights, if the suspect said anything about an attorney, the interview
was to be terminated immediately. When Kreissler was interviewing a suspect, he followed a set
procedure, starting with obtaining written consent from the suspect to have the interview
recorded. In this particular case, at the outset of the first interview, as Kreissler was asking
defendant for consent to record the interview, defendant made the statement to Kreissler about a
lawyer. Kreissler interpreted defendant’s statement to mean that defendant was not sure of his
rights and that he wanted an explanation of his rights. Kreissler told defendant that they would
get to that. The next thing that Kreissler did was “[get] to that” by reading defendant the Miranda
warning form. Kreissler did not interpret defendant’s statement as a request for an attorney and
confirmed that, after he advised defendant of his Miranda rights during the first interview,
defendant did not request an attorney.
13
¶ 33 Defense counsel testified that she remembered that defendant had made a claim or claims
of ineffective assistance of counsel against her but did not remember what they were about and
did not remember anything about her decision not to file a motion to suppress. At one point,
when defendant’s postconviction attorney objected to the State’s questioning of defendant’s trial
counsel as leading, the trial court stated: “That’s trial strategy. Overruled. It’s a [p]ost-
conviction.”
¶ 34 At the conclusion of the evidentiary hearing on the postconviction petition, the trial court
took the case under advisement. The trial court later issued a written decision denying
defendant’s petition for postconviction relief. In doing so, the trial court found that defendant’s
statement or question about a lawyer was ambiguous and noted the context in which the
statement was made—that the statement was made during the officer’s attempt to obtain consent
to record the interview and prior to defendant being read his Miranda rights. The trial court also
noted that defendant’s trial counsel had testified that the decision not to file a motion to suppress
the recorded statement was made on the basis of trial strategy because the recorded statement
corroborated defendant’s alibi (defendant had dry wall on his hands, arms, and clothing). The
trial court pointed out that defendant never confessed during the recorded statement. The trial
court also found that there was no prejudice to defendant from trial counsel’s failure to file a
motion to suppress because, had the motion been filed, it would have been denied. Defendant
appealed.
¶ 35 ANALYSIS
¶ 36 On appeal, defendant argues that the trial court erred in denying his postconviction
petition after a third-stage evidentiary hearing. Defendant asserts that the petition should have
been granted because defendant established a substantial deprivation of his constitutional rights
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in that his trial counsel provided ineffective assistance when she failed to move to suppress his
statements to the police. Defendant asserts further that his second and third statements were
highly incriminating, that there was no tactical or strategic reason for not moving to suppress the
statements, that he was likely to prevail on the motion to suppress because the interviewing
officer proceeded to question defendant after defendant invoked his right to an attorney, and that
the result of his trial would have likely been different if his statements had been suppressed.
Defendant asks, therefore, that we reverse the trial court’s ruling, that we grant his petition for
postconviction relief, and that we remand this case for a new trial on the underlying criminal
charges before a different trial judge.
¶ 37 The State argues that the trial court’s ruling was proper and should be upheld. The State
asserts that defendant did not make an unequivocal request for an attorney during the initial
police interview; that the police officer did not violate defendant’s Miranda rights by proceeding
to interview defendant after that point; that trial counsel was not deficient in failing to file a
motion to suppress; and that any alleged error that occurred did not affect the outcome of this
case because the evidence of defendant’s guilt, even without defendant’s statements, was
overwhelming. The State asks, therefore, that we affirm the trial court’s denial of defendant’s
postconviction petition.
¶ 38 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a
three-stage process for the adjudication of postconviction petitions. People v. Pendleton, 223 Ill.
2d 458, 471-72 (2006). In the third stage of the process, the trial court conducts an evidentiary
hearing, and the defendant must show by a preponderance of the evidence that he suffered a
substantial violation of his constitutional rights in the proceedings that produced the conviction
or sentence being challenged. See id. at 472-73; People v. Williams, 2017 IL App (1st) 152021,
15
¶ 22. In a third-stage evidentiary hearing, the trial court acts as the finder of fact and resolves any
conflicts in the evidence, determines the credibility of witnesses, and decides the amount of
weight to be given to the testimony and other evidence presented. See Williams, 2017 IL App
(1st) 152021, ¶ 22. When a petition is advanced to a third-stage evidentiary hearing, where fact-
finding and credibility determinations are involved, we will not reverse the trial court’s ruling
unless it is manifestly erroneous; that is, unless it is against the manifest weight of the evidence.
See Pendleton, 223 Ill. 2d at 473; People v. Rapp, 343 Ill. App. 3d 414, 417 (2003). A ruling is
against the manifest weight of the evidence only if the opposite conclusion is clearly evident
from the record or if the ruling itself is unreasonable, arbitrary, or not based on the evidence
presented. Best v. Best, 223 Ill. 2d 342, 350 (2006).
¶ 39 In this particular case, defendant’s postconviction claim of error was based upon trial
counsel’s alleged ineffective assistance in failing to file a motion to suppress defendant’s
statements to police. A claim of ineffective assistance of counsel is analyzed under the two-
pronged, performance-prejudice test established in Strickland v. Washington, 466 U.S. 668, 687
(1984). People v. Patterson, 217 Ill. 2d 407, 438 (2005). To prevail on a claim of ineffective
assistance of counsel, a defendant must show (1) that defense counsel’s performance was
deficient and (2) that the deficient performance prejudiced the defendant to the extent that he was
deprived of a fair proceeding. Id. A defendant’s failure to satisfy either prong of the Strickland
test prevents a finding of ineffective assistance of counsel. Id. In reviewing a claim of ineffective
assistance of counsel, a court must consider defense counsel’s performance as a whole and not
merely focus upon isolated incidents of conduct. See People v. Cloyd, 152 Ill. App. 3d 50, 57
(1987). A strong presumption exists that defense counsel’s conduct was within the wide range of
reasonable professional assistance and that all decisions were made in the exercise of reasonable
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professional judgment. Id. at 56-57; People v. Martin, 236 Ill. App. 3d 112, 121 (1992). In
addition, matters of trial strategy will generally not support a claim of ineffective assistance of
counsel, even if defense counsel made a mistake in trial strategy or tactics or made an error in
judgment. Patterson, 217 Ill. 2d at 441; People v. Perry, 224 Ill. 2d 312, 355 (2007). “Only if
counsel’s trial strategy is so unsound that he entirely fails to conduct meaningful adversarial
testing of the State’s case will ineffective assistance of counsel be found.” Perry, 224 Ill. 2d at
355-56.
¶ 40 More specifically as to motions to suppress, the decision of whether to file a motion to
suppress is generally a matter of trial strategy and not subject to a claim of ineffective assistance
of counsel. See Martin, 236 Ill. App. 3d at 121. In order to establish prejudice resulting from
defense counsel’s failure to file a motion to suppress, a defendant must show a reasonable
probability that (1) the motion to suppress would have been granted and (2) the outcome of the
trial would have been different had the evidence been suppressed. Patterson, 217 Ill. 2d at 438.
In other words, defense counsel’s failure to file a motion to suppress does not establish
incompetent representation, if the motion would have been futile. Id. Although the failure to file
a motion to suppress is generally not a basis for an ineffective assistance of counsel claim, the
failure to file a motion to suppress statements may constitute ineffective assistance of counsel if
there is some indication that the statements were truly involuntary. Martin, 236 Ill. App. 3d at
121-22.
¶ 41 Defendant’s ineffective assistance of counsel claim in the instant case was based upon
defendant’s contention that had trial counsel filed a motion to suppress, defendant’s
incriminating statements to police would have been suppressed because the statements were
taken in violation of defendant’s right to counsel in that they were taken during custodial
17
interrogation after defendant had clearly invoked his right to an attorney. It is well established
that to protect an accused’s fifth amendment right against self incrimination, the police must
advise a criminal suspect who is subject to custodial interrogation of his rights under the fifth and
fourteenth amendments—the Miranda rights or Miranda warnings—before questioning the
suspect about alleged wrongdoing. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966);
People v. Winsett, 153 Ill. 2d 335, 348 (1992). After being read the Miranda warnings, if the
suspect indicates that he wishes to remain silent, the police must end the interrogation. Miranda,
384 U.S. at 445; Winsett, 153 Ill. 2d at 349. If the suspect invokes his right to counsel in response
to the Miranda warnings, the police must stop the interrogation until an attorney is present and
may not reapproach the suspect for further interrogation until counsel has been made available to
the suspect. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Miranda, 384 U.S. at 444-45;
Winsett, 153 Ill. 2d at 349. If the police later initiate communication with the suspect in the
absence of counsel (assuming there has been no break in custody), any statements made by the
suspect are presumed to be involuntary and are inadmissible as substantive evidence at trial.
Winsett, 153 Ill. 2d at 349. In addition, any waiver of the right to counsel given by a suspect in a
further discussion initiated by the police is presumed to be invalid, and statements obtained
pursuant to such a waiver are inadmissible in the prosecution’s case in chief. Id. at 350. The
purpose of that rule is to prevent the police from badgering a defendant into waiving his
previously asserted Miranda rights. Id.
¶ 42 In applying the above legal principles, a court must determine whether an accused—now
a defendant—clearly invoked his right to counsel. The test is an objective one. People v.
Schuning, 399 Ill. App. 3d 1073, 1082 (2010). At a minimum, to invoke the right to counsel, a
defendant must articulate his desire for an attorney to the police in a clear enough manner—free
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from indecision or double meaning—that a reasonable officer under the circumstances would
understand the statement to be a request for an attorney. People v. Harris, 2012 IL App (1st)
100678, ¶ 69. If a defendant’s alleged request for an attorney is ambiguous or equivocal such that
a reasonable officer under the circumstances would understand only that the defendant might be
invoking the right to counsel, the police are not required to stop questioning the defendant.
Schuning, 399 Ill. App. 3d at 1082. Furthermore, although there are no specific words that a
defendant must use to invoke the right to counsel, the mere mention of a lawyer or an attorney by
a defendant to the police is insufficient. People v. Howerton, 335 Ill. App. 3d 1023, 1025 (2003).
As noted above, to avoid difficulties of proof and to provide guidance to police officers
conducting interrogations, the determination of whether an accused actually invoked the right to
counsel is made using an objective standard. People v. Quevedo, 403 Ill. App. 3d 282, 293
(2010).
¶ 43 In the present case, after having reviewed the record, we find that the trial court properly
denied defendant’s postconviction petition following a third-stage evidentiary hearing. We reach
that conclusion for several reasons. First, in the factual context of the present case, we agree with
the trial court that defendant’s question or comment about a lawyer was ambiguous and was not
a clear request for an attorney. See Davis v. United States, 512 U.S. 452, 454-55 (1994)
(upholding the lower courts’ finding that the petitioner’s remark to law enforcement agents,
“Maybe I should talk to a lawyer,” was not a request for counsel); United States v. Shabaz, 579
F.3d 815, 816-19 (7th Cir. 2009) (finding that the defendant’s question, “[A]m I going to be able
to get an attorney?” which was asked in a hallway at the police station prior to interrogation and
prior to the defendant being read his Miranda warnings was not a clear request for counsel under
the circumstances); United States v. Wysinger, 683 F.3d 784, 788-96 (7th Cir. 2012) (finding that
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the defendant’s initial question, “Do I need a lawyer before we start talking?” which was asked
at the outset of the interrogation before the defendant was read the Miranda warnings did not
constitute a clear, unambiguous, and unequivocal request for an attorney under the
circumstances, although later statements by the defendant did constitute such a request); Lord v.
Duckworth, 29 F.3d 1216, 1220-21 (7th Cir. 1994) (finding that the defendant’s statement, “I
can’t afford a lawyer but is there any way I can get one?” which was made after the Miranda
warnings had been given to the defendant twice and after the defendant had already made a
lengthy recorded confession was not a clear and unequivocal request for an attorney under the
circumstances); People v. Krueger, 82 Ill. 2d 305, 307-09, 311-12 (1980) (finding that the
defendant’s comment, “Maybe I ought to have an attorney,” “Maybe I need a lawyer,” or
“Maybe I ought to talk to an attorney,” which was made during the course of interrogation after
the police officers had read the defendant the Miranda warnings, had questioned the defendant
about several burglaries, and had started to question the defendant about his involvement in a
stabbing death was not a clear invocation of the right to counsel). In the instant case, defendant
asked the question about a lawyer at the outset of the interview as officer Kreissler was
attempting to obtain consent from defendant to record the interview. Defendant’s question or
comment was made before officer Kreissler had read defendant the Miranda warnings and
before Kreissler had started asking defendant questions about the suspected offense. Under the
circumstances of the present case, applying an objective standard, defendant’s question or
comment about a lawyer did not constitute a clear invocation of the right to counsel that would
have required officer Kreissler to stop questioning defendant until an attorney was present. See
Miranda, 384 U.S. at 444-45; Winsett, 153 Ill. 2d at 349; Davis, 512 U.S. at 454-55, 462;
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Shabaz, 579 F.3d at 816-19; Wysinger, 683 F.3d at 788-96; Lord, 29 F.3d at 1220-21; Krueger,
82 Ill. 2d at 307-09, 311-12.
¶ 44 In reaching that conclusion, we note that we have reviewed the cases cited by defendant
in support of his assertion to the contrary and find the facts of those cases to be distinguishable
from the facts of the present case. In most or all of the cases cited, the defendant’s alleged
request for an attorney was made just after the defendant was given his Miranda warnings and,
taken in context, was a much clearer indication of the defendant’s desire to have an attorney
present than in the instant case. See Smith v. Illinois, 469 U.S. 91, 92-97 (1984) (finding that
defendant’s statement, “Uh, yeah. I’d like to do that,” which was made immediately after the
police had advised defendant of the right to an attorney was a clear and unequivocal invocation
of the right to counsel); United States v. Lee, 413 F.3d 622, 623-27 (7th Cir. 2005) (finding that
defendant’s statement, “Can I have a lawyer?” which was made just after the police had read the
Miranda warnings to the defendant and had inquired whether the defendant was willing to talk to
them was a clear and unequivocal request for an attorney and an invocation of the right to
counsel, although any alleged error that resulted from the admission of the defendant’s
confession was ultimately harmless); Howerton, 335 Ill. App. 3d at 1024-27 (finding that the
defendant’s statement during interrogation that he either wanted to terminate the interview or
wanted an attorney, which was made after defendant had been read the Miranda warnings and
had been told that he was under arrest, was a clear an unequivocal invocation of his right to
counsel); United States v. Hunter, 708 F.3d 938, 943-48 (7th Cir. 2013) (finding that the
defendant’s statement, “Can you call my attorney?” which was made to a police officer while the
defendant was in custody at the hospital and after the defendant had been read the Miranda
warnings was an unambiguous and unequivocal invocation of the right to counsel); Schuning,
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399 Ill. App. 3d at 1086-90 (finding that the defendant’s statement requesting to use the
telephone to call his attorney, which was made while defendant was in custody at the hospital
and while police interrogation was imminent, was an unambiguous invocation of the right to
counsel). Suffice it to say, those are not the factual circumstances of the present case.
¶ 45 Second, in the instant case, police officer Kreissler appropriately responded to
defendant’s question or comment about a lawyer, even though under the law Kreissler was not
required to do so (see Davis, 512 U.S. at 461-62) and told defendant that they were not at that
point yet in the interview, that he was going to get to that point, and that he would be reading
defendant his Miranda rights. Within about 30 seconds after defendant’s question, Kreissler did,
in fact, read the Miranda rights to defendant, including the right to have an attorney present
during the interview. Defendant indicated that he understood those rights; placed his initials next
to the statement of each right; signed the Miranda form; and agreed to talk to the police, without
making any further mention of an attorney.
¶ 46 Third, in the present case, there is no indication that defendant’s statements to the police
were truly involuntary. See Martin, 236 Ill. App. 3d at 121-22. Indeed, defendant has not
claimed as much.
¶ 47 Fourth, we agree with the trial court that the determination whether to file a motion to
suppress in the present case was an exercise of trial strategy by trial counsel and was not,
therefore, subject to a claim of ineffective assistance of counsel. See id. at 121. Trial counsel
indicated at the hearing on defendant’s motion for new trial and on defendant’s claims of
ineffective assistance that she did not move to suppress the first statement, which had been
recorded, because it was beneficial to defendant’s case in that it corroborated defendant’s alibi
defense. As for defendant’s second and third statements, trial counsel indicated that she did not
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move to suppress those statements because, in her opinion, there was no basis to do so since
defendant had been Mirandized and the statements did not appear to be involuntary.
Furthermore, as the record clearly indicates, this is not a case where defense counsel failed to
conduct meaningful adversarial testing of the State’s case. See Perry, 224 Ill. 2d at 355-56.
¶ 48 Fifth, for the reasons set forth above, we also agree with the trial court that it is not likely
that defendant’s trial counsel would have prevailed on a motion to suppress the statements had
such a motion been filed. See Miranda, 384 U.S. at 444-45; Winsett, 153 Ill. 2d at 349; Davis,
512 U.S. at 454-44, 462; Shabaz, 579 F.3d at 816-19; Wysinger, 683 F.3d at 788-96; Lord, 29
F.3d at 1220-21; Krueger, 82 Ill. 2d at 307-09, 311-12. Thus, defendant is unable to establish any
prejudice from trial counsel’s failure to file a motion to suppress the statements that defendant
made to police. See Patterson, 217 Ill. 2d at 438.
¶ 49 Sixth and finally, based upon the record in this case and the applicable legal principles as
set forth above, we conclude that the factual findings made by the trial court after the third-stage
evidentiary hearing were well supported by the record and the legal determinations made by the
trial court were consistent with the current state of the law on the issues presented. We do not
agree with defendant’s assertions to the contrary. To a large extent, defendant places too much
reliance on this court’s previous ruling in this case—where a majority of this court held
essentially that defendant’s pro se postconviction petition was sufficient to state the gist of a
constitutional claim. See Brickhouse, 2013 IL App (3d) 110584-U, ¶¶ 2, 26. In making that
ruling, the court majority found that “[u]nder the lower standard of review of a first-stage
postconviction petition, defendant’s statement [about a lawyer], viewed in light of the instant
scenario, could be construed as an invocation of defendant’s right to counsel.” Id. ¶ 29. In a
third-stage postconviction proceeding, however, which is what is currently before this court in
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the instant appeal, the allegations in the postconviction petition are no longer taken as true and
the defendant must prove by a preponderance of the evidence that he suffered a substantial
violation of his constitutional rights. Compare People v. Hodges, 234 Ill. 2d 1, 10 (2009) (stating
the legal rules that apply in a first-stage postconviction proceeding), with Williams, 2017 IL App
(1st) 152021, ¶ 22 (stating the legal rules that apply in a third-stage postconviction proceeding).
As the trial court implicitly found, defendant failed in that burden here.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee
County.
¶ 52 Affirmed.
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