People v. Firestine

2019 IL App (5th) 180264

132 N.E.3d 886

433 Ill.Dec. 636

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Anthony FIRESTINE, Defendant-Appellee.

NO. 5-18-0264

Appellate Court of Illinois, Fifth District.

Opinion Filed: July 26, 2019

Attorneys for Appellant, Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square, Belleville, IL 62220; Patrick Delfino, Director, David J. Robinson, Deputy Director, Chelsea E. Kasten, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 628 Columbus Street, Suite 300, Ottawa, IL 61350

Attorneys for Appellee, William E. Carroll, Justin M. Whitton, 111 W. Washington Street, Belleville, IL 62220

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

¶ 1 The defendant, Anthony Firestine, was charged with several offenses in connection with an incident in which two of his brothers were shot. The defendant admitted to police that he shot one of his brothers in the foot. He also admitted firing five additional shots but told police that he did not know whether any of those bullets hit his other brother. He claimed that all six shots were intended as warning shots. The defendant filed a motion to suppress his statement to police, arguing that, after he invoked his right to counsel, the investigating officer continued to ask him questions. The St. Clair County circuit court granted the defendant's motion. The State appeals, arguing that the defendant made only a limited invocation of his right to counsel by stating, "I don't want to answer that question without my lawyer." We affirm.

¶ 2 The events leading to the defendant's arrest took place at the home of his brother, John. The defendant and his son, Mark, went to John's home to confront the defendant's brothers, John and Joe. According to the defendant, Joe owed money to various family members, including him. During the encounter that took place, Joe was shot in the foot, and John was shot in the leg. Both the defendant and Mark were arrested in connection with these events.

¶ 3 During the early morning hours of July 5, 2016, Officer Jeffery Hartsoe questioned the defendant in custody. Officer Hartsoe provided the defendant with the warnings required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), both verbally and in writing. Officer Hartsoe then told the defendant that he was there because his brother Joe had been injured. He explained that other individuals had given him statements about how that happened. Officer Hartsoe told the defendant that he wanted to get his "side of the story" so that he would not have to "rely on only one person's side." The defendant indicated that he wanted to hear what others had said first. When asked why, he told Officer Hartsoe that he wanted to know what people were saying about him. The following exchange then took place:

"OFFICER HARTSOE: Did you shoot your brother, Joe, tonight?

THE DEFENDANT: Did I shoot him?

OFFICER HARTSOE: Mmm hmm.

THE DEFENDANT: No.

OFFICER HARTSOE: Did you shoot him in the foot?

THE DEFENDANT: I don't want to answer that question without my lawyer.

OFFICER HARTSOE: Okay. Did you shoot John?

THE DEFENDANT: Did I shoot John?

OFFICER HARTSOE: Mmm hmm.

THE DEFENDANT: Not that I know of."

¶ 4 Officer Hartsoe continued to question the defendant. He asked the defendant where he was that evening, and the defendant acknowledged that he went to John's house. Officer Hartsoe then asked if his encounter there was good or bad, and the defendant indicated that it was bad. At this point, Officer Hartsoe said, "So tell me about the parts you do want to talk about." In response, the defendant said, "I'll talk about the whole thing."

¶ 5 The defendant then told Officer Hartsoe that he drove to the home of his brother, John, to confront John and Joe. He stated that he drove there in a truck owned by his son, Mark, but he claimed that Mark did not go with him. No one was home, so the defendant returned to Mark's truck to leave. He told Officer Hartsoe that, as he got into the truck to leave, his brother's truck pulled up behind him and three individuals got out of the truck—John, Joe, and an individual he did not know. According to the defendant, all three "charged" at him, and John struck him with a baseball bat. The defendant admitted that he retrieved a pistol from Mark's truck and fired the pistol. He told Officer Hartsoe that he did not fire at anyone in particular, explaining that he was only trying to scare them away.

¶ 6 At this point, Officer Hartsoe asked the defendant if his brothers and the other individual were armed. The defendant stated that he did not know because it was dark. The officer asked how many shots he fired, and the defendant indicated that he fired six shots. Officer Hartsoe said, "You said you fired all six shots. The first one you said you shot to let them know, ‘Hey, I've got a gun.’ What were the other five for?" In response, the defendant admitted that he shot Joe in the foot. Asked whether he also shot John in the leg, he stated that he did not know whether he hit John.

¶ 7 During the interview, the defendant also acknowledged that he demanded money from Joe. He explained that Joe owed him money. He denied that he went to John's house looking for a fight. Officer Hartsoe informed the defendant that his son, Mark, admitted to being at the scene. The defendant acknowledged that Mark was there, but he denied that Mark was involved in the confrontation.

¶ 8 The defendant was charged with three counts of aggravated battery ( 720 ILCS 5/12-3.05(e)(1), (f)(1) (West 2014)), one count of attempted armed robbery (id. §§ 8-4(a), 18-2(a)), one count of aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and one count of aggravated unlawful use of a weapon (id. § 24-1.6(a)(1)). Subsequently, the defendant filed a motion to suppress his statements to Officer Hartsoe. He alleged that he unequivocally invoked his right to counsel early in the interview but "the officer ignored his invocation, and continued questioning him as if had not invoked his right."

¶ 9 The court held a hearing on the motion in April 2018. Officer Hartsoe testified as to his recollections of his interview of the defendant, and a video recording of the interview was entered into evidence. Officer Hartsoe testified that he asked the defendant if he shot someone in the foot. Defense counsel asked him if he could remember the defendant's response. Officer Hartsoe replied, "Paraphrasing, it was somewhere around, ‘I don't want to answer that question without a lawyer or attorney.’ " He acknowledged that he continued to question the defendant immediately, and he acknowledged that he did so without asking the defendant for any clarification concerning his invocation of his right to counsel. Asked if he could recall what types of questions he asked, Officer Hartsoe replied, "Not specifically or verbatim. It would have been details about the rest of his day that evening." He noted that, at some point, he asked the defendant what he was willing to discuss and the defendant answered, "The whole thing." He testified that the defendant did not again request an attorney.

¶ 10 In announcing his ruling from the bench, the trial judge first noted that he had viewed the recording of the interview. He then noted that as soon as the officer "gets to the heart of what these allegations are of the shooting of a family member, it's very clear that the—the defendant is becoming increasingly uncomfortable with the questioning." The court found that the defendant clearly asserted his right to remain silent without the presence of counsel. He then stated, "I believe the police officer just ignored it, he moved on. He stuck on the same things." The court therefore granted the motion to suppress. The court entered a written order to that effect the same day. The State filed a certificate of impairment and the instant appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017).

¶ 11 The fifth amendment to the United States Constitution protects any individual from being " ‘compelled in any criminal case to be a witness against himself,’ " a protection that is applicable during custodial interrogation by the police. Colorado v. Spring , 479 U.S. 564, 572, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (quoting U.S. Const., amend. V, and citing Miranda , 384 U.S. at 460-61, 86 S.Ct. 1602 ). In Miranda , the Supreme Court recognized that, due to the inherently coercive nature of custodial interrogation, procedural safeguards are necessary to protect the privilege against self-incrimination in that setting. Id. (citing Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ). The warnings required by Miranda are intended to ensure "that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time." Id. at 574, 107 S.Ct. 851.

¶ 12 Once a suspect invokes his right to counsel under Miranda , officers must stop questioning him until counsel is present. Edwards v. Arizona , 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (citing Miranda , 384 U.S. at 474, 86 S.Ct. 1602 ). This allows the suspect to "control the time at which questioning occurs, the subjects discussed , and the duration of the interrogation." (Emphasis added.) Michigan v. Mosley , 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

¶ 13 In Edwards , the Supreme Court held that, once a suspect in custody has invoked his right to counsel, all questioning must cease until counsel is present unless the suspect initiates further discussion. Edwards , 451 U.S. at 484-85, 101 S.Ct. 1880. The Court explained that the right to counsel embodied in Miranda is sufficiently important that, once a suspect invokes that right, it warrants "the special protection of the knowing and intelligent waiver standard." Id. at 483, 101 S.Ct. 1880. As such, the Court held that "a valid waiver of that right cannot be established by showing...