On the evening of July 23, 1993, the East St. Louis fire department answered a call to a house fire and found the body of Faith Davis, seventeen, who had been stabbed and sexually assaulted before the fire was set. A trail of blood ran from her house to the house next door, where a twenty-two-year-old named Lorenzo Fayne was living with his grandmother. He was arrested the next morning and handed over to Joe Bates, a special agent of the Illinois State Police. Over the next three weeks, held in the St. Clair County jail on a burglary charge, Fayne talked to Bates again and again, sometimes after waiving his rights and once, at his own insistence, only after Bates signed a note promising that the conversation was "completely confidential." He told Bates he had information that would shock him. On August 10 a forensic scientist matched a fingerprint lifted from the thigh of Aree Hunt, a six-year-old beaten to death in July 1989 in a case that had never been solved, to Fayne. The next morning he confessed to killing the boy, and within days he had given written statements about four more killings: Faith Davis, Fallon Flood, who was nine, Glenda Jones, seventeen, and Latonda Dean, fourteen.
The two opinions reproduced here, both written for the Fifth District by Justice Goldenhersh, deal with what followed. The Hunt case was tried first, in August 1994. Fayne pleaded insanity, and the jury rejected it and convicted him, found him eligible for death, and then could not agree to impose it, so the judge sentenced him to natural life. In 1996 the court affirmed, holding that his right to a lawyer on the burglary charge had never attached to the Hunt investigation and that he had reopened the conversations with police himself, and it noted what his note-signing showed: he understood exactly what the Miranda warnings were for. He then argued that the Hunt jury, having heard evidence of all five murders at sentencing, had already decided he should not die, so the State could not ask for death again. In 1998 the court rejected that, relying on the Illinois Supreme Court's rulings in the case of Patrick Page.
The opinions end there. In 2001 a St. Clair County jury convicted Fayne in the remaining cases and sentenced him to death. In January 2003 Governor George Ryan commuted every death sentence in Illinois, and Fayne's became life without parole. The 1998 opinion records what the Hunt jury heard in mitigation: a mother who drank and used drugs through her pregnancy and beat him with broom handles and extension cords, a stepfather who once choked him unconscious, a rape by an older neighborhood boy when he was seven, and experts who described brain damage and a low IQ. It also records, in the words of his own statements, what he did to the four girls.
The facts in both opinions come almost entirely from Fayne's own confessions and from the testimony of the agents who took them. The courts were not deciding whether those confessions were true. The 1996 opinion decided that the statement about Aree Hunt was lawfully obtained, and the 1998 opinion decided a single question of double jeopardy before the other four cases went to trial; neither reached the evidence in those four cases, which the 1998 court summarizes only as the Hunt jury heard it at sentencing. The trials in 2001 and the commutation in 2003 came after both opinions and are not in them. The later Milwaukee charge over the 1989 death of Rita Scott is not mentioned in either.
Aree Hunt, Faith Davis, Fallon Flood, Glenda Jones and Latonda Dean are named because the courts named them, with their ages. Most of them were children, and the 1998 opinion describes how each was found, in terms a reader should be ready for. The one error of names in the text is the court's: in its account of the August 11 statements the 1996 opinion calls the youngest girl "Latrondra Dean," while every other mention, and the 1998 caption of her case, reads Latonda. Fayne's mother, grandmother and sister, who testified about his childhood, are not named in either opinion, and neither is the older boy who raped him.
Both opinions are rulings of the Appellate Court of Illinois, Fifth District, and are public records that anyone may read, quote or reproduce. The text is the Caselaw Access Project's copy of the official Illinois Appellate Court Reports. It was typeset, not scanned, and it needed no repair; the cause numbers keep the reporter's own spacing and long dashes. The opinions appear in the order they were decided, the 1996 appeal of the Hunt conviction first, and each carries its own list of the lawyers who argued it.
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO FAYNE, Defendant-Appellant.
Fifth District
No. 5—94—0671
Opinion filed July 16, 1996.
Rehearing denied September 16, 1996.
John J. O’Gara, Jr., of State Appellate Defender’s Office, of Belleville, for appellant.
Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and J. Stephen Bennett, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
[OPINION BY JUSTICE GOLDENHERSH type=majority]
JUSTICE GOLDENHERSH
delivered the opinion of the court:
Following a jury trial in the circuit court of St. Clair County, defendant, Lorenzo Fayne, was convicted of first-degree murder in the killing of Aree Hunt, age six. The jury found defendant eligible for the death penalty but ultimately recommended a sentence other than death. The trial court sentenced defendant to natural life in the Department of Corrections. Defendant now appeals his conviction, arguing that the trial court erred in denying defendant’s motion to suppress his confession because (1) defendant invoked his right to counsel, but custodial interrogation did not cease, and (2) defendant’s rights to due process and equal protection under the United States and Illinois Constitutions were violated and, consequently, all Miranda waivers are invalid. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We affirm.
I
The facts of this case are as follows. On July 24, 1993, defendant, age 23 at the time of trial, was arrested in conjunction with the murder of another victim, Faith Davis. All told, defendant would confess to five murders in the Metro-East area. The East St. Louis fire department was called to the home of Davis in order to extinguish a fire. Upon investigating that fire, it was determined that Davis had been murdered. A trail of blood led from the home of Davis to the home of defendant’s grandmother, where defendant was residing. After police talked to witnesses, defendant was arrested and brought in for questioning. The East St. Louis police department contacted the Illinois State Police to assist in the investigation.
Special Agent Joe Bates of the Illinois State Police, an 11-year veteran of the Illinois State Police, interviewed defendant for the first time on the morning of July 24, 1993. Questioning took place at the East St. Louis police department. Defendant was given his Miranda warnings at 10:45 a.m. and made a statement at 11:50 a.m. Defendant implicated himself in a burglary at the home of Faith Davis, but not in her murder. Bates immediately told defendant that he did not believe what defendant told him and that he would see to it that defendant was placed in jail if defendant was at all involved in her death.
On July 25, 1993, Bates applied for an arrest warrant and a search warrant, both of which were issued. On July 26, 1993, defendant was arraigned by a judge other than Judge Donovan on the charge of residential burglary. The defendant was charged by criminal complaint. No record of that proceeding exists, other than a court order reflecting the arraignment and a plea of not guilty. The order fails to reflect whether defendant indicated private counsel, whether the public defender was appointed, or whether the issue of counsel even arose.
On July 27, 1993, Bates, along with Detective Crenshaw of the East St. Louis police department, went to the jail to talk with defendant. At that time, police officers failed to give defendant the Miranda warnings, and defendant indicated that he did not want to talk about the case. On Thursday, July 29, 1993, Bates returned to the jail to talk to defendant. Bates did advise defendant of his Miranda rights at this time. According to Bates, defendant indicated that he understood his rights and waived them. Bates testified at the suppression hearing that defendant orally confessed to killing Faith Davis and told Bates he would give a written statement on the following day. Defendant also told him he had other information which would shock Bates. Bates testified that as he was leaving the jail on July 29, 1993, defendant requested him to come back the next day. Bates specifically stated: "He told me that he liked me. I seemed to be like the big brother that he never had. I was the only one that would really listen to him. And he seemed to be very comfortable with me.”
On Friday, July 30, 1993, Bates again met with defendant. Bates attempted to give defendant the Miranda warnings again, but defendant did not want to be given the warnings. According to Bates, defendant did not want to take his rights but just wanted to talk. Defendant told Bates that if he waived his rights, what he told Bates could be used in court, but if he did not receive the Miranda warnings, the statement could not be used in court. Defendant requested that a note be signed by Bates indicating the confidential nature of their meeting. Bates testified that in his previous 11 years with the Illinois State Police, a suspect had never made such a request. Bates was unsure how to handle such a situation, but he ultimately signed a note which stated: "This conversation is between Lorenzo Fayne and S.A. Bates and no one else. It is completely confidential.” During the ensuing conversation, defendant talked openly to Bates again, admitting involvement in the Davis murder. At the end of the conversation, defendant requested information on the possible punishments he would receive if convicted of homicide. Bates informed defendant that only the State’s Attorney could comment on possible punishment. Defendant then requested to talk with a State’s Attorney.
On Monday, August 2, 1993, Bates, accompanied by an assistant State’s Attorney, Jim Stern, went to the St. Clair County jail and met with defendant. Defendant was given his Miranda warnings, via a written form which defendant initialed. After signing the waiver of his Miranda rights and being introduced to Stern, defendant asked, "Where is my lawyer?” Bates told defendant he would call the public defender’s office and have a public defender sent over to the jail. Stern then explained that if the public defender had not been assigned to the case, "they probably will not come.” Bates told defendant, "If one has not been assigned to you, you heard him, they won’t come.” Bates and Stern then prepared to leave the interview room. Bates buzzed the guard and the two waited for the door to open. As they waited, a general conversation occurred in which Bates explained to defendant that other police officers would come by to talk to defendant about other cases. Defendant shrugged his shoulders and stated: "So what, do they think I’m crazy?” When the door to the interview room was opened, Stern left. Defendant requested Bates to "hold up for a minute.” Defendant explained to Bates that the assistant State’s Attorney made him nervous and that next time Bates should come back alone. However, defendant knew from previous conversations with Bates that Bates was going on vacation and was in charge of a family reunion. Defendant did not want his case to interfere with Bates’s vacation. Defendant told Bates to come back on August 16, 1993, after Bates’s vacation and, at that time, defendant would give Bates a written statement in regard to the Davis murder.
On Wednesday, August 4, 1993, Agent Calvin Dye, Bates’s partner, received a call at headquarters from someone identifying himself as defendant and requesting Bates to come to the jail and talk to him. On August 10, 1993, Master Sergeant Robyn Blaha, who had been conducting an ongoing investigation in the instant case, the murder of Aree Hunt, was informed by a forensic scientist that a latent print recovered from the thigh of Aree Hunt matched the fingerprint of defendant. Hunt was murdered in July 1989, and the case remained unsolved. Blaha contacted Bates and the two arranged to meet at the jail on Tuesday, August 10,1993, at 1 p.m. to interview defendant.
On August 10, 1993, defendant was advised of his Miranda rights. The agents told defendant that his fingerprint matched the latent print recovered from the body of Aree Hunt. Defendant requested time to think about the information and asked the agents to return the next day. On August 11, 1993, Bates and Blaha returned and administered Miranda warnings. At that time, defendant confessed to the murder of Aree Hunt. Defendant gave a written statement describing his involvement in the death of Aree Hunt. The statement began at 8:55 a.m. and concluded at 9:50 a.m. At 11:37 a.m., on the same day, Bates returned and again administered Miranda warnings. Defendant then gave a five-page written statement, confessing to the murder of Faith Davis.
On Friday, August 13, 1993, Blaha and Bates returned to inform defendant of articles which had appeared in the Belleville News-Democrat, a general circulation newspaper. Defendant was upset that his grandmother would read the articles and also that Bates had been called off vacation to talk to him. The conversation ended with defendant telling Bates to return to talk with him on August 16, 1993, when his vacation was over. Defendant wanted Bates to come alone and assured Bates he would give a written statement.
Bates returned to the jail on August 16, 1993, and advised defendant of his Miranda rights at 12:53 p.m. Defendant stated he understood and voluntarily waived his rights. Bates obtained a written statement regarding the death of Fallon Flood. The statement concluded at 2:15 p.m. Defendant was again advised of his Miranda rights at 2:17 p.m. Defendant declared that he understood and waived his rights. Bates then obtained a written statement regarding the death of Glenda Jones. The statement concluded at 4:32 p.m. Defendant was given his Miranda warnings again at 4:36 p.m. and again declared that he understood and waived his rights. Bates obtained a written statement regarding the death of Latrondra Dean. The statement concluded at 7:38' p.m. Defendant was again advised of his Miranda rights at 8:05 p.m. Defendant again stated that he understood and waived his rights. Defendant gave a written statement admitting to the sexual assault of Faith Davis. This statement concluded at 9:08 p.m.
On August 17, 1993, defendant was charged in the instant case, and the public defender was appointed. On January 21, 1994, a motion to suppress defendant’s confession was filed. Motions to suppress were filed in the other cases in which defendant was charged. The motions were combined, and a hearing followed. The trial court found that the police had probable cause to arrest defendant and that defendant’s statements on July 24, 1993, were admissible. The trial court further found that defendant’s sixth amendment right to counsel (U.S. Const., amend. VI) attached at the arraignment on July 26, 1993, and that the murder of Faith Davis was related to the residential burglary charge on which defendant was arraigned. The trial court found that all statements made by defendant on July 27, 1993, were in violation of Miranda and not admissible but that such statements were voluntary and that defendant did not invoke his right to counsel on that date. The trial court then found that under Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988), defendant’s statements on July 29, 1993, were admissible. The trial court found that defendant’s statements on July 30, 1993, were inadmissible because they were in violation of Miranda. However, the trial court found that the July 30, 1993, statements were voluntary and that defendant did not invoke his right to counsel on that date. The trial court found that defendant did invoke his right to counsel on August 2, 1993, but that defendant reinitiated contact with the police on that date, consistent with the requirements of Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). The trial court also found that defendant further initiated contact with the police when he called the Illinois State Police headquarters on August 4, 1993, and requested Bates to return to the jail to talk to him.
The trial court next found that the interrogations on August 10 and 11, 1993, exclusively involved the investigation into the death of Aree Hunt and that the Hunt investigation was in no way related to the residential burglary of July 24, 1993, or to the death of Faith Davis. The trial court, citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), and People v. Hayes, 139 Ill. 2d 89, 564 N.E.2d 803 (1990), found that defendant’s sixth amendment right to counsel did not attach to the interrogations regarding Aree Hunt. The trial court found defendant’s statements on August 10, 1993, and August 11, 1993, admissible. The trial court next found that the statements made on August 13, 1993, were in violation of Miranda and were inadmissible but that such statements were voluntary and that defendant did not invoke his right to counsel. Finally, regarding the eight hours of questioning on August 16, 1993, the trial court found that all such statements were admissible. We note that the statements of August 16, 1993, play no part in this appeal.
Testimony in the instant case began on August 11, 1994, and continued through August 18, 1994. The State called Master Sergeant Robyn Blaha to testify at trial. Defendant again objected to the admission of his confession and renewed his motion to suppress. The motion was denied and defendant’s confession was read to the jury. In his confession, defendant admitted to killing Aree Hunt. Defendant stated he was visiting his grandparents in East St. Louis during the summer of 1989 and was out walking alone one night when he happened upon two young boys. Defendant lured Aree away by asking Aree to show him where someone lived. While walking, defendant "started thinking about how it would feel to break someone’s neck.” Defendant directed Aree underneath an underpass and twisted Aree’s neck until he "heard it break.” Aree went limp but made some gurgling noises, so defendant picked Aree up and slammed his head against a concrete wall. Defendant took off all of Aree’s clothes, sexually assaulted him, and threw his body in some weeds.
Defendant asserted an insanity defense, which the jury rejected by returning a guilty verdict. The jury found defendant eligible for the death penalty but refused to impose it. The trial court imposed a sentence of natural life in the Department of Corrections. Defendant now appeals.
II
Defendant first contends that the trial court erred in denying defendant’s motion to suppress, because defendant invoked his right to counsel but custodial interrogation failed to cease. Defendant argues that he should have been appointed counsel on July 26, 1993, and since the record is void of any discussion of an attorney on that date, we cannot presume that he waived his right to counsel. According to defendant, the ensuing discussions between defendant and Agent Bates, specifically the discussion, without Miranda warnings, of July 30, 1993, and a written agreement between defendant and Bates promising confidentiality, show a systematic deprivation of counsel under both the fifth and sixth amendments of the United States Constitution and article I, sections 2 and 10, of the Illinois Constitution of 1970 and invalidate all Miranda warnings after July 26, 1993. The State replies that the confession of August 11, 1993, was totally unrelated to the oral statement of July 30, 1993, and that defendant was properly given Miranda warnings prior to giving a confession in the death of Aree Hunt. The State contends that there is nothing in the record to show that the second statement is a product of the first statement. If anything, the State believes that the events of July 30, 1993, signify and underscore defendant’s full understanding of his rights and a waiver of these rights due to the frequency they were given during this period of interrogation. Furthermore, Agent Bates specifically told defendant he would go get an attorney, but defendant reinitiated contact before Agent Bates even left the jail. The State concedes that defendant’s sixth amendment right to counsel may have attached to the Davis homicide on July 26, 1993, but his sixth amendment right to counsel did not attach to the prearraignment questioning concerning the Aree Hunt homicide until defendant confessed to the murder on August 11, 1993. The State contends that the trial court properly denied defendant’s motion to suppress his statement confessing to the murder of Aree Hunt. We agree.
The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defence.” U.S. Const., amend. VI. The fifth amendment provides that "[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. Our state constitutional privilege against self-incrimination is found in article I, section 10, of the Illinois Constitution of 1970, which provides, "[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the Supreme Court established a number of guarantees designed to counteract the "inherently compelling pressures” of custodial interrogation. Most importantly for purposes of this appeal, the Miranda decision held that a person under such interrogation has the right to have counsel present. However, Miranda also established that statements elicited during a custodial interrogation are admissible if the prosecution can establish that a suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628. It is well settled that once a suspect asserts the right to counsel, not only must the current interrogation cease, but he may not be approached for further interrogation unless and "until counsel has been made available to him.” Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885. If the police later initiate an encounter without the presence of counsel, assuming there has been no break in custody, the suspect’s statements are presumed involuntary and are thus inadmissible at trial. McNeil, 501 U.S. at 177, 115 L. Ed. 2d at 167-68, 111 S. Ct. at 2208. The trial court found support for its decision in the case of McNeil.
In McNeil, the Supreme Court held that the defendant’s invocation of his sixth amendment right to counsel during a judicial proceeding as to one offense does not constitute the invocation of defendant’s fifth amendment right to counsel under Miranda as to the uncharged offenses. McNeil, 501 U.S. at 176-82, 115 L. Ed. 2d at 167-71, 111 S. Ct. at 2208-11. In support of its holding, the McNeil court offered the following distinctions between the sixth and fifth amendments. First, the court noted that the sixth amendment right to counsel attaches at or after the initiation of adversary judicial proceedings, i.e., a formal charge, preliminary hearing, indictment, information, or arraignment. McNeil, 501 U.S. at 175, 115 L. Ed. 2d at 166-67, 111 S. Ct. at 2207. The fifth amendment right to counsel, however, applies strictly to custodial interrogations and attaches whether or not formal judicial proceedings have been initiated. Second, the McNeil court noted that the purpose of the sixth amendment is to protect an unaided layman at critical confrontations with law enforcement officials who are expert adversaries, after the adverse positions of these parties have been solidified with respect to a particular alleged crime. McNeil, 501 U.S. at 177-78, 115 L. Ed. 2d at 168, 111 S. Ct. at 2208-09. The purpose of invoking the Miranda-Edwards fifth amendment right to counsel, on the other hand, is to protect "the suspect’s 'desire to deal with the police only through counsel.’ ” McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 168, 111 S. Ct. at 2209, quoting Edwards, 451 U.S. at 484, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885. Third, the McNeil court noted that whereas the sixth amendment right to counsel is "offense specific,” which means that it cannot be invoked for all future prosecutions (McNeil, 501 U.S. at 175, 115 L. Ed. 2d at 166, 111 S. Ct. at 2207), the Miranda-Edwards fifth amendment right to counsel is not "offense specific,” which means that once a suspect asserts his right, further police-initiated interrogation as to any offense is prohibited unless counsel is present. McNeil, 501 U.S. at 177, 115 L. Ed. 2d at 168, 111 S. Ct. at 2208, citing Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). Based on these critical distinctions between the sixth and fifth amendments’ right to counsel, the McNeil court found it factually incorrect and inadvisable as a matter of public policy to infer that the invocation of the sixth amendment right to counsel as to one offense constituted the invocation of the fifth amendment right to counsel as to unrelated and uncharged offenses. McNeil, 501 U.S. at 180-81, 115 L. Ed. 2d at 170, 111 S. Ct. at 2210. Our own supreme court has adopted the McNeil decision and has determined that our state’s constitutional privilege against self-incrimination is not broader than its federal counterpart. People v. Perry, 147 Ill. 2d 430, 590 N.E.2d 454 (1992).
After reviewing the facts in the instant case, we conclude that defendant gave the August 11, 1993, statement confessing to the murder of Aree Hunt before his sixth amendment right to counsel with respect to the Aree Hunt case attached. Defendant was arrested on July 24, 1993, in conjunction with the homicide of Faith Davis. On July 26, 1993, defendant was arraigned on a charge of residential burglary in conjunction with the Faith Davis case. Defendant was interrogated numerous times over the course of the next three weeks, but he was not charged with the instant crime until August 17, 1993. We find that on July 26, 1993, defendant’s sixth amendment right to counsel only attached as to the residential burglary charge. We decline to determine whether defendant’s sixth amendment right to counsel in the murder of Faith Davis attached on that day, as that is not the question before us.
Even assuming, arguendo, that defendant’s sixth amendment right to counsel with respect to the Aree Hunt case came into existence with the July 26, 1993, indictment on the residential burglary charge, it would not preclude the admission into evidence of uncounseled statements if defendant knowingly and intelligently chose to communicate with police without the assistance of counsel. Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988).
In Patterson, the defendant claimed that because his sixth amendment right to counsel arose with his indictment, the police were thereafter barred from initiating questioning with him. The Supreme Court disagreed, finding:
"The fact that petitioner’s Sixth Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned. Had petitioner indicated he wanted the assistance of counsel, the authorities’ interview with him would have stopped, and further questioning would have been forbidden ***.” Patterson, 487 U.S. at 290-91, 101 L. Ed. 2d at 271, 108 S. Ct. at 2394.
The Patterson court went on to explain that Miranda warnings given to the defendant were sufficient to make the defendant aware of his sixth amendment right to counsel during post-indictment questioning, so that the defendant’s waiver could be considered knowing and intelligent. Patterson, 487 U.S. at 294-300, 101 L. Ed. 2d at 273-77, 108 S. Ct. at 2395-99.
The question now becomes whether defendant’s fifth amendment right to counsel was invoked. The trial court specifically found that defendant did, in fact, invoke his fifth amendment right to counsel when, on August 2, 1993, defendant asked Agent Bates and the accompanying assistant State’s Attorney, "Where is my lawyer?” The trial court also found that defendant initiated further contact with the police consistent with the requirements of Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. We agree.
Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 169, 111 S. Ct. at 2209. Here, the trial court found that defendant’s statement on August 2, 1993, "Where is my lawyer?” was sufficient to invoke defendant’s Miranda right to counsel. We also believe that defendant’s statement was sufficiently clear to alert both Agent Bates and the assistant State’s Attorney that defendant was requesting an attorney so that, under Edwards, defendant could not have been questioned further until an attorney was present. Bates and Stern both testified that they believed that defendant’s statement was a request for an attorney and, accordingly, halted the interview. Agent Bates and Assistant State’s Attorney Stern showed restraint and sound judgment in halting the interview after defendant asked "Where is my lawyer?”
Edwards, however, acknowledged that a suspect may waive his fifth amendment right to counsel after it is invoked. In order to establish waiver, a two-prong analysis must be considered: first, the preliminary inquiry is whether the defendant initiated the conversation in a manner evincing a willingness and a desire for a generalized discussion about the investigation; and second, the inquiry is whether by the defendant’s initiation of conversation, coupled with the totality of other circumstances, the defendant knowingly and intelligently waived the right to counsel’s presence during questioning. People v. Hicks, 132 Ill. 2d 488, 493, 548 N.E.2d 1042, 1044 (1989), citing Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983).
Here, Agent Bates and Assistant State’s Attorney Stern stopped interrogating defendant when defendant raised the issue of a lawyer. However, after the guard came and the assistant State’s Attorney exited the interview room, defendant requested that Bates "hold up for a minute.” Defendant then told Bates that the assistant State’s Attorney made him nervous but that he wanted Bates to come back alone so that defendant could discuss the Faith Davis murder, and defendant assured Bates that he would give him a voluntary written statement with regard to the murder of Faith Davis. On Wednesday, August 4, 1993, defendant called Bates’s partner and requested that Bates come to the jail to see defendant. Such acts show a desire for a generalized discussion about the case, and the totality of the circumstances indicate that defendant knowingly and intelligently waived his right to counsel.
We do not find Assistant State’s Attorney Stern’s explanation, that if a public defender had not been appointed to defendant, a public defender would not come over to the jail on behalf of defendant, to be coercive. Stern was only pointing out a fact with regard to the day-to-day workings of a public defender’s office. Given defendant’s long history of contact with the criminal justice system, he was certainly well aware that the public defender’s office might not be immediately available and that he would most likely have to wait for a public defender. Furthermore, the statement made by Bates that other officers most likely would come and question defendant was not improper, as Bates was pointing out to defendant what he could expect because of statements made by defendant that he was potentially involved in other unsolved homicides.
Nevertheless, defendant insists that, considering the totality of the circumstances; we must find that the confession is tainted and violative of numerous statutory and constitutional rights. We certainly agree that some of the circumstances surrounding this case raise concerns. For example, it is undeniable that defendant should have been appointed an attorney on July 26, 1993. Section 109—1 of the Code of Criminal Procedure of 1963 directs a judge to advise the defendant of his right to counsel and, if defendant is indigent, to appoint a public defender or other licensed attorney to represent him. 725 ILCS 5/109—1(b)(2) (West 1992). If the record before us indicated that an attorney had been appointed on July 26, 1993, our review of this matter would have been less complicated. If the trial court had simply rubber-stamped the actions of the police thereafter, we would find defendant’s arguments more convincing. However, the trial court’s nine-page order is well reasoned and shows careful consideration of the facts and law. After our review of the record, we cannot say the trial court’s decision is against the manifest weight of the evidence.
On the one hand, we have a defendant who is left in jail for nearly three weeks, without benefit of counsel, prior to confessing to the instant murder. However, over the course of those three weeks, defendant signed numerous Miranda waivers and agreed to oral waivers on other occasions. We also have a defendant who reinitiated contact with police officers on two occasions, once on August 2, 1993, when he asked Agent Bates to "hold up a minute,” and two days later when he called Agent Bates’s partner requesting to speak to Agent Bates. Defendant confessed to the instant crimes after being told that his fingerprint was discovered on the victim’s thigh. He was properly given Miranda warnings on August 10, 1993, and August 11, 1993, in conjunction with his confession in the instant case. Moreover, defendant showed the savvy that only one previously involved in the criminal system would have acquired, by refusing Miranda warnings on at least one occasion so that he could talk to Agent Bates without fear of reprisal and by asking for a note ensuring confidentiality. Defendant’s actions indicate that he, in fact, understood the nature of such warnings and realized that by confessing on August 11, 1993, to the murder of Aree Hunt, without asking for a note and by accepting Miranda warnings, the five-page written statement could be used against him.
For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.
Affirmed.
HOPKINS, P.J., and MAAG, J., concur.
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO FAYNE, Defendant-Appellant.
Fifth District
No. 5—96—0333
Opinion filed October 16, 1998.
Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
[OPINION BY JUSTICE GOLDENHERSH type=majority]
JUSTICE GOLDENHERSH
delivered the opinion of the court:
Defendant, Lorenzo Fayne, was charged in the circuit court of St. Clair County with five separate charges of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 1(a) (now 720 ILCS 5/9 — 1(a) (West 1996))). In cause No. 93 — CF — 785, defendant was charged with the murder of Aree Hunt, age six; in cause No. 93 — CF — 786, defendant was charged with the murder of Faith Davis, age 17; in cause No. 93— CF — 944, defendant was charged with the murder of Fallon Flood, age nine; in cause No. 93 — CF — 945, defendant was charged with the murder of Glenda Jones, age 17; and in cause No. 94 — CF — 66, defendant was charged with the murder of Latonda Dean, age 14. The first case that proceeded to trial was No. 93 — CF — 785. In that case, after a jury trial, defendant was convicted of first-degree murder in the death of Aree Hunt. At a separate sentencing hearing, the jury could not agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The trial court subsequently sentenced defendant to natural life in prison. Defendant’s conviction and sentence were affirmed by this court in People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172 (1996).
In one of the remaining untried cases, No. 93 — CF — 786, defendant filed a motion to dismiss and to bar a death penalty sentencing hearing on the basis that the decision not to impose the death penalty after the murder conviction for the death of Aree Hunt barred any successive capital sentencing hearing. Defendant argued he would be subjected to double jeopardy since in the Aree Hunt sentencing hearing the State had already presented evidence of all the murders. Defendant later filed motions to dismiss in the other remaining cases, No. 93 — CF — 944, No. 93 — CF — 945, and No. 94 — CF — 66. The trial court denied the pretrial motions to dismiss, and the cases were consolidated for appeal. The issue we are asked to address is whether the State is barred from seeking the death penalty in the remaining four cases pending against defendant when the question of whether defendant should be put to death was already decided in No. 93 — CF— 785 and the jury chose to impose a sentence other than death. We affirm.
FACTS
We recite only those facts necessary for an understanding of this appeal. On July 24, 1993, defendant was arrested in conjunction with the murder of Faith Davis, after the East St. Louis fire department was called to the Davis home to extinguish a fire. An investigation of the fire determined that Davis had been murdered. A trail of blood led from Davis’s home to the home of defendant’s grandmother, where defendant was residing. After the police talked to witnesses, defendant was arrested and brought to the East St. Louis police department for questioning. The East St. Louis police department contacted the Illinois State Police to assist in the investigation. Ultimately, defendant confessed not only to the murder of Davis, but also to the murders of four other victims.
The first of the five murder cases to be prosecuted was No. 93— CF — 785. For a full recitation of the facts in that case, see People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172 (1996). Defendant, who was age 23 at the time of that trial, asserted an insanity defense, which the jury rejected by returning a guilty verdict. The State sought the death penalty. A sentencing hearing was conducted from August 16, 1994, through August 18, 1994. At the hearing, the State introduced evidence concerning each of the four remaining murders with which defendant was charged. For example, the State introduced People’s exhibit 39, which contained five- by seven-inch color photographs of each of the five victims defendant was accused of killing, along with each person’s age, residence, date of death, manner of death, and location where the body was found. Graphic pictures of each of the crime scenes and the victims were introduced into evidence over defendant’s objection. In addition to Aree Hunt, defendant’s victims were identified as Fallon Flood, Glenda Jones, Faith Davis, and Latonda Dean.
Flood’s body was found on the floor of a local high school in an abandoned locker room with a belt tightened around her neck and her underwear around her ankles. Defendant’s statement admitting to the murder of Flood was introduced into evidence. In that statement, defendant admitted that he choked Flood and attempted to rape her.
Glenda Jones died as a result of stab wounds. Her body was badly decomposed when it was found. Jones’s body was clothed, but her bra was turned inside out. Defendant’s statement, in which he admitted that he stabbed Jones and had sex with her, was admitted into evidence. In that statement, defendant stated that he first approached Jones with a knife but that later she consented to sex with defendant. According to defendant, Jones even discussed starting a relationship with him. However, something “snapped” in defendant, and he ended up stabbing Jones.
Faith Davis’s nude body was found facedown bent over a coffee table with her knees on the floor and her legs spread apart. She had several stab wounds in her upper chest and back. The crime scene indicated that she died in one area and then was dragged over to the coffee table. A large amount of petroleum jelly was spread on her buttocks, and she had been sexually assaulted. Defendant’s statement admitting to stabbing Davis and then returning to sexually assault her was introduced into evidence.
Latonda Dean’s nude body was found lying in a bathtub. She died as a result of 24 stab wounds, mainly in her chest and abdomen. Defendant’s statement admitting that he raped and stabbed Dean was admitted into evidence.
Defendant presented a number of witnesses in mitigation. The evidence showed that defendant’s mother drank heavily and took drugs throughout her pregnancy with defendant. Defendant’s mother admitted to hitting defendant in the head as a form of punishment. She believed that this was the way to punish a child. It was not until after a child care agency intervened and specifically told her that this was an improper means of disciplining that she realized that anything was wrong with it. Defendant’s mother, a crack cocaine addict and an alcoholic, beat defendant with anything within reach, including broom handles and extension cords. Defendant’s biological father was found in a Veterans Administration mental hospital and is a diagnosed schizophrenic. Defendant has had virtually no contact with him. Defendant’s stepfather was an alcoholic, and he often beat defendant. On one occasion, he choked defendant until defendant lost consciousness.
Defendant’s grandmother and sister testified about the abusive home environment in which defendant was raised. Defendant’s grandmother explained that defendant was raped by a neighborhood boy when defendant was seven years old. The boy who raped defendant was approximately four years older. The police were not called. Instead, defendant’s stepfather beat him after defendant told him that he had been raped. There was testimony that defendant had been raped on other occasions, usually when he was serving time in a juvenile facility for one of his many brushes with the law. Experts testified that defendant has limited intellectual abilities and a low IQ. Defendant suffered brain damage from the beatings to which he was subjected. At the conclusion of the sentencing hearing, the jury could not agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The trial judge then sentenced defendant to natural life in prison. As previously set forth, we affirmed in People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172 (1996).
On March 15, 1996, defendant filed a motion to dismiss and to bar a death penalty hearing in No. 93 — CF — 786, on the basis that defendant would be subjected to double jeopardy because the State had already presented evidence of all five murders in the first sentencing hearing. Defendant argued he could not again be exposed to the death penalty. Defendant later filed the same motion in the remaining three cases. On April 24, 1996, the trial court denied defendant’s motion in No. 93 — CF — 786. On June 5, 1996, the trial court denied defendant’s pretrial motion to dismiss in No. 93 — CF — 944, No. 93 — CF — 945, and No. 94 — CF — 66. The cases were consolidated on appeal. The State moved to dismiss defendant’s appeal on the basis that we lacked jurisdiction. On June 6, 1998, we denied the State’s motion to dismiss.
ANALYSIS
I. JURISDICTION
We first address the State’s ongoing contention that this court has no jurisdiction to hear this appeal. The State maintains that we have no jurisdiction under Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)). However, the State fails to offer any new reasons for dismissal not previously considered in our June 6, 1998, order rejecting the State’s motion to dismiss. The State merely urges us to reconsider our order denying its motion to dismiss. As defendant points out, whether the State is barred from seeking the death penalty in the four remaining cases in which defendant was charged with separate murders will affect each trial in numerous ways, including whether potential jurors can be asked whether they support or oppose the death penalty (see People v. Cloutier, 156 Ill. 2d 483, 622 N.E.2d 774 (1993)) and how many peremptory challenges are granted. In a capital case, 14 peremptory challenges are granted, whereas in cases involving imprisonment, only 7 are granted. 134 Ill. 2d R. 434(d). We find that it would not be a prudent use of judicial resources to wait to determine the double jeopardy issue until sentences are imposed in the remaining four cases. To wait to decide the issue would promote repetitive litigation and waste judicial resources. In addition, Supreme Court Rule 604(f) provides:
“(f) Appeal by Defendant on Grounds of Former Jeopardy. A defendant may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy.” 145 Ill. 2d R. 604(f).
We conclude that Supreme Court Rule 604(f) specifically allows this appeal. Accordingly, we have jurisdiction over this appeal.
II. DOUBLE JEOPARDY
Defendant maintains that the principles of double jeopardy and collateral estoppel bar the State from seeking the death penalty in the remaining four cases pending against defendant because the question whether defendant should be put to death was already decided in No. 93 — CF — 785 and the jury chose to impose a sentence other than death. The earlier proceeding on which defendant relies is the St. Clair County prosecution for the murder of Aree Hunt. In that prosecution, during the first phase of the bifurcated sentencing hearing the jury found defendant eligible for the death penalty, but following the second phase of the sentencing hearing, during which evidence was presented in aggravation and mitigation, the jury could not agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The trial judge then sentenced defendant to natural life in prison. Defendant points out that all these murders occurred in the same county, specifically within a one-mile radius of each other, that “[t]he State referred to defendant as a ‘serial sexual offender,’ ” and that “all of the murders were part of a pattern of behavior repeated for sexual gratification that defendant achieved in conjunction with the person’s death.” Defendant admits that the jury in the first case that went to trial did not have his convictions in the remaining murders to consider in aggravation, but he insists that because it had his confessions, as well as testimony concerning the circumstances of all five murders, the rejection of the death penalty in the first case tried precludes the imposition of the death sentence in any of the remaining four cases. We disagree.
In general, a death penalty acquittal bars the State from seeking the death penalty again on that conviction. Poland v. Arizona, 476 U.S. 147, 90 L. Ed. 2d 123, 106 S. Ct. 1749 (1986); Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981); People v. Davis, 112 Ill. 2d 78, 491 N.E.2d 1163 (1986). The rationale for such a ruling is that the protections afforded by the double jeopardy clause are applicable to defendants in such proceedings because of the trial-type nature of a capital, sentencing hearing. Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981). However, our own supreme court has determined that an earlier decision not to impose the death penalty for a capital murder conviction does not bar the imposition of the death penalty in a later case involving a different murder conviction, even though the earlier sentencing hearing involves the same aggravating and mitigating factors presented at the later sentencing hearing. People v. Page, 155 Ill. 2d 232, 614 N.E.2d 1160 (1993) (Page I); People v. Page, 156 Ill. 2d 258, 620 N.E.2d 339 (1993) (Page II).
Page I and Page II involved the same defendant, Patrick Page. Page was charged with three separate murders. His victims were John Goodman, Andrew Devine, and Charles Howell. In Page I, the defendant was convicted in the circuit court of Cook County of, inter alia, the murder of John Goodman. During the first stage of the sentencing hearing, the State presented evidence of the defendant’s conviction in 1988 in Will County for the murder of Andrew Devine. That murder occurred sometime in 1985. Page I, 155 Ill. 2d at 242, 614 N.E.2d at 1164. The jury determined that the defendant was eligible for the death penalty. 155 Ill. 2d at 243, 614 N.E.2d at 1164. During the second stage of the sentencing hearing, the State introduced additional evidence of the defendant’s criminal history, including the defendant’s confession to the 1985 murder of Charles Howell in Cook County. Howell was murdered in an attempt to cover up the Devine murder. 155 Ill. 2d at 243, 614 N.E.2d at 1164. The defendant argued that the principles of double jeopardy and collateral estoppel barred the imposition of the death penalty in the Goodman murder. The defendant relied on the 1988 Will County prosecution in which he was convicted of the murder of Andrew Devine. 155 Ill. 2d at 270, 614 N.E.2d at 1177. In that prosecution, during the first stage of the sentencing hearing, the same jury that convicted the defendant of Devine’s murder found the defendant eligible for the death penalty. The defendant waived the jury for the second stage of the hearing, and the trial court refused to impose the death penalty, imposing instead a sentence of 60 years in the Department of Corrections. People v. Page, 196 Ill. App. 3d 285, 553 N.E.2d 753 (1990).
In Page I, the defendant argued that the decision not to impose the death penalty in the defendant’s first conviction in Will County for the death of Devine precluded the imposition of the death penalty. Our supreme court disagreed: “[A] sentencer’s rejection of the death penalty in one case *** [does not] establish[ ][,] even on virtually the same record of aggravation and mitigation, the general inappropriateness of that penalty for other murders committed by the same defendant. The issue resolved in a capital sentencing hearing is not whether the defendant, in general, is deserving of the death penalty, but whether the defendant may, and should, be sentenced to death for a particular offense of murder.” Page I, 155 Ill. 2d at 272-73, 614 N.E.2d at 1178. The court in Page I went on to hold:
“That the same evidence in aggravation and mitigation might be admitted at a subsequent sentencing hearing does not alter our view of the matter.
*** We conclude that the favorable decision rendered in the earlier case does not collaterally estop the State from seeking, and obtaining, the death penalty here.” 155 Ill. 2d at 273-74, 614 N.E.2d at 1178.
Likewise, in Page II, our supreme court held that even where a previous court declined to impose the death penalty based on almost identical evidence in aggravation and mitigation, the principles of double jeopardy and collateral estoppel did not bar the imposition of the death penalty in a subsequent murder trial. Page II, 156 Ill. 2d at 285-86, 620 N.E.2d at 1154.
Page II involved the prosecution of the defendant for the murder of Charles Howell. After finding the defendant guilty, the jury found that there were insufficient mitigating factors to preclude the imposition of the death penalty. The defendant was sentenced to death, but the death sentence was stayed pending direct appeal. 156 Ill. 2d at 262, 620 N.E.2d at 343. The court in Page II pointed out that there was a difference in the first case, the Will County case, because even though the sentencing body heard about the other two murders in which the defendant was involved, it found that the defendant did not have a significant criminal history because the defendant had not yet been convicted of the other two murders. The Page II court stated, “[W]here the sentencing body in the instant case considered, in addition to defendant’s confessions to the other two murders he had committed, defendant’s convictions for those murders, the aggravating evidence was substantially greater than that considered by the Will County court.” 156 Ill. 2d at 286, 620 N.E.2d at 354. The same situation is presented in the instant case.
Here, defendant was prosecuted first for the murder of Aree Hunt. During sentencing, defendant’s confessions to the four other murders were introduced, and evidence concerning each of the other four murders was presented, but defendant had not been convicted of any other murder. Furthermore, the characteristics of the five victims — gender, age, and background — varied from victim to victim. While it is true that they were all murdered within a one-mile radius of each other, the set of facts surrounding each murder was different. Accordingly, the only question decided in the first prosecution was whether defendant should be sentenced to death for the murder of Aree Hunt. The question whether defendant should be sentenced to death for any other of the four murders remains to be decided.
Defendant attempts to distinguish Page I and Page II on the basis that the murders there occurred and were prosecuted in different counties. The Devine murder occurred in Will County (Page I, 155 Ill. 2d at 242, 614 N.E.2d at 1164), and the Goodman and Howell murders occurred in Cook County (see Page I, 155 Ill. 2d at 238, 614 N.E.2d at 1160; Page II, 156 Ill. 2d at 262, 620 N.E.2d at 343). We are unpersuaded that this fact in any way makes a difference which would make Page I and Page II inapplicable in the instant case. Relying on Page I and Page II, we find that the earlier proceeding in which defendant was found guilty of the death of Aree Hunt but was not sentenced to death does not estop the State from seeking and obtaining the death penalty in the remaining four cases.
For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.
Affirmed.
RARICK and MAAG, JJ., concur.